Barbara Shapiro

Probability and certainty in seventeenth-century England : a study of the relationships between natural science, religion, history, law, and literature

The Description for this book, Probability and Certainty in Seventeenth-Century England: A Study of the Relationships Between National Science, Religion, History, Law, and Literature, will be forthcoming.

Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence

Devoted to the history and development of two fundamental concepts of Anglo-American law, this study documents the degree to which these key legal doctrines have evolved over time, and the extent to which they reflect a migration of evidentiary principles.

The Concept “Fact”: Legal Origins and Cultural Diffusion

Facts are something we take for granted, at least most of the time. As ordinary individuals we assume that there are knowable facts, for instance, that the dog chewed the drapes, that England exists, that it rained yesterday, or that babies cry. If, as scholars, that is as historians, social scientists, and natural scientists, we are more aware of the problematical nature of “facts” we nevertheless tend to establish and use facts rather unselfconsciously in our work. On this occasion I want to look at the evolution of the concept of “fact,” and in particular the way “fact” entered English natural philosophy. I will attempt to show that the concept of “fact” or “matter of fact,” so prominent in the English empirical tradition, is an adaptation or borrowing from another discipline—jurisprudence, and that many of the assumptions and much of the technology of fact-finding in law were carried over into the experimental science of the seventeenth century. My paper has three parts. The first discusses the nature of legal facts and fact-finding in the early modern period, focusing on the distinction between “matters of fact” and “matters of law,” the emphasis on first hand testimony by credible witnesses, the preference for direct testimony over inference, and legal efforts to create and maintain impartial proceedings. The second portion attempts to show how legal methods and assumptions were adopted by early modern historiographers and other fact-oriented reporters. The third section attempts to show how the legally constructed concept of “fact” or “matter of fact” was transferred to natural history and natural philosophy and generalized in Lockes empirical philosophy.

The Universities and Science in Seventeenth Century England

In the course of the debate over Puritan contributions to the scientific movement it sometimes has been asserted, and even more often assumed, that the English universities of the sixteenth and seventeenth centuries were either unsympathetic towards or even hostile to the “new philosophy,” and that scientific studies had no place within their confines. Proponents of this position acknowledge one major exception to the scientific hiatus at Oxford and Cambridge, that of the Wadham group organized by John Wilkins in the 1650s which was the precursor of the Royal Society. However, the exception itself is said to result from Puritan intervention in the universities, and the dissolution of the group to follow from the demise of the Puritan regime. It will be the purpose of this paper to examine the state of the sciences in Oxford and Cambridge prior to, during, and after the Interregnum in order to suggest that universities had shown a continuous interest in science, that Puritan intervention did not significantly alter the pattern of scientific concerns and that the existence of the Wadham group of the 1650s does little to lend support to the notion of a connection between Puritanism and the development of science. The evidence for science in the universities before the Puritan Revolution is necessarily incomplete and scattered as is much of our knowledge of university life in that period. It might be best to begin with the work of Mark Curtis and F. R. Johnson who have already shown that the traditional framework of studies permitted the introduction of new ideas. By 1610 Oxford men had been disputing about such topics as the Copernican thesis, the infinity of the universe, the plurality of worlds, the habitability of the moon, and the earth as a magnet in formal university exercises.

Oaths, Credibility and the Legal Process in Early Modern England: Part Two

SUMMARYThis article attempts to broaden our understanding of the early modern English legal evidentiary environment by examining oath-taking both in and out of the legal environment. Part One critically examines George Fishers argument about the centrality of oath-taking and the late arrival of credibility concerns in the common law courts. It attempts to show how legal concerns with prosecution and witness credibility interacted with oath-taking by witnesses, jurors and grand-jurors. It suggests that the frequent expression of credibility concerns at the time undermines Fishers view that oath-takers were almost uniformly believed to be truth-tellers. Part Two, which will appear in the summer issue of Law & Humanities in 2013, extends the argument by examining witness credibility in non legal environments and the role of the rhetorical tradition in shaping credibility criteria. It will examine how witness testimony given under oath interacted with the testimony of character witnesses, expert witnesses a...

Political Communication and Political Culture in England, 1558-1688

This book surveys the channels through which political ideas and knowledge were conveyed to the English people from the beginning of the reign of Elizabeth I to the Revolution of 1688. Shapiro argues that an assessment of English political culture requires an examination of all means by which this culture was expressed and communicated. While the discussion focuses primarily on genres such as the sermon, newsbook, poetry, and drama, it also considers the role of events and institutions. Shapiro is the first to explore and elucidate the entire web of communication in early modern English political life.

The Beyond Reasonable Doubt Doctrine: ‘Moral Comfort’ or Standard of Proof?

‘Beyond reasonable doubt’ is an iconic phrase in the Anglo-American legal system suggesting a high standard of proof offering protection for those accused of crimes. This essay will focus on those who have examined its origins and, especially on the most recent contribution, James Whitman’s The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial.1 Among the earliest to investigate the doctrine’s origin was Judge W May who located the first use of ‘beyond reasonable doubt’ language in late eighteenth-century Irish treason trials. This formula, he suggested, represented a higher standard of proof than previously employed, and its purpose was to place a heavier burden on the prosecution.2 John Wigmore’s classic, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, became the primary transmitter of May’s views on dating.3 In 1959 Theodore Waldman, inspired by Richard Popkin’s investigations into the implications of Renaissance scepticism, found mid-seventeenth-century language of ‘moral certainty’ that did not admit ‘any reasonable doubt’, most notably in the writing of rational theologian John Wilkins. These concepts provided the basis of the late eighteenth-century beyond reasonable doubt standard.4 Henry Van Leeuwen, also following lines established by Popkin, examined several theologians and laymen who shared a philosophical concern with the kinds and levels of (2008) 2(2) Law and Humanities 149–173

Beyond Reasonable Doubt: The Evolution of a Concept

The iconic phrase ‘proof beyond reasonable doubt’, which for well over a century has been associated with the Anglo-American legal system, is one that calls attention to the concepts of judgement, fact, evidence, credibility, doubt, probability - concepts that have for many generations occupied theologians, casuists, scientists, philosophers, legal scholars and, more recently, literary scholars. My focus on the origin and development of the concept of beyond reasonable doubt and the more recent reservations about its value in the legal sphere can be illuminated by the contributions of disciplinary traditions that extend beyond the legal arena. My chapter will suggest both how legal investigations dealing with questions of fact, doubt, judgement and certainty have drawn on non-legal evidentiary traditions and how these in turn have drawn on legal conceptualisations of standards of proof. The chapter also considers older and more recent stresses and strains on the beyond reasonable doubt concept.

Political Theology and the Courts: A Survey of Assize Sermons c1600–1688

It is one thing to assert centralised political power and authority in the capital; it is another to project that power and authority into the countryside. The King’s judges sat in the King’s courts in Westminster and implemented a law supposedly common to all Englishmen. When those judges went out on circuit from the capital to hold civil and criminal trials in the localities, central authority was projected into the countryside. Unlike military intervention or taxation, for instance, this projection was welcomed by the locals who positively sought dispute resolution services provided by the central government. By their very participation, litigants and jurors acknowledged the legitimacy of royal justice. The assizes provided a concrete, readily observable fact of royal authority in the countryside and channels through which messages supporting a political culture of royal authority could be transmitted to the countryside in a particularly favourable setting. The assize sermons, delivered at the opening of each assize by a locally based clergyman, was a vehicle by which political meanings could be assigned to the spectacle about to unfold: meanings that, as we shall see, are more complex than simple assertions of royal authority. The sermon was the genre to which people of all ages and classes were most often exposed, and indeed compelled by law to attend. Sermons were discussed by friends and families and many listeners took shorthand notes. Published sermons sold well and reached a larger portion of the population than most publications.1 One commentator noted: ‘I know very well that every Book-sellers Stall groans under the burthen of Sermons, ... [as] commonly cryed about the Streets as Ballads; Sermons before the King, before the Judges, before the Right Honourables, Right Worshipful ... etc.’2 (2008) 2(1) Law and Humanities 1–28

The Restoration chapter in the history of English law reform

This article attempts to show that both the Restoration era law reform efforts (1660-1688) were part of a long term tradition. It examines reforming efforts that began as least as early as the reign of Henry VIII and extended well into the eighteenth century. Whether or not law reform proposals became law, and most did not, early modern English parliaments were at the center of law reform efforts. It emphasizes the continuity of complaints, the similar nature of reform bills offered and the difficulty of transforming them into statutes. It argues that the desire for and the inability to achieve law reform was a characteristic of the entire early modern period, rather than a lamentable failure of the revolutionary era.