In this book, Barbara J. Shapiro, a professor of rhetoric and author of two previous works on seventeenth century intellectual history, explores the roots of two key doctrines in contemporary Anglo-American criminal procedures: the standard mandating that criminal charges must be proved “beyond a reasonable doubt” and that prohibiting the arrest and prosecution of defendants without some minimum evidence to serve as “probable cause.” Shapiro’s interest is not with formal legal constructs regarding admissibility of evidence, right to bail, and the like. She seeks a fuller understanding of the guidelines informing juries in their decision making once trial evidence has been submitted and, similarly, those informing public officials and juries in their decisions whether to prosecute suspected criminals. These focal points are not easily researched. Jury behavior, for the most part, has been shielded from open observation. Likewise, the details of prosecutorial discretion are not easily recovered by means of even the most fastidious historical research. Still, through the examination of numerous practical handbooks of the times, formal treatises by dozens of theorists and commentators, and public records, Shapiro is able to construct a reasonably coherent account of and explanation for the emergence of “beyond a reasonable doubt,” “probable cause,” and related doctrines as fundamental principles of Anglo-American criminal justice.
Shapiro’s research revolves around three basic themes. First, she seeks out the interaction between legal and other intellectual conceptualizations of evidence, probability, and truth. In this sense, Shapiro’s study might be said to be “contextual,” that is, one that strives to set legal ideas into a broader social and intellectual setting. Second, Shapiro examines the “migration” of evidentiary guidelines among various institutions and procedures in the criminal justice process. She wishes, therefore, to study the circulation of ideas within the criminal process as well as between the criminal process and broader society. Third, Shapiro is interested in any connections that might exist between English law and the Romano-canon tradition of evidentiary procedure.
Shapiro manages to make scholarly headway regarding all three of these themes. As is usually the case in histories of ideas, Shapiro examines a dizzyingly broad variety of tracts and authors. The latter include empiricists Francis Bacon and John Locke, social reformer Jeremy Bentham, and common law authorities Sir William Blackstone and Sir Edward Coke, as well as many less well-known figures. This research indicates a parallel, but often cross-pollinating, relationship between the secularization of thought (and ultimate emergence of empirical science) and rationalization of criminal procedures. Just as philosophers and enlightened theologians were sometimes anxiously, sometimes reluctantly separating the spheres of reason and faith, legal theorists and criminal justice officials were moving toward more objective, logical, and empirical procedures. The doctrines of “beyond a reasonable doubt” and “probable cause” emerged in the context of these interrelated intellectual quests. Like scientific method, they are based on an ideal of intersubjectivity. Whereas scientific conclusions are based on the empirically testable findings of a community of scholars, the modern doctrines of criminal procedure examined by Shapiro are based on evidence (preferably empirical, but also circumstantial) which, in the eyes of any reasonable person, would justify the trial and/or conviction of a defendant. It should be noted that neither standard claims infallibility or certainty. In science, all conclusions are open to future tests and revision. In criminal justice, conclusions are based on as high a level of probability as possible rather than on certainty. Following the epistemological findings of the times, legal theorists had to accept uncertainty in order to maintain public order. The doctrines of “beyond a reasonable doubt” and “probable cause” are designed to legitimate criminal justice decision making in the absence of either divine authority or secular certainty.
Shapiro’s research also indicates a clear pattern of migration of doctrines among...
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