Hostname: page-component-78c5997874-m6dg7 Total loading time: 0 Render date: 2024-11-09T13:23:19.618Z Has data issue: false hasContentIssue false
  • English
  • Français

In Defense of Rule-Based Evidence Law–and Epistemology Too1

Published online by Cambridge University Press:  03 January 2012

Frederick Schauer
Get access Rights & Permissions [Opens in a new window]

Abstract

Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.

Type
Research Article
Information
Episteme , Volume 5 , Issue 3 , October 2008 , pp. 295 - 305
Copyright
Copyright © Cambridge University Press 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

REFERENCES

Alexander, Larry & Frederick, Schauer. 2007. “Law's Limited Domain Confronts Morality's Universal Empire.” William & Mary Law Review 48: 1579–1607.Google Scholar
Bayles, Michael D. 1968. Contemporary Utilitarianism. New York: Anchor Books.Google Scholar
Bentham, Jeremy. 1827. Rationale of Judicial Evidence: Specially Applied to English Practice. Mill, J. S. (ed.). London: Hunt & Clark.Google Scholar
Damaška, Mirjan. 1995. “Free Proof and Its Detractors.” American Journal of Comparative Law 43: 343–71.CrossRefGoogle Scholar
Dwyer, Déirdre. 2006. Review of Foundations of Evidence Law, by Stein, Alex. Law, Probability and Risk 5: 75–85.CrossRefGoogle Scholar
Goldman, Alvin I. 1986. Epistemology and Cognition. Cambridge, MA: Harvard University Press.Google Scholar
Goldman, Alvin I. 1999. Knowledge in a Social World. Oxford: Clarendon Press.CrossRefGoogle Scholar
Haack, Susan. 2004. “Epistemology Legalized:Or Truth, Justice, and the American Way.” American Journal of Jurisprudence 49: 43–61.CrossRefGoogle Scholar
Hare, R. M. 1981. Moral Thinking: Its Levels, Method and Point. Oxford: Clarendon Press.CrossRefGoogle Scholar
Hooker, Brad. 2000. Ideal Code, Real World. New York: Oxford University Press.Google Scholar
Johnson, Conrad D. 1991. Moral Legislation: A Legal-Political Model for Indirect Consequentialist Reasoning. Cambridge: Cambridge University Press.Google Scholar
Kim, Jaegwon. 1988. “What is ‘Naturalized Epistemology’?” Philosophical Perspectives 2: 381–405.CrossRefGoogle Scholar
Kronman, Anthony. 1983. Max Weber. Stanford: Stanford University Press.Google Scholar
Laudan, Larry. 2006. Truth, Error and the Criminal Law: An Essay in Legal Epistemology. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Lyons, David. 1965. The Forms and Limits of Utilitarianism. Oxford: Clarendon Press.CrossRefGoogle Scholar
Postema, Gerald J. 1986. Bentham and the Common Law Tradition. Oxford: Clarendon Press.Google Scholar
Raz, Joseph. 1978. The Authority of Law: Essays in Law and Morality. Oxford: Clarendon Press.Google Scholar
Roberts, Paul. 2007. “Rethinking the Law of Evidence: a Twenty-First Century Agenda for Teaching and Research.” In Roberts, P. & Redmayne, M. (eds.), Innovations in Evidence and Proof, pp. 21–63. Oxford: Hart Publishing.Google Scholar
Schauer, Frederick. 1991. Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life. Oxford: Clarendon Press.Google Scholar
Schauer, Frederick. 2006. “On the Supposed Jury-Dependence of Evidence Law.” University of Pennsylvania Law Review 155: 165–202.CrossRefGoogle Scholar
Stein, Alex. 2005. Foundations of Evidence Law. Oxford: Oxford University Press.CrossRefGoogle Scholar
Thayer, James Bradley. 1898. A Preliminary Treatise on Evidence at the Common Law. Boston: Little, Brown and Company.Google Scholar
Twining, William. 1985. Theories of Evidence: Bentham and Wigmore. London: Weidenfeld & Nicolson.Google Scholar
Twining, William. 1994. Rethinking Evidence: Exploratory Essays. Evanston, IL: Northwestern University Press.Google Scholar
Wigmore, John Henry. 1937. The Science of Judicial Proof. Boston: Little, Brown and Company.Google Scholar