21 Pages Posted: 2 Sep 2008
Date Written: September 1, 2008
Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.
Suggested Citation: Suggested Citation
Schauer, Frederick, In Defense of Rule-Based Evidence Law: And Rule-Based Epistemology Too (September 1, 2008). Available at SSRN: https://ssrn.com/abstract=1261980 or http://dx.doi.org/10.2139/ssrn.1261980