Thursday, August 05, 2004

Is the Law of Evidence the Refuge of Amoral Legal Scholars?

When a yen for theory induces legal scholars in the law of evidence to construct thought-experiments, such scholars usually conjure up problems that focus on issues such as "Who shot Mary Jones?" and "How fast was David Defendant's automobile going when it entered the intersection of Fifth Avenue and 12th Street?"

In the real world of litigation, however, many issues submitted to triers of fact seem to have a different character. For example, jurors are often asked to answer questions such as "Did Albert Accused intend to kill Valiant Victim?" and "Did Della Darling act in good faith?"

Whether or not these two types of questions are in reality fundamentally different is an interesting theoretical question -- and, quite possibly, an important one. When Evidence scholars ponder how factual inference works, however, they generally ignore the question of the nature and extent of the differences among the kinds of questions that are routinely submitted to triers of fact for consideration in the light of evidence; when Evidence scholars theorize about evidence and inference, they instead generally opt to consider thought-experiments that emphasize questions such as "Who shot Mary Jones?"

During the last several decades legal scholars in the U.S. and elsewhere have constructed elaborate theories and they have engaged in extended debates about the nature of rational deliberation and argument about legal norms. However, nothing approaching a scholarly consensus about proper methods of interpreting legal norms has yet emerged. I sometimes wonder if significant numbers of legal scholars have chosen to devote their time and energy to the law of evidence rather than to, say, constitutional law in part because some of them are weary of -- or are cynical about -- the seemingly endless and fruitless debates about legal interpretation.

Do some legal scholars turn to the law of evidence in part because they see a possibility that meaningful debate about proper methods of argument is possible in the case of problems of evidence and factual inference?

I don't know the answer to this question. But I think it is possible that the answer is "yes."

But are such refugees deluded about their chosen home in Evidence? Are problems of factual inference similar to problems of legal interpretation? Do Evidence scholars sustain their epistemological optimism about Evidence scholarship only by ignoring or downplaying the similarities between factual inference and legal interpretation?

A decision to pursue Evidence scholarship in order to avoid normative argument or argument about norms is misguided. Even issues that seem to have the greatest amount of facticity probably have normative components.

If that is the case, what is a disillusioned scholar to do?

Perhaps Evidence scholars should preach the following sort of lesson:

Evidence is pertinent even to legal interpretation. More broadly speaking, even scholarship about legal doctrine merits respect only if such scholarship employs criteria by which the truth or falsity of its claims can be tested.
  • Hans Kelsen was wrong in thinking that legal interpretation is a science. But it would not be a bad thing to reintroduce a bit of the scientific spirit -- and a pinch of the aroma of verificationism -- into theorizing about legal interpretation.
  • Doing so would not stifle imagination and creativity. Great science is done by people with great imagination.
  • Even though subjective judgment pervades all sound argument about states of the world, it is not true that subjectivity -- or intersubjectivity -- is all there is.
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