Discernment: Blurring and visual evidence

Abstract

Researchers thinking about visual evidence in the legal system address quite a variety of empirical questions but share an absorption in the ways in which the evidentiary problem is rooted in the blurring of genres. The blurring is plural: between illustration and proof, between interpretation and requiring an interpretation, between knowledge and perception, and between argument and evidence. Because genres are an intimate and essential part of the functioning of legal processes, such blurrings in turn problematize long-standing practices and the design of governance processes. Their findings are important theoretically, as well, in three ways. They show that the model of fact production processes must begin a step earlier than does the Lockean model of the fact upon which “western” and “modern” society and “science” have relied. The model must continue on beyond where Locke and those who think about the social construction of reality, such as Berger and Luckmann, stop. And “contextual” matters such as warranting, provenance, and authority must be incorporated into our model of the information production chain itself. In combination, what we are learning from research on visual evidence is thus not only invaluable for addressing the profound real-world problems identified by the authors assembled by Sandra Ristovska in this special issue of First Monday and others, but for our understanding of challenges being presented to the nature of governance itself both within and beyond the formal legal system.