Festschrift zum 100. Geburtstag von Hans Albert
Edited By Volker Gadenne and Reinhard Neck
5. Deductivism within the Law
One topic that has been strikingly neglected, in the English-speaking world, by critical rationalism and by other brands of enlightened scepticism, is the status, both logical and epistemological, of legal evidence and legal argument. (I except here Duggan 2010.) In this paper I set out to do something to remedy this inattention.
There are two immediate questions that need to be answered by a deductivist philosophy that renounces both the possibility and the usefulness of all forms of justification. First of all, how is the apparently unswerving predilection for proofs that is central to western legal systems to be accommodated? Secondly, how are the particular demands for proof beyond reasonable doubt in criminal prosecutions, and for proof on the balance of probabilities in civil suits, to be understood by a philosophy that rejects the widespread view that, in the absence of certainty, we must make do with judgements of probability? I shall try here to provide an out of defensible deductivist answers to these questions. I must stress from the outset, however, that my knowledge of legal process in other jurisdictions is inevitably even more restricted than it is of the fine points of Anglo-American law. I hope, therefore that any legal solecisms committed here will be treated with unstrained mercy. In return for this clemency I hope to provoke in the minds of my readers not just unease but pleasurable misgivings about the manner in which legal argument is customarily discussed.
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