Epistemic modality in court judgments: A corpus-driven comparison of civil cases in Hong Kong and Scotland

Abstract

Most previous studies of epistemic modality in legal settings discuss epistemic modality as performing an interpersonal engagement or a positioning function. Via a probability test, the present corpus-driven study examined the way in which epistemic modality is employed in civil judgments to construct legal facts and to indicate legal probability. The study compared how different types of epistemic modality are used in judicial practice in different jurisdictions, namely Hong Kong, which is a common law jurisdiction, and Scotland, which is a mixed jurisdiction. Specifically, we examined the variation in the orientation of epistemic modality, that is, whether implicit or explicit and whether subjective or objective, and the variation in the value of epistemic modality, that is, high, median, or low. The findings suggest that both subjective epistemic modality and objective epistemic modality are employed in adjudication where the judges decide the degree of probability, and the value distribution of epistemic modality indicates that the same standard, that is, the balance of probability, is adopted in Hong Kong and Scotland. We propose an integrated framework of principle of proof and discuss the continuum of probability in law. Based on the conclusions, we propose pedagogical implications for English for Legal Purposes.