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Citation:
Jose Manuel Aroso Linhares, Evidence (or Proof) as
Law's Gaping Wound: A Persistent False Aporia, 88 Bol.
Fac. Direito U. Coimbra 65 (2012)

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EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND:
A PERSISTENT FALSE APORIA?*

Jos MANUEL AROso LINHARES

The title I have chosen reproduces Piyel Haldar's provocative inter-

pellation of evidence law as the frame (if not the <supplementary text)>)
which <«divides> (and simultaneously <(connects>) the «internal room of
the courtroom> to the <«external world of reality>'. My intention is not,
however, to explore 2 the possibilities of a deconstructive critical reading
of evidential law and judicial proof- an understanding which would cer-
tainly confirm the continuum between these two territories and the apore-
tic invincibility of the connection/division between outside and inside
which they construct (as they «categorise and distribute practices of
truth). It is rather to argue that such an aporia, i.e. the diagnosis (or tes-
timony) that constructs it (or insists on its seeming impasse), is very far
from being inevitable or insurmountable.

* 0 texto que agora se publica na sua versio original em ingl&s serviu de base a

uma intervenao na III International Conference on Quantitative Justice and Fairness

(Faculdade de Direito da Universidade de Lisboa, 22 de Maio de 2012) e depois a duas
confer~ncias mais extensas propostas em Novembro nas Universidades deVars6via e de
L6di. No contexto destas confer~ncias esti tamb~m prevista a publicagio de uma ver-
sio em polaco.
1 Piyel HALDAR, <The Evidencer's Eye: Representations of Truth in the Laws of
Evidence)), Law and Critique, 1991, vol. II n' 2 (Law and Postmodernism), pp. 170 ff.
2 I have already tested this dialogue extensively (with collocutors such as Goo-
drich, Douzinas / Warrington, M.Weait, Milovanovic... and Haldar), in Entre a narrativa
p6s-moderna da juridicidade e o tratamento narrativo da diferenfa ou a prova como um exerct'cio
de passagern nos limites dajuridicidade,Coimbra: Coimbra Editora, 2001, pp. 346-507.
BFD 88 (2 012 ), p. 65-89
66 DOUTRINA

I would add that it is very far from being inevitable even if one
(rightly) recognises that the process of legal proof- understood as a spe-
cific referential discourse, if not (to use Ricoeur's concepts3 ) a unique
<narrative refiguration (concerned with a special representation and reor-
dering of reality) - exposes the practical world of law to exemplary (and
exemplarily intense) challenges to communication (both communicati-
veness and uncommunicativeness) with exterior (non juridical) worlds,
i.e. with data and warrants involving either empirical-explicative infor-
mative statements (or nomological explanations) or socially constructed
common sense meanings (and the eventual narrative organisations that
typify these meanings), in addition to inferential possibilities ranging
from inductive reasoning about probabilities (as id quod plerumque accidit
reasons) to ethical or ethical-communitarian (particular) arguments
about normality or patterns of normality (in which the probable appears
as cio3 che e eticamente preferibile4 ). This means that a deconstructive reading
stimulates (and seduces) us with a pseudo-aporia, and that this is sur-
mountable even (particularly) when we duly acknowledge that reaso-
ning with evidence and proof exposes us to the inevitable challenge of
the intra-discursive (juridical-normative) institutionalising of an inter-
-discourse (involving external alien arenas).

1. The first step to be taken seems relatively easy. One could simply
say that the wounds which undermine Piyel Haldar's deconstruction of
the «evidencer's eye (and his representation tasks) are significantly (and
certainly not by chance) similar to those which weaken Derrida's
deconstruction of legal decision-making and its sequence of (three
main) aporias'.As a matter of fact, both critical testimonies in question
seem unable to fulfil their own agenda of taking «the limitless context

' RiCOEUR, <'La fonction narrative >,cited in English as oThe Narrative Function,
in RIcoEuR / THOMPSON (ed.), Hermeneutics and the Human Sciences. Essays on Language,
Action and Interpretation, Cambridge: Cambridge University Press, 1979, pp. 274 ff.; ID.,
Temps et r&it, 3 volumes, Paris : Seuil, 1983-85, passim.
4 Alessandro GIULIANI, I1 concetto di prova. Contributo alla logica giuridica, Milano:
A. Giuffre, 1961, p. 231.
5 Jacques DERRIDA, Force de loi. Le ffondement mystique de 1'autoritb, Paris : Galile,
1994, pp. 50 ff.
BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND:A PERSISTENT FALSE APORIA? 67

into account 6 (i.e. of surprising the supplementarity or the parergona-

lity which opens up the framing of every context). To be more precise,
they are unable to inscribe the practices they deconstruct within an
authentic interplay of diffirances or dissemination and thus recognise the
recontextualization which these practices constitute.Just as it can be said
that the aporias attributed by Derrida to legal adjudication only persist
(conditioning our understanding ofjuridicalness)when the possibilities of
experimentation of the selected legal rule are reduced to a formalistic in
abstracto interpretation and deductive application 7 , it can also be claimed
that Haldar's deconstruction of legal proof (with its aporetic challenges
of inside and outside framing) only proves pertinent if one persists in
setting this problem within the explicit claims and narrow possibilities
of a modern conception8 , if not directly within the specific context of the
rationalist tradition of evidence scholarship9 , with its sharp ((operative>?) dis-
tinctions between autonomous norms and empiricalfacis,questions of law
and questions offact (with the certainty that questiofacti absorbs not only
thefacta probantiabut also the thema probandum), and also its thematic and
intentional scission between evidence law and the science of judicial proof
(the latter concerned with «<rational principles for reasoning with evi-
dence and proof> which strive to be (independent of the rules of law>'),
and, last but not least, with its concentration on inductive probability
(the characteristic mode of reasoning appropriate to reasoning about

6 DERRIDA, (Afterword: Toward an Ethic of Discussion, Limited Inc, Evanston:

Northwestern University Press, 1988, pp. 136.
' Eventually also when it is reconstituted as a tactical execution of a means-end
program (provided that this may be justified-controlled a posteriorias a plausible auton-
omous formal application). See LINHARES, <(Dekonstruktion als philosophische (gegen-
philosophische) Reflexion iiber das Recht. Betrachtungen zu Derrida, Archiv fir
Rechts- und Sozialphilosophie (ARSP) 93, 1, 2007, pp. 39 ff., <(O dito do direito e o dizer
da justi~a. Didlogos com Levinas e Derrida)> (2006), Themis. Revista da Faculdade de
Direito da Universidade Nova de Lisboa,VIII, 14, 2007, pp. 5 ff.
8 GIULIANI, cit., passim.

9 William TWINING, Rethinking Evidence. Exploratory Essays, Oxford: Oxford Uni-

versity Press, 1990, pp. 32 ff.
10 BEX, Arguments, Stories and Criminal Evidence, Dordrecht, Heidelberg, London,
NewYork: Springer 2011, p. 1 .
BFD 88 (2012), p. 65-89
68 DOUTPUNA

probabilities is inductiow"). This, in turn, means that both readings, des-

pite their intentions, run the risk (eloquently announced by Derrida
himself) of <settling down or <regressing into the system >they decons-
truct («<the system that has been, or is in the process of being,
deconstructed) 2

2. Should one add (still using Derrida's words) that the deconstruc-
tive agenda of evidence, since it a-critically presupposes an isolated quas-
tiofacti (i.e. the absence of a plausible alternative to the corresponding
claim of autonomy), runs the risk of giving <free rein to the «existing
forces , i.e. to the forces which «effectively and historically dominate the
field) in question13 ? I tend to disagree, not because there is no effective
(resigned, even though negatively evaluated) complicity with the system
being deconstructed, but purely because it seems difficult, after half a
century of the rehabilitation of practical-prudential thought (with very
significant projections in terms of legal discourse), to celebrate this claim
for isolation as a dominant concept or, at least, a concept without an
alternative.
It is not irrelevant to recall that the possibility of treatingfactum pro-
bandum (and the factum probans which tends to «<probabilise > or «depro-
babilise it) as a real factual constellation - and no longer as an issue or
questione controversa (related to a conjectura or status coniecturalis) but as an
ensemble of pure facts, objectively accessible to perceptual and repre-
sentational-correspondential experiences demanding, as such, an alterna-
tive (theoretically-inductive) technique of ratio probabilis (a genuine
aritmetica delle prove 4 ) - remains constitutively inseparable from the
modern consecration of episteme and the drastic reduction of rationality
types that this progressively imposes (affecting all the relevant expressions
of legal thought as an effective decline, if not interruption, of an auto-
nomous experience of praxis and phronesis).
It is certainly not by chance that the opening up of such a possibi-
lity - converging with overcoming an argumentatively integrated con-

' TWINING, Theories of Evidence: Benthain and Wigmore, London: Weidenfeld &
Nicolson, 1985, p. 14 (3 b).
12 DERRIDA, La dissemination,Paris : Seuil, 1972, pp. 11-12.
13 Ibid.

" GiULIANI, cit., p. 235.

BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND: A PERSISTENT FALSE APORIA? 69

cept of the theory of status (rationales and legales) and the consequent
scission of thesis and hypothesis perspectives (general-abstractand singular-
-concrete respectively), the former (hypotheses ad theses renovandas) being
pre-eminent - can be paradigmatically attributed to Rodolphus
Agricola's De inventione dialettica (1569), with its specific subordination
of topics and rhetoric to dialectic and the reinvention of dialectic under
the spell of necessary syllogism. Nor is it by chance that the dynamic
apex of this rational emancipation of the science ofproof- explored as the
need to overcome «a Technical System# to establish «a Natural one
(«characterised by the absence of artificial rules)) - leads us to Bentham's
Rationale ofJudicial Evidence (1827) and its «principle of non-exclusion
(freeing proof from juridical-normative constraints, such as rules of
exclusion, fictions, burden of proof criteria and some features of the
common law adversary process). In any case, it is only with the late 19 th
century developments of naturhistorischeMethode and its dogmatic nor-
mativism - still exploring the exclusivity of theoretical-epistemic ratio-
nality, but also (in contrast to Bentham's basic empirical cognitivism) the
integrative possibilities of an internal perspective as a juridical analytical
(non empirical) science of norms - that the counterpoint between interior
and exterior (provoked by the emancipation of quaestiofacti) is explicitly
recognised and eloquently solved. The gain is obviously the binominal
organisation of opposing immanent rational norms and empirical dis-
crete facts, now also a constitutive option which, without tensions (and,
far less, aporetic connections), simultaneously separates (divides) and
connects the judicial application of legal norms and the judicial reasoning with
proof,with the advantage of ensuring a theoretical (meta-dogmatic) dis-
cursive level that also seems immune to institutionalising specificities (i.e.
is rationally compatible with different types of evaluations of probative
force, including legal theory andfree evaluation of proofs) and, as such, fully
prepared to receive (and greet) Friedrich Stein's Das private Wissen des
Richters (1893) and his exploration of the «generic judgments of fact
(exposed as Efahrungssdtze). It should not be forgotten that what is at
stake here is an implacably unitary epistemic subject /object structure and
that the objects in the process of being rationalised are invariably (and no less
unitarily) presupposed to be concrete empirical contingently material
facts, i.e. states of affairs in the external world whose autonomous cohe-
rence does not count as such, and from whose intrinsic dynamics one

BFD 88 (2012), p. 65-89

70 DOUTRINA

should expressly abstract to presuppose them to be unorganised or dis-

crete elements. This common abstraction (precisely sacrificing the pers-
pective that the theory of status would autonomise as hypothesis) enables
both processes of rationalizationto offer themselves as harmoniously paral-
lel, even though they unequivocally belong to the separate fields of ought
and being and preserve their independence (ex facto non oritur jus!)
without concessions. It is certain that the re-ordering pattern that is said
to transform the crude independent materials and provide them with
the extrinsic plausible coherence they need - implacably exposed in the
final singular (deductively obtained or deductively rationalised) authori-
tative conclusion - is, in both fields, determined by the self-sufficient
perspective (and the methodological priority) of universally rational
propositions. What are these propositions? The normative (dogmatically-
-abstractly interpreted) propositions which (as Rechtsatze or <generic sta-
tements of law ) constitute the major premises of the methodical scheme
for the application of the law, and the non-normativepropositionswhich (as
<(generic statements or judgements of fact)>, under the plural mask of
Etfahrungssiitze, with very different extensions and forms of expression)
justify the judicial reasoning of proof (as a nomolological-deductive or
hypothetically deductive conjectural judgment). This extends to the
point at which one could say that the relevant leading question to
address these facts should, after all, be strictly the same: are the connec-
tions selectively assumed in the presupposed generic statements recog-
nisable in the empirical materials or data, so that this data may be
subsumed in these statements, thus generating the corresponding
conclusions?
It might even be added that, in spite of the unexcelled clarity of this
analytical conformation, it is the unity of episteme (and the exclusivity of
its claims) which sustains the felicitous performance of such an answer,
in which inside and outside are delimited and articulated, to the point
where it comes as no surprise to see that this connection remains untou-
ched in Luhmann's conception - thanks to the presupposed equilibrium
of cognitive openness and normative closeness justified by the autopoie-
tic functional conception of norm (als kontrafaktisch stabilisierte Verhalten-
serwartung ) - as well as remaining firm in pragmatic material

"5 LUHMANN, Das Recht der Gesellschaft, Frankfurt: SuhrkampVerlag, 1993, p. 134.

BFD 88 (2012), p. 65-89

 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND:A PERSISTENT FALSE APORIA? 71

functionalism, albeit involving different specifications and demands, due

to the complete articulation of epistimi and techni (with the persistent
reduction of praxis to the latter) 6 .

3. Yet in alluding to the difficulty of speaking about dominant

<<existing forces>, I invoked the rehabilitationof practical-prudential thou-
ght which has been pursued on several fronts during the last fifty years.
I was naturally referring to a certain return-to-Aristotleand to the fruitful
reinvention, more or less explicitly under the successful banner of the
rehabilitation ofphilosophia practica, which this return stimulated, combi-
ning the possibility of an autonomous praxis-phronesiswith the recovery
of the plurality of types of rationality. It is as if resistance to the dominant
axis of the epistimi-techni or techni-episteme - which also involves resis-
tance to the exclusivity and unilateral nature of the society project (and to
this as the regulatory nucleus of a historically insurmountable evolutio-
nary stage) - has provided us with a privileged occasio for reinventing the
equilibrium of Aristotelian intellectual virtues as a major experience of
plurality (a paradigmatic consecration of plural rational types, if not of a
certain plurality theorem17), namely as the opportunity to pursue the inter-
rupted emancipation of praxis-prattein (for once radically freed from the
theoretical predominance of sophia) and also the opportunity to refor-
mulate the challenge of phronesis.We know how this return has eloquen-
tly influenced legal thinking, opening up such different (and irreconcilable)
possibilities as those which have been (more directly) explored through
new hermeneutic recontextualiastion and the topical-rhetorical (problema-

16 See LINHAREs, Regras de experiencia e liberdade objectiva do juizo de prova. Conven-

f6es e limites de urn possivel rnodelo teor~tico (Separata do vol. XXXI do Suplemento ao
Boletim da Faculdadede Direito), Coimbra: Coimbra Editora, 1988, pp. 268-337 (on the
possibilities of social engineering) and <(A unidade dos problemas dajurisdigdo ou as exi-
g~ncias e limites de ura pragmitica custo/beneficio. Urn diilogo corn a Law & Eco-
nomics Scholarship6, Boletim da Faculdade de Direito LXXVIII, pp. 65 ff., 125-130 (4.3.),
Brauchen wir noch eine kritische Rechtstheorie? Ein Konversationsstiick mit Posner
und Fish>>, in Bernd SCHPNEMANN / Marie-Therese TINNEFELD/Roland WITTMANN
(Hrsg.), Gerechtigkeitswissenschaft Kolloquium aus Anlass des 70. Geburtstages von Lothar
Philipps,Berlin: Berliner Wissenschafts-Verlag, pp. 23 ff., 33-36 (on Posner's concept of
legal evidence).
17 WELSCH, Unserepostmoderne Moderne (3.Aufl.). Weinheim:Acta Humaniora 1991,

pp. 277-284 ("Aristoteles oder die Selbstindichkeit vonVielfalt").

BFD 88 (2012), p. 65-89

72 DOUTRINA

tically committed) concept of pratical arguments, and also (more indirec-

tly) on the one hand through communitarian narrativism and, on the
other hand, through deconstruction (as ethics, aesthetics and also politics,
if not hyper-politics).
Does the rehabilitation of practical philosophy (in its plurality) offer
us the opportunity to rethink evidence and recognise a plausible alter-
native to modern framing? In order to test a plausible answer, I will
immediately exclude the deconstructive path as one which (exploring a
radical celebration of singularity) paradoxically tends to perpetuate
modern framing (with the aggravating factor of presenting it in its
darkest and most mystifying mask). However, I will retain one element
which this path eloquently invokes, namely narrative rationality,precisely
that which Walter Fisher recognises as an (alternative paradigm > (or
ometa-paradigm ) for <human communication 18 . I do so not only
because this element, although conceived very differently, constitutes a
kind of a common resource that all contemporary relevant legal humanis-
tic discourses (more or less autonomously) recreate19 , but also principally
because in the present circumstances (and the experience of plurality
and difference), this narrative specification (with its intrinsic special apti-
tude «to interpret practices and texts where there are claims to know-
ledge, truth, or reality 2 ) appears to be in a favourable position to
stimulate the return of a concept of legal proof as argument (with which
Giuliani eloquently confronts the modern conception). Does the reha-
bilitation of practical philosophy provide an opportunity to rethink evi-
dence? Let us attempt a plausible transversal answer, combining argu-
ments and narratives, conclusion-claims and ultima verba!

18 Walther FISHER, «Narration as a Human Communication Paradigm: the Case

of Public Moral Argumen), Communication Monographs, vol. 51, 1984, p. 1.
19 LINRuaES, <Law in/as Literature as an Alternative Humanistic Discourse: the

Unavoidable Resistance to Legal Scientific Pragmatism or The Fertile Promise of a

Communitas Without Law?) in M. Paola MITTICA (ed.), Law and Literature.A Discussion
on Purposes and Method. Proceedings of the Special WS on Law and Literature held at 24th
ITVR World Conference in Beiing (pp. 22-42), netLibrary Web site: http://www.lawandlit-
erature.org /index.php?channel=PAPERS-ESSAYS, 2010.
20 FISHER, <The Narrative Paradigm: an Elaboration, Communication Monographs,

vol. 52, 1985, p. 347.

BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND:A PERSISTENT FALSE APORIA? 73

4. Drastically simplifying the plausible course, I will begin by

invoking three exemplary proposals (all of them mobilizing arguments
and stories). Moreover, I will consider them not only in the light of the
evidence problem but also from the perspective of the challenge invol-
ved in overcoming the scission between normative and non-normative dis-
courses (or the resigned diagnosis of their aporias), i.e. the claim for the
plausibility of an internal (intradiscoursive) juridical invention of an inter-
discourse. I will briefly argue that, despite the importance (on different
levels) of the contributions (or resources) provided, such proposals reveal
themselves inadequate to face this challenge, to different extents and for
different reasons! This is also the argument that justifies the chosen dis-
tribution, enabling me to isolate (and separately confront) the first pro-
posal (conforming strictly to the modern concept of science of prooJ) [4.1]
and allude to the other two together (focusing on their combined con-
tribution to overcoming this concept) [4.2.].

4.1. The first proposal (and the most recently developed of the
three) is Floris Bex's formal hybrid theory of stories and arguments (an argu-
mentative-narrative model <to establish the facts in criminal cases>"). As
this device promisingly announces, the author's intention is to confront
reasoning with evidence, combining (or integrating, as indispensable <(com-
municating vessels 22 ) a (holistic story-based approach - considering the
«course of events in the case as a whole (to reconstitute «what might
have happened ) - and an <(atomistic argument-based approach - concer-
ned with the specific reasoning steps , i.e. with the inference (or the
license to infer) that connects an «item («element or datum) of evidence
with the corresponding «conclusio 23 («a hybrid argumentative story-
-based theory which combines reasoning with arguments and stories>)24).

21 BEX Cit., passim.

22 Ibid., pp. 84-85, 95, 225-226, 267. oThe direct interaction between arguments
and stories, that is, the ways in which arguments can directly support and contradict
stories and the ways in which the criteria for judging a story's quality are dependent
on evidential arguments, are unique to the hybrid theory and allow for a natural and
rationally well-founded theory of inference to the best explanation... (Ibid., p. 270)
23 See in particular Chap. 3 («Two Approaches to Reasoning with Evidence:

Arguments and Stories)), pp. 33 ff.

24 Ibid., p. 7.

BFD 88 (2012), p. 65-89

74 DOUTRINA

Notwithstanding the valuable set of information it provides, the

trouble with this stimulating proposal lies in its fully integrated, if not
exclusive, fidelity to the New Evidence theorists, and certainly to the Ratio-
nalist Tradition of Evidence Scholarship2 (the only trend which seems to
offer a <«naturab and (rationally acceptable way of reasoning>26 ). As such,
it also lies in the a-problematically optimistic (non-aporetic) version of
the scission between normative and non-normative domains (i.e. juridical
and non-juridical reasoning 27 ) which this tradition (revisited under the
possibilities of a certain bounded procedural rationality28 , but also under the
multidisciplinary appeal of artificial intelligence29 ) justifies. If it is this fide-

25 <The assumptions contained in the rationalist model of proof are also at the basis
of the current work (...) [where the] New Evidence Theorists's Modified Wigmorean
Analysis is complemented by outlines, chronologies and stories...> (Ibid., pp. 1-2). See
specially pp. 1-3 (<(Rational Theories of the Process of Proof ), 33 ff., 240 ff. (,Wigmore
and the New Evidence Theorists#).
26 Ibid., p. 249.
27 The specification is not redundant, certainly because Bex uses the term norma-

tive (as synonym of methodologically regulative or prescriptive) within the strict pos-
sibilities of an epistemological process (associating it to the binomial descriptive/
normative): ( The above-mentioned theories on reasoning with evidence and proof
almost all have a descriptive as well as a normative side: on the one hand, the theories
try to model the patterns of reasoning that are employed in the process of proof and
on the other hand, the theories try to indicate the shortcomings of people and mis-
takes that are made when reasoning with masses of evidence and propose ways in
which these mistakes can be avoided. In a way, theories for reasoning with evidence
specify how we can and should make sense of evidence.. . (Ibid., p. 4). See also ibid., p. 73
ff («Choosing the Best Explanatory Story for the Evidence ), 234 ff. («The Anchored
Narratives Theory).
28 «More specifically, the current view on rationality can be characterized as

bounded procedural rationality (...): a belief or decision is rational if it is in agreement with

the knowledge that has actually been considered (or should have been considered) in a
proper procedure. This rationality is bounded because humans are limited by cognitive
and practical constrains in their consideration of knowledge; it is procedural because the
rationality of a belief depends on the quality of the process that has been used to obtain
the belief ...> (Ibid. p.2)
29 Surprisingly ignoring Bart Kosko's contribution, and the possibilities of cross-
referencing narratives and fuzzy logic! See, in particular, pp. 5-7 («Reasoning with
Evidence in Artificial Intelligence and Law ), 27-29 («Causal Reasoning with Evi-
dence ), 272 ff. («Formal Theories of Defeasible Reasoning)).
BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND: A PERSISTENT FALSE APORIA? 75

lity that allows Floris Bex to redirect the relevant question to a rigorou-
sly narrow problem of proof- in which «factual reasoning, although «in
a legal context>>, «takes the form not of legal reasoning, but rather of
commonsense reasoning>>3 , grounded in fairly reliable generalisations3 -,
it is also the same fidelity that can be recognised both in the persistent
appeal to Hempel-Oppenheim's explanation (logic) scheme (eloquently
revisited through a Ratio-Begriindung model named explanatory justifica-
tion 32), and the constitutive resourse to the counterpoint context of disco-
very /context ofjustfication (recreated in three productive steps, involving
the explananda and explanans in the context of discovery, the probandaand
probans in the context of pursuit , and the explicit proof in the context of
justification33 ). This reorientation and the corresponding thematic frame
would not be so significant if all these constructive devices only repre-
sented a plausible analytical concentration and distribution (comfortably
adapted to the trends and «legacies invoked), i.e. if they did not impose
(as they do!) an a-problematic (drastic) reduction of the possibilities
involved, wounding both the concept of narrative and the intelligibility
of argumentative reasoning, and, as such, also significantly affecting the
expected productive intertwining.
In a word, the problem seems to be a biased inability to recognise
an authentic subject/subject practical-rationality (i.e. to consider the noetic
level on which a practical world may be fully understood as context and
correlate to autonomous praxis). This is an inability which plunges
unmistakably distinctive collocutors (from Aristotle to Toulmin, Propp to
Schank, and Wigmore to Wagenaar) into an indiscriminate continuum,

30 Ibid., pp. 1-2.

31 See mainly pp. 46-53 (<(Generalizations and General Knowledge in Evidential
Reasoning)).
32 <The process of proof is not only focused on rationally justifying one's reasons

for choosing a hypothesis but also on the clarification of these reasons. In this respect,
Nijboer and Sennef (...) speak of explanatoryjustification... # (Ibid., p. 22).
31 Ibid, pp. 20-24 (<The Process of Proof. Discovery, Pursuit and Justification ), 53
ff. <(This probans and the reasons for choosing it together make up a proof.In other words,
a proof is the chosen hypothesis (which is deemed most likely) and a justification of why
the particular hypothesis was chosen. (...) The process of proof is not only focused on
rationally justifying one's reasons for choosing a hypothesis but also on the clarification
of these reasons... ( Ibid., p. 21-22)
BFD 88 (2012), p. 65-89
76 DOUTIINA

and an inability which mainly a-critically imposes the need to confine

arguments and narratives to the all-embracing horizon of episteme (as if
they could not be understood and experienced otherwise).This not only
means reducing reasoning types to the Peircian triangle - so that induc-
tion and abduction (the only two valid kinds of non-deductive reaso-
ning) may be treated as integrated subtypes of a certain defeasible,
non-monotonic or presumptive reasonin 4 - but also presupposes that dialo-
gue or even the dialectic setting (viewed as a «ibasic process of argument
and counterargument) should be directly identified either with a for-
mally translatable dialogue game or with the said defeasible reasoning, not
forgetting that this last overall identification involves reducing it to an
epistemologically conceived dialectical inquiry (an inquiry whose proce-
dural paradigm inevitably redirects us to the modes of intersubjectivity
community of scientist)35 .
Moreover, this intolerable impoverishment also drastically affects
the understanding of narrative discourse. Paradoxically reduced to a uni-
que language context (and a unique experience of coherence, based on
representative-correspondential conditional statements), narrative dis-
course in fact appears aproblematically relevant only as causal reasoningor
as a kind of abductive-causal reasoning (<the coherence of a story (...)
[depending] on its causal connectedness and [on] the extent to which it
conforms to a holistic story scheme... 36), as if one could (without dis-
cussion) admit that <the relations between the various events in a story
and between the story and the observations (i.e. the evidential data)
could (should) be «expressed as causal generalisations of the form "c is a
cause for e"' 37 , which also ensures that states and events in a coherent
story are (may be) invariably «connected through some sort of (implicit)

3" Ibid., pp. 24-31, 35 ff., 102 ff., 272 ff.

35 Ibid., pp. 24-25, 41 ff. (<(The Dialectical Nature of Argumentation: Attack and
Defeat)), 98 ff.(<,A Game for Inquiry Dialogue)).
36 Ibid., p. 77. <(Stories can be used to abductively explain the evidence...
(ibid.).
37 Ibid., pp. 33-34. «The causal relations between the various states and events in a
story can be expressed as conditional statements and these conditional statements are
essentially causal generalizations (p. 61).
BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND: A PERSISTENT FALSE APORIA? 77

causal chain>) (the implicit elements being determined thanks the so-
-called cues to causality)38-39.
Yet there is a recurring emphasis in this proposal which, even
though constrained within this narrow one-dimensional theoretical
frame (exemplarily, thanks to the recreation of a certain IBE, i.e. inference
to the best explanation"), accurately captures the dynamic of evidence and
proof in a legal context or at least the nuclear irreducible element of this
dynamic. The element in question is precisely the «dialectic comparing
not only of different (atomistically tested) hypotheses but also of alter-
native stories (confronted or opposed holistically)41 - a dialectical com-
paring which tries to find «the best story 4 2 .
As can immediately be seen, the other two proposals (considered
together) are in a very different position in terms of understanding the
autonomy (and irreducibility) of this dialectic, not only because they
recognise different criteria for determining how good (or how plausible
and reliable) a story is, but also, and principally, because they provide
different experiences of rationality and different understandings of nar-
rative, together with the resources indispensable to overcoming the
modern concept of proof, or its aporetic perpetuation as the gaping
wound in law.

38 (In the story-based approach to reasoning with evidence, the main goal is to
construct a hypothetical story, which represents and makes sense of "what happened" in
a case. This story should properly cover the evidential data by causally explaining this
data.. ) (Ibid., p. 69).
" (Because of the causal nature of stories, combining explanatory and predictive
reasoning is easy and so called story consequences (i.e. consequences that might have caus-
ally followed from the story) can point to new evidence.. .> (Ibid., p. 83).
40 4BE should not be seen as a single inference step, but rather as a general term

for a combination of several ways of reasoning with and about hypotheses. Essentially,
IBE covers all the important types of inference in the process of proof. hypotheses are
constructed, these hypotheses are tested and compared with each other and ultimately
the best one is chosen...> (Ibid., p. 27)
41 See in particular pp. 93-100 (<(Assessing and Comparing Stories>), 140-141

(id.), 147-149 (oComparing Explanations)), 224-225 («Comparing the Alternatives)).

42 <(A good story should not only be compatible with the evidential data but it

should also be well-structured and correctly describe a general pattern of states and
events one expects to come across in the world... (Ibid., p.59)
BFD 88 (2012), p. 65-89
78 DOUTRINA

4.2. If Floris Bex's concept accepts without discussion both the

formalist counterpoint between law and facts and the correctness of a
<<correspondence theory of truth - thus domesticating (sacrificing)
argument and narrative to the exclusivity of episteme - both Jackson and
BoydWhite's understandings of evidence in a legal context go beyond these
constraints, notwithstanding the differences that divide them, by explo-
ring, if not opening up, new ground.
Possibly due to their alternative experiences of narrative, I might
add.

a) As we know, Jackson understands narrative in the implacably

precise (but no less concentrated) light of Greimasian structural semio-
tics as a recreation of the sense data actually presented (the suface level),
whose meaningful organisation needs not only a stock of social-environ-
mental knowledge (the thematic level) but also the deep interplay of the
paradigmatic and syntagmatic axes. The former is comnitted to a purely
syntactic horizon of rules (or meta-rules) for inter-substitutability (defi-
ning a set of constraints that can be represented in a «formal device >,le
carre semiotique), whereas the latter submits human actions to a semanti-
cally relevant algorithmic sequence of contract (the setting of goals)/per-
formance (and non-performance) of these goals / recognition or sanction of
the performance43 .
13) Boyd White, on the other hand - participating decisively in the
invention of a certain literary turn (and clearing the humanistic interdis-
ciplinary new land of law and literature!) - understands narrative as the
archetypal form of praxis and practical thinking whose revaluation seems
indispensable not only to ensuring an alternative type of discourse and
rationality (justified as a productive encounter of phronesis and aesthesis,
of practical-normative and cultural languages) but also to opening up a
renewed experience of community and communitarian meaning, (the
community as (...) a group of people who tells a shared story in a shared lan-
guage44). This is an experience freed from the dogmatic pre-determined

" See the synthesis proposed in JACKSON, Making Sense in Law, Liverpool: Debo-
rah Charles Publications, 1995, pp. 143-163.
" Boyd WHITE, Heracles' Bow. Essays on the Rhetoric and Poetics of the Law, Madi-
son: The University ofWisconsin Press, 1985, p. 172.
BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND:A PERSISTENT FALSE APORIA? 79

search for a unique language (the dogmatic search that the axes of episteme
and techne-episteme, as non-narrativemodes of speaking, invariably and a-cri-
tically impose), but also an experience which, as interpretative pragma-
tics or performance, gives methodological priority not so much to the
hermeneutical reading situation as to a microscopic rhetorical circumstance
(understood as the possibility of «establishing or losing community>) 45 .

In spite of these exemplarily different perspectives, Jackson's and

Boyd White's understandings of narrative discourse draw closer as they
provide two powerful parallel paths towards overcoming the science of
proof tradition.
a') Jackson confronts this tradition in a very direct and specific way:
(a) firstly, because he assumes the need to explore a radical alternative to
the correspondence theory and because he constructs this alternative by
refining the claim for narrative coherence, freeing it from compromises
with a triadic realistic-referential epistemology (and even from the prag-
maticist version justified by Peirce), and restoring it unequivocally to the
horizon of a purely intensional understanding of meaning - in which
o"sense" is a function of the relationships within a system of meaning of
individual sense-bearing elements, sometimes called signs, while reference
is something that human beings do with that already-established "sense"
of the signs, including, modifying it>>46; (b) secondly, because he claims to
treat otruth > not as «a function of discourse >but of the «enunciation of
the discourse , which means <«narrativising the pragmatics of the act of
enunciatiom (<(the act of making a truth-claim >)- if «phenomena are
knowable intelligible, meaningful, through basic structures of significa-
tion which include a "semio-narrative" component>, i.e. if we «expect
action to follow the patterns of "contract", "performance" and "recog-
nition" , then such basic structures of signification must apply to the
intelligibility of the pragmatics of discourse, as much as to its semantics) 47;

"5Ibid., pp. 3-5, ID., Justice as Translation, Chicago: the University of Chicago
Press, 1990, pp. 3-4, 101-102.
46 JACKSON, Making Sense in Jurisprudence, Liverpool: Deborah Charles Publica-

tions, 1996, p. 248.

17 ID., «Narrative Models in Legal Proof>, InternationalJournalfor the Semiotics of

Law, vol. I, n' 3, 1988, pp. 227 ff. (2.), 244 if. (6.), ID., Law,Fact and Narrative Coherence,
Liverpool: Deborah Charles Publications, 1988, pp. 33-36, 71 ff., 76 ff., 84-88, 112-129,
BFD 88 (2012), p. 65-89
80 DOUTRINA

(c) finally, and specifically, because he aims for <(a systematic application
of the narrative models used (...) to explain the construction of fact (...)
to the construction and application of the rules#4 8 , which is sufficient to
provide the relations between "law" and "fact")> (reduced to the <same
level)> of structural narrative) with a new and promising #configura-
tion>.This is a configuration which immediately recognises that the «dis-
tinction between fact and law is neither necessary nor universal4 9 and
meaningfully demands that the concrete adjudicative performance of
law may be conceived of and developed as a process of analogical com-
parison (decision-making in adjudication consists of comparing a nar-
rative constructed from the facts of the case with the underlying
narrative pattern either explicit in or underlying the conceptualised legal
rule)50 ).
13') Boyd White, achieves this on a more general (yet no less deci-
sive) level, viewing law from the inside as a culture of argument («a way of
creating a rhetorical community over time (...) [and] a culture that
makes us members of a common worl&), thus autonomising a type of
discourse and trend towards rationalisation which is able to resist outsi-
ders, both rule-centred formalism and legal scientific instrumenta-
lism (brought together as calculatingforms of reason)"1 . This also involves
recognising that the construction of the evidential narrative in a legal con-
text (a context which always offers a system of translation) should corres-

143 ff., Making Sense in Law, Liverpool: Deborah Charles Publications, pp. 159 ff., 356,
432 ff.
48 JACKSON, «Narrative Models in Legal Proof&, cit., pp. 225 ff., Law, Fact and Nar-

rative Coherence, cit., 3 ff., 61 ff., 89 ff., ID., Making Sense in Law, cit., pp. 9 ff., 390 ff.,
ID., Making Sense in Jurisprudence,cit., pp. 233 ff.
4 ID., Law, Fact and Narrative Coherence, p. 90.
o Ibid., p.101.
51 Formalism would apparently only be an internalist concept! This is a reformula-
tion that expands the circle of the plausible opponents one step further, bringing together
formalistic internal and pragmatic external attitudes to the point that enables Boyd White to
denounce them as two possible specifications of an outside view : («Ofcourse the law can
be imagined, sometimes usefully, in each of these ways [...] - as a set of rules (to be
obeyed or desobeyed) [...] and as a branch of public policy, in which legal questions are
collapsed into questions of social science or political preference [...] - [...] especially
when viewed from the outside# (Boyd WHITE, From Expectation to Experience. Essays on
Law and Legal Imagination.Michigan: The University of Michigan Press, p. 103).
BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND: A PERSISTENT FALSE APORIA? 81

pond to an institutionalised encounter (the intertwinement but also

integration) of languages (of legal speech with ordinary speech)52 , namely an
encounter which would expose us to a permanent movement (from ordi-
nary language to legal language, and from legal language back to ordinary lan-
guage) and which would become intelligible (and experiential) through
the perfect heterophony between the law as literature /literature as law
binomial.
How do these paths converge or how should we synthesise (and
overlap) their contributions to our problem? In a word, I would say that
Jackson's narrativisationofpragmatics offers a methodological reflection on
the problem of legal evidence as the indispensable counterpoint between
the story in the trial and the story of the trial ( i.e. between «the events in
the outside world which are to be adjudicated in the trial and the
actions) and <the events in the trial process which make sense as mea-
ningful acts of enunciation and other forms of meaningful behaviou)),
and that Boyd White provides this same possible reflection with the
resources to expand such a counterpoint, not only in order to recom-
pose the equilibrium between the story of what happened in the world and
the story of what happened in court (certainly because the authoritarian
conclusive judgment is destined to become the nuclear element of ano-
ther story5 3 ), but also in order to recognise (in its practical, humanly
meaningful resonances) the <(process by which the law is or should be
connected to the rest of life> (which means answering, eloquently, to the
problem of the internal composition of an interdiscourse). If the basic
structure of this counterpoint (introduced by Jackson) actually allows us
to pay attention (through the exemplary problem of processing facts in
court) either to the narrativisedsemantics of the case or to its narrativisedprag-
matics - with the opportunity to consider evidence discourse (and the
referential uses it institutionalises, combined with constitutive claims to

52 <Law always operates through speakers located in particular times and places
speaking to actual audiences about real people. Its language is continuous with ordi-
nary language: it always operates by narrative; it is not conceptual in its structure; it is
perpetually reafirmed or rejected in a social process; and it contains a system of internal
translation by which it can reach a range of hearers. All these things mark it as a liter-
ary and rhetorical system > (Boyd WHITE, Heracles' Bow, cit., pp. 36-37).
53 See infra, note 61.
BFD 88 (2012), p. 65-89
82 DOUTRINA

juridicalness) as a <«participated texture>) 4 , if not explicitly as a juridical

dispute involving opposing different stories or, rather, rival versions of one
story (ovying for supremacy) 5 -, the expanded version (justified by
White's literary turn) accentuates the unconcealable constitutive bonds
that link the probatory narrative (as a cultural artefact), and even the
corresponding (due process) (the due process [as an ensemble oJ pressures
towards fiction 6), to an authentic Lebenswelt experience, culminating in a
explicit intention of fidelity (as a narrative which (..) must be true to the
facts of nature and culture with which it deals (..) and (..) yet it is to be an
artefact with a shape and significance of its ownV), which also means celebra-
ting law (the practical world of law) either as a <<way of creating versions
of experience in cooperation and competition with other5 8 , or as the
communitarian «public place where the different versions of the same
narrative can be placed in open comparison and competition >5.
Are these indispensable resources? I have already stated that they are,
but must now add, indispensable, yet inadequate, even in their fertile
overlapping. This involves recognising that in order to face the problem
of legal proof we should be in a position to mobilise their possibilities,
freeing them productively from the contexts that have made them pos-
sible.What does this mean? Again, in brief, it means being allowed on the
one hand to consider the said «participated texture >,assuming an authen-
tic internal perspective - freed from the equivocations between internal
and external attitudes that the realist treatment of this texture as an
ensemble of communicationfacts imposes on Jackson. On the other hand it
means recognising such an internal perspective as an autonomously juri-
dical one - freed from the practical continuum that Boyd White's ethics of

5' The expression textura discursiva participableis not from JACKSON but from Jos6
Calvo GONZALEZ, El discurso de los hechos. Narrativisnio en la interpretaci6n operativa.
Madrid: Editorial Tecnos 1993, pp. 28, 30-34, 39, 52, 77, 87-88, 91-92.
" JACKSON, <<Narrative Models in Legal Proof>, cit., pp. 226-227 (1.), 232-234,
ID. Law, Fact and Narrative Coherence, cit., pp. 58, 82-88, 1995, 390 ff (cap. XI), 424 ff.,
441-442,445-452.
56 Boyd WHITE, Heracles' Bow, cit., pp. 159-160, 168.
57 Ibid., p. 159.
58 Ibid., p. 168.
51 Ibid., p. 190.

BFD 88 (2012), p. 65-89

 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND: A PERSISTENT FALSE APORIA? 83

translation creates (diluting Law). Both arguments and/or the sequence

they construct lead us directly to a plausible conclusive path.

5. With this conclusive path, I would like to allude to the possibi-

lities that at last seem recognisable (and can be explored) when, expressly
refuting the scission postulate (either in its luminous positive version or
in its deconstructive aporetic reproduction), an internally relevant thesis
for methodological unity between evidentiary adjudication and adjudica-
tion tout court (between judicial reasoning with proof and adjudicative rea-
soning as the realisation of Law) is advocated - with the certainty that the
defence of this claim does not deny (or dilute) the specificity of the
evidence problem, but instead provides this specificity with new oppor-
tunities for being understood and experienced in direct connection with
the (increasing!) need to identify law's specific project and its autono-
mous practical world as an unmistakable cultural acquisition. To condense
the argument, I would say that methodological unity has to do with the
priority of controversy - as a specific practical structure demanding judg-
ment and the constitutive entrance of the comparing Third -, whereas the
specificity of evidential judgment corresponds to the irradiance of the
referential claim and the narrative intelligibility that identifies it.
Both dimensions are, as a matter of fact, productively intertwined as
if, once the concrete juridical relevance of the problem-prius has been
determined and the question that converts or translates it in a plausible
thema probandum is formulated - a thema probandum which, concentrating
on the ultimate probanda,will later be translated (filtered) as thema deciden-
dum (i.e. the trier of facts' thema decidendum!) - the evidential cycle can
develop its possibilities (in a sequence which is certainly much more
analytical than chronological!) from the perspective-visee of a controversy
between rival narratives, i.e. from the organising possibilities (assumed as
a direct experience of audiatur altera pars principle) of the counterpoint
between different recounted versions of a commonly referenced event,
or circumscribed elements of that event. Is this understanding methodo-
logically relevant? I would argue that it is.
First of all, it allows us to articulate two distinct argumentative
(intentionally dialogical and structurally dialectic) webs (if not status):
one (status rationales) produced through the evidence controversy and con-
cerned with the performative representation-emplotment (conjectura arti-

BFD 88 (2012), p. 65-89

84 DOUTRINA

ficiali) of what really happened (i.e. with an aliquid which is, or pretends to
be, pro aliquo), and one corresponding to the main global controversy, i.e.
to the practical concrete litige in which the render-tribuere of reciprocal
rights and duties to the comparable subjects (with the authoritative defi-
nition of the reciprocal spheres of autonomy and responsibility belonging
to each other) is directly and definitively at stake. Linking them in fact
means recognising a specific intertwined movement of emergence and
re-appropriation, a movement which allows us to treat the evidence con-
troversy (which is genuinely narrative) as a filtered interpretative specifi-
cation (a specific problematic partial emergence) of the main global
controversy, whilst simultaneously recognising that the sign to abandon
the narrative filter (and the referential claim that sustains it), i.e. the signal
or the cue to recover the full intelligibility of the latter (main) contro-
versy, comes precisely with the proofs final judgment. This final judg-
ment reconciles the dispute between narratives or narrative fragments,
precisely because it offers (and is methodologically to be taken as) the
(dast word of a third (authoritarian) narrative (the one which will return
to the main flux of the quaestio and will substitute the previous tension,
providing the definitive concrete answer to the status coniecturalis and the
interrogation (an sit? ).
When the controversy between narratives is understood as an argu-
mentative centre (una controversia da' luogo ad uno status solo quando vi e la
possibilita di stabilire un contradittorio tra due affermazionei opposte e valide6 °),
one is not, however, only illuminating (solving) the connection problem
(i.e. assuring an intelligible dynamic between the two status and its nor-
mative claims or its shared juridical relevance), but also creating the con-
ditions for recognising the specific rationality of legal proof and the
modus operandi which identifies it. To argue that the perspective of the
controversy should be preserved as a dynamic argumentative web until
the process of representation-emplotment is over (and the judicium of
legal proof is produced) is far from methodologically redundant. In order
to understand this, I will allude (and allude only!) to a sequence of plau-
sible implications (if not reflexive corollaries):

60 GIULIANI, cit., p. 59.

BFD 88 (2012), p. 65-89

 EVIDENCE (OR PROOF?) AS LAW-S GAPING WOUND: A PERSISTENT FALSE APORIA? 85

(a) the possibility of resisting a purely heuristic concept of the pro-

blematic nucleus (a concept which would reduce this nucleus
to an epistemological starting point, to be absorbed in a precise
closed step in the corresponding iter);
(b) the opportunity to recognise that the construction of the last
narrative (assured by the impartial third) should explore a deci-
sive (structuring, and partly also self-critical) pragmatic dimen-
sion, so that it may be possible to process all the available
resources (as communicated materials and plausible e'nonces)
either to reconstitute the story in the trial definitively (the story
as that which is told to represent the past reality) or to recreate
the immediate story of the trial (the story as telling, argument,
emplotment, scenic forensic understanding), even in its perlo-
cutionary effects (What the judg(e)ment will mean after all, the
judg(e)ment that intends to end the story, and is still open as the trial
and judgment themselves become the elements of a story, perhaps in a
court of appeal, orjust in the neighbourhood61 );
(c) the desirability of reinventing the practicalphilosophy tradition of
asystate controversiae, demanding the cooperation of legal dog-
matics and legal theory in building up (within the problematic
context of legal proof) a normatively practical relevant otheory,)
of errors;
(d) the need to understand that the rational successful integration
of heterogeneous elements achieved in the definitive proof
decision assures this has two irreducible faces, the first associa-
ting its ultima verba with a narrative use of language (a narrative
representation of reality), and the second taking them seriously
as an authentic judicium.
Two comments must also suffice here to clarify these faces and to
understand the importance of their bilateral (reciprocally constitutive)
intertwinement.
(d)' The first of these two faces is obviously indispensable to expe-
riencing the emergence of the evidence controversy, i.e. the pos-
sibility of extracting it from the common ground of the main
controversy, and also the need to re-immerse it, once rationally

61 BoydWHITE, Heracles' Bow, cit., p. 186.

BFD 88 (2012), p. 65-89

86 DOUTRINA

treated, in that same basic unitary ground. To shed light on this

face in fact means discovering a conjectural centre of argumenta-
tion which is naturally at ease with a <«complex set of codes) and
a <«complex multilayeredness of discourse)62 , but is also and no
less meaningfully constitutively oriented by a claim offidelity63 .
If the first of these emphases explores the potential of narrative
(and its microscopic conclusion) as a way of witnessing and
treating (forgetting) heterogeneity without violating it (pro-
ving itself capable, thanks to its retroactively organising ultima
verba, of inscribing the available plural elements in a plausibly
strong unity of meaning), the second justifies a specific treatment
of narrative or narrative function as representation-representance
(-lieutenance), if not as a <«discursive interplay of reference and
self-reference 64 . With this claim, narrative in a legal context
deviates from fiction or fictional experience in becoming deci-
sively closer to historical narrative. As if in reaction to the apo-
rias of time involved here, a <«third time# is invented, supposed,
in turn, to be the work in progress, which moves from pre-figu-
rative understanding through fictional configuration (and its
mise en intrigue) to referential refiguration 6 - the latter, notwi-
thstanding the permanent challenges of cross references, restoring
us to the practical world of a certain judge-historian 6.
(d") However, these ultima verba also compose a judicium and it will
in fact be as a judicium that they return to the main contro-
versy, meaningfully reducing its complexity (by appeasing some
of its tensions). Why do these last words (treated as a plausible
answer, in narrative form, to the status coniecturalis) compose a
judicium? Doubtless because they are in a position to expe-
rience and accentuate the newness and the singularity which
irreducibly distinguish the specific dispute about what happened

62 Hayden WHITE, The Content of the Form. Narrative Discourseand HistoricalRepre-

sentation. Baltimore: the Johns Hopkins University Press, 1987, pp. 41, 42.
63 See supra, notes 56-57.
64 William P MACNEIL <(Living On: Borderlines - Law/History)), Law and Criti-

que, vol.VI n' 2, 1995, p. 191.

65 RICOEUR, Temps et r&it, cit., passim.
66 LINHARES, Regras de experiencia, cit., ch. II., pp. 109 ff.

BFD 88 (2012), p. 65-8 9

 EVIDENCE (OR PROOF?) AS LAW-S GAPING WOUND: A PERSISTENT FALSE APORIA? 87

in reality (the elements or components which the otheory) of

status would accentuate as hypothesis), without excluding, as an
integrative dimension of that experience, the constitutive
rationalising involvement in a presupposed (even though con-
tinuously open) tertium comparationis, i.e. without excluding
these warrants, rules and other criteria (that can be invoked as a
thesis), which ensure that the new and the particularin question
should become, in circular fashion (and inextricably), the gene-
ral and the old67 . Instead of an opportunity to preserve the pro-
blematic nucleus as perspective-prius until the end, what is at
stake here is the methodological possibility of treating this
nucleus as an analogically comparable concrete experience (which
should be distinguished from pure, unconditional and absolute
singularity, since it interrupts it productively). It is precisely this
claim of comparability that exposes the proof decision to a con-
textual (thematising) horizon and which allows us to identify this
as the evidence system and, more clearly still, consider it seriously
as an authentic normative specification of the global juridical
system. By legal evidence system I mean a multi-layered open
ensemble of warrants, inference licenses and criteria (principles,
policies, rules, canons, mandatory precepts and practices-exem-
pla) that addresses all the possible issues of admissibility, rele-
vance, evaluation and materiality:

- i.e. a system which should include inadmissibility rules, the

principles of audiaturet altera pars andfree evaluation, the rules
of exclusion, and onus probandi criteria, but also the maxims of
experience and all the pertinent canons of common sense know-
ledge and narrative types (more or less corroborated or trans-
lated through scientific and expert mediation), with all these
latter <factual)>generalisationscertainly intervening within the
possibilities of objectivation and the differently binding pre-

67 o... [D]as Neue das Alte ist, aber auf eineWeise, die nicht nur in der einseitigen
Perspective eines dem Zweifel ausgesetzten und nachVerteidigung suchenden Partners
alsVerbindung von These und Argument gilt, sondern in der Perspective aller Teilneh-
mener diesenVorzug aufweist... ) (BUBNER, Dialektik als Topik. Bausteine zu einer lebens-
weitlichen Theorie der Rationalitit,Frankfurt am Main: Suhrkamp, 1990, p. 64).
BFD 88 (2012), p. 65-89
88 DOUTRINA

sumptions which benefit statutory rules, judicial precedents or

dogmatic criteria, or at least within the global framework nor-
matively open through thefree evaluation principle and its dog-
matic reconstructions;
i.e. a system whose specification (with the single aim of a
practical truth or a practical-normatively relevant truth)
should be determined by the explicit purpose of ensuring
the rational conditions required to answer the evidence con-
troversy, as if internally constructing an inter-discourse, but
also as if this construction assumed the modus operandi of an
authentic problem/system dialectics 68 .

However, does this conclusion impose a convergence between nar-

rative and normative, or at least between two differently demanding types
of rationality, that is difficult to sustain? I would say that it does not (once
again with the unsuspected help of Walter Fisher's formulations), since
narrativity or the «narrative paradigm (bringing the ,claim to reality), or
the dynamic of a competition between <stories constituted by good
reasons 69) intervenes here, not as genre (or the macroform) of discourse
in itself (not even as the only genre able to deal with heterogeneity), but
as a metaparadigmatic resource 0 , i.e. as the plausible identifying accen-
tuation of a claim for representation and fidelity (the two major considera-
tions in narrative rationality are coherence andfidelity71). This is a claim which
is a constitutive dimension of the autonomous world of law whenever its
unmistakable ways of making sense assume the indispensable task of
reconstituting practical-normative human events (and the participated
texture that reproduces them during the trial).
I have referred to the unsuspected help ofWalter Fisher's formula-
tions, and this was certainly not by chance! It is Fisher himself who tea-

68 See CASTANHEIRA NEVES, <(A unidade do sistema juridico: o seu problema e o

seu sentido8, Digesta, vol. 20, Coimbra: Coimbra Editora, 1995, pp. 95 ff., 155 ff., ID.,
Metodologia juridica. Problemasfundamentais,Coimbra: Coimbra Editora, 1993, pp. 76 ff.,
155 ff.
69 FISHER, <Narration as a Human Communication Paradigm), cit., p.2.

71 ID., <(The Narrative Paradigm: an Elaboration,, cit., p. 347.

71 ID., <<Narrative Rationality and the Logic of Scientific Discourse. Argumenta-

tion, 1994, p. 23.

BFD 88 (2012), p. 65-89
 EVIDENCE (OR PROOF?) AS LAW'S GAPING WOUND: A PERSISTENT FALSE APORIA? 89

ches us that the «narrative paradigm>) should be understood as a recons-

titution of reason and rationality compatible with «all forms of human
communication)) 2 . Even more significantly, it is Fisher who eloquently
argues that «narrative rationality)), since it «celebrates human beings > as
ostorytellers 73 , should be treated as an «attempt to recapture Aristotle's
concept of phronesist2 4 . What better conclusion could one wish for to
overcome the paradoxes of connection/division and their persistent (and
quite darkly exposed) wounds?

ABSTRACT: This essay argues that Haldar's deconstructive critical reading of evi-
dential law and judicial proof as the frame which <divides) (and simultaneously <(connects )
the ointernal room of the courtroom> from (to) the (external world of reality) is very far
from being inevitable or insurmountable. The development of this argument proposes
selective exemplar dialogues with Floris Bex's formal hybrid theory of stories and arguments,
Jackson's purely intensional understanding of meaning and Boyd White's literary turn. The
conclusive path explores the possibilities of treating evidentiary adjudicationsimultaneously
as a narrative use of language and as a practical-prudential judicium.

KEY-WORDS: evidence;judicialproof; rationalist tradition of evidence scholarship;reha-

bilitation of philosophiapractica; narrativisationof pragmatics; translation;the Narrative Paradigm;
evidence controversy;problem/system dialectics; legal methodology.

72 ID., «Narration as a Human Communication Paradigm)), cit., p. 2.

73 ID., 4Clarifying the Narrative Paradigm), Communication Monographs, vol. 56,
1989, p. 56.
74 ID., (<The Narrative Paradigm: an Elaboration), cit., p. 350.

BFD 88 (2012), p. 65-89