Fact-finding, Standard of Proof, Habermas, Evidence, Civil Justice System
The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be factually reliable. This requires: (a) relevant evidence is admissible and exclusions are justified based on respecting human autonomy; (b) error-risk management is internally coherent and consistent; (c) the standard of proof is, at minimum, a balance of probabilities; (d) evidence is used rationally. Second, fact-finding processes must ensure fulsome participation rights. This project is justificatory—civil justice systems are imperfect, but there are attainable conditions that make them good, which must never be compromised.
Nayha Acharya, "Deciding, ‘What Happened?’ When We Don’t Really Know: Finding Theoretical Grounding for Legitimate Judicial Fact-Finding" (2020) 33:1 Can JL & Jur 1
Can JL & Jur