The law student will immediately recognize it as one tough subject to wrestle with. But really, evidence has to do with everything we affirm and assert. It has to do with human knowledge. It is, in the discipline of philosophy’s hollowed categories, an “epistemological” concern. Epistemology is, to put it without frills, the study of human knowledge. The knowledge that judges claim to possess when they pass judgment and resolve issues of fact as well as of law is as much a concern of the theory of knowledge as any other claim that enunciates itself in the proposition “I know….” And because it has been my passion to imbue legal studies with philosophical depth on the graduate level, the subject I teach this semester is “The Epistemology of Evidence.” Since we are awash these days in all this bewildering talk of “alternate facts” and “fake news” what might at first blush come across as an impertinently abstruse question may turn out to be supremely practical.
When one makes the claim: “Lapu-lapu ordered the killing of Rizal” then, if one is a responsible speaker, one accepts the burden of establishing the claim by means that society recognizes as rational. This will include testifying as an eyewitness, or advancing the accounts of credible eyewitnesses or mustering a confluence of circumstances that inexorably point to the Mactan bully as the deed’s perpetrator—what lawyers call “circumstantial evidence.” In any case—and in respect to all assertions—one is responsible and has a right to be engaged in rational discourse only if one is prepared with evidence. And there is a social sieve, for while the confounding utterances of the Sibyl and the oracular pronouncements of seers and soothsayers were, at some time in the history of human thought, taken to be “rational,” we are more discriminating now—sometimes, too much so, that we virtually confine “knowledge” to what can be scientifically established!
One concept central to certain departments of law—contracts and crimes, principal among them—is “intention.” When pleadings assert that a party “intended” x, or when a prosecutor alleges that the accused willfully and, with criminal intent, perpetrated y, then indeed this elusive concept occupies center stage—or should, unless it is sidelined by immediate recourse to maxims, pedestrian beliefs and commonly peddled opinions that are regrettably often conferred the status of “jurisprudence.”
Beginning with Aristotle who Aquinas heavily leaned on, “intent” has commonly be taken to be an exercise of will, the latter being one of the superior powers of the human person: A power of the rational soul. What was often overlooked though is that in both Aristotle and Aquinas, “soul” had very little to do with what Ryle derisively referred to as the myth of “the ghost in the machine”. The human soul, actuating the potentiality of matter, was what allowed a human being to be human and to act humanly—“intending” among the acts characteristic of being human. But when, largely because of Descartes and the whole tradition he spawned, “mind” was driven “inside”—“The thoughts are in my mind.” “I planned in my mind”—and the rest of the world kept “outside,” the ginormous problem reared its head: How does one know exactly what another intends? And that, of course, is merely a restatement of the basic problem: “Do I have access to another person’s mind?”
One can go through Philippine Reports and Supreme Court Reports Annotated to confirm my claim that our Supreme Court has, by and large, contented itself with a pathetically unsophisticated answer: We can infer intent from overt acts. The Court cannot be blamed. That was Descarte’s superstitious belief too: that the workings of the soul could be inferred from the movements of the body. But the devil is really in the details. What are the overt acts that assure me that a person has intended the terms of the contract? And when one charges that the accused acted with felonious intent, exactly what are the indicia of these? I am not saying that there have been no bases for inference. I am, however, making the bold—but, to my view, justified—claim that much of this has been guess work and conjecture. More fundamentally, I am asking whether or not the philosophical premise on which the supposed inference from overt act to intention rests might not be flawed.
One very influential thinker who was convinced that the premise is flawed was Gilbert Ryle who set forth what he thought about it all in “The Concept of Mind.” To be sure, this was not the first time the philosophical world was introduced to though that ran this course. One finds parallel insights in Wittgenstein’s famed “Blue and Brown Books.” “Mind,” thought Ryle, does not refer to some covert accompaniment, taking place somewhere in an indeterminate “inside” of a human person, to his overt acts. So, when a chess player faces a chess ignoramus, and the former pushes a pawn two squares forward, and the latter, in imitation, moves his own pawn in similar fashion, we will say that it was the former whose move was “intelligent”—meaning “mindful,” accompanied by an act of mind, a quality we would deny the move of the latter. But Ryle convincingly argues that on closer examination, it is not to the hidden workings of some “ghost in the body machine”—called “mind”—that we really refer. Rather, the characterization “intelligent” when made of a chess player points out the fact that there is so much he can do that one who does not know chess cannot: vary his moves, change his gambit, interpret a chess player’s book, criticize the moves of another chess player, admire the excellence and the subtlety in the maneuvers of a grandmaster. “Mind” then, argues Ryle,” is a repertoire of competencies. To say that the utterance of a woman is intelligent which the squawking of a parrot is not, I refer to so much that a woman can do with her utterance of which a parrot would never be capable!
It inspires more trust in the workings of the judicial system, as well as greater faith in the law to move towards this manner of dealing with the crucial notion of “intent”. And while it may neither be practicable nor wise for legislation to spell out the “indicia” or the “table of performances” that must be checked so that “intent” may be affirmed or denied, it may be helpful for jurisprudence to move judges in the direction of articulating exactly what are the verifiable acts—or omissions—that justify the appellation of “intent” or “intentional”. One should then be prepared to say that because the obligor did x, and said y, and exhibited z, and performed w, then he intended p, as one will declare in criminal law that the accused acted with the requisite mens rea or criminal intent because we have verified p, q, r and s!
It will not do for judges to make use of the omnibus pretext—“it really depends on the particularities of a case”—because if law is to stabilize action in society and to give rise to reasonable expectations on which social cohesion founds itself, then we cannot leave such pivotal legal concepts to the vagaries of judges’ insights. Though there is no doubting the fact that many who sit on the bench grace it with depth of insight, many are thrust into it as well—by fortune, guile or connection—who are woefully short of that useful commodity: thoughtfulness!
