Discovery and Justification in Science and Law

Abstract

In this paper I propose to discuss a certain account of the nature of judicial decision-making by bringing to bear on it a distinction that was long held to be canonical in the philosophy of science, namely, the distinction between the context of discovery and the context of justification. In recent years this distinction has come under attack from two rather different directions. Although I shall not be able, here, to evaluate the validity of these attacks as far as the philosophy of science is concerned, I think that they provide useful perspectives from which to study the judicial process. The particular account of judicial decisionmaking is associated in Anglo-American countries with the disparate group of thinkers known as Legal Realists. I am not sure as to how widely this view is still held, but for a reason that will later become apparent, I suspect that it has more proponents than is openly admitted.