Second-Personal Evidence

Philosophical Foundations of the Law of Evidence (Christian Dahlman, Alex Stein and Giovanni Tuzet, eds., Oxford University Press, 2021, Forthcoming)

14 Pages Posted: 22 Oct 2020

Date Written: October 15, 2020


Before Hohfeld, legal insiders intuited that law is second-personal in all of its operations. After Hohfeld, they knew it. Hohfeld’s scheme of jural opposites and correlatives unfolded an analytical proof that every legal entitlement ultimately transforms into a person’s right, or lack thereof, to use state power in order to force another person into an action or an inaction.

This insight has important implications for the law of evidence as a system of rules that help courts ascertain the facts underlying the disputed entitlements. As the structure of those entitlements and the underlying interplay between the rightholder’s authority and the duty-bearer’s accountability are unchangeably second-personal, facts that courts need to ascertain and—critically—the procedures they must carry out in ascertaining those facts, ought to be second-personal as well. As a corollary, courts must only rely upon second-personal evidence, that is: upon information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation.

This requirement originates from the right to autonomy enjoyed by every individual in a free society. Under the autonomy framework, an individual becomes accountable for her actions only when she abuses her autonomy by violating the autonomy of another person or a group of people—that is, when she commits a crime, a tort or fails to perform a contract, and by doing so causes harm to another person or to society at large. Consequently, evidence capable of proving one of those wrongs must show what the individual actually did and did not do and what happened to the victim of the alleged misdeed. To satisfy this fundamental requirement, evidence furnished against the alleged wrongdoer must be open to maximal individualized scrutiny: it cannot be purely statistical; and it also ought to allow the individual to examine whether it is applicable to the case at bar. This prerequisite should also benefit the victim of the alleged misdeed—the rightholder who claims to have a legal authority to impose punishment upon or exact compensation or another remedy from the alleged wrongdoer. Evidence purporting to negate the claims made by the alleged rightholder must focus strictly on her interactions with the defendant; and it must also be fully open to scrutiny aiming to ascertain its case-specific implications. This twin requirement defines the modus operandi of the Anglo-American system of evidence. Specifically, it explains and justifies the workings of the burden of proof doctrine, the rule against naked statistical evidence, and the rules regulating the admission of hearsay and character evidence.

Keywords: evidence, second-personal morality, autonomy, statistical evidence, maximal individualization

Suggested Citation

Stein, Alex, Second-Personal Evidence (October 15, 2020). Philosophical Foundations of the Law of Evidence (Christian Dahlman, Alex Stein and Giovanni Tuzet, eds., Oxford University Press, 2021, Forthcoming), Available at SSRN:

Alex Stein (Contact Author)

Israel Supreme Court ( email )

Sha'arey Mishpat Street

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