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 1 . 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) 2 . Perhaps for this reason, an interest in legal epistemology has been there long before the current explosion 3 . Still, the extent of attention paid by epistemologists to legal epistemology seems unprecedented (whether this interest is reciprocated by legal theorists, let alone legal practitioners, is of course another matter).In this paper we want to 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. Now, many things go by the name "legal epistemology", and it's not as if we think all are based on a mistake. It makes perfect sense to ask how different standards of proof are best understood, or -in * For comments on earlier versions we thank Matt Kotzen and Sarah Moss. Earlier versions of this paper were given as

Criminal Proof: Fixed or Flexible?

“…SeeThorburn (2011) for an interesting rebuttal to the individual-legal parallel.20 This is a point made byRoss (2021). For general scepticism about the legal epistemology project, seeEnoch et. al (2021),Papineau (2021), andFratantonio (2021).21 For further discussion of the relevance of individual epistemology to philosophy of law, see Ross (forthcoming).…”

Morality of Belief II: Three Challenges and An Extension

“…3 3 This challenge is echoed in by other challenges that aim to locate the wrong elsewhere from belief, e.g., in patterns of attention (Saint‐Croix, 2022), in one's reasons or character (Howard, 2021), or other duties in the vicinity of belief (Enoch & Spectre, forthcoming). …”