On the Postmodern Theory of Evidence
Since 1980s the modern evidence theory is subjected to such an influential ideological attack that the traditional modern proof method and fact cognitive model,which hold the monopolistic position in academic circle for hundreds of years,have been changed.The claim that the legitimate traditional rationalism should be subverted almost deconstructs the modernization process of evidence theory and some scholar even argued that the death time of modern evidence theory is coming.Such a powerful ideology impact is the postmodern evidence theory.In this dissertation I sought to provide a specific introduction to postmodern evidence theory whose background is the latest developments of western postmodern theories,esp.in evidence study and proof field. This dissertation includes three parts,involving a multiple respects of postmodern evidence theory.Based on the first hand material it attempts to develop a dialogue platform for each modern academic school and provide for China Evidence study a theory foundation of a constructive plan.The dissertation begins with a systematic elaboration of division between modern and postmodern evidence theory,forming a dividing boundary line between such two big schools.Then the dissertation discusses the critics from the postmodern evidence theory against the modern traditional theory in order to form an outline for deconstructive evidence theory.Next,based on such deconstruction the dissertation reconstructs the evidence theory and sets forth an innovative theoretical perspective.And then the dissertation makes a thorough elaboration of comparison and interaction.The elaboration takes rationality and non-ration resistance as its main clue,proceeds with its analysis facts centered,draws a comparison between western and Eastern thinking style, introduces multi-disciplinary and modern analytical semantic philosophy, and brings forward an innovative view of fact finding in trials.Lastly,the dissertation offers a summary description of postmodern theory and provides analysis and prediction for its future trend-scientific development.The primary contribution of postmodern evidence theory is to motivate us to make a reflection of preliminary notions in evidence theory. It assumes a gap between the languages and outside environment,and at same time it explains the relationship between evidence and law through a more wide aspect.It abandons the over optimistic radical attitude to proof modernization,and instead advocates a calm and even pessimistic attitude. It suggests us eliminate the conflicts between the subjective and objective bodies by the "inter-subjectivity" and "self in relationship",and reconstruct the dialogue and argument between the parities with the burden of proof by "the fellowship".Accordingly it has broken the myth that the traditional evidence study is based on the fact finding and instead makes an uncertain, open,complex and multi-dimensional conception system take place of the traditional,certain and exclusive one so that we can be confronted with the real and almost unbelievable world of reality.It is a fundamental change of evidence theory.What faces the evidence theory is its new problem and new task.The truth is not any more the only goal the evidence theory pursuits,and the common agreement is no longer its purpose.Instead dialogue,criticism,and argument are welcomed.The deviants and disagreements are not the indications of its recession any more.Because the postmodern theory opponents are quite aware that the new theory can prove its vigor and vitality only if it encounters more problems and difficulties.The second contribution of the postmodern evidence theory lies in its denial of the claim made by the traditional rationalist that truth is the ultimate goal of fact finding.Nowadays the main stream of evidence study is rationalism.Though the rationalism absorbed the essence from the modern scientific revolution and Enlightment,led the people to shake off the theological shackles in evidence study,brought the fact-finding into a more wide scope,but there are still some flaws-its indifference and exclusion towards non-rationality.The third contribution of the postmodern evidence theory is its emphasis on the relationship between the evidence study and literature, which brings the wind of freedom into the fact-finding process.It denies the traditional view that the judge should ensure accurate and timely ascertainment of facts and has entrusted the trifles of judge\'s daily job some poetic sentiment:When the parties presented the evidence in the trial, the judge is forming some plot in his mind.And finally what we get from this information-process is a coherent and understandable story.We can reconstruct the past events through various forms,including novel,film, poetry and judicial process.Whatever forms we choose it cannot get rid of the story model.Fact-finding is the same as the scriptwriting:you have to rearrange every fact plot,which is evidenced and scattered in your brains, and the whole arrangement process relies on your imagination.The fact finder\'s job is only to establish a story,which conforms to daily experience logic and is understandable for the public.This story drifts away the daily experience but at the same time derives from the fact finders\' daily life. The difference between the judge and the scripter is:the former has to take the law elements into consideration.So not only the consistency and coherence should be taken into account but also the social ethics.The judge must guarantee that the approval story conforms to the theme of rule by law.The dissertation purports to achieve the following goals.First fill a theoretical gap.It attempts to explore the inter foundations and rules of evidence theory by a multi-dimensional view.Second realize theory innovation.It sought to realize theory innovation by a practical way of absorption of overseas and domestic advanced theory achievement.Third realize a systematic theory construction.It purports to find a new theoretical approach to evidence study through arguments and comments.With reference to the above goals,the arrangements and pattern design in this dissertation have taken the development track and characteristics of postmodern theory into the consideration.Chapter 1 is intended as a set of introduction to the preliminary notions of postmodern theory,difference between modern and postmodern in evidence study and the philosophical foundation of postmodern evidence theory.Chapter 2 is an elaboration of deconstructive postmodern theory and constructive postmodern theory.In this chapter I use the inter schools of postmodern theory as a standard for section division and based on the perspectives in postmodern theory I offer a multi-perspective interpretation to the problems of evidence study.Chapter 3 approaches the following questions:What is the core scope in postmodern evidence theory? How is the relationship between evidence study and other branches of law study? How about the scientifization of evidence theory?The methodologies in this dissertation included but not limited to: 1.Empirical analysis and philosophical argument.Take the logical reasoning and contradictory analysis as the main clues of the preliminary problems analysis.2.Comparison and induction.The dissertation involves several multi-dimensional comparisons,including between the overseas and domestic,common-law system and continental law system,evidence and history study.Finally it draws some necessary conclusions.3. Theoretical study and practical arguments.Given the law rationale and China\'s current situation,it analyzes the actual arguments in Chinese evidence academic circle,and ends with some practical resolutions and approaches to the challenges we met.4.Inheritance and innovation.This dissertation can be interpreted as delivering on a rash promise to construct a map of evidence theory history and create some spaces for innovative ideas to challenge the orthodox ideas.To be sure,for any potential substantial developments in evidence theory,the postmodern evidence theory is a powerful motivation.It offers us a considerably important perspective to analyze truth,trial process and core problems in evidence theory.Some purely fashionable and aberrant ideas would perish and some creative ideas will enter into the new era along with us as a fantastic,insightful filed in evidence study.