Managing the Unknown : Why Fact-Finding Procedures Matter to Civil Justice

Managing the Unknown inquires into the legitimacy of judicial fact-finding in civil litigation. In deciding a case, judges must determine, authoritatively, “what happened?” based on whatever fragmented evidence is available. Given the inevitability of factual uncertainty, there is no guarantee of accuracy, only an assurance that the finding is “more likely than not” correct. On what basis, then, do we accept the authority of judicial fact-finding?

Probing key jurisprudential ideas, law professor Nayha Acharya outlines the crucial role of procedural integrity by showing that the legitimacy of legal outcomes, including factual findings, is rooted in the propriety of their underlying processes. To maintain legitimate authority, legal procedures must demonstrably respect human dignity which includes ensuring that we are treated as equal, autonomous agents. Accordingly, the legitimacy of fact-finding depends on a process that respects the autonomy and equality of legal subjects, which means it is a factually reliable and fully participatory model. By positing the centrality of process in the legitimacy of judicial fact-finding, and given that fact-finding is a central element of law practice, this book invites all legal players from students to practitioners to reflect deeply on their role in maintaining procedural integrity and rule of law.