The plain truth about legal truth.

• Author: Moore, Michael S.
• Position: Panel I: Law & Truth: Pre-Modernism, Modernism, and Post-Modernism - Federalist Society 2002 Symposium on Law and Truth

1. INTRODUCTION II. WHY WE SHOULD CARE ABOUT ISSUES CONCERNING THE TRUTH OF SINGULAR LEGAL PROPOSITIONS III. SKEPTICISM ABOUT TRUTH IN LAW: ITS CAUSE AND CURE A. Three Pseudo-Skepticisms About the Truth of Singular Legal Propositions B. Five More Genuine Skepticisms About the Truth of Singular Legal Propositions IV. REALISM VERSUS CONSTRUCTIVISM AS TO THE NATURE OF LEGAL TRUTH A. The Two Theories of Truth Restated B. Three Arguments About Legal Truth V. CONCLUSION I. INTRODUCTION

   In one of his ballads the country/western singer Johnny Cash croons, "The lonely voice of youth cries 'what is truth?'" (1) In this first and most general panel, we are bid to confront a variation of the youth's general question and the implications of various answers to it. Such "what is ...?" questions are notoriously fuzzy in the answers they invite. For example, Erich Segal's answer to the question, "what is love?": "never having to say you're sorry." (2) Before launching into defense of some answer to such questions, we ought to pay attention to the question itself. As H.L.A. Hart noted in the introductory chapter of The Concept of Law, (3) the first thing to do with questions such as, "what is law?" (or "what is truth?") is to get clear what the question is asking. In this introductory section I shall offer three clarifications of the question about truth's nature.

   First, I wish to put aside the normative issue that will no doubt dominate the discussions in later panels. This is the issue of the extent to which legal decision-makers (judge or juries) should seek to find "the truth" in disputed legal cases. For example, other normative desiderata such as efficiency in adjudication, protection of various relationships in the privilege doctrines of evidence law, and restraints on police behavior by the exclusionary rules are plainly competitors with factual truth-seeking as the goal of legal dispute resolution. Ours, however, is a distinct and prior question: can legal decision-makers meaningfully be enjoined to seek the truth? What is it that such injunctions command judges and jurors to find if they are enjoined to find the truth? Do such truths of law and of legally relevant fact exist to be found?

   My second clarification has to do with the bearers of truths in law cases: what is properly said to be true or false? We should not be concerned here with philosophical conundrums about the nature of truth bearers (the candidates being beliefs, sentences, statements, assertions, propositions, and the like). (4) We should simply stipulate a concern with propositions as truth bearers, and move on. Rather, the main item to clarify here is the kinds of propositions whose truth or falsity is of interest to lawyers. Consider the following five possibilities: (5)

   (1) Factual propositions. In the recent film, A Few Good Men, a lawyer tells a witness "I want the truth," whereupon the witness responds, "you can't handle the truth." (6) The characters are referring to the truths of certain propositions of fact relevant to the case. These are probably the most obvious kinds of statements whose truth or falsity is of interest to lawyers. (2) General legal propositions. Equally as involved in decisions of disputed legal cases as propositions of fact, are general propositions of law. A general proposition of law is one contained in a universally quantified statement such as, "all non-holographic wills require two witnesses in order to be valid." (3) Interpretive propositions. Because general propositions of law are about a general class of cases but no one particular case, we need interpretive premises in order to connect the particular facts of a given case to general propositions of law. Such premises connect factual predicates to legal ones, so that one can connect, for example, factual propositions about the written name of a particular person on a particular document, to legal propositions about subscriptions, signatures, witnesses, and valid wills. (4) Propositions of value. Some theories of law and of interpretation would reduce items (2) and (3) above to propositions of fact. Rejecting such legal positivist and legal formalist theories, as I do, requires a fourth kind of proposition, that of value. In various ways, propositions of value are partly truth determinative of both general propositions of law (2) and of interpretive propositions (3). Such propositions of value are thus relevant to our concern about the kinds of propositions whose truth or falsity is determinative of the outcome of disputed legal cases. (5) Propositions of logic. Contrary to much of the overblown and misdirected rhetoric of the American Legal Realists and their intellectual descendents, a decision in a disputed legal case involves logical deductions. (7) The premises are matters of fact, law, and interpretation, and the conclusion is the proposition describing the decision in the case. What justifies the decision as following from these kinds of propositions is logic, or, more specifically, the roles of inference of modern logic. If "p" is true, and if "p implies q" is true, then "q" must be true as well. This role of inference, which the Stoics named modus ponens, states a necessary kind of truth, logical truth. No one can plausibly urge judges or juries to be illogical in their decisions, so propositions of logic like modus ponens join the other four kinds of propositions as necessarily involved in the decision of disputed legal cases. Since propositions of these five kinds are all involved in deciding disputed legal cases, each is of interest as a bearer of truth-value when we consider truth in law. A way to mark this interest in all five of these kinds of propositions is by focusing on a sixth kind of proposition as the bearer of truth-values:

   (6) Singular legal propositions. (8) A singular legal proposition is one that is neither semantically general nor universally quantified. Its terms do not refer to a class of particulars nor does it purport to predicate a property of all members of that class. Rather, a singular legal proposition predicates a legal property about one particular item referred to by a proper name or a definite description. Consider the following examples: "this will is valid" and "the defendant is guilty of murder." Such singular legal propositions may be either dispositive, as in the latter example, or evidential, as in the former example. (9) In either case, they are the vehicles for expressing either all or part of a judge's or jury's decision in a particular case. My focus will be on the sense in which singular legal propositions can be true or false. The central role of such propositions in the decision of disputed legal cases and, consequently, the implications for central jurisprudential concerns stemming from the nature of the truth of such propositions, justify this focus. Since the truth-value of such singular legal propositions is fully determined by the truth-value of propositions of fact, general law, interpretation, value, and logic, what we say about the nature of truth of singular legal propositions will have many implications for, and presuppositions about, the nature of truth for these other five kinds of propositions. An exploration of the nature of truth plausibly attributable to singular propositions of law is quite enough for one day, however, and I will leave the implications for the other five for another day. (10)

   My third clarification is to separate existential questions about truth from mind-independence questions about truth. Put rather crudely, the existential question about troth asks whether truth exists. More exactly, with respect to some kind of propositions, such as singular propositions of law that will occupy us in this paper, is their nature such that they can have a truth-value? This question does not ask whether certain of such propositions are true, rather, it asks whether truth-values are meaningfully assigned to such singular propositions of law. The second question, that of mind-independence, concerns the nature of truth. More exactly it asks, when certain propositions are true, does their truth result from their correspondence to some underlying facts, facts whose nature and reality in no way depend on the beliefs, conventions, or mind-sets of humanity? Or does their truth result, instead, from their relations to mind-dependent items like beliefs, social conventions and mind-sets of humanity? Is the truth (of singular legal propositions), in other words, a real property of those propositions, or is it merely an artificial property, one to be constructed out of relations (of coherence, consistency, fit, and the like) to existing human beliefs and conventions? The older names for these two possible theories are the correspondence (or more generally, "realist" or "classical") and the coherence (or more generally, "epistemic," "idealist," "constructivist," and "instrumentalist") theories of truth. (11)

   We need to separate the existential question from the mind-independence question because the concerns that bear on each differ. The reasons why one might suppose a certain sort of proposition lacks truth-values typically differ from the reasons tempting one to a coherence view about the nature of truth. Clarity thus demands that we separate the consideration of these issues. (12)

   If we do ask these two questions separately, we can see that there are three major positions possible on this issue. There is, first of all, the position of the philosophical realist about some area of discourse. The realist affirms that the propositions in question have a truth value, that that value is "true" for the propositions in question, and that such truth is independent of human beliefs or conventions. One opponent of the realist is the skeptic. The skeptic answers the first question negatively, denying either that the propositions in question have any truth-values, or that such propositions are ever...