Is Truth Truth?

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Kentucky Law Journal


“Truth isn’t truth,” Rudy Giuliani infamously asserted. Though critiqued as a manifestation of the “alternative facts” mindset in a “post-truth” era, Giuliani’s words, taken in context, embody a practitioner’s insight into several compelling theoretical questions concerning the nature of legal truth and the construction of facts by legal institutions. Does “truth” in the legal context exist only in the mind of the factfinder? Is there a conception of legal truth to which the straightforward assertion of Giuliani’s interlocutor that “truth is truth” can apply? How, if at all, do the idiosyncrasies of legal procedural factfinding require adaptation of conventional theories of truth? This Article examines the relationship of legal facts—adjudicative facts found by trial courts—to truth. It offers a revised model of legal truth: legal facts are collective propositional constructs capable of bearing a relationship of correspondence to external objects or events they purport to describe. In developing the revised model, the Article emphasizes the distinctions between the collective epistemic system of the court and the “single-mind” model of individual belief formation. Legal facts constitute collective knowledge insofar as their construction involves necessary contributions from multiple individual minds. Moreover, the formalized processes of the legal epistemic system theoretically mitigate some of the anti-veridical tendencies to which single-mind cognition is susceptible, while creating new obstacles unique to legal factfinding. The Article then identifies three incompatible conceptions of legal truth, distinguished along the axes of construction and correspondence, which it terms the “naïve positivist,” “radical constructivist,” and “qualified constructivist” conceptions. The Article identifies the qualified constructivist conception as both the most descriptively accurate and theoretically fecund conception of legal truth. The article then suggests two applications of the revised model’s insights. First, the revised model’s compatibility with correspondence theories of truth permits fine-tuned trading of veridicality of factfinding against other normative objectives. Second, the revised model suggests incorporating a measure of factfinder confidence in legal facts into legal judgments to better account for legal facts’ intrinsic uncertainty.

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truth, jurisprudence, theory, epistemology

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