Legal Epistemology

by

Georgi Gardiner

• LAST REVIEWED: 27 February 2019
• LAST MODIFIED: 27 February 2019
• DOI: 10.1093/obo/9780195396577-0390

Introduction

Legal practice is up to its neck in epistemology. Legal practice involves proof, evidence, doubt, testimony, arguments, witnesses, experts, and so on. The epistemology of legal practice, often referred to as legal epistemology, examines epistemological questions raised by legal practice. It can also apply legal insights to illuminating perennial epistemological problems. Legal epistemology investigates whether standards of proof, such as “beyond reasonable doubt” or “preponderance of evidence,” are best understood as credences, statistical likelihoods, or as qualitative standards. It asks what, if anything, legitimates these standards and in what ways legal standards of proof should be sensitive to practical factors. Legal epistemology examines when and why evidence has a probative value; that is, it investigates how evidence makes a litigated claim more likely. It illuminates what reasons—moral, political, economic, practical, epistemic—justify excluding probative evidence. It questions whether particular kinds of evidence are apt to mislead factfinders. Perhaps some kinds of character evidence, for example, are prejudicial. Legal epistemology asks whether particular aspects of evidence law contribute to epistemic injustice, including hermeneutical injustice, and illuminates sources of legal injustice. It investigates the normativity of profiling. Legal epistemology questions the epistemic and legal values of epistemic properties such as safety, sensitivity, reliability, coherence, intelligibility, knowledge, justification, explanation, narrative structure, epistemic virtue, and truth. Legal epistemology asks whether and how juries and judges can form collective beliefs; it examines features of effective deliberation and judgment aggregation, and studies the effect of disagreement and dissent on legal judgments. Legal phenomena such as expert testimony raise distinctive epistemological questions, such as how to adjudicate and manage expertise in the courtroom. Legal epistemology studies the legal posit of reasonableness, which arises in the reasonable person standard, reasonable doubt standard, and various other areas of legal practice. Legal epistemology can also illuminate the role of knowledge and ignorance in culpability: How should we understand the epistemic criteria for recklessness and negligence, for example, and what precisely is mens rea? Law varies by jurisdiction; different legal systems create and resolve epistemological challenges in different ways. This is evident in topics such as the admissibility of character evidence or hearsay evidence, the permissibility of inferences from silence, or the exclusion of improperly obtained evidence. Legal epistemology is deeply interdisciplinary. In addition to law and philosophy, it involves research in psychology, forensic science, sociology, anthropology, criminology, history, theology, politics, economics (particularly behavioral economics), artificial intelligence, computing, and statistics.

Law Background

Legal epistemology requires familiarity with law and legal scholarship. Criminal law, evidence law, and (to a lesser extent) procedural law are most relevant. Other areas can, of course, be relevant for particular projects. These might include, for example, media law, human rights law, intellectual property law, and reputation management law (which involves applied epistemology notions such as defamation, confidentiality, and privacy). Depending on the project, one might engage with Sharia law, international law, or law governing a particular jurisdiction. There is a vast array of legal resources available for law students, practitioners, and scholars; resources vary in thoroughness, detail, accessibility, aims, jurisdiction, and topic. I cannot hope to survey appropriate texts; I instead orient the reader to find appropriate resources effectively. (Note these resources are weighted toward common law systems.) Focusing on West Academic Press, which is a major US publisher of legal education resources, provides the following taxonomy: Their most simple offerings in their Short & Happy Guide series are brief (100–200 pages), accessible primers. The books are overviews, aimed at the general consumer, and each cover relatively large areas of law, such as evidence, torts, or criminal law. They are likely too brief for serious legal epistemology research. West Academic Press’s Nutshell and Concepts and Insights series provide a better orientation for substantial legal epistemology research: they are general overviews by serious legal scholars and offer differing levels of grain. There is a general Nutshell on criminal law and Nutshells on specific areas of criminal law (e.g., Loewy 2009; Niehoff 2016). At the next level of length, depth, and comprehensiveness, Hornbooks and Concise Hornbooks (abridged versions of Hornbooks) are large, hardcover volumes. They range from 600 to 1,200 pages and cover broad subjects, such as evidence law or criminal law (Dressler 2015; Kaye, et al. 2014; LaFave 2017). Finally, legal texts also include multivolume treatises that practitioners rely on for documenting every significant case, citation, and development. These are likely referred to, rather than read. Thus, I have presented four levels of increasing depth, thoroughness (and arguably dryness) in legal education resources, using West Academic Press as an exemplar. Lempert 2007 provides a thorough understanding of hallmark legal evidence cases. Wigmore on Evidence (Wigmore 1937) is an influential, early, and extremely thorough treatise on evidence law. Federal Rules of Evidence in the United States clearly defines US evidence law. Roberts and Zuckerman 2010 is a philosophically-informed, UK-centered introduction to evidence law. Jackson and Summer 2012 compares different approaches to evidence law.

• Dressler, Joshua. Understanding Criminal Law. 7th ed. Mini-Hornbook Handbook. Durham, NC: Carolina Academic Press, 2015.

  Dressler’s text is an accessible, affordable Hornbook overview of US criminal law. It is designed for first-year law students. It covers theories of punishment, sources of law, constitutional limits on law, burdens of proof and related presumptions. It describes issues concerning actus reus and mens rea, such as omissions, causation, harm, voluntariness, intentionality, recklessness, and negligence. It also examines various defenses, such as insanity, intoxication, duress, and diminished capacity.

• Federal Rules of Evidence in the United States.

  The Federal Rules of Evidence in the United States articulates the rules governing the introduction of evidence in United States federal trial courts. This clear and concise document describes laws concerning relevance, character evidence, pleas, attorney–client privilege, witnesses, expert testimony, hearsay, and related topics. It is available online.

• Jackson, John D., and Sarah J. Summer. The Internationalisation of Criminal Evidence. Cambridge, UK: Cambridge University Press, 2012..

  DOI: 10.1017/CBO9781139093606

  This text compares various approaches to criminal evidence and charts the developing standardization of these systems across the globe. It aims to articulate “a common set of evidentiary principles” across disparate systems and proposes improvements to existing systems.

• Kaye, David H., Kenneth S. Broun, George E. Dix, et al. McCormick’s Evidence. 7th ed. Hornbook Series. St. Paul, MN: West Academic Press, 2014.

  McCormick’s Evidence is a modern, classic, well-known, respected Hornbook. Hornbooks are relied on for legal practice and research and are often the primary text used for a course in a law degree, but they may be too dense, thorough, or pricy to be ideal for initial legal orientation. Hornbooks are authoritative in legal practice and scholarship: they are cited by judges, for example.

• LaFave, Wayne R. Criminal Law. 6th ed. Hornbook Series. St. Paul, MN: West Academic Press, 2017.

  LaFave is a popular Hornbook on criminal law. It provides detailed discussion of philosophically rich areas of criminal law, such as responsibility, justification, excuse, inchoate crimes, accomplice, liability, causation, insanity, and conspiracy. Student versions of Hornbooks and treatises—rather than practitioner or teacher versions—should suffice. They tend to be significantly less expensive and often simply lack extensive footnotes.

• Lempert, Richard. Evidence Stories. Law Stories Series. St. Paul, MN: West Academic Press, 2007.

  The Law Stories series provides in-depth background understanding of landmark legal cases. This book examines in great detail several key legal cases concerning evidence, such as People v. Collins, 68 Cal.2d 319, 320, 66 Cal. Rptr. 497, 438 P.2d 33, 36 A.L.R.3d 1176 (1968), and is an indispensable resource for a deep understanding of the full story behind influential cases.

• Loewy, Arnold H. Criminal Law in a Nutshell. 5th ed. Nutshell Series. St. Paul, MN: West Academic Press, 2009.

  Loewy’s Nutshell provides a quick overview of US criminal law. It orients the reader within legal topics such as punishment, specific crimes, the ingredients of a crime, such as mens rea and actus reus, special defenses, the burden of proof, and group criminality. Nutshells are shorter and more accessible than Hornbooks, textbooks, treatises, and similar legal education resources.

• Niehoff, Leonard. Evidence Law. Concepts and Insights Series. St. Paul, MN: West Academic Press, 2016.

  Niehoff provides an overview of the principles of evidence law, including relevance, character, hearsay, impeachment, opinion, and privileges. It provides a handy, brief overview of the topics. West Academic Press’s Concepts and Insights series—like Nutshells—are shorter and more accessible than Hornbooks, textbooks, treatises, and similar legal education resources. The Concepts and Insights series is a more academic version of a Nutshell, but the series is still under development.

• Roberts, Paul, and Adrian Zuckerman. Criminal Evidence. 2d ed. Oxford: Oxford University Press, 2010.

  This text describes and critically evaluates the law of criminal procedure and evidence in the United Kingdom; it comments on the underlying principles, logic, and values and engages with the moral, jurisprudential, and political issues. This introduction to the law of evidence is apt for legal epistemology because it discusses philosophical issues concerning criminal evidence, including discussing the work of Antony Duff, Ho Hock Lai, Larry Laudan, and Alex Stein.

• Wigmore, John Henry. Wigmore on Evidence: The Science of Judicial Proof, as Given by Logic, Psychology, and General Experience and Illustrated in Judicial Trials. 3d ed. Boston: Little, Brown, 1937.

  In 1904 Wigmore published an enormous monograph called Treatise on the Anglo-American System of Evidence in Trials at Common Law, more commonly known as Wigmore on Evidence or just Wigmore. Wigmore is considered a pioneering scholar of evidence law and its history. The treatise was extremely influential and highly regarded; it surveyed and systematized almost all US evidence law. By 1940 Wigmore on Evidence had expanded to ten volumes.