Arguing on Facts: Truth, Trials and Adversary Procedures

In C. Dahlman & E. Feteris (eds.), “Legal Argumentation Theory: Cross-Disciplinary Perspectives”, Springer, Dordrecht, 2013, pp. 207-223.

Bocconi Legal Studies Research Paper No. 2888005

13 Pages Posted: 23 Dec 2016

See all articles by Giovanni Tuzet

Giovanni Tuzet

Bocconi University - Department of Law

Date Written: 2013

Abstract

Today many scholars claim that finding the truth is not among the aims or functions of a trial. What should be done by judges, rather, is assessing the evidence at disposal and taking a decision on what is at stake.

This line of thought emphasizes the differences between inquiry and advocacy, truth and justice, dialogue in science and conflict in law. One of the reasons presented in favor of this contemporary view is the nature of the adversary system in law: parties are conceived as “fighters”, and judges as “referees” who do not participate in the collection of the evidence and must avoid any “inquisitorial” procedure in deciding cases. Because of this, it is said, trials do not and cannot aim at truth.

In the same spirit, legal argumentation is conceived as a “fight” device that parties use to win the case, not as a dialogical effort for a true representation of what is at stake.

But according to the traditional view adversary procedures such as cross-examination are the best means we have to find the truth. I will try to defend this traditional view claiming that: 1) truth is a necessary condition of justice, 2) legal argumentation is truth-oriented, and 3) fallibilism requires adversary procedures.

Keywords: Legal Argumentation, Fact-finding, Trial, Truth

Suggested Citation

Tuzet, Giovanni, Arguing on Facts: Truth, Trials and Adversary Procedures (2013). In C. Dahlman & E. Feteris (eds.), “Legal Argumentation Theory: Cross-Disciplinary Perspectives”, Springer, Dordrecht, 2013, pp. 207-223., Bocconi Legal Studies Research Paper No. 2888005, Available at SSRN: https://ssrn.com/abstract=2888005

Giovanni Tuzet (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

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