Not-Unlawfulness and the Burden of Proof at Law & Society Blog

Not-Unlawfulness and the Burden of Proof

Published by Manfred Gabriel April 19th, 2005 in Jurisprudence

If life put up less of a struggle when we attempt to make it conform to rules, there would be fewer lawyers. Everyone can argue about life. First-year law students can argue about rules and case law. But pulling both together, arguing where and why life comes under the rule is difficult. There are of course cases that clearly fall under a rule, and others that clearly don’t; in a lawyer’s experience these cases are rare. At least such clear matches between facts and norm allow us to use the language of science, to speak as if it were true that “the defendant could reasonably assume the car to have been abandoned.”

The majority of cases are unclear, and it is uncertain whether the defendant could reasonably assume or not: there are good arguments on either side. The law has developed an interesting mechanism to deal with such uncertainty. First, the law departs from logic (at least the old-fashioned, binary kind). In logic, ?��(?��A) = A. Being not-unreasonable is the same thing as being reasonable. In the law, being not-unreasonable means that one may be reasonable or that it’s uncertain whether one is reasonable. In pre-Fregian terms: The law of the excluded third does not apply in legal argument.

Uncertainty"

Going from A/?��A to A/uncertain/?��A does not, in itself, solve many problems. At times the law does reference the central area of uncertain directly. The jury’s guilty verdict in a criminal case, for example, must find guilt “beyond a reasonable doubt.” Meaning that uncertainty militates in the accused’s favor. But even where there is no explicit reference, the principle of assigning the swath of uncertainty works because, in the law, we are concerned with action (rather than truth) and because the law casts each argument as a conflict between adversaries.

Being concerned with action (rather than truth) means that legal argument serves to justify action (or inaction). It does not posit truth. When the judge rules on the preponderance of the evidence, action will follow from the judgment: The defendant pays money to the plaintiff. The reason (defendant breached a contract, for example) is part of the opinion, but not the judgment itself. (Declaratory judgments are the exception here.) Being concerned with action, the law can rest its decision on the swath of uncertainty between the certain extremes.

The second point is the adversarial construction of the epistemological problem: The difficulty of knowing for certain is assigned to one side or the other. The burden of proof does nothing but burden one side with the weight of uncertainty. If, for example, the government must prove that a company’s competitive behavior was unlawful, the company can counter that either its behavior was lawful or that it is uncertain whether its behavior was lawful or not. By shifting the swath of uncertainty from one side to the next, the law manages life’s reluctance to conform to the terms of our rules.

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One Response to “Not-Unlawfulness and the Burden of Proof”

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1 Benjamin Nelson Jun 16th, 2006 at 10:04 pm

I’m not at all comforted by the idea that the law’s interest is in action and not truth when it comes to the topic of uncertainty.

To be sure, any normative system, especially the legal system, understands the bottom line in terms of action — that’s just the nature of law. But if our interest is in reason, as with reasonable doubt, then it is interested in justification as a means to arriving at correct action; and there is no evidentiary justification, nor can there be, without the subgoal of pursuing something that gives us a sense of closure by means of the highest conceivable standards (which we quaintly dub “truth”). If it were otherwise, the words “justification”, “correct”, and “reason” would be entirely without meaning, and we’d be unable to distinguish the justified from the unjustified, the correct from the incorrect, etc.; since they only have meaning relative to some standard(s) or other (though those standards, in turn, arise from intuitions cemented as prototypes).

Discovery of truth might not always achieve the main goal (correct action), and moreover, arguably we can never really know the whole truth about anything (our standards may always be lacking). But that doesn’t excuse the legal system in suddenly deciding to give it up entirely. To do so would be to tacitly give up evidentiary justification, and thus would be an exercize in giving leave to arbitrary action and judgment (either directly, or through the bad habits that it creates). The abandon of non-arbitrariness leads to lack of regard for the rule of law. And so, in a single fell swoop, with the removal of truth as a subgoal, we make justification impossible, make judgments arbitrary, and destroy the rule of law. That consequence is diametrically opposed to the functions of Western legal systems.

And that’s just the matter of epistemology. In some sense, the epistemic trouble has an excuse for being complicated, and gives us a dim sense of why the legal system is supposed to be legitimate: to hear these troubling arguments and make the evidence fit our laws. But if the question is semantic, not epistemic, then it is difficult for me to see what excuse we have for uncertainty.