Wednesday, August 01, 2007

Professor Larry Laudan Searches for Legal Epistemology and Can't Find It

I see that Prof. Larry Laudan wrote in Chapter 1 of his book Truth, Error, and Criminal Law, An Essay in Legal Epistemology (Cambridge University Press 2006):
The effort to answer that question constitutes what, in the subtitle of this book, I have called “legal epistemology.” Applied epistemology in general is the study of whether systems of investigation that purport to be seeking the truth are well engineered to lead to true beliefs about the world. Theorists of knowledge, as epistemologists are sometimes known, routinely examine truth-seeking practices like science and mathematics to find out whether they are capable of delivering the goods they seek.

Legal epistemology, by contrast, scarcely exists as a recognized area of inquiry. Despite the nearly universal acceptance of the premise that a criminal trial is a search for the truth about a crime, considerable uncertainty and confusion reign about whether the multiple rules of proof, evidence, and legal procedure that encumber a trial enhance or thwart the discovery of the truth. Worse, there has been precious little systematic study into the question of whether existing rules could be changed to enhance the likelihood that true verdicts would ensue. Legal epistemology, properly conceived, involves both a) the descriptive project of determining which existing rules promote and which thwart truth seeking and b) the normative one of proposing changes in existing rules to eliminate or modify those rules that turn out to be serious obstacles to finding the truth.

Gosh, I had the impression that the "new evidence scholarship" had something to do with epistemology. And this sort of evidence scholarship has been around for a while, for at least several decades. (It's no longer very new. Indeed, some observers said it was never very new -- that it has really been around since ca. the 17th century, and perhaps since Aristotle. Id.) But I guess I must be mistaken. Perhaps the so-called new evidence scholarship just isn't systematic enough to make into the pantheon of "legal epistemology"? Or perhaps it's not old enough to make the grade? I'll have to consult Jim Franklin about this.
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