Benjamin Bestgen

Scottish author Irvine Welsh reacted with disbelief when Alex Salmond was acquitted of several sexual offences last month: “For fuck sake. NINE women were lying? Come on.”

His reaction is a good example of what lawyers often hear when a judgment did not go the way some people thought it would or should go. Heated debates about lying witnesses, wrongly admitted or suppressed evidence, sharp lawyers and judges or juries reaching biased, unsupportable conclusions open up. Concerns that the truth didn’t come out and therefore an injustice occurred upsets people.

The concept of truth is fascinating because it proves hard to pin down: is truth something that objectively corresponds best with perceived reality or something we simply all agree on? Should a true belief be part of a coherent system of such beliefs? Does truth exist at all or do we just construct it as we go along? It is also vitally important to humans: universally, truth ranks equal with ideals like beauty, justice and goodness. But where can it be found in law – if at all?

Truth relates to knowledge. What we know can be true or false and in law we want justice to reflect truth. We want to know “what really happened”, so any punishment, reward, restitution or compensation can be justified as appropriate, just and fair.

Legal epistemology tries to clarify how we obtain knowledge in law and from legal practice. For example only, it analyses approaches to evidence, justifications for admitting or excluding information, standards of proof and probativity, how juries or judges reach decisions, what reasonableness means in law or what mens rea actually entails. It thinks about concepts like safety, truth, coherence, reliability or comprehensibility in a legal context. It researches how witness testimony or specialist expert evidence should be treated in court.

By comparing inquisitorial civil law and adversarial common-law approaches, the Secret Barrister engagingly discusses truth in trials. They cast doubt on whether a trial can really discover truth, as our reality is usually complex, full of incomplete information, human error, foggy memories, implicit biases, ill-will and constraints on the resources needed to investigate a case thoroughly.

And maybe that’s fair – maybe “beyond reasonable doubt” and “balance of probability” is as close as we get to establishing truth in law. Or maybe law is the wrong forum to look for truth and right answers altogether.

In contrast, legal philosopher Ronald Dworkin believed that judges can find, if not truth, then at least right answers. His idealised judge Hercules has wisdom, plenty of time, resources and access to vast legal knowledge in a coherent system of laws. Why abandon an ideal just because our reality is flawed? Should we not strive to do better?

Whatever the answer, there are no winners in trials like Alex Salmond’s, only cause for thought and reflection.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.