25 years of "Los hechos en el Derecho"
Marina Gascón, our leading scholar in evidential law
25 years ago “Los hechos en el Derecho. Bases argumentales de la prueba” was published, book by Dr. Marina Gascón Abellán which offered one of the first systematic overviews of the general theory of proof, from an epistemological perspective. She says this in the text of the book's presentation:
"The judgment on the facts has long belonged, either to the realm of unproblematic legal questions, or to a "twilight zone" where judicial discretion reigns. Proof of this is the forensic inclination to attribute a demonstrative nature to the evidentiary decision or to consider purely and simply that it is based on an intimate and non-transferable conviction, on a kind of ineffable crux, a hunch that cannot be externalized or controlled. Even the theory of legal argumentation that has experienced such important development in recent years has focused on the problems of interpreting norms, but has devoted little attention to evidence. This book aims to be a contribution to the analysis of that often forgotten part of judicial reasoning, taking into account the schemes of general epistemology. The study highlights two essential features of judicial knowledge of facts that influence the quality of the result achieved: its inductive nature and its institutionalized character. The first shows that the evidentiary results are not infallible but (only) probable. The second, that the test is developed in an institutional framework of (procedural) rules that replace the criteria of the free acquisition of knowledge with other legally authorized ones; which frequently also contributes to lowering the quality of the knowledge achieved. Important consequences derive from all this for a judicial model of evidence; If the test does not produce infallible results, all possible guarantees must be introduced to achieve greater reliability in their declaration, and, where appropriate, facilitate their eventual review. All of which leads, in contrast to what had been tradition, to a new demand for motivation":
25 years later, things have changed a lot and the study of evidentiary reasoning has spread, literature in Spanish is now quite broad and solid, and the jurisprudence of our Courts has begun to receive ideas on the matter. Marina Gascón's book played a fundamental role in making this happen and is still essential bibliography today for anyone who wants to study proof theory. Therefore, with this conference we want to celebrate those 25 years, thanking the author for her work then and for what she has continued to do until today.
Co-organized by the
