I was thumbing through Peter Murphy’s Murphy on Evidence (Thirteen Edition) and I came across a legal formula which struck me as possessing a curious resemblance to a theological confession.

I have in a previous post articulated how the legal standards of “proof beyond reasonable doubt” was entrenched in the background of the dispute between Protestants and Roman Catholics concerning the “rule of faith”. However it seems that this formula fell into some disfavour because there seems to be some difficulties explaining to juries what exactly constitutes a “reasonable doubt”. From this issue a new formulation arose which goes something like “satisfied so that you feel sure”. Here is the more complete explanation from Lord Goddard CJ in Summers:

If a jury is told that it is their duty to regard the evidence and see that it satisfies them so that they can feel sure when they return a verdict of guilty, that is much better than using the expression ‘reasonable doubt’ and I hope in future that that will be done.

Thus essentially this standard of proof, in effect, introduces a subjective element of “feeling sure”. To be sure it isn’t completely subjective because the objective element remains that they first “regard the evidence”, and then see if it “satisfies them” enough to return a verdict of guilty. But this formula bears a remarkable resemblance to another theological formula:

V. We may be moved and induced by the testimony of the Church to an high and reverent esteem of the Holy Scripture. And the heavenliness of the matter, the efficacy of the doctrine, the majesty of the style, the consent of all the parts, the scope of the whole (which is, to give all glory to God), the full discovery it makes of the only way of man’s salvation, the many other incomparable excellencies, and the entire perfection thereof, are arguments whereby it does abundantly evidence itself to be the Word of God: yet notwithstanding, our full persuasion and assurance of the infallible truth and divine authority thereof, is from the inward work of the Holy Spirit bearing witness by and with the Word in our hearts.

-Westminster Confession of Faith: Chapter I: Of the Holy Scripture

Thus while a person can “regard the evidence” and arguments of Scripture, that is, all the external characteristics of its “incomparable excellencies, and the entire perfections thereof” which makes evident itself as the World of God, ultimately there still remains a subjective element whereby our “full persuasion and assurance of the infallible truth and divine authority” of the Scriptures is still a matter of “the inward work of the Holy Spirit bearing witness by and with the Word in our hearts”. Thus ultimately there is still a subjective element of being convinced of the true nature of the Holy Scriptures which can only come about by the internal witness of the Holy Spirit in our hearts.

In both the legal and theological context, it seems that both testify to the idea that justice and piety isn’t something which could be flawlessly or mechanically deduced in a mathematical way but involves an element of “luck” or, as we would say, grace of God, somehow coordinating and enlightening the hearts and minds of man to the truth, whether it concerns a trial or a theological proposition.

Perhaps later on I’ll write a fuller discussion on the parallels between our legal standards of evidence, reliabilist epistemology, and its theological relevance, but for now it is enough to simply note this fascinating parallel between the theological and legal context.

One thought on “The Presbyterian Epistemology of Contemporary English Law of Evidence”
  1. Have you ever read Carl Schmitt, particularly “Political Theology”? If not, it’s worth examining for the connections you’re drawing.

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