The Authority of History for the Modern Law of Proof and Evidence

Question: Should the ancient history of Anglo-American judicial treatment of evidence have substantial authority for the interpretation or formation of 21st century rules governing factual adjudication in litigation?

By "ancient history of Anglo-American judicial treatment of evidence" I am inventing my own terminology for this particular occasion: I am referring to the history of evidentiary practices in English and Colonial courts before ca. 1800.

Written records about legal treatment of evidence in English and Colonial courts before 1800 are fragmentary. Legal historians sometimes believe that a single documentary source or a single set of documentary sources about historical legal practice is decisive. See, e.g., John Langbein's discussion of the "Ryder sources," Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1 (1983) (Langbein extracts some fairly firm conclusions from the Ryder sources).

Despite the seemingly fragmentary nature of the historical record before ca. 1800, there are occasional suggestions that centuries-old English historical practice explains some or many features of the contemporary law of evidence. See, e.g., George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575 (1997) (there is no suggestion in this article that modern evidence law should revert to past historical practice, but there is an intimation in the article that the history that Fisher recounts or propounds should have inverse power: it should serve to debunk some evidentiary practices that persist [if only in a fragmentary way] to this very day in the courtrooms of our land; to make his impressive argument, Fisher relies on some very old legal history).

I wonder if "ancient" legal history (in the realm of the law of evidence) should have such power (whether affirmative or negative). My expertise in legal history is limited or non-existent. But some of the statements that I have heard legal historians make suggest to me that the historical record about the legal treatment of evidence before 1800 is, as I have said, extraordinarily fragmentary. True, we now have some astute legal historians among us -- including, especially, grand figures such as Mirjan Damaska, John Langbein, and, now, George Fisher; and perhaps some or all of these eminent scholars have now got the legal history right (although -- it should be noted -- Langbein and Damaska seem to disagree a bit on some important details). But even if the current generation of legal historians is more talented, more skilled, and better educated than was the prededing generation of legal historians, would it be prudent to resolve important questions of policy and knowledge in the law of evidence today by seeking authoritative answers in the "historical record"?

I wonder.

Just a generation or so ago the conventional understanding of the origins of the privilege against self-incrimination was quite different from the account that Langbein now purveys with considerable success. So perhaps Langbein now has the better argument. But it seems entirely possible to me -- indeed, knowing the ways of academia, it seems more probable than not -- that soon some bold young scholar will arrive on the scene and provide us with a well-argued and well-supported reinterpretation of matters such as the origins and causes of the use of rules of evidence in English criminal trials before 1800. (Indeed, perhaps this process of reinterpretation is already under way.)

The question I am raising is not just (or even primarily) a question about the wisdom of trying to perpetuate or preserve past practice. The question I am raising is about the way that we should use the past to gain insights into contemporary issues in the law of proof and evidence.

The question I mean to raise is this: Is there good reason to think that "ancient" history is of much use when the ancient legal history of legal treatment of evidence is used to try to demonstrate that there are certain general verities about the logic or illogic of certain kinds of attempts to use law to get at the truth of matters such as propositions about the world?

I suspect that the answer to my question is "no."

There are more modest uses of history than the one I am questioning. Some of these more modest uses are extraordinarily valuable. History, for example, certainly serves to liberate or inspire thought: it serves to suggest previously-unimagined possibilities. But the question that interests me here is whether or not legal history can serve as a kind of empirical test -- a very long-running empirical test -- of the validity or invalidity of particular possible modern approaches to evidence and the legal regulation of evidence and proof.

I am skeptical -- for a variety of reasons (methodological as well as inferential) -- of the idea that history can serve as a kind of analogue to the principle of empirical verification in science.

In this post I do not even attempt to address issues such as (i) the potential conflict between the democratic ideal and the authority of the dead and (ii) the possibility that emphasis on Anglo-American legal history now amounts to a kind of gratuitous cultural chauvinism.

Modern human beings are not more stupid than their predecessors. In certain respects we even know more than our ancestors did. It is even possible (though far from certain) that modern advances in the understanding of the mind and of cognate matters such as information, perception, semantics, uncertainty, and probability now enable us to understand just a little bit better than our precursors did how evidence works, how inference works, how evidence and inference work in time, how evidence and inference relate to values and norms, and how "best practices" can improve the ability of societies to get the facts right in a humane fashion.

Given the fragility of the historical record, given the possibility that we have learned something about evidence over the centuries, and given the near-certainty that we are not less intelligent than our forbears, I vote against according (our momentary understanding of) the ancient history of the law of evidence any very substantial influence in debate and argument today about the future of legal regulation of proof and evidence in litigation (or, for that matter, in most other societal contexts and institutions).

N.B. This is my second or third manifesto within the last month or two. But my manifestos, it seems, are not strong enough to provoke a storm of comment and controversy. Is this because I am right?!?