Is Judicial Proof of Facts a Form of Scientific Explanation? A Preliminary Investigation of ‘Clinical’ Legal Method
| Author | Doron Menashe |
| Published date | 01 January 2008 |
| Date | 01 January 2008 |
| DOI | http://doi.org/10.1350/ijep.2008.12.1.285 |
| Subject Matter | Article |
IS JUDICIAL PROOF OF FACTS A FORM OF SCIENTIFIC EXPLANATION?
Is judicial proof of facts
a form of scientific
explanation? A
preliminary
investigation of ‘clinical’
legal method
By Doron Menashe*
Senior Lecturer, Faculty of Law, University of Haifa, Israel
Abstract This article examines the relationship between judicial proof of facts
and positivistic explanation in the natural and social sciences. Although these
two forms of factual inquiry share evident similarities, it is argued that, on
closer analysis, legal fact-finding is not even a proximate model of scientific
explanation. Judicial proof more closely resembles clinical deliberations, such
as those encountered in a medical context, than classical scientific method.
Comparison with clinical practices should therefore promote understanding
and serve as a basis for further research, critical appraisal and practical
improvement of the processes of judicial proof.
roof’ is a central term in evidential discourse. Use of this term is
considered natural, and its meaning almost self-evident. This article
focuses on the relationship between judicial proof of facts and
positivistic explanation in the natural sciences and in approaches to social
sciences that take the natural sciences as their model. Initially, certain similarities
between judicial proof and scientific explanation will be noted. However, the
DOI:1350/ijep.2008.12.1.285
32 (2008) 12 E&P 32–52 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
‘P
* Email: dmeashe@law.haifa.ac.il. I thank Professor Paul Roberts for his remarks which improved
this article immensely. I am also deeply grateful to Shai Otzari LLB and Rabee’ Assi LLM for research
assistance.
main body of the article will reveal conceptual divergence and dissimilarity
between the two modes of explanation and justification. In conclusion I propose
the model of reasoning used in clinical practices (such as medicine) as a more
appropriate candidate for comparison with the law. So far, that relationship has
been neglected in legal scholarship.1
Some readers might question the very project of comparing judicial proof to scien-
tific explanation and its justification, for it might seem that the two concepts are
so clearly dissimilar that there is no basis for any interesting comparison. To be
sure, the scientific method is more methodical than legal proof. Nonetheless, the
law does attempt to make generalisations about reality (particularly human
reality) and to use these generalisations to produce inferences about events. In
similar fashion, science endeavours to discover generalisations about reality—
laws of nature, etc.—and it, too, draws on them to make causal predictions, and
sometimes postdictions about past events (such as supernovas, the extinction of
dinosaurs, and so forth). Other commentators press this parallel further,
suggesting that the use of generalisations in law precisely mimics the scientific
method, but less successfully. On this view, legal fact-finding is a second-best
approximation of science, within the limitations of law.2This intuition will be
challenged in the following discussion.
This article focuses on the way in which the law creates generalisations about
reality, for use in judicial proof; and on the way these generalisations ground
specific factual inferences. My conclusion will be analytical, not semantic, in the
tradition of analytical jurisprudence. Comparison with the model of scientific
explanation is intended to serve as a tool for the illumination and clarification of
the concept of judicial proof. Better understanding of judicial proof should serve
as a basis for further research, critical appraisal and practical improvement of the
processes of judicial proof. Comparison with clinical practices can also generate
new ideas and fruitful contrasts. Whilst certain applications will be suggested by
way of illustration, it is only possible within the confines of a single article to
present a preliminary theoretical analysis.
E & P 33
IS JUDICIAL PROOF OF FACTS A FORM OF SCIENTIFIC EXPLANATION?
1 J. H. Wigmore, The Science of Judicial Proof as Given in Logic, Psychology, and Experience and Illustrated in
Judicial Trials, 3rd edn (Little, Brown: Boston, 1937). See D. H. Kaye, ‘Proof in Law and Science’ (1992)
32 Jurimetrics Journal 313; L. Loevinger, ‘Standards of Proof in Science and Law’ (1992) 32 Jurimetrics
Journal 327.
2 See Kaye, above n. 1; J. D. Jackson, ‘Two Methods of Proof in Criminal Procedure’ (1988) 51 MLR 549,
556–7.
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