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On Evidence Print E-mail
By Hadley Arkes   
Monday, 11 October 2010

James Wilson, one of the most formidable minds among the American Founders, was born in Scotland in 1742 and landed in American in 1765, at the time of the crisis over the Stamp Act. By that point he had already been to the university at St. Andrews. And there he would absorb deeply the writings of Thomas Reid and the school that marked the “Scottish Enlightenment.” The references to Reid would later form a critical thread in Wilson’s elegant Lectures on the Law, woven in with references in Greek. He was, at that time, a member of the first Supreme Court, and in these lectures he truly took his students back to “first things,” to the first principles of political life and a regime of law.

Wilson understood, along with Aristotle, that only a certain kind of creature was fitted by nature for political life, the life marked by the presence of law. Law was binding; it created an obligation to obey. But only one kind of creature could understand what it meant to bear an obligation. Whether it was an obligation to keep a promise or a contract, it meant a willingness to honor a rule, or respect an agreement, even if one did not find it congenial or convenient. Only one kind of creature could frame propositions, articulate “principles,” and give and understand reasons over matters of right and wrong.  

In his lecture on “Evidence,” Wilson began to unfold for us nothing less than a democratic “epistemology.” For he managed to show, layer by layer, what had to be understood by that ordinary man, that biped who conjugated verbs, who put himself under the rule of law. Laws often required trials, with accusers and defendants, and verdicts would depend on “evidence.” But what was “evident” in turn depended on what that ordinary man was able to understand. 

Wilson drew us back to a sense of “natural” knowledge and natural language. Wherever humans are, they can tell the difference between the looks of approval, joy, approbation, and the looks of disapproval, anger, threat. It became plausible to ask: When the actor Robert Blake heard that his wife had been murdered, had his face reflected shock, despair – or indifference?   There was an interesting disposition on the part of humans to testify to what they had seen and heard – and to speak the truth. We stop to ask directions, and it’s almost always the case that the people offering the directions tell the truth.  They may misdirect us, but they almost never betray a malicious willingness to mislead.


        Justice James Wilson (1742-1798)

It is also one of the most enduring – and overlooked – parts of our nature that we seek the guidance of people who know more than we do, and we have reason to defer to their authority. The English writer, Anthony Daniels, recalls a conversation, on a plane, with a woman who professed to reject the authority of the Church because she rejected authority in principle. “So you don’t mind,” he said, “if I now go to the cockpit of this aircraft and take over the controls.” She protested that there was a difference, for the authority of the pilot was based on experience and proper certification. “And who,” asked Daniels, “certified his knowledge and experience?” Who, if not people we thought competent to make that judgment?

We think we know that Napolean was defeated at Waterloo even though none of us was there to see it happen. We trust the documentary record composed by those who did see it and who confirmed, in different ways, the truth of what occurred. The legendary Samuel Johnson curiously moved along the same path in a conversation with his gifted young friend, James Boswell. The Seven Years War had just ended, in 1763, and Johnson imagined a man who denied that the British had taken Canada. After all, the French were more numerous – why should he believe that they were defeated in Canada? The government reported that the British forces had prevailed in Canada, but the war was expensive, and the ministry might wish to pretend that “we have got something for our money.” Thousands of men fought in America, but they may tell tales, and they don’t want us to believe that the French got the better of them. “Yet,” said Johnson, “notwithstanding all these plausible objections, we have no doubt that Canada is really ours. Such is the weight of the common testimony. How much stronger are the evidences of the Christian religion.”

That eminent lawyer, Robert Bork, once remarked with his lawyer’s eye that the critical point was whether Jesus died and yet came back from the dead. If that happened, as Bork put it with a telling understatement, implications do flow from that point. When Jesus appeared again after he was buried, he elicited doubt even among the faithful. As James Wilson noted, he invited Thomas to seek the evidence of his senses by touching his wounds. The followers of Jesus, men anchored in the world of work with their hands, were not exactly a credulous lot. And yet, what they saw jolted them, and their lives would never be the same. It was the most direct evidence, the evidence of the senses, joined to the powers of inference; and from that point, grounded in things so elementary and true, the implications began to unfold, as they are unfolding even now.


Hadley Arkes
is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths:  The Touchstone of the Natural Law


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written by Louise, October 12, 2010
Professor Arkes,

This might be a question for another essay, but your thoughts would be of great interest, I think. Here it is: What do you think the country and the American culture would be like if the Founding Fathers had been Catholic. It is my understanding that the Church is less interested in the form of government than in its benevolence.
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written by Louise, October 12, 2010
Perhaps the answer to my question is, there would not have been any Founding Fathers if they had all been Catholics.

So, to refine the original question, would (or could) the Catholic mind have been able to conceive of a document such as the Constitution or government of the people.

(Am I displaying my own ignorance here?)
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written by Ray Hunkins, October 12, 2010
A history lesson providing food for thought. Thank you Professor Arkes. Many years ago I had a trial judge instruct on circumstantial evidence in a way that every member of the Wyoming jury understood. "When you hunt the wiley elk, you may come across his tracks in the snow. Although you may never see that elk, you know he was there. That is circumstantial evidence."
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written by Hadley Arkes, October 12, 2010
For Louise: The Church at that time was not of course committed to government by consent, or democracy, as the form of government most appropriate to human beings. And there could be lingering questions even now, because democracy is subject to corruption along with every form of regime. But the Founders would have found themselves firmed up in their understanding of natural equality (or “all men are created equal”) if they had been led to draw upon the writings of the 16th century Jesuit theologian (and later Saint) Robert Bellarmine. That might not have been necessary at the Founding because churchmen at the time found adequate evidence in nature to confirm the sense of natural equality as the “plain dictates of that reason and common sense with which the common parent of men has informed the human bosom.” (That from the Rev. Samuel Cooper, inaugurating the new constitution of Massachusetts in October 1780.) Still, Tocqueville would note later that Catholics brought a stronger sense of equality, while Protestants put the accent on freedom.
For Mr. Hunkins: Thanks for your note. Your thoughts move of course along a familiar path. I ask my students in Converse Hall in Amherst if they have ever seen pictures of the architects McKim, Mead, and White. They have not. What evidence do they have of the existence of these notable designers? The students happen to be sitting in a building designed by one or two of those men. That gets us to the problem of “other minds”—that we find the evidence for the existence of a Creator in the way we find evidence for the minds and existence of McKim, Mead, and White, even though we’ve never seen them. And so back to St Paul in Romans I, 20: The things known of God are made manifest, “for the invisible things of him from the creation of the world are clearly seen, being understood by the things that are made ….”
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written by Louise, October 12, 2010
Thank you, Professor Arkes. I appreciate your taking the time to answer my question. I will read it again when I get home from Mass in a couple of hours. Your statement about equality and freedom is very interesting. We are so used to putting all of these founding concepts into a bag together and never think of differentiating among them. Although I did read once an explanation of the difference between freedom and liberty, but the cobwebs have grown in since then, and I don't remember the fine points--only that there was a difference.
Thank you again. It is a privilege to be able to read your fine essays.
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written by Ray Hunkins, October 12, 2010
I second the sentiment expressed in Louise's last sentence
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written by Graham Combs, October 12, 2010
Prof. Arkes implies a troubling development in legal education that I encountered as a student of the law. That is, facts, evidence, witness, now struggle mightily against the bias central to almost all education. Narrative trumps fact. I recommend a casual browsing of any legal paper in the country. Cultural narrative is explicit and implicit in much of what is reported. Individual lawyers and judges are characterized almost soley in terms of their "identity." An identity that has little to do with beliefs, values or principles but rather with one bound up in an accident of birth. (Which can mean being a prisoner of origins and identity.) A woman automatically has unique insights and compassion regarding "domestic relations" law for example - but only if she supports reproductive rights. A man's role as a father and husband carries less weight - if any at all. I can't name a single professor at my law school who shared Prof. Arkes' understanding of law. To my detriment and that of my colleagues.
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written by Ray Ingles, October 14, 2010
"Such is the weight of the common testimony. How much stronger are the evidences of the Christian religion.”

"How much stronger" is a question, not an observation. How much evidence is needed to establish someone came back from the dead, anyway? (What if you had to do it in a modern court setting?)
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written by Justin Riley, October 16, 2010
For Mr. Ingles: Samuel Johnson was framing an epistemological contrast between "common testimony" and "the evidences of the Christian religion," in order to highlight the superiority of the latter. It is substantially clear, given the charm of the question and its placement in the paragraph, that Johnson was not posing a question. Rather, with shrewd precision, he was helping our minds grasp a point. Not unaware of the evidence for Christianity, Johnson used an "a fortiori" argument, giving us a lesson in epistemology.

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