Abstract
Our established system of judicial proof is currently displaying the limits of its theory and practice: Academics are identifying paradox in the theory of evidence, there are signs of suboptimal evidence decisions, and the emergence of new social networks and platforms are legitimating a developing theory and practice of adequate proof that is outside our conventionally-defined legal system. This paper interprets judicial proof in semiotic terms and places our Modern-based legal system within a sequence of phases of social development the evolution of which, it is claimed, is marked by the emergence of disruptive language systems. The paper proposes a model premised on the theory that our current system of judicial proof is an expression of a Modern, socially-dominant, text-based language system, offering that current digital-based, disruptive changes to this system should reconfigure our conceptions and practice of proof. The model provides the framework for understanding the growing paradox and limitation in our current system, for rethinking the process of proof in trials, and for expanding our concepts of law and proof. The paper further suggests that contemporary society is experiencing the limits of our current, Modern-based system of judicial proof. The model attempts to advance understanding in response, by positioning this experience within an emerging Post-Modern system that presages profound changes in the identity, institutions and legitimation of proof.
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Notes
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For example, criticism of the law-fact distinction as indefensible describes the unstable nature of the distinction in terms that are consistent with the conclusion that this major structuring feature of the common-law legal system is a paradox. See Allen and Pardo (2003). Critical analysis of conventional theory of juridical proof reveals contradictions in the theory, which suggest it can also be viewed as paradox. For instance, the conventional theory separates the legally-defined elements and the potentially counterintuitive outcome that results when the probability of proof assigned each disaggregated element are combined seems reminiscent of the classic Zeno’s paradox. See Allen (1993–1994).
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The concepts of verification and validation applied in the context of computer simulation provide some insights that are useful in understanding the proposed Semiotic Cycle. Computer simulation models are imitations of real-world systems, and their approximations are verified and validated to the degree needed for the models intended application. In this context, verification of the simulation model is conceptualized as a process of confirming that it is correctly implemented with respect to conventional specification and assumptions associated with the purpose of the conceptual model, and validation of the simulation is conceptualized as checking the accuracy of the model’s representation of the real system. See generally Naylor and Finger (1967) and Banks et al. (2010).
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Often we rely on parallel sign processing that functions to confirm attribution to the same referent, and we adduce this evidence in trials to bolster proof. See Allen (1993–1994). For example, the movement of lips synchronous with verbal sound confirms the attribution to the speaker, a photo reinforcing a verbal statement, or a rating reinforcing a specific assigned value.
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The increase in system complexity associated with each evolutionary step creates a dependent hierarchy of language—digital founded on written, which is founded on oral, which is founded on genetic, which is founded on electro-chemical—with the creation of each successive system level being accompanied by a new, more complex language system that represents the system that preceded it. The notion of a dependent hierarchy of language helps us understand this complexity and its underlying meta-communicative capacity. It also helps us understand that the dependent hierarchy of language establishes an immutable direction of natural development for our world. The violation of this natural hierarchy, when for example we elevate society above nature, is arguably the source of some of the most profound and damaging paradoxes. Understanding this natural hierarchy helps navigate fundamental issues regarding framing of logical types and accordingly mitigate the paradox which is a symptom of the pathology associated with inversion of the nature-based hierarchy.
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This corresponds with the dual perspectives familiar to semiotic analysis: (1) paradigmatic, from which perspective the levels form static logical types each defining a class; and (2) syntagmatic, from which perspective the levels are viewed as the dynamic articulations of speech. See Saussure (1986).
- 9.
The Signification System middle level of the model can also be viewed in terms of narrative boundaries, which set “biases” Language System. These biases operate on the structure of predication of social statement through “principles of selection” and “principles of economics”. The principles of selection operate in regard to the paradigmatic pole of language to define objects. The principles of economics operate in regard to the syntagmatic pole of language to define the relationships among objects. The complex predications that are compiled in the narrative statements are structured by these dual principles working through the poles of language. Together the principles set the bias on meaning whose structure is expressed in the identity, institutions, and legitimation of the social system and its derivative sub-systems.
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The units of measure could be alpha, numeric, or possibly other types of symbols, the relationships among which create a set of distinctions that can be used to “map” the referent they describe or measure.
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Paradox ensues when there is an inversion of natural and historical dependencies because the member contradicts its membership in its class. An inversion occurs, and paradox results, when something is, or announces itself, at one level as a member of a class upon which it depends, but at another level defies the class definition and the rules of construction of the class.
“This statement is untrue” is a simple illustration of how a paradox can be produced by a logical inversion of a natural, dependent hierarchy, in this case an inversion of the natural, dependent hierarchy that is traced by the history of language. The statement is paradoxical in that it contradicts its implicit truth claims as a meaningful utterance. At one level the statement uses conventional syntax and word denotation to produce a grammatically correct statement. At another level, the resulting a self-referential meaning undermines the very conventions and historical development of the syntax and denotation that precede it and upon which it depends. The paradox accordingly results because the statement defies the very social conventions of language that support, and developmentally precede, its truth claims.
Paradoxes are thus the symptoms of a process of logical typing that, when applied to classifications of the world, potentially subvert the dependence of the human subject on a hierarchy laid down by a developmental sequence—a dependent hierarchy in which the lower levels (nature) developmentally precede the higher levels (human culture). The potential for inversion is realized when the dependent hierarchy becomes represented in a classification that constructs a hierarchy of logical types that runs in the opposite direction to the dependent hierarchy. The criticisms leveled against the controversial theory of intelligent design, for example, seem to be implicitly based on the argument that the theory performs such an inversion—the natural world is explained by the theory as the product of human-like intelligence and this, the critics argue, contradicts the Darwinian-based idea that natural world evolutionarily precedes human culture.
See Francis (2009).
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The Modern-based legal system struggles to position its own development within social history that structures it—to position its ontology within the phylogeny that frames it. (Indeed the versions of original-intent debate that plague Modern legal systems suggests it cannot even satisfactorily position itself inside its own development, i.e. it cannot position its phenotypic characteristics within its ontology.) As a corollary of this, the Modern-based legal system exhibits limited self-awareness of the industrial-aged origins of the institutions and text-based technology that serve as its foundation. It moves painfully slowly to try to adapt to change and often applauds its conservative nature as a basis of legitimation. Its ideological and structural inability to position itself within history arguably limits its theory and practice, and in turn shackles the capability of the society it regulates. A symptom of this is acceleration of paradox and suboptimal outcomes.
- 14.
An interesting evidential control on the central common law experience is provided by the practice and history of the English Court of Equity. While Equity was centralized and text-based similar to the common law courts, it used a system of interrogatories to regulates its proceedings in place of the common law system of pleadings. As a result, Equity litigation developed into giant rambling narratives where, in marked contrast to common law proceedings, the boundary between law and fact was ill-defined. I argue elsewhere that this developed because judicial control was differently defined as a type of “market differentiation” relative to the common law. See Francis (1986).
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This development was foreshadowed in the early text-based societies of classical Greek and Roman times.
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Despite evidentiary gatekeepers (such as the rule against hearsay), certain types of financial information and financial expert testimony have found their way into the courtroom. For example, to admit financial records courts have relied on the business records exception to the rule against hearsay, which is embodied in Rule 803 of the Federal Rules of Evidence. See United States Code Service Federal Rules Evidence. R. 803; See also In re WorldCom, Inc. Sec. Litig., 2005 U.S. Dist. LEXIS 2215, *19 (S.D.N.Y. February 17, 2005), Kwestel (1999).
With the increase in complex financial documents entering the courtroom, courts began to allow financial experts to testify as expert witnesses. See Dionne et al. (2018), Hopkins et al. (2010) and Hill et al. (2009). See also California v. Sutter Health Sys., 130 F. Supp. 2d 1109 (N.D. Cal. 2001) (financial expert testified as to defendant’s accounts receivable); Steiner Elec. Co. v. Maniscalco, 2016 51 N.E.3d 45, 54 (financial expert testified as to the value of a customer list); In re Commercial Fin. Servs., Inc., 350 B.R. 520, 529 (Bankr. N.D. Okla. 2005) (discussing the qualifications of a financial expert).
However, while initially courts were more lenient on admitting financial expert witnesses, as opposed to being stricter on other types of expert witnesses (medical, engineering, etc.), there has been a push to heighten the standards for when a financial expert should be allowed to testify. See Adrogue and Ratliff (2000) and Lloyd (2007).
Furthermore, when confronted with advances in data analytics and machine automation, courts have struggled with the issue of whether machine generated testimony (such as analytics of a company’s internal controls) should be admissible in a court of law, and as such have demonstrated unwillingness to allow this type of evidence. See Roth (2017) and Sites (2014, 2018).
See generally supra note 2.
- 17.
For example, in the English common law courts around 95% of cases filed in the hundred years before the mid-nineteenth century were credit collection suits. Further, in the first year of operation of the English County Courts in 1844 their dockets were completed dominated by credit-collection lawsuits, with around 500,000 initially filed, growing to one million by the end of the century. See Francis (1986).
- 18.
Paradox and suboptimal outcomes are symptoms of epistemological exhaustion that are not unique to the Modern. They accompanied the decline of the Pre-Modern and will arguably reappear when the current Post-Modern runs its course. However, paradox has different manifestations across the historical phases, and their current manifestation are specific to our Modern-based system of judicial proof.
- 19.
Exploration of the use of different tropic form to categorize trial narratives is beyond the scope of this paper. However, a possible direction for research would involve examination of the correlation of the different semiotic forms of evidence with the different forms of trope—the principal types being metonymy, synecdoche, and metaphor. One possible hypothesis is that indexes, icons, and symbols correspond with the narrative use of metonymy, synecdoche, and metaphor respectively. Another possible hypothesis is that the epistemology of the Pre-Modern, Modern, and Post-Modern, correspond with the dominant use of metonymy, synecdoche, and metaphor respectively.
- 20.
Interpretation in terms of the Semiotic Cycle that holds the potential to change conventional trial theory and practice, also holds the potential to change how we view proof in our larger politico-economic society. Viewed in terms of this emerging perspective, the phenomenon of “fake news” that circulates in the contemporary can be seen as presaging conscious recognition of this semiotic interpretation. However, in contemporary society where the social interpretation of mass media communication is still strongly invested in the Modern epistemology, there is cause for concern regarding the motives surrounding this phenomenon. In particular, there is manipulation associated not only with the creation of fake news, but also with the false allegations of fake news, both of which can be skillfully used to fabricate or discredit proof and create dangerous feedback cycles within public sentiment.
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Francis, C.W. (2021). The Paradox of Proof: A Semiotic and Language-Based Critique. In: Zhang, B., Man, T.Y., Lin, J. (eds) A Dialogue Between Law and History. Springer, Singapore. https://doi.org/10.1007/978-981-15-9685-8_3
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