www.psljournal.com/archives/newsedit/shieldsA.cfm
Truth in Legal Practice
William M.
Shields, J.D.*
* Associate General Counsel,
Defense Nuclear Facilities Safety Board; Ph.D. candidate, Department of Science
and Technology Studies, Virginia Tech.
I read with interest Susan Haack’s article on truth in the law.[1] To the extent that I followed the
philosophical points being made, I suspect that I am in agreement with Dr. Haack. In this note I offer brief comments from the standpoint
of a practicing lawyer.
To be blunt about it, the word “truth”
or its plural form rarely appear in the practice of law. Most practicing lawyers would be quite
puzzled by statements such as “legal claims are made true or false by
legislation or precedent.” Lawyers and
judges do not trade in propositional truth-statements, rather, they deal in
facts, evidence, arguments, and burdens of proof. That this is so can be seen by examining
standard practitioner references. Black’s Law Dictionary, for example,
devotes just a few lines to “truth”:
1. A fully accurate account of events, factuality. 2. Defamation. An affirmative defense by which the defendant
asserts that the alleged defamatory statement is substantially accurate.[2]
By contrast, the definition of “fact”
covers about two full pages, with three principal meanings and 42 definitions
of specific types of fact.[3] “Evidence” covers five full pages with four
principal meanings and 93 definitions of specific types.[4] Even the definition of the crime of perjury
avoids the use of “truth”: “the act or an instance of a person’s deliberately
making material false or misleading statements while under oath.”[5] Perusal of other legal references (treatises,
dictionaries, periodicals, etc.) will yield the same results.[6] Where “truth” or “true” is defined, it will
be to the effect of “that which is a fact” or “that which is verifiable,”
leading back to the legal concepts of evidence and proof.[7]
In my experience, the word “truth” only
arises in legal practice (I should add, American legal practice) in two
contexts: testimony under oath and the associated crime of perjury, and the
defense to a charge of defamation (defamation requires that the statement be
false). Fact-finding by the courts is
not an attempt to determine “the truth” in some absolute sense, but to make a
finding based on the weight of evidence actually admitted. Legal rulings by the courts do not decide the
truth or falsity of legal claims; they apply existing case precedents and
applicable statutes, if any, to the case at bar.
In point of fact, lawyers are trained
to avoid making absolute statements about truth and falsity, because nearly
everything in the practice of law is subject to qualification and
challenge. In 28 years of practice, I don’t
believe I have ever used “truth” in the way Dr. Haack
uses it. I may argue that the other
party is wrong, that the law is such-and-so as best I can determine, that a
witness appears to be giving credible testimony. This avoidance of absolutist, propositional
thinking is discouraged from the moment you set foot in law school. I remember this very well, coming from
graduate school in theoretical physics, where you tried to make hard statements
about “the right answer.” In my view,
the only propositions in law that can be said to have a reasonably certain
truth-value are trivial and of no real use.
Examples might be “There exists a statute in Virginia that defines
murder,” or “The Supreme Court has spoken to the issue of the admissibility of
scientific evidence in Federal trials.”
These statements might be viewed as “true,” but it is clear that their
value to the practitioner is minimal.
I cannot make the point as clearly as
did Justice Oliver Wendell Holmes in his treatise on the common law [8]:
The object of this book is to present a general view of the
Common Law. To accomplish the task,
other tools are needed besides logic. It
is something to show that the consistency of a system requires a particular
result, but it is not all. The life of the law has not been logic: it
has been experience. The felt
necessities of the time, the prevalent moral and political theories, intuitions
of public policy, avowed or unconscious, even the prejudices which judges share
with their fellow-men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed. The law embodies the story of a nation's
development through many centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know
what it has been, and what it tends to become.
We must alternately consult history and existing theories of
legislation. But the most difficult
labor will be to understand the combination of the two into new products at
every stage. The substance of the law at
any given time pretty nearly corresponds, so far as it goes, with what is then
understood to be convenient; but its form and machinery, and the degree to
which it is able to work out desired results, depend very much upon its past.
This statement, more than a century
old, remains an accurate characterization of law as practiced in the United
States and Great
Britain.
I believe it explains why “truth” gets such short shrift in the legal
dictionary, and why lawyers do not think or practice in the terms used by Dr. Haack.
