Friday, August 06, 2004

Trial by Ordeal in the 21st Century

Daneil Balint-Kurti (AP), "50 Corpses Found in Nigerian Cult Shrines," Seattle Post-Intelligence4 p. A6 (August 6, 2004):
Police believe[] some of the victims -- businessmen, civil servants, and others -- were poisoned. The cult, known as Alusi Okija, is believed to practice a ritual in which people involved in disputes, often over business deals, are exhorted to settle them by drinking a potion they are told will kill only the guilty.
The story is given a slightly different spin in "Police Raid Anambra Community's Deities, Recover Skulls 50 Corpses, Registers of the Dead Discovered in Evil Forest," Africa News (August 6, 2004):
The police in Anambra State on Wednesday raided two deities known as Ogwug-wu-Akpu, and Ogwu-Isiala in Okija, Ihiala Local Government Area of the state arrested 30 priests, including two chief priests ministering to the deities.

[Anambra Police Commissioner Felix Ogbaudu] said ... investigation showed that idol worship had been with the people of Okija for ages and that the deities had existed among them for hundreds of years, adding that even if the intentions of their progenitors, who founded the idols could be culturally noble, their successors were now abusing the process.

In Okija and environs, the commissioner said it was usually their belief that two quarreling camps go before the deity for arbitration and at the end, the one presumed guilty dies within a period of one year. Then, the family of the dead invites the chief priests of the deities to come and remove the body of the dead to the evil forest, having sworn to it to judge him or her before death.

The age-long practice of calling a local cult, he said, was now being abused by their priests, who now use it to kill, instill fear in the minds of the victims and extort money from them under the guise of performing the ritual of cleansing after death, adding that it was possible that people were taken there and hypnotised.

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.
  • Wednesday, August 04, 2004

    (Spiritually Speaking) The Statue of Liberty Is Part of New Jersey

    I have seen news reports that describe the Statue of Liberty as lying at the "foot of Manhattan." This way of talking amounts to literary license (or, possibly, license of a legal sort). The Statue of Liberty lies much closer to Jersey City than to Manhattan. This is a fact known to me (once) by autoptic proference ("the thing shows itself" -- a la John Henry Wigmore). Q.E.D. [But I do wear eyeglasses.]

    I must acknowledge the existence of dissenting opinion. For example: "Some people ... believe that the the [Statue of Liberty] is [in] New Jersey, not New York. This is an urban myth. While Liberty Island is geographically closer to New Jersey than New York, it is part of the Empire State ..."

    Bah, humbug! Propaganda of Empire (State)! See map at

    Against Manhattan's and New York State's imperialistic territorial pretensions, rise Jersey City and New Jersey!

    Jersey City factoid: In the year 2000, 34% of the population of Jersey City was either naturalized or non-naturalized foreign born. See The huddled masses come to Jersey City. They can't afford Manhattan.

  • In the year 2000, 29.4% of Manhattan's population was foreign born. See Q.E.D. -- again!
  • Sunday, August 01, 2004

    What Is Evidence? -- Part 2

    Evidence theorists wonder, "What is evidence?"

    Information theorists wonder, "What is information?"

    One information theorist suggests that information is a thing. See Michael Buckland, Information as Thing.

    Buckland distinguishes information-as-thing from information-as-process and from information-as-knowledge.

    This line of analysis naturally suggests the question: What is the difference between evidence and information?

    It is interesting to see that Buckland seems to say or suggest that is inappropriate to restrict "information" to matter that is informative; he thinks, I gather, that material that is merely potentially informative should be treated as information. Buckland's position is roughly isomorphic to my claim that matter that is only potentially relevant can count as evidence -- that, i.e., irrelevant matter may indeed count as evidence.

    But then what's the bottom line? What is information? Buckland states that "the term 'information' is commonly and reasonably used to denote some population of objects to which some significant probability of being usefully informative in the future has been attributed."

    Hmmm ... let's ruminate about this. (N.B. Buckland includes "events" in "objects.")

    Could or should we say that "evidence" consists of objects (and events) that may be sources of knowledge about facts? Stated otherwise: Is it the case that "evidence" = "evidential source" = "spatio-temporal object or event that potentially adds to knowledge -- including partial knowledge or degrees of knowledge -- about some possible spatio-temporal event or state"?

    Note this last definition still leaves the possibility that almost anything may count as evidence. (But, under this definiton, can principles of mathematics be evidence? Can a mathematician's computations or proofs be evidence? [Should they be?] If not, does the testimony of a mathematician about mathematical principles count as evidence?)