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Legal Interpretation and Standards of Proof Sebastián Reyes Molina Legal Interpretation and Standards of Proof Essays in Philosophy of Law and Evidence Law Theory Dissertation presented at Uppsala University to be publicly examined in sal IV, Universitetshuset, Akademigatan 3, Uppsala, Friday, 13 March 2020 at 02:15 for the degree of Doctor of Philosophy. The examination will be conducted in English. Faculty examiner: Professor Verónica Rodríguez-Blanco (University of Surrey). Abstract Reyes Molina, S. 2020. Legal Interpretation and Standards of Proof. Essays in Philosophy of Law and Evidence Law Theory. 21 pp. Uppsala: Department of Philosophy. ISBN 978-91-506-2804-3. This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers: In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour- guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing. In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules. In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. Keywords: law, legal interpretation, evidence, legal evidence, proof, philosophy of law, legal theory, general jurisprudence, standards of proof, philosophy, legal reasoning, evidential reasoning Sebastián Reyes Molina, Department of Philosophy, Box 627, Uppsala University, SE-75126 Uppsala, Sweden. © Sebastián Reyes Molina 2020 ISBN 978-91-506-2804-3 urn:nbn:se:uu:diva-402713 (http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-402713) Acknowledgments I remember when I decided to do a Ph.D. It was my second year of practicing law. At that point, I was litigating cases before the Chilean Supreme Court. These cases dealt with highly technical issues whose interpretation was a mat- ter of debate. Now, to any lawyer that has litigated cases before higher courts, the fact that their inquiry focuses mostly on issues that go beyond the substan- tive merits of the case is a familiar thing. Those issues, to my surprise, were highly abstract and of a philosophical nature. Researching them sparked my interest in the philosophical foundations of law. Amidst the frenetic rhythm of courtroom life, I found philosophy. Little did I know that my new found in- terest would lead me to the other side of the world, Sweden. Besides the fact that I decided to do a Ph.D., in a discipline other than law and in a borrowed tongue, writing this dissertation has been an extremely dif- ficult challenge. A challenge that I would not have been able to overcome by myself. Luckily, I was not alone in this. I owe a debt of gratitude to many people that made this book possible. First, I want to thank my supervisory team, Sebastian Lutz and Jens Jo- hansson. Sebastian and Jens have been incredibly patient, answering my end- less amount of questions no matter how basic they were. Their guidance ex- tended beyond the topics of my dissertation. Since I come from a different background, their job was not limited only to providing comments on my drafts, but they also taught me how to reason philosophically and write a phil- osophical text. I can honestly say that a big part of my philosophical training comes from them. Second, I am indebted to Álvaro Núñez Vaquero, Riccardo Guastini, Pier- luigi Chiassoni, Michael Giudice, Michael Pardo, Jordi Ferrer, Amalia Amaya, Daniela Accatino, Giovanni Tuzet, Max Lyles, Don Loeb, Alex Stein, Nick Wiltsher, Bo Wennström, Minna Gräns, Andrew Reisner, and Guy Dam- mann, for providing written comments on different chapters of my disserta- tion. Third, I am grateful to those that have always provided useful comments, advice, support, and encouragement, especially when times were difficult. I want to thank Andrej Kristan, Donald Bello H., Olle Risberg, Julieta Rábanos, Pedro Caminos, Alejandro Calzetta, Victor García Y., Henrik Rydéhn, Guil- herme Marques Pedro, Elena Prats L., Pauliina Remes, Tommaso Braida, Anna Folland, Julián González E., Irene Martínez M., Jorge Larroucau T., Jeremy Page, Louise Schou Therkildsen, Sebastián Bas K., Tomas Ekenberg, Emil Andersson, Linnéa Fröberg Idling, María Langa, Nils Franzén, Klara Thorén, Andreas Stokke, Moa Lidén, Ximena Soto S., Rebecca Wallbank, Maarten Steenhagen, Nathaly Mancilla O., Jaime Vásquez S., Cyril Holm, Carl Montan, Magnus Jedenheim-Edling, Maribel Narváez M., Simon Rosenqvist, Regina Lam, Kasper Kristensen, and Visa Kurki. Especially, I want to thank Heather MacDonald for her support and language revision of the manuscript. Fourth, I want to thank Elisabeth Schellekens-Dammann and Matti Eklund for their help, particularly during the latest stage of my Ph.D education. Fifth, I want to thank Patricia Mindus for giving me the opportunity to do a Ph.D., at Uppsala University and for her helpful comments in the earliest stages of my work. I want to also thank Christian Dahlman and Jakob Holter- mann for written comments on early drafts. Last but not least, I want to thank my family, Claudia, Paz, Andrés, Maite, and Florencia. I have presented different parts of my dissertation at the Higher Seminar in Practical Philosophy at Uppsala University, the Higher Seminar in Philosophy of Law at the Philosophy Department at Uppsala University, the Higher Sem- inar in Jurisprudence at the Law Department at Uppsala University, The Higher Seminar in Jurisprudence at Lund University, The Higher Seminar in Jurisprudence at Stockholm University, at Filosofidagarna at Uppsala Univer- sity, at the First Finnish-Swedish Ph.D Conference on Legal Reasoning in Helsinki, at the Nordiskt symposium om bevisvärdering at Lund University, at the Law Department at the University of Ljubljana, Slovenia, at the “Rea- son(s), Reasonableness, and Law” Congress at the University of Genoa, Italy, among other places. The research presented in this dissertation was conducted as part of the project entitled Civis Sum, directed by Patricia Mindus as Wallenberg Acad- emy Fellow (2014-2019) Dnr KAW 2014.0133, sponsored by the Knut & Al- ice Wallenberg Foundation and Uppsala University. I am grateful to the Knut & Alice Wallenberg Foundation for its financial support. Lastly, I am also grateful to Ulrika Valdeson, Susanne Gauffin, Rysiek Sliwinski, and Anna Gustafsson for helping me with all the administrative and non-Ph.D issues throughout the years, everything would have been harder without you. List of Essays This thesis consists of a general introduction, a conclusion chapter, and the following essays: I. Systemic Indeterminacy & Judicial Discretion (Draft).1 In the disserta- tion I refer to this essay as chapter 2. II. On Behaviour-guidance, Legal Reasons, & The Ascertainment of Truth of the Quaestio Facti (Draft).2 In the dissertation I refer to this essay as chapter 3. III. On Legal Interpretation & Second-order Proof Rules (Draft).3 In the dis- sertation I refer to this essay as chapter 4. IV. Standards of Proof & Competence Norms (Draft). In the dissertation I refer to this essay as chapter 5. 1 This essay will be published in the Canadian Journal of Law & Jurisprudence with the title “Judicial Discretion as a Result of Systemic Indeterminacy” (August, 2020). 2 An early version of this manuscript was published in Spanish in Doxa: Cuadernos de Filosofía del Derecho, n° 40, (2017): 317-336 with the title ‘Sobre derecho y la averiguación de la verdad’. 3 An early version of this manuscript was published in Analisi e Diritto (2017): 165 - 184. Table of Contents DA MIHI FACTUM, DABO TIBI IUS ...................................................... 9 1. The Elements of Legal Adjudication ................................................... 9 2. Central Concepts of the Dissertation ..................................................12 3. On the Content of the Dissertation .....................................................14 4. Bridging Philosophy of Law and Evidence Law Theory .....................16 5. The CIVIS SUM Project and the Dissertation ....................................18 Bibliography .........................................................................................19 DA MIHI FACTUM, DABO TIBI IUS 1. The Elements of Legal Adjudication Adjudication of conflicts is one of the main functions of law. Roughly put, legal adjudication is based on two elements: 1) facts, and 2) law. These ele- ments are well illustrated in the adage ‘da mihi factum, dabo tibi ius’ – give me the facts, I will give you the law. On the one hand, it is the role of the litigants to provide the claims and the means of evidence to support those claims.
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