CHAPTER 7-REMEDIAL LAW: THE EMPIRICAL

PHILOSOPHERS
Thursday, 24 October 2019 11:12 AM

I. BACON'S INDUCTIVE JURISPRUDENCE

➢ Francis Bacon
- "Father of Experimental Science" and "Father of Modern Jurisprudence"
- His "inductive method" paved way to the Industrial Age where science moved from
speculation to invention and discovery
- Used his inductive method to justify the use of precedents in common-law ; "unwritten laws"
Case repositories Opposing legal briefs

- - Treated as evidence of an "unwritten law" from - Used as adversarial hypotheses in

which related cases are applied and logically applying the "unwritten law" to a new
turned into principles set of facts
- Stressed the importance of legal reports and archiving as source of precedents that had been
available with the invention of printing; hence considered as the "Father of Modern
Jurisprudence"

- Novum Organum
○ Bacon introduced his inductive method that requires:
1. Accumulation of a store of particular empirical observations in a tabulation or
repository
2. Inductively inferring lesser axioms
3. Then inductively inferring middle axioms
4. Proposing the most general notions
○ Such method is the reverse of the deductive logical method of Aristotle
Bacon Aristotle
- Inductive - Deductive
- From careful observation of individual or
particular cases, we arrive into premises
and general rules
- From individual cases we can formulate - From general and universal laws or
principles and doctrines rules, we arrive into particular or
individual applications

- He was critical of mere abstraction not supported by individual observation in arriving into
laws or principles
- Right method for science and law is similar to the scientific method at present:
1. Observe the facts
2. Record the observations
3. Amass a body of data
4. Perceive the general law at work
5. Test the hypothesis
6. If the experiment/application affirms the hypothesis, arrive into a new law
▪ Referred the steps as "inductive syllogism" and is part of the art of judging

- In judgement, Bacon warned of the four "idols":

1. Idols of the tribe--illusions of appearances and reliance on our primitive senses
2. Idols of the cave--generalization of our limited "caved" experience
3. Idols of the market-- imperfections coming from the choice of language and
communication

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 communication
4. Idols of the theater-- flaws of philosophies, theories, and speculations

- Proposed that scientific work should be for charitable purposes to alleviate man's miseries
- Wrote the novel The New Atlantis: place where freedom of religion existed, which influenced
the drafting of the Napoleonic Code and the American Constitution

II. EXHUMING THE EVIDENCE: HUME'S PRESUMPTIONS AND PROBABILITIES

➢ Rule 131 of the Rules of Evidence

- Lists the "disputable presumptions" that are assumed true until contradicted by other
evidence

➢ David Hume
- Argues that we must always favor evidence for the probable over the improbable
○ Ratio: based on "custom"; what we become accustomed based on the evidence of past
experience; of what more regularly or customarily occurs
- Noted that these are not facts, only presumptions; and if a contrary fact is presented, the
presumption is disputed

HUME ON PROBABILITY AND IMPROBABILITY

- Laws of reason and science are generalizations of the mind
○ What we consider as casual events are mere habitual occurrences/sequence of events
and this sequence can always change
- Hume's fork
○ Useful in being skeptical of proffered evidence
○ Principle that truths can be divided into 2 kinds:
1. Truth that deals with relation of ideas
- Ex: true statement in Mathematics
- Necessary truth; once they've been proven, they stay proven
2. Deals in matters of fact
- Concerns things that exist in the world

- Hume suggested that we can only make impressions on whether something is more or less
probable based on repeated experience
○ Hence, we should refrain from thinking in terms of causality (cause and effect)
○ Doubted the scientific principle of case and effect
○ For him, we cannot speak of certainties or necessities, ONLY probabilities (chances are)
or improbabilities (chances are not)
▪ X does not have to follow Y; X is only more or less likely to follow Y because of
repeated experience, which is no guarantee.
○ There is only connection made up by the mind because of consistent experience.
○ Scientific experiments are proof of what already happened and will likely happen again
under certain similar circumstances, but not what will always happen.

ON WITTGENSTEIN ON THE GAME OF DOUBT

➢ Rules of Evidence
- Conclusive presumptions (Rule 131) and matters that can be taken with judicial notice
without the need of evidence (Rule 129)

➢ Ludwig Wittgenstein
- For him, doubts and suspicions on common-sense matters are motivated; called "hinge
propositions"
○ The motivation for questioning basic matters indicates a certainty more than a doubt
If one really has a reason to doubt, then it must be hinged on something else he already

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 ○ If one really has a reason to doubt, then it must be hinged on something else he already
assumes as somehow certain
▪ One doubts because he wants to advance a proposition he is already certain of.
- On Certainty
- Argued that: The questions that we raise and our doubts depend upon the fact that
some propositions are exempt from doubt, are as it were like hinges on which those
turn.
▪ It belongs to the logic of our scientific investigation that certain things are indeed
not doubted.
▪ For him, we cannot just investigate everything; hence, we are forced to rest
content with assumptions.

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