Lunch seminar with Mike Videler
"My PhD dissertation examines the onto-epistemological assumptions underlying fact-finding in international adjudication and how these are reflected in academic literature. In particular, I ask under what conditions fact-finding takes place and how that account relates to established academic scholarship. I posit that most of that scholarship is characterized by a ‘fact-positivist’ ideology of Truth, in which facts are out there for judges and arbitrators to ‘find’ through reason under the assumption of a singular Truth that corresponds to ‘reality’. This epistemic ideology differs from ideologies such as ethnic nationalism, socialism, or fascism in that it is less overtly or substantively normative. It does, however, operate as an ideology in that fact positivism simultaneously seeks to expand its power in different contexts and incorporates externalities. My approach then is an ideology critique ‘in the small’; it is not about universal and grand narratives but the analysis of situated contexts under ‘postmodern conditions’. I want to do so through a discourse analysis of specific cases decided by international courts and tribunals. This analysis will probably be thematically organized around 1) the identity of persons, animals, and natural objects in the context of American indigeneity, 2) territoriality in boundary disputes in post-colonial contexts, and 3) scientism in science-heavy disputes. The objective is the unveiling of the specific regimes of Truth, within the framework of a fact positivist ideology of Truth, thus showing the operation of Power/Knowledge by identifying the kinds of knowledge and being that are excluded or incorporated. These outcomes will be contrasted with the orthodox account of fact-finding in scholarship. The first part of my lunch presentation introduces my PhD research. The second part presents the issues I would like to work on at iCourts and for which suggestions and support would be especially welcome.
Part I – Some General Remarks
This project looks at what goes on behind the fact-finding rules and practices of international courts and tribunals (ICTs). It assumes that fact-finders, such as judges and arbitrators, engage in a process of fact construction that results in dynamics of inclusion and exclusion concerning world views, knowledge, and methods of knowing. In order to understand that process better, I examine the ‘onto-epistemological’ assumptions hidden in the judgments of ICTs. The thesis undertakes to produce a contribution to the literature on international courts and tribunals as well as the law of evidence, which hitherto remains rather uncritical in its treatment of the legal doctrines of evidence.
My starting point for the dissertation is my crude observations on the fact-finding discourse produced by ICTs. That is to say, whereas their specific rules and practices show variation, there appears to be a core understanding among ICTs of what facts are and how they are to be found. This core understanding is what I have termed fact positivism, building on a concept developed by Donald Nicolson. Fact positivism denotes an attitude towards facts by which facts are either true or not (dichotomous reasoning), truth is an objective and singular notion, and facts can be established through reason, i.e. every rational person is able to reconstruct facts when applying their rational capacities to pieces of evidence.
These tribunals operate a language emanating mostly from the civil and common law traditions and that discourse has strong links with enlightenment thinking that reshaped the approach of domestic courts in Europe, and later throughout the world through empire and colonization. These courts moved away from trial by ordeal to a systematic examination of evidence that, when sufficiently credible, proves an asserted fact (the ‘rationalist’ tradition). Out of this rationalist tradition grew fact positivism, which combines the rationalist approach to facts with a disengagement with deeper questions of truth and reality.
The thesis sets out how fact positivism is performed (by regimes of truth applied by ICTs) and subsequently includes and excludes other ways of being the world and knowing it (interaction with alternative ideologies). The dissertation is therefore about the dynamics of certain regimes of truth with an emphasis on change and exclusion. As such, I use fact positivism as an ideology to understand the process of fact-finding and the literature that springs from it (see below for more on ideology and ideology critique).
The objectives of this dissertation can be listed as follows:
- Conceptualizing and illustrating the operation of fact positivism as a dominant attitude to issues of fact;
- Unveiling (aspects of) regimes of truth (beyond rules) at work and the attendant dynamics of epistemic inclusion and exclusion;
- Contesting fact positivism’s dominant position in academic literature;
- Seeking theoretical connections that explain my findings;
- Perhaps to be addressed: What insights could moving beyond fact positivism provide for the literature (moving beyond sterility of doctrine’s aspirations and reconnecting with evidentiary politics)?
The dissertation progresses in four stages:
- Giving a rendering of legal discourse produced by ICTs/literature (observation, ‘raw’ analysis);
- Understanding/framing that observation in theoretical terms (theorizing, ideology);
- Operationalizing a case analysis method;
- Analyzing specific cases as ‘case studies’ (specific analysis).
 Donald Nicolson, ‘Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse’ (1994) 57 The Modern Law Review 726."
All interested are welcome to attend. Registration is not necessary.
Feel free to bring your own lunch bag.