JURIST - Tillers on Evidence

JURIST >> OPINION >> Blogs >> Tillers on Evidence

—————————————————————————————
Professor Peter Tillers of Cardozo Law School in New York blogs for JURIST on the latest evidence issues...
—————————————————————————————

Sunday, March 27, 2005
Ontology and Evidence

Evidence and inference in their modern form (in US law, in any event) presuppose the death (or nonexistence) of a grand ontology -- a general theory of (or about being), a theory that sees some sectors of being as the foundation and basis of everything else. Much or most contemporary (US legal) thinking takes the view that anything can in principle be evidence of anything else. But if one has an ontology -- a theory that points to an accessible, or intelligible, foundation of things --, then the best evidence of how things stand in the world is how things stand at the foundation of everything that one sees in the world.

In Western intellectual history ontologies came to an end with the rise of the nominalism that was British empiricism. After Hume, philosophy was possible as epistemology, but not as ontology. Kant rebuffed Hume's skepticism -- or attempted to do so -- by giving causality theoretical validity. Did Kant (perhaps despite himself) thereby rejuvenate ontology? I think not. If Kant vindicated causality, he vindicated the thesis that there are -- or that we can rationally believe that there are -- mechanisms in the world that lead to the phenomena that we see. But Kant's theory of causality did not give primacy to any particular sector of being, to any particular set of mechanisms -- e.g., DNA, quantum processes, or whatnot. Hence, (wo)man cannot (rationally) "privilege" -- give epistemic priority to -- any particular sector of the cosmos when seeking to draw inferences about phenomena in the world.

N.B. But perhaps quantum processes (of some kind) are the foundation of "everything." I gather that some or many physicists and scientists think that this is the case. So do we now have, once again, a universal ontology? I think not. If such physicists and their spiritual allies are correct -- and I am definitely not in a position to challenge them -- their universal ontology is not an accessible ontology; i.e., we (and they) do not yet know how to use this alleged foundation of everything (e.g., quantum mechanics or whatnot) to explain how many or most phenomena in the world happen. (Perhaps in the fullness of time we will know how to do this, but we and the quantum theorists are not there yet.)
Posted by Peter Tillers at 2:12 PM
| #

Archive of Tillers on Evidence

Would you like to blog for JURIST? JURIST is currently seeking law professors interested in voicing opinions and views in specific subject areas on a regular basis. E-mail JURIST@law.pitt.edu

JURIST BLOGGER

Professor Peter Tillers

"I have practiced a little bit of law -- I worked as a litigator, once in California and once in Texas -- but for most of my professional life I have studied and taught law.

In the early part of my academic career I dabbled in philosophy, particularly the philosophies of Kant and Hegel. But as I matured, I came to my senses. This explains why during the last 15 years I have devoted much more attention to evidence, inference, and proof in litigation than to German Idealism and similar matters. However, I did not succeed in completely obliterating the influence of philosophy and epistemology on my thinking. Thus, in my effort to understand and explain the process of proof in litigation, I have devoted a great deal of attention to matters such as probability theory and theories of evidence, inference, induction, and proof.

Peter Tillers is Professor of Law at Cardozo Law School, Yeshiva University. He revised volumes 1 &1A of Wigmore on Evidence (1983) and is the author of Probability and Inference in the Law of Evidence (1988; with E. Green).