Epistemology and the Law of Evidence

Abstract

As for the philosophers, they make imaginary laws for imaginary commonwealths; and their discourses are as the stars, which give little light, because they are so high. —Francis Bacon Even today, more than four centuries later, Bacon’s complaint still resonates. Now, as then, the writings of philosophers—even of philosophers of law, who might be expected to be a little more grounded in the real world—all too often “give little light, because they are so high.” I will try to buck this trend by showing you that epistemological ideas really can illuminate real-life legal issues. IDENTIFYING EPISTEMOLOGICAL ISSUES IN THE LAW Every legal system needs, somehow, to determine the truth of factual questions. At one time, courts in England and continental Europe relied on in-court tests—“proof” in the old meaning of the English word (a meaning that still survives in descriptions of liquor as “80% proof,” and in the old proverb “the proof of the pudding is in the eating”). In trial by oath, a defendant would be asked to swear on the testament or on a reliquary that he was innocent, and “oath-helpers” or “con-jurors” might be called to swear that his oath wasn’t foresworn; in trial by ordeal, a defendant might be asked, e.g., to pick up a ring from the bottom of a cauldron of boiling water, and his arm would later be checked to determine whether it had healed cleanly or had festered—which supposedly showed that he was guilty; in trial by combat, the two parties to a case would literally fight it out.