WE GET A LOT OF REFERENCE QUESTIONS AT THE KING COUNTY LAW LIBRARY.
THE REFRAIN GOES THAT BECAUSE WE AREN’T PRACTICING ATTORNEYS, WE CAN’T OFFER LEGAL ADVICE—AS LIBRARIANS, WE CAN ONLY OFFER RESOURCES.
THAT SAID, SOME QUESTIONS ARE VERY INTERESTING & INSPIRE ME TO DO SOME RESEARCH OF MY OWN, COLLECTED HERE IN THIS COLUMN. DON’T CONSTRUE THIS AS LEGAL ADVICE!
While my life has occasionally eked into the “extraordinary,” something like 99.99% has fallen into the realm of “totally normal” and “mundane.” The brief jolts I’ve received in the way of novel experiences have shown me that I am a simple creature, a lover of the ordinary. So, why do I always have my head in the clouds? Since high school, I’ve been fascinated by philosophy—I’ve routinely moused away from school assignments and avoided social situations to read and use the field to overanalyze my very normal conditions. Matter of fact, even further back, since elementary school I’ve read advice columnists like “Dear Abby” daily in the newspaper, and aren’t advice columns a type of philosophy? “What is the best course of action?” “Am I in the wrong?” The routine questions of advice columns suggest that there is a definite moral order (often surrounding mothers-in-law). “Be as you wish to seem.” Socrates, or Miss Manners?
Is there a certain ethical pathway to life? I still can’t tell. I’ve read a great deal of philosophy, from Plato to Nietzsche (though, I DNF’d Critique of Pure Reason and Being and Nothingness – my postulation is that these guys needed to touch grass), and what I’ve landed on for personal application is some combination of Aristotelian ethics for the pursuit of happiness (I consider myself a quintessential blonde (glib, pleasant) and what could be more unsophisticated and straightforward than seeking virtue through practice? Be magnanimous, and… you’ll be magnanimous—”it does exactly what it says on the tin!”) and Hindu philosophy for epistemology and deciphering reality.
For the sake of today’s RRQ post, I wanted to appreciate how Hindu philosophy approaches ways of looking at the world and assigning importance to its happenings, and one striking concept in this way is that of pramanas.
Pramanas are the paths to what is deemed “correct knowledge.” How can you be certain that what you know is valid? There are six pathways to knowledge in Hinduism:
- Perception – direct sensory experience
- Inference – applying prior fact patterns (“if there is smoke, there must be fire”)
- Comparison/Analogy (“an alligator seems like a crocodile, so I must be careful”)
- Postulation – extrapolation from facts (“RJ oversleeps on all the days that end in Y, he must oversleep every day”)
- Non-perception – can the lack of something prove something?
- Testimony of experts
More or less copied from the Wikipedia article, there. Maybe you should just read that… and if you did, you would have read that different Hindu schools accept different combinations of these as valid routes to knowledge. One holds perception alone as a valid, another accepts all six. Most are somewhere in between. I’m not of one mind on this, but more often than not, I’m a Samkhya guy who values only perception, inference, and expert testimony. That said, I can see how certain pramana, in certain contexts, could be seen as acceptable, and moreover I’m simply happy to have a system by which to weigh such epistemological concerns.
There isn’t a ref q here, sorry, the point of this column is this: I (mostly jokingly) wondered if one could use the Rules of Evidence as an epistemology of its own, and in thus pondering, I’ve been weighing the ERs against the pramanas. What is a valid presumption? Who can you trust? As far as philosophy goes, the ERs are about as dry and stuffy as the rest, but the thought has tickled me of some devout neophyte emphatically clutching their volume of Tegland & Turner. Yet it’s an idea I’ve returned to often: What if we, as a society, could reject spiritual dogma, and join to embrace ER 101 – ER 1103?
Some of the pramanas port over easily enough. If we were relayed some fact via hearsay, should we say we know it to be true? This is rejected by the pramanas and under Title 8 of the ERs. Or, if we consider the testimony of an expert, is that valid knowledge? Look no further than Title 7 of the Rules of Evidence: Opinions and Expert Testimony. The Supreme Court rulemaking process has already settled this aspect of epistemology.
What about some synthetic proposition we heard? Can we make an inference based on a postulation? Some Hindu schools would say yes, some no… and Title 3 re: Presumptions wasn’t adopted, so you’re in the woods there. Check case law, cenobite.
So which pramana has a direct ER corollary?
- Perception – direct sensory experience ✅ Title 6: Witnesses
- Inference – applying prior fact patterns (“if there is smoke, there must be fire”) ❌ ̶ ̶T̶i̶t̶l̶e̶ ̶3̶ ̶P̶r̶e̶s̶u̶m̶p̶t̶i̶o̶n̶s̶
- Comparison/Analogy (“an alligator seems to be like a crocodile, so I must be careful”) ❓ Title 4: Relevancy (it depends!) ✅ Rule 901: Requirements of Authentication
- Postulation – extrapolation from facts (“RJ oversleeps on all the days that end in Y, he must oversleep every day”) ❌ Nothing specific?
- Non-perception – can the lack of something prove something? ✅ Rule 602 speaks to witnessing what didn’t happen ✅ Rule 803: Hearsay Exceptions
- Testimony of experts ✅ Title 7: Opinions and Expert Testimony
I’m not a lawyer – ER stuff is complicated! Some of this boils down to “it depends,” but indeed some of the pramanas appear to have some basis in evidentiary law.
An issue arises in taking the Rules as gospel, though, and truly a lot of philosophy and religion is like this, where it can get ouroboros-y. For example:
Rule 401 “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Is that helpful? To determine if the wind is cold to Theaetetus, we must consider observations which probably lead to that determination? Uh, duh?
Several other interpretations must be made, too. Cognitively, foundationally: who is the trier of facts? Prakriti (the material universe, including the mind) as judge, and purusha (pure consciousness) as jury? Juries are indeed vetted to be independent of the world of the case, and they blossom into being to inspect the material world, only to disassemble, yet foundationally they persist. And you could argue that judges are something like prakriti, in that, like the mind, they are arbiters but still very much part of the system. This is fun to consider, but the necessary level of interpretation suggests that perhaps the ERs weren’t intended to comport with three-thousand-year-old Indian epistemology.
The larger point in which this falls apart is that the ERs detail the burdens in producing evidence, and the admissibility of relevant vs. irrelevant evidence—so as a guide, the ERs might allow us to mull certain topics, but it doesn’t really point a way forward in saying what is “true.”
Would Pattern Jury Instructions help, could that be our dogma? A bit too narrow, unless you’re regularly discerning if there was fraud or outrage (I am). But anyway, jury instructions are just that—the power of discernment is still baked into our trier of facts, our individual jurors, or neurons, or whatever.
I think this is a good place to call it. When I first started writing this, the aspects of the argument that I couldn’t quite nail down suggested a depth that I’m now seeing as indeed more of a dearth. If the comment section were capable of being deployed, I would have greatly enjoyed your insights, dear reader. Next month is a bye month – talk soon.