Research Group
in Analytic Philosophy

Abstract

    In this talk I investigate the relation between Michael Dummett’s thoughts about Anti-Realism and legal discourse. One of Dummett’s most important ideas has been that metaphysical assumptions can be read off of the rules that govern our discourse about a given subject. Although this idea has been applied in the philosophy of law by such scholars as M. S. Moore and T. Spaak, their focus has been the hermeneutic task of interpreting laws and the realistic or anti-realistic conceptions of law itself that underlie the different approaches to such interpretation.
    In contrast, I will concentrate on the task of finding facts about crimes and administering the relevance or admissibility of these facts in court, the task that L. Laudan aptly calls legal epistemology. The way legal discourse is governed at this stage of the trial implies not an Anti-Realism about the law, but rather an Anti-Realism about past events.
    Dummett is concerned with areas of discourse which are governed by standards of proof, not verification-transcendent truth. The prime example, and the model of Dummett’s philosophical Anti-Realism, is constructive mathematics. However, outside of mathematics it seems hard to find discussions in which the success or failure of an assertion hinges essentially on the ability of the speaker to prove his claim, or the ability of the audience to disprove it.
    I suggest that legal discourse is a prime such example, especially as it occurs in American criminal law. There, a charge needs to be established beyond a reasonable doubt to lead to a conviction. Continental law instead asks for intime conviction, reasonable conviction on the part of the judge. I will argue that this means that an important difference between American Common Law and Continental Law can be reconstrued as a difference between an Anti-Realistic and a Realistic conception of the events of the crime.
    Moreover, legal discourse has a special feature that settles a question that runs unresolved throughout the writings of Dummett and his followers: Which is more basic to our linguistic exchanges: Proof or Refutation?
    This essential feature to settle this question is that in a trial, an effort has to be made to discern which party has to bear the burden of proof. In criminal law, normally the prosecution has to bear the burden of proof as a corollary of the presumption of innocence.
    In court, the success of an assertion will be governed by different norms, depending on whether the burden of proof lies with the speaker or with the audience. In the first case, an assertion will be successful iff provable, in the second successful iff not refutable. Thus an Anti-Realistic theory of legal discourse will have to invoke both proofs and refutations.