11 - Narrative and generalizations in argumentation about questions of fact

Summary

A familiar feature of academic life is the phenomenon of two or more bodies of literature ‘talking past each other’, even though the problems and issues they address seem to be closely connected. Within the discipline of law, a striking example is the almost entire separation of literature and debates concerning argumentation about questions of law on the one hand, and questions of fact on the other. The term ‘legal reasoning’ has been imperialistically hijacked for the former by jurists who seem to know little or care less about the latter, which has been variously referred to as ‘the logic of proof’, ‘evidence and inference’, ‘fact determination’ and so on. Ronald Dworkin does not concern himself with Bayes Theorem; Bayesians and inductivists alike do not concern themselves much with Dworkin or other theorists of legal reasoning. Yet every lawyer knows distinguishing between ‘questions of law’ and ‘questions of fact’ is problematic, contingent, and often unsustainable. Surely issues about the validity, cogency, and appropriateness of reasoning about questions of law and questions of fact are intimately related aspects of ‘lawyers' reasonings’, which in turn is part of the more general topic of practical reasoning.

Within evidence scholarship, a similar, but less sharp, bifurcation can be discerned between the literature on ‘the logic of proof’ (including debates about probabilities and proof) and the largely empirical literature on the role of narrative and stories in fact determination.