Epistemology Legalized: Or, Truth, Justice, and the American Way
American Journal of Jurisprudence, Vol. 49, pp. 43-61, 2004
39 Pages Posted: 28 Mar 2005 Last revised: 29 Jul 2008
Jeremy Bentham's powerful metaphor of Injustice, and her handmaid Falsehood reminds us, if we need reminding, that justice requires not only just laws, and just administration of those laws, but also factual truth - objective factual truth; and that in consequence the very possibility of a just legal system requires that there be objective indications of truth, i.e., objective standards of better or worse evidence...
My plan [in this Olin Lecture in Jurisprudence, presented at Notre Dame law School, in October 2004] is to sketch some epistemological themes of mine, and explore their bearing on two familiar, radical epistemological criticisms of our legal system: (i) that an adversarial system is an epistemologically poor way of determining the truth; and (ii) that exclusionary rules of evidence are epistemologically undesirable. Neither criticism, I shall argue, is decisive; both, however, throw harsh light on disturbing aspects of the way our adversarial system actually functions.
Keywords: Evidence, epistemology, adversarial system, inadmissibility, exclusionary rules
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