Facts, Fictions, and Law

Abstract

Bentham’s analysis of the probative force of evidence appears to be skeptical and relativist. Bentham was convinced that in all aspects of the judicial assessment of evidence, there was no place for formal, rule-bound reasoning, and it is tempting to trace this rule-skepticism to a deeper epistemological skepticism. Yet his monumental Rationale of Judicial Evidence shows few signs of this epistemologically skeptical foundation. Rather, seen in light of his theory of language and fictitious entities, the empiricist, quasi-pragmatist elements of his theory become clear. Bentham was no skeptic or radical subjectivist regarding the evaluation of evidence. Statements of probability, or of the persuasive force of some piece of evidence, on Bentham’s view, are subject to rational assessment. Judgments of the probative value of evidence, like moral judgments, are expressions of the speaker’s state of mind; they express degrees of conviction of the speaker, which are subject to the discipline of rational method.