The Opacity of Law: On the Hidden Impact of Experts’ Opinion on Legal Decision-making

Abstract

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making.

Default reasoning and the law: A dialogue

“…But are things really like that? As I have argued elsewhere (Canale 2021), there are cases in which expert opinions and testimony may determine the meaning of legal texts. In the example just mentioned, the experts actually first fix the semantic content of XYZ, which is unknown to the judge, and then use this content to determine whether x is XYZ, i.e., the truth value of a factual statement.…”

Expert Signs and Legal Burdens

“…The "reliability" requirement was not explicit in the text of the Rule, though; the Court took it as implicit in the idea of "scientific knowledge" to which the Rule referred. 9 The Court listed some "factors" for telling genuine science from junk, asking the judges to make this assessment when admitting the evidence. Once admitted, in jury trials the evidence is taken for the benefit of the jurors who, as is well known, decide on the merits without giving reasons for their decision.…”

“…Once judges discharge their gatekeeping responsibilities, admitted evidence will be presented to the jury. In the adversarial model of litigation, that includes the possibility of cross-examination and presentation of contrary evidence, and leads to a jury decision on the merits based upon the relevant burden 28 Notice also that the use of expert signs in legal texts generates the problem that Canale [9] calls "opacity of the law" (a problem going far beyond factfinding). For a distinction between epistemic deference and semantic deference, see [45] (claiming that the former is an appropriate judicial attitude, whereas the latter is not because judges must maintain control of the legal consequences of the concepts applied).…”

“…The naked eye cannot see these properties. Lay 2 See, among others, [14], [8], [26], [21], [17], [2], [39], [9]. 3 As an additional point, expert testimony is usually on secondary facts, and the expert is supposed to infer from them some probanda or even the primary facts of the case, whereas in general lay witnesses must only report what they perceived (see [42]).…”