No CrossRef data available.
Article contents
A coherence framework for fact-finding before the International Court of Justice
Published online by Cambridge University Press: 09 June 2023
Abstract
It is the task of the International Court of Justice to establish the operative facts from which to draw normative conclusions in all contentious cases that come before it. This task, however, is complicated where those facts necessitate engagement with specialized epistemic fields other than law such as science. Drawing on legal theory and epistemology I propose a coherence framework for the establishment of the facts in such cases. In essence, this means that the Court need not show that its factual determinations have been established beyond all doubt, nor even that they satisfy a certain standard of probability. Rather, what the Court must show is that a factual determination it has made has been arrived at through a rational process and that it is coherent. The coherence framework also has both descriptive and normative value as it both maps neatly on to the current (best) practice of the Court and provides a justification for why it should operate this way in the future.
- Type
- ORIGINAL ARTICLE
- Information
- Copyright
- © The Author(s), 2023. Published by Cambridge University Press on behalf of The Foundation of the Leiden Journal of International Law in association with the Grotius Centre for International Law, Leiden University
Footnotes
*
The author would like to thank the anonymous reviewers and Professor Akbar Rasulov for their comments on earlier drafts.
References
1 In other words, to facilitate the operation of the legal syllogism, something which has been described as so central as to be ‘the framework of all legal reasoning that involves applying law’, N. MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning, (2005), at 43; N. Walker, ‘The Theory of Relevancy’, (1951) 63 Juridical Review, at 3. Put differently, and perhaps in a more familiar formulation, whenever the operative facts (OF) obtain, then a normative conclusion (NC) follows. Assuming that I am right about the role of the syllogism, and following MacCormick, this means that there are only four possibilities for how the legal syllogism can fail:
-
1.
1. OF not established (‘problem of proof’);
-
2.
2. Whatever alleged cannot be characterised as ‘OF’ (‘problem of classification’);
-
3.
3. There is a more acceptable interpretation of ‘OF’ or ‘NC’ than the one established (‘problem of interpretation’);
-
4.
4. Success of the claim depends on norm ‘if OF then NC’ but no such norm exists (‘problem of relevancy’).
It is the first of these steps, the problem of proof, that this article focuses on.
2 K. Sulyok, Science and Judicial Reasoning (2020), at 21–2; L. Malintoppi, ‘Fact Finding and Evidence Before the International Court of Justice (Notably in Scientific-Related Disputes)’, (2018) Journal of International Dispute Settlement 421; K. McGregor Richmond, ‘Towards a Normative Assessment of Probative Value in International Criminal Adjudication’, (2021) iCourts Working Paper Series, no. 263; M. M. Mbengue, ‘Scientific Fact-finding by International Courts and Tribunals’, (2012) 3 Journal of International Dispute Settlement 509; C. Foster, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (2011), at 10; J. D’Aspremont and M. M. Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’, (2014) 5 Journal of International Dispute Settlement 240, at 247; J. E. Alvarez, ‘Are International Judges Afraid of Science?: A Comment on Mbengue’, (2012) 34 Loyola of Los Angeles International and Comparative Law Review 81; see also A. Orford, ‘Scientific Reason and the Discipline of International Law’, in J. D’Aspremont et al. (eds.), International Law as a Profession (2017), 93.
3 See C. A. Thomas, ‘Of Facts and Phantoms: Economics, Epistemic Legitimacy and WTO Dispute Settlement’, (2011) 14(2) Journal of International Economic Law 295.
4 See the criticisms of the use of historical evidence in relation to the South China Sea dispute in B. Hayton, ‘When Good Lawyers Write Bad History: Unreliable Evidence and the South China Sea Territorial Dispute’, (2017) 48(1) Ocean Development & International Law 17.
5 A related, but no less challenging, question in this regard is: what exactly is ‘scientific’ evidence? In the context of the US Supreme Court, major difficulties have arisen with regard to defining purely ‘scientific’ knowledge in implementing the Daubert admissibility test which is intended to exclude so-called ‘junk science’ from proceedings (Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579(1993)). In practice, despite the fact the ‘Daubert test’ was designed to apply narrowly to scientific evidence, the Supreme Court was subsequently forced to expand the test to include ‘technical’ and ‘other specialized’ forms of knowledge, in the Kumho Tyre case. In this case Justice Breyer conceded that: ‘It would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between “scientific” knowledge and “technical” or “other specialized” knowledge. There is no clear line that divides the one from the others.’ (Kumho Tire Co. v. Carmichael, 119 S. Ct., at 1174.)
6 S. Brewer, ‘Scientific Expert Testimony and Intellectual Due Process’, (1998) 107 Yale Law Journal 1589. For instance, it is unclear why extremely complex International Centre for Settlement of Investment Dispute (ICSID) awards dealing with injury to investors, or World Trade Organization (WTO) cases dealing with countervailing duties or zeroing, should be any less complicated for the average international judge or arbitrator to deal with than scientific issues; see Alvarez, supra note 2.
7 Ibid., at 86.
8 See Sulyok, supra note 2, at 21–2.
9 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, [2010] ICJ Rep., at 14; Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment of 31 March 2014, [2014] ICJ Rep., at 226.
10 Indeed, in accordance with the coherence principles set out below in Section 4.1, we should prefer the theory which explains a greater number of things over that which explains fewer.
11 See, for example, in the Pulp Mills case, supra note 9: in order to determine whether there had been a breach of international legal obligations, the Court had to engage with a number of complex scientific issues.
12 See Pulp Mills, supra note 9, Joint Dissenting Opinion, Judges Simma and Al-Khasawneh, para. 4. For another, doctrinal, attempt to bring clarity to standards of proof applied by the Court see G. M. Farnelli, ‘Consistency in the ICJ’s Approach to the Standard of Proof: An Appraisal of the Court’s Flexibility’, (2022) 21 The Law and Practice of International Courts and Tribunals 98.
13 Or ‘distinct cultures’, perhaps: S. Jasanoff, ‘In a Constitutional Moment: Science and Social Order at the Millennium’, in B. Joerges and H. Nowotny (eds.), Social Studies of Science and Technology: Looking Back, Ahead (2003), 155, at 164.
14 See Brewer, supra note 6, at 1589; S. Haack, ‘Truth and Justice, Inquiry, Advocacy, Science and Law’, (2004) 17 Ratio Juris 15; D. Walton and N. Zhang, ‘An Argumentation Interface for Expert Opinion Evidence’, (2016) 29 Ratio Juris 59.
15 B. Hepburn and H. Andersen, ‘Scientific Method’, (2015) Stanford Encyclopedia of Philosophy, available at plato.stanford.edu/entries/scientific-method/; J. Klabbers, ‘Changing Futures? Science and International Law’, (2009) 20 Finnish Yearbook of International Law 211.
16 For a recent account of the relationship between law and science see Sulyok, supra note 2, at Ch. 2.
17 See Hepburn and Andersen, supra note 15. Broadly speaking, the goal of science is the attainment of knowledge and its methods reflect this, being those which facilitate the generation of scientific knowledge. While the attainment of knowledge is also one of the goals of law, it is just one of several, and it is constrained by the highly institutionalized nature of law. It is more accurate to say that the adjudicative process seeks to attain knowledge in order to establish the operative facts to facilitate the legal syllogism.
18 See Hepburn and Andersen, supra note 15; while scientific knowledge is defeasible, standards of justification across science and the law are far from uniform and highly context-dependent.
19 Ibid.
20 See Section 3. This creates the possibility of legal decision-makers facing ‘quandaries’ in the epistemological sense; see Walton and Zhang, supra note 14.
21 R. Alexy, A Theory of Legal Argumentation (2009), at 214.
22 Ibid. ‘The claim to correctness involved in legal discourses is clearly distinguishable from that involved in general practical discourses. There is no claim that the normative statement asserted, proposed, or pronounced in judgments is absolutely rational, but only a claim that it can be rationally justified within the framework of the prevailing legal order. Precisely what this means has to be elucidated in the framework of the theory of legal discourse.’ (emphasis added).
23 See Alexy, supra note 21; N. MacCormick, Legal Reasoning and Legal Theory (1978).
24 See, purely for the sake of example, 1945 Statute of the International Court of Justice, Art. 53(2): ‘The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law …’ or the consistent statements of the Court and its judges such as those mentioned in Pulp Mills, supra note 9.
25 See, for example, Rawls’s notion of ‘reflective equilibrium’ in J. Rawls, A Theory of Justice (1999); J. Rawls and E. I. Kelly, Justice as Fairness: A Restatement (2001); see also M. R. DePaul ‘Reflective Equilibrium and Foundationalism’, (1986) 23 American Philosophical Quarterly 59; A. H. Goldman, ‘Legal Reasoning as a Model for Moral Reasoning’, (1989) 8 Law and Philosophy 131; A. H. Goldman, Practical Rules: When We Need them and when We Don’t (2002); P. Thagard, Coherence in Thought and Action (2000); M. Engel, ‘Coherentism and the Epistemic Justification of Moral Beliefs: A Case Study in How to Do Practical Ethics without Appeal to a Moral Theory’, (2012) 50 Southern Journal of Philosophy 50.
26 K. Lehrer, Theory of Knowledge (2000).
27 J. Young, ‘The Coherence Theory of Truth’, (1996) Stanford Encyclopedia of Philosophy, available at plato.stanford.edu/entries/truth-coherence/.
28 See, for example, K. Aschenbrenner, The Concept of Coherence in Art (1985); N. Goodman, Languages of Art (1985).
29 A. Amaya, ‘Coherence, Evidence, and Legal Proof’, (2013) 19(1) Legal Theory 1, at 24.
30 A. Amaya, The Tapestry of Reason: An Inquiry into the Nature of Coherence and Its Role in Legal Argument (2015), at 110.
31 Ibid. Thagard defines coherence as relating to the satisfaction of what are known as positive and negative ‘constraints’. This essentially involves setting out the factual claims (or ‘elements’) that are relevant in the present case and then assessing the ‘coherence relations’ between them by considering a range of coherence principles (which contain the constraints and elements) that are specific to the type of coherence in question. The factual claims that can be considered as most coherent as those which satisfy the positive and negative constraints as contained within the coherence principles, see P. Thagard and K. Verbeurgt, ‘Coherence as Constraint Satisfaction’, (1998) 22 Cognitive Science 1, at 12; P. Thagard, Coherence in Thought and Action (2000), at Chapter 2; A. Amaya, supra note 29, at 6.
32 See Amaya, supra note 30, at 12; for other coherence approaches to the law see, inter alia, R. Dworkin, Law’s Empire (1986); MacCormick, supra note 23; R. Sartorious, ‘The Justification of the Judicial Decision’, (1968) 78 Ethics 171; B. Hoffmaster, ‘A Holistic Approach to Judicial Justification’, (1980) 15 Erkenntnis 159; J. Hage, ‘Law and Coherence’, (2004) 17 Ratio Juris 87.
33 See Amaya, supra note 30, at 11–12.
34 See MacCormick, supra note 23. For a more recent application of coherence to legal reasoning in the field of international investment law see C. Giannakopoulos, Manifestations of Coherence and Investor-State Arbitration (2022).
35 See further N. MacCormick, ‘Coherence in Legal Justification’, in W. Krawietz et al. (eds.), Theorie Der Normen (1984), 37; A. Aarnio at al., On Coherence Theory of Law (1998); R. Alexy and A. Peczenik, ‘The Concept of Coherence and Its Relevance for Discursive Rationality’, (1990) 3 Ratio Juris 130.
36 See, for example, N. MacCormick, Rhetoric and the Rule of Law (2005); N. MacCormick, ‘The Coherence of a Case and the Reasonableness of Doubt’, (1980) 2 Liverpool Law Review 45; M. S. Pardo, ‘Juridical Proof, Evidence, and Pragmatic Meaning: Towards Evidentiary Holism’, (2000) 95 Northwestern University Law Review 399; R. J. Allen, ‘The Nature of Juridical Proof’, (1991) 13 Cardozo Law Review 373.
37 See Amaya, supra note 29, at 1; Amaya, supra note 30.
38 See Amaya, supra note 29, at 1; Amaya, supra note 30; Amaya’s argument in a nutshell is that ‘a belief about the facts under dispute is justified if and only if an epistemically responsible fact finder might hold that belief by virtue of its coherence in like circumstances’. For additional, although less well-developed coherence accounts, see W. A. Wagenaar, P. J. Van Koppen and H. F. M. Crombag, Anchored Narratives (1993); P. Thagard, Coherence in Thought and Action (2000); F. J. Bex, Arguments, Stories and Criminal Evidence: A Formal Hybrid Theory (2011).
39 This is a simplified description of coherence processes adapted to the (international) legal context. For a similar adaptation see Amaya, supra note 29, at 16.
40 J. Devaney, ‘Evidence: International Court of Justice’, (2018) Max Planck Enyclopedia of International Procedural Law, available at www.opil-ouplaw-com.ezproxy.lib.gla.ac.uk/view/10.1093/law-mpeipro/e3430.013.3430/law-mpeipro-e3430?print=pdf, para. 9; In this sense the Court operates more like a civil than a common law court, the latter placing significant emphasis on exclusionary rules of evidence. On exclusionary rules: Ibid., para. 9; W. Twining, Rethinking Evidence (2006), at 35.
41 I take evidence to be ‘the material submitted by a party to a dispute, on its own initiative or at the Court’s request, to prove a fact alleged or a legal title claimed’: see ICJ Registry, A Dialogue at the Court (2007), 25. This is often used in this article interchangeably with ‘factual claims of the parties’. This is not to be confused with ‘facts’ which I take to be the factual determinations of the Court that are one of the results of the adjudicative process.
42 J. Devaney, Fact-Finding Before the International Court of Justice (2016), at 27.
43 See, e.g., Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, paras. 58–59, in which the Court states that its task in assessing the facts put before it by the parties was to ‘identify the documents relied on and make its own clear assessment of their weight, reliability and value’; see further S. Halink, ‘All Things Considered: How the International Court of Justice Delegated its Fact-Assessment to the United Nations in the Armed Activities Case’, (2007) 40 New York University Journal of International Law & Politics 13, at 21.
44 See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, [1986] ICJ Rep. 14, paras. 59–60, in which the Court expressed a preference for contemporaneous evidence of those with direct knowledge of the relevant factual scenario, or Armed Activities, in which the Court stated that it would give less weight to evidence from a source specifically prepared for the case or any evidence ‘emanating from a single source’ (see Armed Activities, supra note 43, at para. 61); for further indications see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep. 43, para. 223; Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, [2011] ICJ Rep. 70, para. 20 (Judge Simma, Separate Opinion); A. Riddell and B. Plant, Evidence before the International Court of Justice (2009), at 192.
45 See, e.g., Riddell and Plant, supra note 44; see Malintoppi, supra note 2; Devaney, supra note 42; A. Keene, ‘Outcome Paper for the Seminar on the International Court of Justice at 70: In Retrospect and in Prospect’, (2016) 7 Journal of International Dispute Settlement 238; K. J. Keith, ‘The Development of Rules of Procedure by the World Court Through Its Rule Making, Practice and Decisions’, (2018) 49(4) Victoria of Wellington Law Review 511; M. Bennouna, ‘Experts before the International Court of Justice: What For?’, (2018) 9 Journal of International Dispute Settlement 345; C. J. Tams and J. Devaney, ‘Article 50’, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2019), 1428, at 1434; C. J. Tams, ‘Article 51’, in Zimmerman et al., ibid., at 1441.
46 See A. Amaya, ‘Inference to the Best Legal Explanation’, in H. Prakken et al. (eds.), Legal Evidence and Proof (2009), 135; see also R. J. Allen and M. S. Pardo, ‘Juridical Proof and Best Explanation’, (2008) 27 Law and Philosophy 223.
47 See Amaya, supra note 29, at 14.
48 Ibid., at 15; see further P. Lipton, Inference to the Best Explanation (2004).
49 A point to which we will return in Section 5.3.
50 See Amaya, supra note 29, at 6.
51 See Amaya, supra note 30, at 215, drawing on P. Thagard, Conceptual Revolutions (1992), at Ch. 4.
52 The first principle is that of symmetry. This means that two factual claims cohere with each other equally. This sets explanatory coherence apart from probability in the sense that is a symmetrical relation: See Amaya, ibid., at 215.
53 In accordance with this principle a factual claim coheres with what it explains. Likewise, two factual claims which explain a certain hypothesis cohere with each other. See Amaya, supra note 29; Amaya, supra note 30; Thagard, supra note 51.
54 The third principle deals with analogy, and deals with situations involving two analogous hypotheses. In accordance with this principle, if both the hypothesis and the factual claims which explain those hypotheses are analogous then they cohere with each other; see Amaya, supra note 30, at 216.
55 The fourth principle is that of data priority, in accordance with which factual claims which explain the results of observation are given particular priority when considering the coherence of a hypothesis; see Amaya, ibid., at 216.
56 The fifth principle is relatively straightforward, being the opposite of the second principle, namely that if two factual claims contradict each other than they do not cohere.
57 Sixth, where two factual claims explain a hypothesis, but which are not connected in an explanatory manner, compete with one another and as such are incoherent. The only factual claims which are connected in an explanatory manner are those which explain the other or if together they explain some other hypothesis: see Amaya, supra note 30, at 216.
58 The final principle relates to acceptability and holds that the acceptability of a hypothesis in a system depends on its coherence with the hypotheses in that system. This principle is designed to cover situations in which there are numerous pieces of evidence, and which only a few taken together explain the hypothesis. The acceptability of such a hypothesis would be reduced as a result. See Amaya, ibid., at 217.
59 See Pulp Mills, supra note 9.
60 Ibid., para. 181.
61 Ibid.
62 Ibid., para. 250.
63 See Joint Dissenting Opinions of Judges Simma and Al-Khasawneh, supra note 12, para. 4: ‘… a court of justice cannot assess, without the assistance of experts, claims as to whether two or three-dimensional modelling is the best or even appropriate practice in evaluating the hydrodynamics of a river, or what role an Acoustic Doppler Current Profiler can play in such an evaluation. Nor is the Court, indeed any court save a specialized one, well-placed, without expert assistance, to consider the effects of the breakdown of nonylphenolethoxylates, the binding of sediments to phosphorus, the possible chain of causation which can lead to an algal bloom, or the implications of various substances for the health of various organisms which exist in the River Uruguay’.
64 See Pulp Mills, supra note 9, para. 250.
65 Ibid., para. 248.
66 See Thagard, supra note 51, at 67.
67 Ibid.
68 See Amaya, supra note 30, at 214.
69 See further P. Thagard, Computational Philosophy of Science (1988), at 78.
70 See Amaya, supra note 29, at 24; H. Kornblith, ‘Justified Belief and Epistemically Responsible Action’, (1983) 92 Philosophical Review 33; R. Feldman, ‘Epistemological Duties’, in P. Moser (ed.), The Oxford Handbook of Epistemology (2002), 362, at 367; J. Pryor, ‘Highlights of Recent Epistemology’, (2001) 52 British Journal for the Philosophy of Science 95.
71 See Amaya, ibid., at 24.
72 Ibid.
73 Ibid.
74 See, most notably, R. M. Chisholm, Theory of Knowledge (1977).
75 See Feldman, supra note 70, at 362.
76 Ibid., at 365.
77 See Cambridge Dictionary of Philosophy, ‘[w]hat a person is obligated or required to do. Duties can be moral, legal, parental, occupational, etc.’, R. Audi, The Cambridge Dictionary of Philosophy (1999), at 248.
78 See Feldman, supra note 70, at 367.
79 See Feldman, ibid., at 368; Amaya, supra note 29, at 25.
80 R. J. Hall and C. R. Johnson, ‘The Epistemic Duty to Seek More Evidence’, (1998) 35 American Philosophical Quarterly 129; Amaya, ibid., at 25; R. Feldman, ‘Epistemic Obligations’, (1988) 2 Philosophical Perspectives 235, at 236; J. D. Jackson, ‘Analysing the New Evidence Scholarship: Towards a New Conception of the Law of Evidence’, (1996) 16 Oxford Journal of Legal Studies 309, at 326.
81 S. Cohen, ‘Contextualism Defended’, in M. Steup et al. (eds.), Contemporary Debates in Epistemology (2013), 69; J. Greco, ‘A Different Sort of Contextualism’, (2004) 61 Erkenntnis 383; J. Greco, ‘What’s Wrong with Contextualism?’, (2008) 58 Philosophical Quarterly 416.
82 See Feldman, supra note 70, at 372.
83 See Amaya, supra note 30, at 523.
84 J. Turri, M. Alfano and J. Greco, ‘Virtue Epistemology’, (1999) Stanford Encyclopedia of Philosophy, available at plato.stanford.edu/entries/epistemology-virtue/.
85 See, e.g., L. Code, Epistemic Responsibility (1987); J. A. Montmarquet, Epistemic Virtue and Doxastic Responsibility (1993); L. Trinkaus Zagzebski, Virtues of the Mind: An Inquiry into the Nature of Virtue and the Ethical Foundations of Knowledge (1996); see Turri, Alfano and Greco, ibid.
86 See Amaya, supra note 29, at 25; Montmarquet, supra note 85; Code, supra note 85; N. Cooper, ‘The Intellectual Virtues’, (1994) 69 Philosophy 459.
87 See Amaya, supra note 29, at 26.
88 See E. Sosa, Knowledge in Perspective (1991); J. Greco, ‘Virtues in Epistemology’, in P. K. Moser, The Oxford Handbook of Epistemology (2005), 287.
89 M. M. Mbengue, ‘International Courts and Tribunals as Fact-Finders: The Case of Scientific Fact-Finding in International Adjudication’, (2011) 34 Loyola of Los Angeles International and Comparative Law Review 53.
90 See Cameroon v. Nigeria, supra note 43, para. 102 (Equatorial Guinea intervening).
91 For a fuller discussion see Devaney, supra note 42, at 85.
92 See Amaya, supra note 29, at 27, arguing that contextual factors determine ‘the appropriate level of epistemic responsibility that is required for legal justification’.
93 Ibid., at 28.
94 Ibid.
95 See the practice of the Court in Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Orders of 31 May 2016 and 16 June 2016.
96 F. Cohen, ‘Transcendental Nonsense and the Functional Approach’, (1935) 6 Columbia Law Review 809.
97 F. Cohen, ‘The Ethical Basis of Legal Criticism’, (1931) 41(2) Yale Law Journal 201.
98 K. Llewelyn, Common Law Tradition: Deciding Appeals (1960), Appendix C, Cannons on Statutes; K. Llewelyn, Bramble Bush: Some Lectures on Law and Its Study (1930), at 65.
99 See further on this distinction R. Dworkin, ‘Objectivity and Truth: You’d Better Believe It’, (1996) 25 Philosophy & Public Affairs 877.
100 J. W. Singer, ‘Catcher in the Rye Jurisprudence’, (1983) 35 Rutgers Law Review 275; J. W. Singer, ‘The Player and the Cards: Nihilism and Legal Theory’, (1984) 94(1) Yale Law Journal 1, discussing how CLS raises the spectre of nihilism.
101 D. Kennedy, ‘Form and Substance in Private Law Adjudication’, (1976) 89 Harvard Law Review 1685; D. Kennedy, ‘A Left Phenomenological Alternative to the Hart/Kelsen Theory of Legal Interpretation’, in D. Kennedy (ed.), Legal Reasoning: Collected Essays (2008), 153; D. Kennedy, ‘A Semiotics of Legal Argument’, (1991) 42 Syracuse Law Review 75, at 77–89; D. Kennedy, ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’, (1986) 36 Journal of Legal Education 518. See further, D. Kennedy, ‘The Structure of Blackstone’s Commentaries’, (1979) 28(2) Buffalo Law Review 205.
102 C. Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’, (1985) 94(5) Yale Law Journal 997, being a very influential CLS-inspired project.
103 A. D. Freeman, ‘Truth and Mystification in Legal Scholarship’, (1981) 90 Yale Law Journal 1229.
104 For an influential attempt to apply CLS ideas to international law, specifically that internal contradictions are part of the law and as such coherence is unsustainable, see D. K. Tarullo, ‘Logic, Myth and the International Economic Order’, (1985) 26(2) Harvard International Law Journal 533; more generally, see R. M. Unger, The Critical Legal Studies Movement (1983), at 5–15.
105 M. Koskenniemi, ‘The Politics of International Law’, (1990) 1 EJIL 4, at 7.
106 See Singer (1984), supra note 100, at 8: ‘[l]aw and morality have no rational foundation that once and for all compels all persons to prefer certain institutions and rules above all others’.
107 See, e.g., M. Koskenniemi: ‘This view is as utopian as naturalistic. Because “justice”, “social need”, “reasonableness”, and “moral utility” are subjective notions, they cannot be used in order to achieve a determinate delimitation between practice which is and which is not the law’, in M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005), at 1.
108 E. Voyiakis, ‘International Law and the Objectivity of Value’, (2009) 22 LJIL 75.
109 See Alexy, supra note 21, at 17.
110 See Voyiakis, supra note 108.
111 D. Davidson, ‘The Objectivity of Values’, in D. Davidson (ed.), Problems of Rationality (2004), 39; D. Davidson, ‘What Thought Requires’, in ibid., at 135; D. Davidson, ‘Three Varieties of Knowledge’, in D. Davidson (ed.), Subjective, Intersubjective, Objective (2001), 205, at 211.
112 See Voyiakis, supra note 108, at 68; D. Davidson, ‘Essay 13: On the Very Idea of a Conceptual Scheme’, in D. Davidson (ed.), Inquiries Into Truth and Interpretation (2002), 183, at 191; see further, J. Malpas, ‘Donald Davidson’, (1996) Stanford Encyclopedia of Philosophy, available at plato.stanford.edu/entries/davidson/.
113 See Davidson, ‘Three Varieties of Knowledge’, supra note 111, at 205.
114 See Voyiakis, supra note 108, at 73; D. Davidson, ‘The Structure and Content of Truth’, (1990) 87 Journal of Philosophy 279; D. Davidson, Truth and Predication, (2005).
115 See further, R. M. Sainsbury, ‘Fly Swatting: Davidsonian Truth Theories and Context’, in M. C. Amoretti and N. Vassallo (eds.), Knowledge, Language and Interpretation: On the Philosophy of Donald Davidson (2008), 33; see Davidson, ‘The Objectivity of Values’, supra note 111; see Davidson, ‘What Thought Requires’, supra note 111; see Davidson, ‘Three Varieties of Knowledge’, supra note 111; H. Putnam, ‘Meaning and Reference’, (1973) 70 Journal of Philosophy 699, at 705.
116 For detailed accounts of the fact-finding practice of the ICJ see Riddell and Plant, supra note 44; see Devaney, supra note 42, at 15 et seq.; J. Devaney, ‘Evidence: International Court of Justice’ (2018), Max Planck Enyclopedia of International Procedural Law, available at opil.ouplaw.com/display/10.1093/law-mpeipro/e3430.013.3430/law-mpeipro-e3430?prd=MPIL.
117 Ibid.
118 J. Devaney, ‘Reappraising the Role of Experts in Recent Cases Before the International Court of Justice’, (2019) 62 German Yearbook of International Law 337.
119 Ibid.
120 Ibid.
121 See Amaya, supra note 30, at 111; citing K. J. Holyoak and D. Simon, ‘Bidirectional Reasoning in Decision Making by Constraint Satisfaction’, (1999) 128(1) Journal of Experimental Psychology 3; D. Simon et al., ‘The Emergence of Coherence over the Course of Decision Making’, (2001) 27(5) Journal of Experimental Psychology 1250; D. Simon, C. J. Snow and S. J. Read, ‘The Redux of Cognitive Consistency Theories: Evidence Judgments by Constraint Satisfaction’, (2004) 86 Journal of Personality and Social Psychology 814.
122 Amaya, ibid.
123 Ibid., at 116.
124 Ibid., at 115; R. Hastie and N. Pennington, ‘Evidence Evaluation in Complex Decision Making’, (1986) 51 Journal of Personality and Social Psychology 242; R. Hastie and N. Pennington, ‘A Cognitive Theory of Juror Decision-Making: The Story Model’, (1991) 13 Cordozo Law Review 519; D. Simon, ‘A Third View of the Black Box: Cognitive Coherence in Legal Decision-Making’, (2004) 71 University of Chicago Law Review 511.
125 On coherence theories of epistemic justification see D. Davidson, ‘A Coherence Theory of Truth and Knowledge’, in Davidson, supra note 111, at 137; L. BonJour, The Structure of Empirical Knowledge (1988).
126 On coherence in moral justification see Rawls, supra note 25; A. H. Goldman, Moral Knowledge (1988); P. Thagard and E. Millgram, ‘Deliberative Coherence’, (1996) 108 Synthese 63.
127 See MacCormick, supra note 23; R. Dworkin, Law’s Empire (1986).
128 P. Lipton, Inference to the Best Explanation (2004), at 1; C. Dahlman and A. Mackor, ‘Coherence and Probability in Legal Evidence’, (2019) 18 Law, Probability and Risk 275; F. Schauer, The Proof (2022), at 31; S. Psillos, ‘Inference to the Best Explanation and Bayesianism’, in F. Stadler (ed.), Induction and Deduction in the Sciences (2004), 83; S. Okasha, ‘Van Fraasen’s Critique of Inference to the Best Explanation’, (2000) 31 Studies in the History and Philosophy of Science 691.
129 See Dahlman and Mackor, supra note 128, at 292: ‘It seems that they are not merely compatible but complementary approaches, and that they are not merely complementary in the context of generation and pursuit but also in the context of justification.’; or see Schauer, supra note 128, at 32: ‘[i]nference to the best explanation not only is compatible with Bayesian incrementalism in this way but also is compatible with a probabilistic approach’.
130 R. Lempert, ‘The New Evidence Scholarship: Analyzing the Process of Proof’, (1986) 66 Boston University Law Review 439.
131 See Amaya, supra note 30, at 76; Twining, supra note 40, at 72.
132 See Amaya, ibid., at 76.
133 Ibid.
134 Ibid., at 77.
135 P (h/e) = P (e/h) P (h)/P (e/h) P (h) + P (e/not-h) P (not-h).
136 See Amaya, supra note 30, at 75; Richmond, supra note 2, at 19; Twining, supra note 40, at 127; T. Anderson et al., Analysis of Evidence (2005), at 79.
137 See Amaya, ibid., at 79.
138 See Amaya, ibid., at 79–80; see, e.g., P. Tillers and E. Green (eds.), Probability and Inference in the Law of Evidence (1988); see the contributions to the special issue on ‘Bayesianism and Juridical Proof’, (1997) 1 International Journal of Evidence and Proof 253; D. Schum, The Evidential Foundations of Probabilistic Reasoning (2001). In very rough terms, according to this method, a legal fact-finder first assigns a value to the probability of a certain hypothesis being true. Next, the fact-finder assigns a value to a probability of a certain piece of evidence which suggests that the hypothesis is higher. The legal fact-finder then calculates the revised probability of the hypothesis being true, taking into account the second piece of evidence considered. If that revised probability is higher than the standard of proof then this fact can be considered established as an operative fact for the purposes of the law.
139 See Amaya, supra note 30, at 83; R. Foley, Working Without a Net: A Study of Egocentric Epistemology (1993).
140 Ibid.
141 See Amaya, supra note 30, at 116; see further M. J. Saks and W. C. Thompson, ‘Assessing Evidence: Proving Facts’, in D. Carson and R. Bull (eds.), Handbook of Psychology in Legal Contexts (2003), 329.
142 See Amaya, ibid., at 83–4; see also D. Hodgson, ‘Probability: the Logic of the Law – A Response’, (1995) 15 OJLS 51; Allen, supra note 36, at 373. Although it should be noted that proponents of Bayes’ Theorem have attempted to respond, see, e.g., R. D. Friedman, ‘Answering the Bayesioskeptical Challenge’, (1997) 1 International Journal of Evidence and Proof 276; D. H. Kaye, ‘Clarifying the Burden of Persuasion: What Bayesian Decision Rules Do and Do Not Do’, (1999) 3 International Journal of Evidence and Proof 1.