An annotated bibliography of legal epistemology.

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

This book introduces readers to the legal epistemology that is advocated within Twelver Shi'ite usul al-fiqh (legal theory). It critically surveys the epistemological underpinnings upheld by post-19th century Uṣūlīclerics that impel them to mainly deduce and interpret Sharia using scripture and literalist hermeneutical methods. An evaluation of these underpinnings uncovers the important juxtaposition that exists between the seminarian discourses of usul al-fiqh and philosophy. The book hypothesises that usul al-fiqh has both space and historical precedence to accept (...) alternative epistemological theories that may enable orthodox Shi'ite clerics to display greater dynamism in deducing and interpreting Sharia. (shrink)

This paper argues that formal models of coherence are useful for constructing a legal epistemology. Two main formal approaches to coherence are examined: coherence-based models of belief revision and the theory of coherence as constraint satisfaction. It is shown that these approaches shed light on central aspects of a coherentist legal epistemology, such as the concept of coherence, the dynamics of coherentist justification in law, and the mechanisms whereby coherence may be built in the course of (...) legal decision-making. (shrink)

This article deals with varieties of epistemological methods in calculating days of lunar calendar, mainly on the beginning date of months. Examining different methods in Indonesian Islamic-scape, it argues that there are three epistemological models which are rooted at Islamic classical epistemologies; the ahl al-hadith, the ahl al-ra‎y, and the intuitive sufi. The ahl al-hadith emphasizes on the empirical rukyatul-hilal, whereas the ahl al-ra’y strongly concerns on the mathematically rational method. The sufi, not so popular in Indonesia but influential in (...) some sufi circles, deploys the intuitive kashf method. In some cases, these three are however intertwined and in contradiction one to another. The article futher argues that different method-in-use is strongly influenced the local spesificties of diverse Indonesian Muslim’s backgrounds, and groupings. (shrink)

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first (...) integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)

This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions, but rather that what is taken by a judge resolving a particular dispute to be the content (...) of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as `thick resources with dynamic content'. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law's past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present. (shrink)

How does a lawyer think? Does legal intuition exist? Do lawyers need imagination? Why is legal language so abstract? It is no longer possible to answer these questions by applying philosophical analysis alone. Recent advances in the cognitive sciences have reshaped our conceptions of the human mental faculties and the tools we use to solve problems. A new picture of the functioning of the legal mind is emerging. In The Legal Mind, Bartosz Brożek uses philosophical arguments (...) and insight from the cognitive sciences to depict legal thinking as a close cooperation between three cognitive mechanisms - intuition, imagination, and language - and addresses the question of how to efficiently use these mental tools. This novel and provocative approach provides a fresh perspective on legal thinking and gives rise to important questions pertaining to the limits of legal interpretation and rationality in the law. (shrink)

Rehearing Daubert on remand from the Supreme Court, Judge Kozinski introduced a fifth "Daubert factor" of his own: that expert testimony is based on "litigation-driven science" is an indication that it is unreliable. This article explores the role this factor has played in courts' handling of scientific testimony, clears up an ambiguity in "litigation-driven" and some uncertainties in "reliable," and assesses the reasons courts have given for reading such research with suspicion. This analysis reveals that research that is litigation-driven in (...) the stronger of the two senses distinguished is inherently less likely to be evidentially reliable; but also that it is so hard to determine whether research is litigation-driven in this strong sense that this new Daubert factor is not as helpful as Judge Kozinski imagined. (shrink)

The primary aim of this paper is to defend the Lockean View—the view that a belief is epistemically justified iff it is highly probable—against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections—The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative (...) Probabilities Argument—but argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing. (shrink)

This essay is an accessible introduction to the proof paradox in legal epistemology. -/- In 1902 the Supreme Judicial Court of Maine filed an influential legal verdict. The judge claimed that in order to find a defendant culpable, the plaintiff “must adduce evidence other than a majority of chances”. The judge thereby claimed that bare statistical evidence does not suffice for legal proof. -/- In this essay I first motivate the claim that bare statistical evidence does (...) not suffice for legal proof. I then introduce and motivate a knowledge-centred explanation of this fact. The knowledge-centred explanation rests on two premises. The first is that legal proof requires knowledge of culpability. The second is that one cannot attain knowledge that p from bare statistical evidence that p. To motivate the second premise, I suggest that beliefs based on bare statistical evidence fail to be safe—they could easily be wrong—and bare statistical evidence cannot eliminate relevant alternatives. -/- I then cast doubt on the first premise; I argue that legal proof does not require knowledge. I thereby dispute the knowledge-centred explanation of the inadequacy of bare statistical evidence for legal proof. Instead of appealing to the nature of knowledge, I suggest we should seek a more direct explanation by appealing to those more foundational epistemic properties, such as safety or eliminating relevant alternatives. (shrink)

Jeremy Bentham's powerful metaphor of Injustice, and her handmaid Falsehood reminds us, if we need reminding, that justice requires not only just laws, and just administration of those laws, but also factual truth - objective factual truth; and that in consequence the very possibility of a just legal system requires that there be objective indications of truth, i.e., objective standards of better or worse evidence... My plan [in this Olin Lecture in Jurisprudence, presented at Notre Dame law School, in (...) October 2004] is to sketch some epistemological themes of mine, and explore their bearing on two familiar, radical epistemological criticisms of our legal system: (i) that an adversarial system is an epistemologically poor way of determining the truth; and (ii) that exclusionary rules of evidence are epistemologically undesirable. Neither criticism, I shall argue, is decisive; both, however, throw harsh light on disturbing aspects of the way our adversarial system actually functions. (shrink)

What we here show is two-fold. First, there is in certain sectors of the legal community a trend to pronounce negatively on the epistemic credentials of religious belief: many hold that religious belief as such is simply irrational. Our second claim is simply that religious belief need not be irrational: it is perfectly possible for religious believers to have epistemically justified religious beliefs. We discuss here several implications of our two-fold claim. The most important of these is simply that (...) religious citizens’ religious beliefs cannot be barred from the public square for any epistemological reason. (shrink)

The rhetorical view suggests that the goal of factual ar- gumentation in legal proceedings is to persuade the fact-finder about the facts under litigation. However, R does not capture our social expecta- tions: we want fact-finders to know the facts justifying their decisions, and persuasion does not necessarily lead to knowledge. I want to present an epistemic theory of argumenta- tion honoring our expectations. Un- der my account, factual argumenta- tion aims to transmit knowledge to the fact-finder.

Taking as a point of departure Maturana’s model of cognition, and combining it with his own general approach to the law, which he calls “Legal Constructivism”, the author analyzes the complex dynamics of judicial proof in terms of explaining how judges cognitively process the evidence put forward by the parties during a trial.The author advances the view that judges, just as scientists do, belong to a certain cognitive community, that is, to a certain judicial cognitive community. The main cognitive (...) activities of its members are a combination of cognitive structure-matching procedures and operational closures which are both regulated by the community’s autopoietic rules.Under his analysis, evidence is a cognitive construct. Its symbolic significance and weight is determined by how it fits within the context of a partic- ular set of relations between elements such as the type of disputing parties, the type of claims and arguments made by them, and so forth.Determining if a factual assertion can be considered proven or not under the author’s model is the result of a cognitive operational closure that amounts to take into consideration the dialogical and defeasible carácter of legal argumentation.Resumen:Tomando como punto de partida el modelo del fenómeno de la cognición de Humberto Maturana, y combinándolo con su propia propuesta teórica acerca de cómo entender al derecho (a la que denomina “Constructivismo Jurídico”), el autor analiza la compleja dinámica de la prueba judicial en términos de la manera en que la evidencia que las partes aducen en un juicio es cognitivamente procesada por los jueces.El autor sostiene que, tal como sucede con los científicos, los jueces pertenecen a comunidades cognitivas. Sólo que, en su caso, se trata de comunidades cognitivas judiciales. La principal actividad cognitiva de estas comunidades consiste en una combinación de acoplamientos estructurales y clausura de operaciones cognitivas, las cuales son guiadas por las reglas autopoiéticas de la comunidad en cuestión.En el modelo del autor, la evidencia es un constructo cognitivo, cuyo significado simbólico y peso están determinados por la manera en que la evidencia encaja en un contexto particular de relaciones entre varias clases de elementos, como el tipo de partes en conflicto, el tipo de pretensiones, el tipo de argumentos que ofrecen, etcétera.Determinar si una proposición fáctica puede considerarse probada o no es el resultado de una clausura de operaciones cognitivas, la cual implica tomar en cuenta el carácter dialógico y derrotable de la argumentación jurídica. (shrink)

"This collection is the first book-length examination of the various epistemological issues underlying legal trials. Trials are, among other things, centrally concerned with determining truth: whether a criminal defendant has in fact culpably committed the act of which they are accused, or whether a civil defendant is in fact responsible for the damages alleged by the plaintiff. But are trials truth-conducive? Assessing the value of trials as truth-seeking endeavors requires that we consider a host of underlying social epistemological questions. (...) The contributors to this volume address a number of these pressing questions, including but not limited to the following: How much credence should they give to eyewitness testimony? How should we balance the relative epistemic value of testimony offered by defense witnesses and prosecution witnesses? Are juries an effective means of arriving at justified beliefs about a defendant's guilt or innocence? When, if ever, is statistical information about a defendant's character relevant? What degree of certainty should we require to support a verdict of 'guilty'? How should standards of proof be interpreted for allegations that contain numerous discrete components? The Social Epistemology of Legal Trials will be of interest to scholars and upper-level students working on issues at the intersection of epistemology and philosophy of law"--. (shrink)

This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence-Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of medicine (...) and legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation. (shrink)

The article seeks to instantiate the distinctive features and basic research strategies in legal ontology as they are presented in the early works by the famous Oxford philosopher of law Herbert Hart, published before his major book The Concept of Law. The author tries to isolate the most salient aspects of the analytical legal tradition applicable to Russian legal theory, which can bridge the existing gap between these approaches despite considerable difference both in their background and methodology.

In the movieRegarding Henry, the main character, Henry Turner, is a lawyer who suffers brain damage as a result of being shot during a robbery. Before being wounded, the Old Henry Turner had been a successful lawyer, admired as a fierce competitor and well-known for his killer instinct. As a result of the injury to his brain, the New Henry Turner loses the personality traits that had made the Old Henry such a formidable adversary.

This book is a comprehensive analysis of the major intellectual positions in the philosophical debate on Islamic law that is occurring in contemporary Iran.

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases suggests (...) standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

Scholarship in experimental jurisprudence has reported surprising findings about various concepts of legal significance: _acting intentionally_, _causation_, _consent_, _knowledge, recklessness_, _reasonableness,_ and _law_ itself. Often, these studies examine laypeople’s ordinary concepts and draw broader conclusions about legal experts’ concepts. This Article questions such inferences, from empirical findings about ordinary concepts to conclusions about the concepts of those with legal expertise. It presents a case study concerning what it means to act _intentionally._ An experiment examines intentionality judgments across (...) four populations (N = 774): laypeople, law students, non-law students, and United States judges. Legal training affected judgments in three ways that are consistent with the acquisition of a distinctive legal concept. This case study supports the Article’s broader claim: Laypeople’s ordinary concepts are not equivalent to experts’ legal concepts. The acquisition of legal concepts is an important form of legal expertise. (shrink)

In this article applied and theoretical epistemologies benefit each other in a study of the British legal case of R. vs. Clark. Clark's first infant died at 11 weeks of age, in December 1996. About a year later, Clark had a second child. After that child died at eight weeks of age, Clark was tried for murdering both infants. Statisticians and philosophers have disputed how to apply Bayesian analyses to this case, and thereby arrived at different judgments about it. (...) By dwelling on this applied case, I make theoretical gains: clarifying and defending pragmatic principles of inference that are important for estimating key probabilities in a range of cases. Then, partly by drawing on such principles, and uncovering overlooked data on post-partum psychosis, I make applied gains: improving the rationality of judgments about the Sally Clark case in particular, judgments important to future similar cases. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify (...) the fundamental commitments of legal epistemology and suggest a way to vindicate it. (shrink)

This book proves to be an excellent guide through the labyrinth of law. Its crucial point is legal order viewed from the perspective of a situated "We". Jurisprudence appears as an implicit sort of thinking, embedded in moral, political, epistemological, and linguistic contexts. Numerous example cases lead us from everyday issues to the abysses of violence. Anyone who practices or studies law will highly profit from reading this book. One sees how law functions by being more than mere law. (...) Bernhard Waldenfels, Ruhr-University Bochum, Germany Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights. From a conception of justice as principled political self-restraint, the book explains why there are moral reasons to separate law from morality conceptually and in what sense a legal order is positive--that is, set by authority and bound up with history. The book explores the conditions under which law may become an object of knowledge and theorising, before finally discussing how these features come together in law as rule-following by citizens, officials, judges, and legislators alike. Addressing advanced students in law and philosophy, this key book: bridges separate traditions in legal philosophy (in particular analytical philosophy and phenomenology), develops a view of law as an institution of authority from a conception of justice in the socio-political relationship between we and the others, presents a systematic account of normativity and validity, explains in what sense law is doing things with rules. (shrink)

We almost every day direct our actions with reference to social, moral or legal norms and oughts. However, oughts and norms cannot be perceived through the senses: how can we “grasp” them, then? Adolf Reinach distinguishes enacted norms and oughts created through a social act of enactment, from moral norms and oughts existing in themselves independently of any act, knowledge or experience. I argue that this distinction is not a distinction between two species of oughts within a common genus: (...) it is rather a deeper ontological distinction between two modes of existence that are quite different, even though both are objective, according to Reinach. This ontological distinction is reflected in the way in which enacted oughts and moral oughts can be grasped, respectively: in the former case, the enacted ought is grasped by going back to the underlying social act from which it springs; in the latter, a “grasping through feeling” of the moral values is implied. (shrink)

We revisit Naturalized Epistemology and the Law of Evidence, published twenty years ago. The evolution of the relative plausibility theory of juridical proof is offered as evidence of the advantage of a naturalized approach to the study of the field and law evidence. Various alternative explanations of aspects of juridical proof from other disciplines are examined and their shortcomings described. These competing explanations are similar in their reductive, a priori approaches that are at odds with an empirically oriented naturalized (...) approach. The shortcomings of the various a priori approaches are driven by their common methodological commitments to employing weird hypotheticals to engage in intuition mining about the American legal systems that in turn ignore important aspects of the actual legal systems and consistently make impossible epistemological demands. As a result, both their descriptions of and prescriptions for American legal systems are implausible, unlike the relative plausibility theory. (shrink)

Basing Its Critique Of Western Legal Positivism On Concepts That Are Fundamental To The Indigenous Tradition Of Dharmasastra, This Work Is An Indian Restatement Of The Nature Of Law, Both Of Its Parts And Essence.

This essay examines the use of fictions in the reasoning of the House of Lords and United Kingdom Supreme Court in the context of two recent lines of authority on English tort law. First, the essay explores the relevance of counter-factual scenarios to liability in the tort of false imprisonment, in the light of the Supreme Court decisions in Lumba and Kambadzi. The second series of decisions is on causation in negligence claims arising from asbestos exposure. These cases have revealed (...) fundamental, ongoing judicial disagreement about the nature and extent of the exceptions made to general principles. The cases are also shown to lend force to Del Mar’s argument about the diachronicity of legal fictions. Overall, it is argued that such fictions play an important role in common law reasoning. (shrink)

Rules 405(a) and 608(a) of the Federal Rules of Evidence allow the use of testimony about a witness’s reputation to support or undermine his or her credibility in trial. This paper analyzes the evidential weight of such testimony from the point of view of social epistemology and the theory of social networks. Together they provide the necessary elements to analyze how reputation is understood in this case, and to assess the epistemic foundation of a reputational attribution. The result of (...) the analysis will be that reputational testimony is extremely weak from an epistemological point of view, and that in many cases there are more reliable substitutes that achieve a similar purpose. The obvious fix, in my view, is to eliminate the use of reputation testimony to support or undermine the credibility, honesty, chastity or peacefulness of a witness. (shrink)

In this article we describe two core ontologies of law that specify knowledge that is common to all domains of law. The first one, FOLaw describes and explains dependencies between types of knowledge in legal reasoning; the second one, LRI-Core ontology, captures the main concepts in legal information processing. Although FOLaw has shown to be of high practical value in various applied European ICT projects, its reuse is rather limited as it is rather concerned with the structure of (...) legal reasoning than with legal knowledge itself: as many other “legal core ontologies”, FOLaw is therefore rather an epistemological framework than an ontology. Therefore, we also developed LRI-Core. As we argue here that legal knowledge is based to a large extend on common-sense knowledge, LRI-Core is particularly inspired by research on abstract common-sense concepts. The main categories of LRI-Core are: physical, mental and abstract concepts. Roles cover in particular social worlds. Another special category are occurrences; terms that denote events and situations. We illustrate the use of LRI-Core with an ontology for Dutch criminal law, developed in the e-Court European project. (shrink)

Is it right to convict a person of a crime on the basis of purely statistical evidence? Many who have considered this question agree that it is not, posing a direct challenge to legal probabilism – the claim that the criminal standard of proof should be understood in terms of a high probability threshold. Some defenders of legal probabilism have, however, held their ground: Schoeman (1987) argues that there are no clear epistemic or moral problems with convictions based (...) on purely statistical evidence, and speculates that our aversion to such convictions may be nothing more than an irrational bias. More recently, Hedden and Colyvan (2019, section VI) describe our reluctance to convict on the basis of purely statistical evidence as an ‘intuition’, but suggest that there may be no ‘in principle’ problem with such convictions (see also Papineau, forthcoming, section 6). In this paper, I argue that there is, in some cases, an in principle problem with a conviction based upon statistical evidence alone – namely, it commits us to a precedent which, if consistently followed through, could lead to the deliberate conviction of an innocent person. I conclude with some reflections on the idea that the criminal justice system should strive to maximise the accuracy of its verdicts – and the related idea that we should each strive to maximise the accuracy of our beliefs. (shrink)

Critical Legal Theory and the Challenge of Feminism provides both a thorough overview and a refinement of the ideas that underlie critical legal theory. Arguing with the rigor of analytic philosophy and the alertness to paradoxes characteristic of deconstructive philosophy, Matthew Kramer begins by exploring the tangled relations between metaphysics and politics. He then attempts to transform the discourses of the critical legal studies movement by laying out a framework of five general themes: contradictions, contingency, patterning, perspective, (...) and ideology. Kramer calls for a more sophisticated awareness of their paradoxes, explaining why the paradoxes are by no means disabling or demobilizing. Finally, Kramer explores some of feminist theory's major controversies and problems, and argues that feminist theory can profit greatly by giving due attention to inescapable paradoxes. The book is an important contribution to political philosophy, jurisprudence, feminist philosophy and metaphysics, with powerful implications for epistemology and literary theory. (shrink)

Many legal positivists have argued that legal antipositivists, due to the central explanatory role they grant authoritatively normative facts, end up saddled with deep problems in their proposed epistemology about how we learn about the law, problems which positivists (and especially "exclusive" legal positivists) can avoid. In this chapter, I put forward a version of this kind of argument. I argue that there is an explanatory challenge tied to the epistemology of law that positivist theories (...) are, in general, better equipped to deal with than antipositivist theories. This issue concerns explaining how people (including not only legal officials, such as judges, but also legal anthropologists, legal historians, and ordinary citizens etc.) are reliable in forming the correct judgments about legal content that they do in fact form. Reflection on this issue about reliability in our legal judgments lends support to positivism. It also, I argue, suggests reasons to favor exclusive legal positivism over inclusive legal positivism. (shrink)