Law and Epistemology

In the comments to a thread a couple of entries down, Gideon Rosen makes the following point.

Note that in most legal contexts, knowledge means “true belief” or perhaps “true confident belief”.

As noted in the thread, there are some exceptions to this (e.g. insane people, perhaps beliefs about the future) but it seems to be largely correct. He goes on to say.

It never means knowledge in our sense.

I sort of agree. Relying on a philosophical analysis of ‘knowledge’ would get you laughed out of court in most cases where it mattered. But isn’t this a problem for epistemology? We’re meant to be analysing (or at least clarifying) the ordinary concept of knowledge. If in one of its most important uses, the law, the word ‘knows’ behaves totally differently to how we say it behaves, I think that’s a problem for epistemology. This looks like a project worth working on.

As also noted in the comments, Chris Green has a paper on law and epistemology on the program at the Pacific APA. Chris seems to take a different line to what I’m interested in – he uses some of the careful distinctions the law makes to try to adjudicate between different contemporary epistemological theories. I’m more interested in the idea that the law provides evidence that contemporary theories of knowledge are more radically mistaken, and that the law is right to say (as do some epistemologists, e.g. Hetherington and Sartwell) that knowledge is something like true confident belief.

16 Replies to “Law and Epistemology”

  1. But aren’t there all sorts of technical uses of terms in legal contexts that don’t correspond well to how the word in question is normally used? At most, I think this could show some sort of contextualist thesis about knowledge in legal contexts, and even then I’m worried. The law might say I know something, but if I’m a lawyer, juror, or judge, and I’m not talking about my legal status of knowing but simply my own sense of my evaluation of a case at hand, then maybe more ordinary senses of ‘know’ are the most relevant.

  2. There are technical uses of some terms in the law, but ‘knows’ is not one of them. As the previous threads have shown, the definitions we get of knowledge terms in rules and regulations are fairly circular, and just involve appeal to common concept of knowledge. Yet this ends up having a much different extension to any philosophical analysis of knowledge.

  3. In the other thread Gideon says that the Model Penal Code takes the view that no one can know the future. I don’t know the code as such, but I’ll be astonished if this comes from simple appeal to the common concept of knowledge rather than by some sort of stipulation (or explicit statement in a judicial ruling). Gideon, if you’re watching, where does this come in?

    I’ll take this position now (while feeling free to retract it if I get into trouble): In the ordinary use of ‘know’, knowledge is vague and perhaps context-dependent. When questions of who knows what have legal implications, we need a less vague concept, so we need to stipulate rules that can be applied in a more systematic way. (These laws aren’t perfectly precise, but they’re more so than a Potter-Stewart-on-pornography “I know it when I see it” test.)

    If there were legal importance to questions of whether someone was bald, the law would need to stipulate some guidelines for what counted as baldness; but that wouldn’t necessarily show anything about the ordinary concept of baldness. The law needs to stipulate guidelines for what counts as a light truck, but that doesn’t necessarily tell us how the vague ordinary adjective “light” applies to trucks. The law needs to draw a bright line about when a fetus becomes a person, but that doesn’t mean the transition is in fact sharp. etc.

  4. Matt, I agree the law needs to resolve vagueness as it comes up. So we shouldn’t infer from the precision of a legal definition to the precision of the ordinary word. But that’s not what’s at issue here. If the law assigns to meaning to ‘knows’, under the guise of clarifying the common meaning, that isn’t even plausibly one of the precisifications of philosophers’ concepts, then there is a serious disagreement, and it isn’t clear why philosophers should be thought to have the better of it.

  5. My argument is that it isn’t even plausibly one of the precisifications of the ordinary concepts either. Ask the man on the street if he knows where he’ll be next week and (I reckon) odds are he’ll say yes. If the law says no, then the law is… not dealing with exactly the ordinary concept of ‘knowledge’, for perfectly good reasons of its own.

  6. I agree the future cases are tricky to square with my defence that this is getting closer to the ordinary meaning. So that’s a problem for me.

    I wonder how much the odd claims about future knowledge are epistemology and how much they are metaphysics. If the law wants to stay silent on whether there are future facts, and wants to say (plausibly) that knowledge is knowledge of a fact, then it would have a reason to say “no future knowledge” that’s consistent with the epistemology of ordinary usage, it just has a quirky bit of metaphysics in it.

    At this stage I really need a legal expert to tell me whether there is something like a consistent hewing to a causal theory of knowledge or whether the rule is more like true (minimally justified) belief about an existing fact.

  7. The point that the law must sometimes resolve vagueness can be made more general. The law is often concerned with choosing definitions which make the law tractable and swift. If it turns out that philosophers’ definitions of knowledge would either make certain sorts of laws very difficult to enforce, or give very little benefit over this ‘true confident belief’ standard while needlessly complicating every trial in which knowledge is an issue, then judges may be justified in choosing the definition they have.

  8. Matt: On the Model Penal Code and “knowledge” of the future. The reference is footnote 13 to the comment on §2.02:

    “With respect to result elements, one cannot of course ‘know’ infallibly that a certain result will follow from engaging in conduct, and thus to some extent “knowledge” , when applied to result elements, includes a contingency factor as well. This is expressed definitionally in terms of whether the actor is “practically certain” that the result will follow.”

    (In Kadish and Scholhofer, 7th ed. p. 220)

    The quotation marks and the qualifications suggest to me that the MPC is not as definite on the point as I had remembered. But lawyers do say this sort of thing all the time .. “Of course, one can never know the consequences of one’s acts …”

  9. As others have noted I would suggest that you take a look at how the Model Penal Code (MPC) defines ‘knowingly,’ and other mens rea terms, such as ‘recklessly’, ‘negligently’, etc..

    I would say that the definitions are basically in terms of ‘risk’, which means that the actor has made some ‘decision’ about the probability of a possible outcome. The writers of the MPC realized the philosophical problems behind their definitions and thus you may find some purchase for a critique from both sides of the philosophy/law divide.

    There has been much commentary on the MPC terms in the law journals. If you go to the MPC and its own commentary you will see some of this legal commentary referenced.

    Please keep us up to date on your thoughts on this matter. As a graduate from law school who is now reading philosophy I would be interested in your conclusions.

    Jerry Monaco
    His Bolg: Shandean Postscripts to Politics, Philosophy & Culture @

  10. I think the earlier posters have given some compelling reasons to believe that the law may warp the common usage of a word in order to serve the interests of clarity and precision. Moreover, the very fact that the law goes out of its way to define ‘know’ as justified true belief suggests that it really is using ‘know’ as a technical term in some sense. It would only be if the law used the term ‘know’ to mean justified true belief and didn’t feel the need to specifically define or stipulate this usage that we would have reason to suspect we weren’t correctly analyzing the pre-theoretic concept.

    Also it is my guess that the law is primarily concerned about whether an actor ‘knows’ something in order to assign culpability. We only want to hold someone responsible for an action if they ‘knew’ about the bad consequences. However, in this particular situation true belief is all that we are really interested in since the actor is just as morally culpable (intuitively) even if his belief wasn’t correctly justified.

    So on summary it seems we have evidence that the law recognizes that it might be using knowledge in a different way than the normal usage and we have reason to see why it might be beneficial to the law to ignore certain subtleties of knowledge. Taken together I don’t think it presents a very strong attack on the philosophers conception of knowledge.

  11. Also I think some of the comments in the earlier thread call into question whether it is really true that knowledge means something like confident true belief. If in practice courts won’t convict for murder when someone’s vodoo ritual by bizarre accident causes the death of the victim then these definitions we are talking about just don’t accurately describe legal practice.

    On the other hand if we really are going to take totally unjustifed confident beliefs to be legal knowledge the case that this is really a sort of technical use is quite strong.

  12. I would ask each of you how you define whether you, personally, “know” something or not, and then ask you if you have ever been wrong about something you knew. If you think you know something then you act a certain way, and if your actions produce the intended result then you effectively knew what you were doing and are liable for the results.

    I think this is the way that the law was intended, but that brings me to a new question: if the law understands that we can never know anything about the future for sure and, as we’ve seen above,all words are subject to interpretation then why does the law follow the letter and not the spirit? Isn’t this arrogance and ignorance at it’s worst? More importantly, can we actually change the law through philosophical indulgence? Or do those who create the laws profit too much from their loopholes, and stand to lose too much from more just laws?

  13. I agree with Brian that the law is a relevant source of evidence for philosophers who are interested in understanding what knowledge is. But such legal evidence would have to be handled very carefully, for a number of reasons:

    1. We would need to be clear about exactly which propositions (or “elements”, to use a more legal term) the law requires knowledge of. Sometimes the law itself may not make this clear; it may be that the law in fact only requires knowledge of a weaker proposition than one might at first think. (E.g. the law may in fact require knowledge only of the fact that one’s conduct was dangerous, not of the fact that it would most likely result in someone’s death.)

    2. There are cases where the law requires not “actual knowledge” but only “imputed knowledge” — i.e. it requires that the proposition or “element” is something that the relevant agent should have known.

    3. Legislators (and the authors of the MPC) intentionally leave some of the finer legal questions to be resolved by the courts. But courts often seek to ground their decisions on a basis that is principled but otherwise as narrow as possible — that is, a basis that speaks to the specific type of case at hand, but not to all possible cases that could arise. So courts are unlikely to come up with a full-blown account of knowledge; at most, they’ll rely on some fairly minimal necessary conditions for knowledge, or some highly specific sufficient conditions.

    4. Courts and legislators are only interested in actual cases, whereas for a philosophical account of knowledge, hypothetical cases are also important. The cases that most clearly bring out the difference between knowledge and mere true belief (on the part of an agent who is sane enough not to have an insanity defence) will arise fairly rarely if at all in the actual world. So the fact that the law doesn’t take account of these cases isn’t yet evidence that they are using ‘knowledge’ in a way that diverges from the sense that philosophers are interested in.

  14. Hi law & epistemology fans,

    In the interest of keeping it at the top of the “most commented” list, I’ve put a reply to Brian et al.‘s question from the Pacific onto the great Certain Doubts “Testimonial Knowledge” thread. It’s part of a new revision of my paper; send me a note at cgreen-at-sign-nd-dot-edu if you’d like to see it.

    I think that in the law, there may be a subject’s-interest-sensitivity to our duties to investigate, and so to knowledge. That would help the Hawthorne-Stanley IRI/SSI line. E.g., if you’re buying a house, you have a duty to check the land records for subsequent liens, but not if you’re just talking to someone about his experience with home-equity loans.

    I don’t think the law is only concerned about actual cases; it is also concerned about stable states of character that would tend to produce harm in nearby possible worlds too.

  15. Oh, one more thing: I think the law can be a useful source of intuitions on justification, e.g., in the law of fraud, which requires the plaintiff to be justified in relying on a misrepresentation. So I think that the law does in fact deal with the sorts of cases that separate knowledge from true belief, or at least false justified belief from false unjustified belief. My paper at the Eastern APA, “Suing One’s Sense Faculties for Fraud,” deployed the law of fraud as a source of intuitions on justification against Bonjour’s clairvoyance counterexamples.

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