Interdisciplinary Reflections on Legal Method
Edited by Sanne Taekema, Bart van Klink and Wouter de Been
Chapter 4: The epistemic dependence of judicial decision-makers
In order to obtain factual information about a case, decision-makers typically listen to what others have to say or read what others have written. This chapter claims that dependence on the words of others, spoken or written, distinguishes the process of reasoning about facts in the law. The first section clarifies the epistemic meaning of ‘testimony’. The second section offers an analysis of the structure of epistemic dependence. The third and final section proposes to integrate the notion of epistemic dependence into a general theory of authority in the law. The notion of authority is useful to understand not only normative but also factual thinking in the law. Hence, there are epistemological reasons to reject an individualist view of epistemic transactions in the law. This chapter contributes to open legal epistemology and to recent studies in the epistemology of testimony, for discussions concerning the testimonial nature of human knowledge that has now surfaced as a major philosophical concern are highly relevant to the field of law. Like Geoffrey Samuel’s chapter (in this volume), Herdy’s chapter is interested in examining the cognitive difficulties involved in the process of reasoning about facts in the law. They both seem to agree that judicial information about facts is obtained indirectly, through a communicative process. Samuel considers the interpretive way in which decision-makers engage with facts, and calls attention to the uncertainty of evidence. Herdy considers the testimonial way in which decision-makers engage with facts, and calls attention to the idea of epistemic dependence.
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