The Plain Truth about Legal Truth.

By Moore, Michael S. | Harvard Journal of Law & Public Policy, Winter 2003 | Go to article overview

The Plain Truth about Legal Truth.


Moore, Michael S., Harvard Journal of Law & Public Policy


I.   INTRODUCTION
II.  WHY WE SHOULD CARE ABOUT ISSUES
     CONCERNING THE TRUTH OF SINGULAR LEGAL
     PROPOSITIONS
III. SKEPTICISM ABOUT TRUTH IN LAW:
     ITS CAUSE AND CURE
     A. Three Pseudo-Skepticisms About the Truth of
        Singular Legal Propositions
     B. Five More Genuine Skepticisms About the Truth of
        Singular Legal Propositions
IV.  REALISM VERSUS CONSTRUCTIVISM AS
     TO THE NATURE OF LEGAL TRUTH
     A. The Two Theories of Truth Restated
     B. Three Arguments About Legal Truth
V. CONCLUSION

I. INTRODUCTION

In one of his ballads the country/western singer Johnny Cash croons, "The lonely voice of youth cries 'what is truth?'" (1) In this first and most general panel, we are bid to confront a variation of the youth's general question and the implications of various answers to it. Such "what is ...?" questions are notoriously fuzzy in the answers they invite. For example, Erich Segal's answer to the question, "what is love?": "never having to say you're sorry." (2) Before launching into defense of some answer to such questions, we ought to pay attention to the question itself. As H.L.A. Hart noted in the introductory chapter of The Concept of Law, (3) the first thing to do with questions such as, "what is law?" (or "what is truth?") is to get clear what the question is asking. In this introductory section I shall offer three clarifications of the question about truth's nature.

First, I wish to put aside the normative issue that will no doubt dominate the discussions in later panels. This is the issue of the extent to which legal decision-makers (judge or juries) should seek to find "the truth" in disputed legal cases. For example, other normative desiderata such as efficiency in adjudication, protection of various relationships in the privilege doctrines of evidence law, and restraints on police behavior by the exclusionary rules are plainly competitors with factual truth-seeking as the goal of legal dispute resolution. Ours, however, is a distinct and prior question: can legal decision-makers meaningfully be enjoined to seek the truth? What is it that such injunctions command judges and jurors to find if they are enjoined to find the truth? Do such truths of law and of legally relevant fact exist to be found?

My second clarification has to do with the bearers of truths in law cases: what is properly said to be true or false? We should not be concerned here with philosophical conundrums about the nature of truth bearers (the candidates being beliefs, sentences, statements, assertions, propositions, and the like). (4) We should simply stipulate a concern with propositions as truth bearers, and move on. Rather, the main item to clarify here is the kinds of propositions whose truth or falsity is of interest to lawyers. Consider the following five possibilities: (5)

   (1) Factual propositions. In the recent film, A Few Good Men, a
   lawyer tells a witness "I want the truth," whereupon the witness
   responds, "you can't handle the truth." (6) The characters are
   referring to the truths of certain propositions of fact
   relevant to the case. These are probably the most
   obvious kinds of statements whose truth or falsity
   is of interest to lawyers.

   (2) General legal propositions. Equally as involved in decisions of
   disputed legal cases as propositions of fact, are general
   propositions of law. A general proposition of law is one contained
   in a universally quantified statement such as, "all non-holographic
   wills require two witnesses in order to be valid."

   (3) Interpretive propositions. Because general propositions of law
   are about a general class of cases but no one particular case, we
   need interpretive premises in order to connect the particular facts
   of a given case to general propositions of law. Such premises
   connect factual predicates to legal ones, so that one can connect,
   for example, factual propositions about the written name of a
   particular person on a particular document, to legal propositions
   about subscriptions, signatures, witnesses, and valid wills. … 

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