Introduction to Philosophical Foundations of Evidence Law

Abstract

Philosophical Foundations of Evidence Law presents contributions from scholars spread across three continents and domiciled in twelve different countries, whose common interest is evidence theory as related to law.

Evidence theory as related to law stayed mostly dormant until the advent of the “New Evidence Scholarship” in mid-eighties of the previous century. Before that time, a small number of scattered, yet remarkable, works by John Kaplan, Per Olof Ekelöf, Laurence Tribe, Jonathan Cohen, Judith Jarvis Thomson, and others have identified and rationalized the alleged alignments and misalignments between mathematical probability and adjudicative factfinding. The publication of William Twining’s book, Theories of Evidence: Bentham & Wigmore in 1985 and the 1986 Boston University Law Review Evidence Symposium volume have changed things around. These publications have irreversibly changed the direction of the study of evidence by shifting evidence scholars’ focus from rules to reasons.

The shift from rules to reasons was transformative along two dimensions: interdisciplinarity and internationalization. The realization that reasons moving the factfinding process forward are antecedent to, and consequently more important than, evidentiary rules has opened up new paths of inquiry that connected adjudicative factfinding to epistemology, mathematics, economics, psychology, sociology, political morality, and linguistics and led to further and richer explorations of how theories of probability and induction affect the understanding and reform of the law of evidence. The primacy of reasons has also created a sizeable common ground for theorizing for evidence scholars from different countries. With a focus on reasons rather than rules, the differences between factfinding in the more regulated Anglo-American systems vis-à-vis the freer European systems – once understood as dramatic – became less important.

These important developments motivated us to initiate the publication of this volume. The principal idea of this project was to assemble and present the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book.

Keywords: Evidence, Legal Theory, Probability, Weight, Baconian Probability, Pascalianism, Epistemology, Psychology, Linguistics, Fact-finding, Courts, Critical Race Approach to Evidence, Feminist Approach to Evidence, Abduction, Inference to Best Explanation, Explanation and Coherence