Those law teachers of mine generally seemed to be rather intelligent fellows. And most of them didn't seem to be troubled by the "conflation" (as we say today) of "is" and "ought" in, say, tort law or in the law of property.
Well, then: How are we -- how am I -- to discern and describe the "structure of proof in modern American trials"? (I have said I would write about this topic someday. So I need to answer this question.)
Years ago I swore off Hegel. (I am in distinguished company. For example, Bertrand Russell did so, so did Friedrich Nietzsche, so did Charles Saunders Peirce -- and so did many other 19th and early-20th century luminaries -- after being immersed in the Hegel-Geist.) But -- nonetheless -- I think this: One cannot explain the "structure" of society or law without identifying and discussing the "purposes" of parts of a society or of parts of a legal system.
But where are such purposes to come from?
Am I to take them out of my own solipsistic, narcissistic head?
No. That won't do. (After all, Hegel's rationalistic [effective] solipsism is why I renounced Hegel and people like Hegel. [Beyond that, his logic stinks.])
Purposes must come from facts in the world.
But how do facts -- even social facts -- generate oughts - even social oughts?
Here is a sort of solution: Hegel must be empiricized. Or perhaps re-Aristotelianized.
That is to say: Perhaps by observing some things as they are, we can see some of their functions -- and, having done that, perhaps it is not inappropriate -- or at least not wildly irrational -- for us (some of us) to regard some such functions as admirable functions, our functions, viz., our (social and perhaps even individual) purposes.
There are functions everywhere. Natural organisms are full of functions. (Aristotle noticed this a very long time ago. [I am not, of course, speaking of mathematical functions.])
Societies (it has often been said) are analogous to organisms. Be that as it may, different parts of society seem to have some functions. Perhaps, by close observation, one can identify some of the functions of at least some parts of some societies -- and perhaps one can call some of those functions "purposes."
Perhaps -- furthermore -- there are some relatively invariant functions. For example: Perhaps some human electro-neuro-biological processes have pretty much the same functions everywhere on the current version of our planet earth.
And perhaps there are some constraints -- e.g., time -- that are with us at all times (so to speak).
But contingency is there too, no? For example, some legislator has a bad day and her staff puts clumsily-drafted language into a bill that neither she nor any other legislator actually reads. Voila: a rape shield law has been amended.
Furthermore, social purposes are fuzzy determinants of social and legal phenomena.
So what do we have? This: a mixture of fact, accident, necessity, function, and purpose.
But this abstract conclusion really doesn't tell us very much, does it, about "the structure of proof in modern American trials"? It only provides a rough framework for a way of trying to study the structure of proof in modern American trials. Isn't that right, Dear Reader?
But this framework -- as little as it is -- is -- in any event -- what it is: a framework. And perhaps that's good for something.
Enough! It's time to get on (again) with the treatise on proof. I'll report on my progress (or lack thereof) later.