Truth and Law revisited

The present research aims to reconstruct one of the central tenets of the rationalist
tradition in evidence law1 from the standpoint of law as an action-guiding mechanism:
The means-end relationship between law and truth.2
I will name structural thesis to the thesis that states the following: The means-end
bond between law and truth is necessary for the success of the first as an action-guiding
mechanism of those who live in a certain community.3
Insofar the truth is necessary to achieve such goal the rationalist tradition places the
truth in a higher stand regarding other non-epistemic values that also play a role in the
judicial proof assessment operation.4
This means that in the judicial process the ascertainment of truth of the litigated facts is
a priori more important that the protection of other non-epistemic values.5
This subject has been analyzed by various authors along the years, although generally
speaking this issue has been studied from different perspectives such as procedural law,
philosophy of law, evidence law and so forth.6

1 The rationalist tradition is the dominant view in evidence law.

2 For a broad view of the theories regarding the relationship between law and truth, see: Sebastin Reyes,
Juicio como herramienta epistemolgica: El rol de la Verdad en el Proceso, Anuario de Filosofa
Jurdica y Social, N 30, (2012): 221-235. Para una cuenta de las teoras escpticas, ver Mirjan Damaska,
Truth in adjudicaton, Hastings Law Journal (1998): 289-308.

3 Jordi Ferrer, La prueba es libertad, pero no tanto: Una teora de la prueba cuasibenthamiana, en Formacin y valoracin de la prueba en el proceso penal, coord.. Daniela
Accatino, (Santiago: Legal Publishing, 2010):13-14
4 Hock Lai Ho, A Philosophy of Evidence Law: Justice in the Search of Truth (UK: Oxford
University Press, 2008), 69 y 70.
5 Juan Carlos Bayn, Epistemologa, Moral y prueba de los hechos: Hacia un enfoque no
Benthamiano, en Analisi e diritto, (2008): 16 y 17.

This research, however, pretends analyze the means end bond between law and truth
from the legal theory perspective under a realist approach. 7 In broad terms, this work
challenges the structural value ascribe to ascertain of truth within a judicial process,
as conceived by the rationalist tradition, and it states that, from an action guiding
approach, truth does not play a preponderant role over other non-epistemic values that a
certain community decides also to protect.
The structural thesis of the truth in the judicial process can be understood of two
ways: 1) Law has a normative force. This means that Law has an inherited property
(i.e., binding force) that in order to guide the behavior of the members of a certain
community needs to ascertain the truth of the facts that constitutes the conduct that Law
wants to forbid, allow or command. Insofar, Truth is a structural element within the
Law. 2) Law is just an instrument (among others) for guide the conduct of the members
within a certain community and only if it is able to ascertain the truth of the litigated
facts the Law would be successful in achieve its ascribed function.
According to the latter the provisional conclusions that I seek to present are the
following: a) it is not possible maintain, as the rationalist tradition does, that the truth
plays a structural role within Law, b) truth (i.e, ascertainment of truth) does not have a
preponderant role or status with respect to other non-epistemic within the assessment of
judicial proof.
This not means that we can just ignore or dispense the role that the truth plays within a
judicial process but rather that the relationship that could exists between this and the
Law needs to be redefined in the context of judicial proof assessment.

6 See: Jordi Ferrer, Prueba y verdad en el Derecho (Marid: Marcial Pons, 2002), Michele Taruffo, La
prueba de los hechos (Madrid: Editorial Trotta, 2009), Michele Taruffo, Simplemente la verdad, (Madrid:
Marcial Pons, 2010), Alex, Stein, Foundations of Evidence Law (UK: Oxford University Press, 2005),
Ho, A philosofphy of evidence law, Terrence Anderson, David Schum & William Twining, Analysis of
evidence (UK: Cambridge University Press, 2005), William Twinning, Rethinking Evidence: exploratory
essays, (UK: Cambridge University Press, 2006).

7 In the sense that its main interest is study this phenomenon and its consequences from the
legal practice rather just a theoretical approach.