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Utility, Publicity, and LawEssays on Bentham's Moral and Legal Philosophy$
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Gerald J. Postema

Print publication date: 2019

Print ISBN-13: 9780198793175

Published to Oxford Scholarship Online: September 2019

DOI: 10.1093/oso/9780198793175.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 29 July 2021

Facts, Fictions, and Law

Facts, Fictions, and Law

Foundations of the Law of Evidence

Chapter:
(p.202) 9 Facts, Fictions, and Law
Source:
Utility, Publicity, and Law
Author(s):

Gerald J. Postema

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198793175.003.0009

Bentham’s analysis of the probative force of evidence appears to be skeptical and relativist. Bentham was convinced that in all aspects of the judicial assessment of evidence, there was no place for formal, rule-bound reasoning, and it is tempting to trace this rule-skepticism to a deeper epistemological skepticism. Yet his monumental Rationale of Judicial Evidence shows few signs of this epistemologically skeptical foundation. Rather, seen in light of his theory of language and fictitious entities, the empiricist, quasi-pragmatist elements of his theory become clear. Bentham was no skeptic or radical subjectivist regarding the evaluation of evidence. Statements of probability, or of the persuasive force of some piece of evidence, on Bentham’s view, are subject to rational assessment. Judgments of the probative value of evidence, like moral judgments, are expressions of the speaker’s state of mind; they express degrees of conviction of the speaker, which are subject to the discipline of rational method.

Keywords:   elliptical expression, epistemology, evidence, fictitious entities, persuasion, probability, probative force, rule-skepticism, skepticism, subjectivism

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