Does legal epistemology rest on a mistake? On fetishism, two‐tier system design, and conscientious fact‐finding

Abstract

Legal epistemology seems to be exploding. More and more philosophers seem to be taking an interest in the theory of evidence law, and to bring along with them to legal theory the freshest news from the abstract study of epistemology . This is understandable, of course: The law in general, and evidence law in particular, seems to be employing the same natural-language terms epistemologists are (or are at least supposed to be) interested in (“knew or should have known”, “reasonable doubt”, “evidence”, “presumption” (of innocence), and so on) . In this paper we argue that a large part of this project is based on a mistake, roughly analogous to the mistake involved in thinking of studies of intelligence as relevant to the understanding of military intelligence. With qualifications shortly to emerge, epistemology is not, we think, intrinsically and directly relevant to normative evidence law theory, at least, that is, as long as the relevant perspective is that of designing the evidence law regime. When it comes to the conscientious fact-finder, things may be – we’re not sure about this – importantly different.