Abstract
Today many scholars claim that finding the truth is not among the aims or functions of a trial. What should be done by judges, rather, is to assess the evidence at disposal and make a decision on what is at stake. This line of thought emphasizes the differences between inquiry and advocacy, truth and justice, dialogue in science and conflict in law. One of the reasons presented in favor of this contemporary view is the nature of the adversary systems in law: parties are conceived as “fighters”, and judges as “referees” who do not participate in the collection of the evidence and must avoid any “inquisitorial” procedure in deciding cases. Because of this, it is said, trials do not and cannot aim at truth. In the same spirit, legal argumentation is conceived as a “fight” device that parties use to win the case, not as a dialogical effort for a true representation of what is at stake.
But according to the traditional view adversary procedures such as cross-examination are the best means we have to find the truth. I will try to defend this view claiming that: (1) truth is a necessary condition of justice, (2) legal argumentation on facts is truth-oriented, and (3) fallibilism requires adversary procedures.
We resist the pipes of Pan, because we care about Truth.
(Simon Blackburn)
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Notes
- 1.
- 2.
It is clear that different legal theories have different views on these matters. A legal theory based on moral realism will say, for instance, that there are truths about constitutional values, while non-cognitivist views will reject this claim.
- 3.
However there are reasons not to reduce norms to imperatives or commands: (i) norms do not necessarily depend on a subject stating them, while genuine imperatives do; (ii) norms can be premises or conclusions in logical inferences, but imperatives qua imperatives cannot; (iii) norms can be iterated, while imperatives cannot (it does make sense to say “It should be that p should be”, while it does not to say “I order that I order that p”).
- 4.
- 5.
See e.g. Kalinowski (1967).
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- 7.
- 8.
She says that “there are deep tensions between the goals and values of the scientific enterprise and the culture of the law, especially the culture of the U.S. legal system” (Haack 2009, 2).
- 9.
See e.g. Frank (1949).
- 10.
“Justice requires just laws, of course, and just administration of those laws; but it also requires factual truth” (Haack 2004a, 15).
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Frank (1949). Note that there is a tension in claiming at the same time that uncertainty comes from judicial discretion and judicial “laissez-faire”.
- 13.
See in particular Haack (2004a, 24–25).
- 14.
To be just, a normative conclusion needs to follow not only from an acceptable normative premise, but also from a true factual premise. Were the minor premise false, the norm would be applied to the wrong situation. In the Italian literature, see Taruffo (1992) defending this thesis for the civil cases and Ferrajoli (1989) for the criminal ones. Furthermore Ferrajoli claims that truth is required both on legal and factual claims (which is different from saying that legal norms themselves could be true); for a critique of Ferrajoli on this issue see Villa (1999, 152–8, 181–191).
- 15.
I make abstraction from some technicalities like the distinction between burden of proof and burden of production. They do not touch on the present conceptual point. Cf. Prakken and Sartor (2006).
- 16.
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Because it directly proves what is at stake or permits to draw an inference about it.
- 18.
This could be easily put in inferentialist terms. Cf. Canale and Tuzet (2007).
- 19.
As a counter-argument, Christian Dahlman suggested me to consider the following: That there is legal proof that p means that there is a legal obligation to act as if it were true that p; but, given that it is logically possible to have an obligation to lie, this does not show that there is a necessary conceptual connection between truth and legal proof. To my impression, in the possible world of a lie-obligation the concept of proof would be different indeed; I deal with the concept of proof that is used in our epistemic and legal practices, where to claim that it is proven that p is to claim that it is true that p and there is sufficient evidence for it.
- 20.
- 21.
Cf. Horwich (1998), Engel (2002), Künne (2003). Notice that a minimalist or disquotationalist conception of truth rules out the difference between cognitivism and non-cognitivism in normative matters. “Expressivism in ethics says that ordinary moral judgements such as ‘torture is wrong’ are not truth-apt: they are neither true nor false, but are expressions of feeling or emotions. But, on the minimalist picture, if truth-aptness amounts just to ‘syntactic discipline’, the expressivist view is automatically ruled out. This can be seen easily if truth-aptness is just a matter of satisfaction of the disquotational schema” (Engel 2002, 82).
- 22.
- 23.
“If a rule of law is judicially applied to the true facts it envisions, the rule can also be tested for the adequacy of its formulation and for the soundness of any means-goal hypothesis it embodies” (Summers 1999, 498).
- 24.
But one may suspect this is unrealistic.
- 25.
“If the system is well designed, and if, in a particular case of divergence, relevant rationales for such divergence are in play, the divergence is merely the price we pay for having a complex multi-purpose system in which actual truth, and what legally follows from it, comprise but one value among a variety of important values competing for legal realization” (Summers 1999, 511).
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Bulygin (1985, 162): “it may be true that A ought to pay his tax and that he did not pay it and yet the judge ought not to sentence him (if e.g. it has not been proved in court), and vice versa, it may be true that the judge ought to sentence A for not having paid his tax, though it is not true that he did not pay it.”
- 29.
“The semantic rules determine to what individuals the names ‘Tom’ and ‘Peter’ refer and what relation is designated by the predicate ‘killed’. The sentence ‘Tom killed Peter’ is true if and only if the individual referred to by ‘Tom’ stands in the relation designated by the predicate ‘killed’ to the individual referred to by ‘Peter’. What a judge says about Tom’s killing Peter is absolutely irrelevant for the truth of this sentence. So in order to find out whether the sentence ‘Tom killed Peter’ is true the judge must know the semantic rules of the language (must understand the language) and he must discover certain facts” (Bulygin 1995, 20).
- 30.
Cf. Bulygin (1995, 20–24).
- 31.
Such a decision produces its legal effects (what was stressed by Kelsen) but this does not mean it is correct.
- 32.
- 33.
- 34.
“No standard of proof can fully eliminate the uncertainty or render the kind of abductive inferences used in legal reasoning truth-preserving” (Laudan 2005, 356).
- 35.
Cf. Feteris (1999) in particular.
- 36.
- 37.
- 38.
- 39.
- 40.
This is a passage from § VIII of The Will to Believe (1897), now in James (1968, 728).
- 41.
Cf. Laudan (2006). But once Peirce defined “atrocious” the adversary legal procedure according to which bias and counter-bias would be favorable to the extraction of truth (see Haack 2004b, 49). In correspondence Haack has remarked that given the limitations of time and resources an adversarial process can be, not a perfect way of arriving at the truth but, a good-enough way; but this in her view depends on some assumptions which are rarely true in practice, e.g. that both sides have roughly equal resources.
- 42.
See Moreso (1996, 93): “in neither hard nor easy cases can logic alone tell us which are the applicable normative premises, nor whether the statements describing the facts of the case are true (the scope of external justification); but in both cases logic serves to test whether steps taken from the premises to the conclusion are correct (the role of internal justification).”
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Acknowledgments
Previous drafts of this paper were presented in the following conferences: “25th IVR World Congress of Philosophy of Law and Social Philosophy” (Frankfurt am Main, Goethe University, August 2011), “Romanistik im Dialog. XXXII. Romanistentag” (Berlin, Humboldt University, September 2011), “International Conference on Legal Theory and Legal Argumentation” (Nova Gorica, European Faculty of Law, November 2011); I wish to thank the organizers and the participants in these conferences for their helpful comments. I also owe a special thank to Federico Arena and Susan Haack, for having read and commented a first draft of this work.
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Tuzet, G. (2013). Arguing on Facts: Truth, Trials and Adversary Procedures. In: Dahlman, C., Feteris, E. (eds) Legal Argumentation Theory: Cross-Disciplinary Perspectives. Law and Philosophy Library, vol 102. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4670-1_13
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