Adjudicating uncertain facts

the case for procedural legitimacy

Resumo

This paper is a commentary on the legitimacy of judicial fact-finding in civil litigation. Judges are called on to make authoritative factual findings in conditions of evidentiary uncertainty and the decision-making process cannot guarantee the accuracy of those outcomes. Given the inevitable risk of error, on what basis is the authority of judicial fact-finding legitimate? My exploration into this question leads me to set out a notion of procedural legitimacy that bridges two unavoidable aspects of adjudication: evidentiary gaps leading to factual uncertainty/indeterminacy and the need for justifiably authoritative dispute resolution. I show how the notion of procedural legitimacy enables a recognition that the civil litigation system, while inevitably imperfect, is nonetheless legitimate. The nuances of this claim are demonstrated by situating the procedural legitimacy theory within debates about the instrumental and non-instrumental values of litigation procedures, drawing on the work of Robert Bone and Ronald Dworkin, among others. The notion that procedural propriety in civil litigation systems is key to maintaining legitimate judicial outcomes gestures towards the important role that legal players have in ensuring adjudicative legitimacy. As such, this paper serves as a call on all legal actors, whether practitioners, policy-makers, academics or adjudicators, to reflect deeply on their role in ensuring that cases are decided with procedural integrity because the legitimacy of Canadian civil litigation depends on it.