Theory of Legal Evidence - Evidence in Legal Theory

Description

This book addresses theoretical problems concerning legal evidence. The concept of evidence is expected to fulfill a number of distinct roles in science and philosophy, but also in legal theory and law, some of which are complementary, while others are conflicting. In their profession, lawyers have to deal with evidence and proof. Yet the legal concept of evidence is constantly changing, and the debate concerning the distinction between a legal concept of evidence, the ordinary concept of evidence and the concept of evidence in science is far from being settled. What is more, the problem of evidence is central to both epistemology and the philosophy of science, and by extension to our academic thinking on law. In short, legal theorists’ interest in evidence may include such diverse objects as a bloody knife, sensory data, linguistic entities or psychologically recognized beliefs. The book surveys selected theoretical roles that the concept of evidence plays and explores their relations and interconnections. The content is divided into three parts, investigating: (1) evidence in epistemology and the philosophy of science, which focuses on evidence methodologies and the problem of proof in legal scholarship; (2) evidence in legal theory and legal philosophy, where particular attention is paid to the interplay between evidence, legal reasoning and the binding force of such reasoning; and (3) evidence in law, where theoretical problems pertaining to witnesses, expert opinions, explanations of the accused, statistical evidence and neuroscientific evidence are examined. Contents Introduction to Theory of Legal Evidence - Evidence in Legal Theory 1 Background of the Debate on Legal Evidence 2 Main Ideas Guiding the Book 3 Overview of the Book 4 Conclusion References Part I: Two Big Questions Looked Upon from a Historical Point of View and the View of Contemporary Theory of Science Can There Be a Science of Proof? A Cross-Atlantic Dialogue (1898-1947) 1 Introduction 2 Criminology and Forensic Science 3 Judicial Psychology 4 The Logic of Evidential Reasoning 5 Conclusion References Why Does Legal Reasoning Necessitate an Interdisciplinary Discourse and an Examination from the Point of Theory of Science? 1 Introduction 1.1 What Is Legal Reasoning? 1.2 The Course of Investigation 2 Four Topics: Many Reasons 2.1 Law´s Subject Matter: Or Law and Facts Intertwined 2.1.1 Discourses While Legislating 2.1.1.1 The Legislative Subject-Matter 2.1.1.2 The Form and the Procedure 2.1.1.2.1 The Legislative Procedure 2.1.1.2.2 The Standards of Administrative Legislation 2.1.1.3 The Overall Origin: The People and the Craftmanship 2.1.1.4 The Solution to the Conflict of Interests as Purpose 2.1.2 Discourses at Court 2.1.2.1 The Legal Subsumptive Process Under the General Concepts of the Relevant Rules and the Subject Matter 2.1.2.2 The Form of the Judicial Decisions 2.1.2.3 The Determination of the Relevant Facts with Regard to Legal Rules and the Origin of the Judicial Decision 2.1.2.4 The Relationship of Legal Rules and Relevant Facts Serving the Purpose of the Discourses at Court 2.1.3 Scientific Legal Discourses 2.1.3.1 The Subject-Matter of Scientific Legal Discourses 2.1.3.1.1 What Is Science at All? 2.1.3.1.2 Jurisprudence as Science 2.1.3.2 The Form of the Scientific Legal Discourses 2.1.3.3 The Legal Scholar as Subject 2.1.3.4 The Purposes of the Scientific Discourse 2.1.4 Intermediate Results 2.2 Law´s Form and Systematization on Different Levels: What Reasons Can Be Included in the Legal Discourse? 2.2.1 The Reasoning by the Legislator: Legisprudence 2.2.2 The Reasoning at Court 2.2.3 The Reasoning by Legal Scholars 2.2.4 Intermediate Results 2.3 Law and Its History: Or Law and Its Development Over Time 2.3.1 The Normative Consequences Throughout History and Its Relevance In Praxi 2.3.1.1 The Direct and Indirect Normative Consequences Throughout History 2.3.1.2 The Relevance of Legal History In Praxi 2.3.2 The Varied Interrelationships with the Processes of Institutions Exercising Authority 2.3.3 The People Who Apply the Law as Hermeneutical Subjects: As pars pro toto-The Judge 2.3.4 The Purpose of Law and History 2.3.5 Intermediate Results 2.4 Law´s Purposes: Peace Under and Justice in the Form of an Equal Application of the Law 2.4.1 The Private Addressees of the Law 2.4.2 The National Institutions: pars pro toto-The Court 2.4.3 Intermediate Results 3 Theses and Conclusion References Part II: Theory of Law Put in Contact with Evidence Issues and Scholarship Why Are We Bound by Evidence? On The Normative Stance of Legal Proof 1 Defining the Legally Normative: Between Epistemic and Legal Normativity 1.1 Preliminaries 1.2 Debating Normativity 1.3 Different Purport and Different Aim Theses 2 Need for Reconciliation: Legal Normativity Revisited 3 Metanormativity and the Law 4 Between Legal Evidence and Proof 4.1 (Legal) Objectivity of Evidence 4.2 Establishing Proof 5 Conclusions References A Good Enough (Meta) Theory of Evidence in Law: An Inferentialist Account 1 Evidence Theory Not Good Enough for Law 1.1 Two Kinds of Detached Theories 1.2 What Lies Behind the Detachment? 2 Evidence Theory Good Enough for Law 2.1 Knowledge in Law 2.1.1 Is There a Foundation? 2.1.2 Internalism and Externalism 2.1.3 Coherentism 2.1.4 Reliabilism 2.1.5 How Is Knowledge in Law To Be Accounted For? 2.2 A Theory of Law Suited to Capturing the Advantages of a Good Enough Theory of Knowledge 2.2.1 Inferential Pragmatism 2.2.2 An Inferentialist Account of Law 3 Towards a Good Enough (Meta) Theory of Evidence in Law 3.1 Bridging Along Inferentialist Lines 3.2 The Insight and the Blindspot of Legal Syllogism 3.3 Legal Syllogism Made Explicit 4 Conclusion References The Architecture of Evidential Justification Between Atomism and Holism 1 Two Approaches to Legal Evidential Reasoning 2 A Model for (Re)constructing the Atomism-Holism Distinction 2.1 Distinguishing Between Various `Moments´ of Legal Evidential Reasoning 2.2 Distinguishing Between Descriptive and Normative Perspectives on Legal Evidential Reasoning 2.3 Distinguishing Between the Object of Proof (Probanda) and Evidentiary Reasons (Probans) 3 Standard Holistic Theories of Legal Evidential Reasoning: The Story Model and Inference to the Best Explanation 4 Holistic Dimensions of Evidential Justification 5 Atomistic Aspects of Legal Evidential Reasoning 6 Can Atomistic Requirements Be Applied to Evidential Justification? 6.1 Psychological and Cognitive Viability of Integrating Atomistic Analysis to Evidential Justification 6.2 Viability of the Requirements of Atomistic Analysis in the Light of Current Procedural Rules and Practices 7 Conclusions References Theories of Truth in Legal Fact-Finding 1 Introduction 2 Basics of Theories of Truth 2.1 Correspondence Theory 2.2 Coherence Theory 3 Fundamental Approaches to Legal Fact-Finding 3.1 Historical Context 3.2 Objectivity of Finding the Facts of a Case 4 Truthfulness in Legal Fact-Finding 4.1 Material ``Correspondence´´ Approach 4.2 Formal ``Coherence´´ Approach 5 Conclusion References Part III: Legal Evidence Put in Practice Expert´s (Meta)Testimony: An Epistemological Perspective 1 Introduction 2 Expert Witnesses 3 Peer Expert Witnesses´ Disagreement 4 Meta-Experts and Meta-Opinions 5 Conclusions References Rethinking Expert Opinion Evidence as an Argument from Epistemic Authority 1 Introduction 2 Expert Opinion Evidence as an Argument from Epistemic Authority 2.1 Douglas Walton´s Critical Questions 2.2 Combining Walton´s Logical Arguments and Bayesian Networks: Current Research 2.2.1 Bayesian Networks 2.3 New Approach 3 Conclusions References Testimony and Hearsay 1 Introduction 2 Kinds of Testimony and Hearsay 3 Sources of Suspicion and Hope 4 Testimony and Hearsay in Law 5 Conclusion References Neuroscientific Evidence in Courtroom: Clash of Two Anthropological Paradigms 1 Opening Remarks: Forensic Neuropsychology and Its Offer 2 Forensic Neuropsychology, Criminal Policies and Social Fear 3 Neuroevidences and Crime: Neuroimaging as Example of Expectations 4 The Problem with Forensic Neuropsychology: Two Conflicting Anthropological Models Clash in Courts 5 Closing Remarks: The Need for a Theory of Neuroevidence References An Epistemic Defense of Exclusionary Rules in the Criminal Justice System 1 Introduction 2 Clearing the Ground 3 The Case Against Exclusionary Rules 4 The General Epistemic Case Against Exclusionary Rules: More Evidence Is Better 5 The Empirical Case Against Exclusionary Rules: The Dangers of Folk Psychology 6 The Epistemic Case for Excluding Recanted Confessions: Meeting the Empirical Challenge 7 The General Epistemic Case in Favor of Exclusionary Rules: More Isn´t Always Better 8 Conclusion References Constitutional Evidence 1 Introduction 2 The Adequacy of Factual Premises of the Constitution and Statutes 3 Proofs Relying on Facts as Justifications to Decide Over Questions of Law 4 Evaluating Evidence in the Constitutional Sphere: The Standard of Proportionality 5 Conclusion References