Philosophical Basis of The Forensic Process Research Paper

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In recent years controversies have arisen over the definition and demarcation of science in relation to forensic science. These controversies are among other expressed in debates following a report from the National Academy of Sciences in the US, questioning the scientific status of forensics and its interpretations of evidence before courts of law. The controversies highlight an apparent incommensurability of the two fields of knowledge straddled by the forensic process: science and law. These controversies are however as old as science and law, respectively, and can be traced in the major philosophical principles’ underpinning, shaping, and informing the origins and the characteristics of the forensic process. The philosophical basis of the forensic process consists of a meshwork of ideas. It originates from and is influenced by a range of different disciplines, models of inquiry, and forms of validating truth claims, which have been decisive in bringing the discipline about. Some major ones runs from divination, classical rhetoric, theology, law, philology, philosophy, history and the arts, over the model of Galilean science, medicine, psychotherapy, art connoisseurship, the infant social science and statistics, to natural sciences such as biology and chemistry, and, new philosophies of science born from these disciplines. Following the trajectories of thought illuminates how there is a philosophical basis to the controversies. The forensic process is informed by ideas from two different models of science. One is a model of science based on identifying and interpreting “signs”, the other is one based on observation and verification of general facts. Each model plays a significant part in the workings of the forensic process. The lack of acknowledgement of the contributions from each, however, plays a major part in the controversies. Hence the way forward may prove to be related to attaining a more nuanced understanding of the philosophical roots of the forensic process as well as in incorporating each model equally into the theoretical and operational framework of the discipline.

Key Issues/Controversies

The forensic process is the process of inquiry belonging to forensic science. Forensic science is most often defined as an applied science, whose raison d’eˆtre is to provide scientific analysis of evidence in the service of law. The forensic process is part of the investigative inquiry carried out within the legal process which is oriented toward providing answers to questions essential to the legal deliberation and arbitration of cases. This however is not a straightforward business, since the questions asked and the methods of supplying answers differ markedly between law and science.

Put crudely, the ultimate goal of legal inquiries is to establish “what happened” (how, when, where, and why) and “who did it” in a given case under scrutiny. The goal of inquiry of the sciences is however rather to establish “what a given phenomenon is” and “how it works.”

Also the methods of inquiry, and for validating “truth” differ between law and science. Legal inquiry makes use of qualitative methods, testimonial evidence, and a judgment of and deliberation between, probable arguments derived here from, whereas the sciences use observation and experiments, favoring the quantifiable, reproducible, and empirically verifiable.

Differences between law and science are grounded in a difference between the object and goal of inquiry of each discipline. The legal process deals with questions of a social, moral, and cultural kind and in the deliberation of individual cases in which truth is of an approximate kind as versed in the dictum “beyond reasonable doubt.” Natural science (with which forensic science is most commonly associated and from which the most influential forensic techniques and forms of analysis originates: physics, molecular biology, chemistry, etc.) deals with questions about nature, its laws, and general characteristics to the point of establishing the truth about it in a more absolute sense. The knowledge sought by science is one which may be reproduced independent of the particular researcher or situation, and from which it is possible to predict results based on true premises. Thus for law the goal of inquiry is the most reasonable explanation for particular events, while the goal of scientific inquiry is the universal truth about “what is.” These two fields of knowledge is straddled by the forensic process, in which legal questions must be translated into scientific questions in order to provide scientific answers which may inform legal argumentation and deliberation (see Fig. 1). Forensic science and its role in legal deliberation is in other words a matter of using science in the service of law and legal deliberation, to help establish “matters of fact” which may aid the process of deliberating between “probable arguments”.

Evidence produced through the forensic process is thus also submitted to different forms of validation in different contexts and phases of the process. Within the laboratory, evidence is evaluated according to the soundness of analysis and integrity of the process of analysis (an uncompromised chain of custody and accuracy of instruments and methods applied) in order to assure the scientific “rigor” of the results through recognized methods of analysis and scientific procedures for testing. Within the legal process, the evidence is in addition to the assurance of the integrity of analysis and evidence, evaluated for their meaning in relation to the legal argumentation presented before a court of law. The former demands that what is infered from the evidence is verifiable and stand up to tests in accordance with scientifically acknowledged theories and methods. The latter demands that evidence is seen in the context of the case and the circumstances surrounding the actions or event in question and is based on evaluation of possible or probable causes or sources of particular forms of evidence.

The evidential value of the information provided through scientific analysis and the professional judgment of the analyst is, in other words, ultimately decided in the context of the case and the legal process of deliberating between the arguments presented by the advocates of prosecution and defense.

This fundamental condition of the forensic process has resulted in intense debates about the role of the forensic scientist in providing service to law by analyzing and interpreting physical evidence. Questions such as: How this is done; where the boundaries of professional judgments in interpreting the evidence, are set and how far the forensic analyst may stretch in order to help answer the questions of the legal process – and how the authority and integrity of the scientist should be assessed – are however subject to different interpretations. Within forensic science itself, tensions are evident in the way that different schools have arisen, especially within criminalistics, each school emphasizing the role of the forensic analyst differently, as well as the degree to which criminalistics should be defined by the needs and methods of law versus those of the pure sciences (Inman and Rudin 2001).

These inherent tensions have become more obvious in the United States, in the wake of a report from the National Academy of Sciences: Strengthening Forensic Science in the United States: A Path Forward (2009), evaluating the field of forensic science. The report raises many issues and questions echoing debates, which have a long history – both within forensic science disciplines and beyond. These are issues such as: that the current forensic science system is not based on science; that the analysis is frequently subjective; and that the same technique used by different analysts can lead to different results, just as the same technique used by the same analyst on the same sample at different points in time and in different contexts can lead to a different result, and that anecdotal information, phrased like “In my training, knowledge, and experience… .” makes its way into the courtroom. Reactions to the NAS report have been swift and all across the board from those that deny that there is anything wrong, to those who have adopted the NAS report and endeavored to suggest new modes of operation to improve on the lack of scientific rigor and culture of forensics, especially within criminalistics (e.g., Mnookin et al. 2011).

The report does however not deal with the fundamental philosophical basis of the forensic process, Therefore there is no recognition of the philosophical roots of this debate, and the fact that the issues have existed in different forms since well before the development of the different disciplines of forensic science. In order to understand the controversies a proper historical and theoretical context is needed. The purpose of the paper is therefore to explore the major philosophical principles that have inspired and shaped the forensic process. Given that the word “forensic” in contemporary use has two meanings: (a) as a form of legal evidence and (b) as a short term for forensic science or criminalistics (forensics), this research paper will inspect the philosophical history along two trajectories. Firstly, through a visitation of the history of legal rhetoric – the predecessor of modern law – secondly, through the history of the growth of science and the scientific method and the philosophical “goods” being, respectively, embraced and discarded in the process. Ultimately, it is in the combined history of these two trajectories of thought that the philosophical basis of the forensic process is to be found.

Fundamentals Of Legal History

The Art Of Rhetoric: The Foundation Of Modern Law

Etymology is a proper place to start when digging for the roots and the philosophical basis of the forensic process. The word “forensic” originates from the Latin adjective forensis, meaning “of or before the forum.” In Roman times, a criminal charge meant presenting the case before a group of public individuals in the forum. Both the person accused of the crime and the accuser would be represented by an advocate giving speeches on their behalf, presenting their side of the matter. The individual with the best argument and delivery would succeed. This origin is the source of the modern usage of the word “forensic” to denote a form of legal evidence (forensic evidence) and as a short representation of “forensic science,” that is, science related to and of relevance to courts (forensics). Historically, courts of law (forums or public assemblies) were intimately connected to rhetoric. In classical Greece, rhetoric was taught to citizens so that they could defend themselves in the court and deliberate in the assembly. In Rome, advocates (called logographs) used oratory to plead on behalf of their clients before the forum. Law, as a subject of its own, did not emerge until the twelfth century (Schoeck 1983), and law students continued to be educated in rhetoric well into the Early Modern period (Balkin 1996). A key element of the art of rhetoric was how to find and present arguments in a case to be presented before a court of peers. To guide the search for arguments and proofs to their fact, which would persuade the court to find the case presented by the rhetorician the most believable and worthy of support, the Ancient Greeks developed a meticulous system or inventory of possible forms and modes of argument to this end, also known as topoi or in English “topics.” The following presents a brief history of the origins of the topics and their incorporation into modern legal procedure and the forensic process of which the topics form the backbone.

The Topics Of Classical Rhetoric

The first attempts at setting out guidelines for those who were to investigate and present cases before a tribunal of decision makers seems to be dated back to one of the deemed founders of the modern art of rhetoric, Hermagoras of Temnos (300 BC). Hermagoras divided the materials of rhetoric into two parts: thesis and hypothesis. A thesis involves an abstract, general question, whereas a hypothesis involves a question concerning concrete particulars. Hermagoras provided a list of circumstances which needed to be addressed in order to form hypotheses and to be able to demonstrate their truth-value, in the form of a list of questions. He contended that no hypothetical question or questions involving particular persons and acts can arise without reference to these circumstances, and no demonstration of such a question can be made without using them.

The questions defining Hermagoras’ circumstances are known only in Latin because they arose as part of the theological writings of St. Augustine recognizing Hermagoras as the original source. St. Augustine quoted Hermagoras’ questions in Latin as follows: quis, quid, quando, ubi, cur, quem ad modum, quibus adminiculis (who, what, when, where, why, how, in what way, and by what means/which aids) (Robertson 1946). Hermagoras’ list of questions for producing hypothesis and proof is a mnemonic device intended to provide a systematic methodology to the task of producing rhetorical evidence (proof). This form of mnemonic belongs to a part of the methodology of the discipline of rhetoric, derived from Aristotle, known as topoi – or “the topics” – of which he was the first to write systematically about.

The word “topic” originates from the Greek word topos (pl. topoi), meaning “place,” and refers to the “places” (on the mind’s horizon) where one can go to look for and discover the relevant arguments (i.e., get ideas for argumentation). In Latin, the topics are referred to as loci (places) or loci communes – meaning the “common places.” The use of the word topos/topoi may refer to the ancient mnemonic principle of using “spatial locations” or “activities” by which to remember even complex or huge amounts of information. One may for instance remember a long list of dinner guests by imagining them around the table. Generally, the word “topics” is commonly used to refer both to the actual “places” where one can go to find material for arguments and to the methodology of the process of searching these places. The topics have since their very conception in classical rhetorical theory been a very confused concept, not easily defined and incorporating a bewildering diversity of meanings. Initially, “Topics” is the title of a treatise of Aristotle on the art of dialectic – the invention and discovery of arguments in which the propositions rest upon commonly held opinion or what he termed endoxa (Aristotle 384–322 BC). These commonly held beliefs, the topoi or “topics,” are not merely popular notions held by any given individual in a city or culture about any and all subjects. Rather, they are elements of reason upon which those who conscientiously dispute agree in principle, i.e., that which is firmly embedded within opinion or belief among those who engage in disputation. The topics belong according to Aristotle to the art of rhetoric, in which they inform the invention and discovery of arguments (Aristotle and LawsonTancred 1991).

Aristotle’s theory of the topics emphasized a particular aspect of evidence related to forming and proving hypotheses. Hypotheses was thought to belong to the form of inference pertaining to “practical knowledge” (techne´ and phronesis) which was opposed to “theoretical knowledge” (episteme). Aristotle contended that when lacking the certainty and necessity of the true premises described in the syllogism and logic, one needed to take point of departure in commonly held beliefs which could be viewed as “law-like” in nature because of their general acceptance as “true.” The concept of topics to Aristotle was thus both (a) a minutely devised inventory or system of cases, in which one might profitably take point of departure when devising the argument and providing for them and (b) the theory of hypothesis building and testing within the area of rhetoric, to which they pertained. Thus when a “belief” is considered of a high level of generality, i.e., being “common sense”, it belongs to the topoi.

The Philosophical History Of The Topics

The ideas of rhetoric conceived by the Ancient Greeks were spread and became known to the rest of the European continent up through the Middle Ages and during the Renaissance. They were distributed through the works of Roman advocates and orators and the treatises they drafted in the language of church and scholars: Latin. A key figure in the history of European rhetoric and philosophy, linking Classical philosophy and Medieval and Renaissance thinking, was the Latin rhetorician Cicero (106–43 BC) and his works Topica, De Oratore and De Inventione.

Cicero divides his work on the circumstances into two parts: attributes of the person (personae) and attributes of the act (factum). As attributes of the person, he lists nomen, naturam, victum, fortunam, habitum, affectionem, studia, consilia, facta, casus and rationes as the topics to consider in building a credible statement of the case, but more importantly, to develop the arguments which should make the main body of the text or speech, and according to which the logical arguments of the case should be elaborated. Attributes of the action are of three kinds: those concerning the performance of the action itself, those related to the action, and those consequent upon the action; only the first of these reflects the system of Hermagoras. In relation to the action itself, Cicero names locus, tempus, modus, occasio and facultas (Robertson 1946).

The most important discussion of the topics, considering their relation to legal rhetoric, is made by Anicius Manlius Severinus Boethius (ca. 480–524 AD) in the early Middle Ages. Boethius, in his influential writings De differentiis topicus, makes the seven topics (or circumstances) fundamental to the arts of prosecution and defense. The loci proper to rhetoric are confined to the attributes of the person who is called for judgment and those of the act or statement for which he is to be judged. All arguments, either in the defense of the person or for his prosecution, must be taken from these materials. Thus, Boethius associated the topics with the process of determining the extent of guilt of a person accused of violating legal rules or customs, which may be significant to the adoption of these by papal forums and priests in their work with ascertaining as accurately as possible the magnitude of each sin confessed to them.

The topics arise in a new guise in the pastoral and theoretical theology in the thirteenth century, as Mnemonic verses consisting of variations of Hermagoras questions. This is evident in the 21st canon of the Fourth Lateral Council arranged by Pope Innocent III, which stipulated that confessors should diligently seek out et peccatoris circumstantias et peccati (the circumstances of the sin and of the sinner) – resembling to no small extent Cicero’s person and act personis et negotiis – in order that they might justly weigh the sins confessed to them and administer suitable remedies. This appropriation of the topics to theological matters and theological inquisitorial processes can be attributed the theological writings of St. Augustine (Augustine of Hippo) and Thomas Aquinas. Verses made of the questions in different variations, afforded a flexible instrument for interrogation. It allowed the priest to associate conventional theological divisions of the sins with the questions so that they afforded a frame of reference against which to place his theological knowledge. In this way they provided a practical device for spontaneous and quick analysis (Robertson 1946, pp. 6–7).

The topics were then revived by Renaissance rhetoricians, such as Thomas Wilson, The Art of Rhetorique, who made an English verse of them: “Who, what, and where, by what helps, and by whose: Why how, and when, doe many things disclose” (cit. in Robertson 1946, p. 14). A principle of such fundamental importance to both rhetoric and theology soon spread to other areas of literary work and studies. Italian writers adapted them to historiography. One of the important figures in Renaissance rhetoric Giambattista Vico (1668–1744), trained in jurisprudence, but widely read in Classics, philology, and philosophy, all of which informed his highly original views on history, historiography, and culture, revisited the topics in his mature work: Scienza Nuova (or The New Science). In this work he argued for a central role of the topics in all disciplines including the sciences – even mathematics.

Vico’s point was that “topics” is not to be learned from a book but is more akin to a disposition whereby one has analogies and arguments at one’s hand. Thus for the doctor the topics provide ready mental access to the stock of medical precedents that have historically enabled successful diagnosis and treatment, and to the mathematician pressing the boundaries of knowledge further, the topics consist of the accepted theories preceding the development of new hypotheses. Vico found that the principle described in the use of the topics was to be considered a necessary part of making judgments about everyday life in general, and that their cultivation is required for creative discovery and quick action in all disciplines, from physics to law.

In his own time, Vico was relatively unknown, but from the nineteenth century onward where the methodology and philosophical content of rhetorics and linguistics converged with other developments in the history of ideas giving rise to new critical theories in the philosophy of science, his views found a wider audience. Today his influence is widespread in the humanities as well as in the social sciences. Before delineating this turn, tying the knot between the two histories of ideas by describing how they inform the growth of forensic science and the philosophical basis of the forensic process as it looks today, a brief history of the fundamentals in the development of science is called for.

Fundamentals Of The Philosophical History Of Forensic Science

Science And The Conjectural Model: The Foundation Of Forensic Science

Forensic science is intimately related to investigative inquiry through the forensic process. Investigation comes from Latin investigationem meaning “a searching into, a searching for.” The noun stems from investigare “to trace out, search after” which again is composited from in “in, into” and vestigare “to track, trace” from vestigium “footprint, track.” The etymology of the word “investigate” carries the seed to an understanding of the philosophical roots of crime investigations and the forensic process, by referring to “tracks and traces” and “footprints,” since the roots of science and of medical, legal, and forecasting sciences in particular, may well be rooted in the first efforts of interpreting footprints in the sand or the tracks of wildlife in the forests, with the aim to hunt it down and slay it. The point being that the philosophical basis of the forensic process has a deep-rooted connection to semiotics and other sciences informed by what may be termed the “semiotic paradigm” – which we shall get back to shortly. Firstly, let us briefly return to etymology as a starting point for the philosophical basis of the forensic process stemming from the history of science.

The root of the word “science” is the Latin scire, to know, and hence scientia, or knowledge. Before the late sixteenth and early seventeenth centuries, the word denoted any kind of knowledge, undiscriminating between different forms or types of knowledge. However, with the Enlightenment and the introduction of scientific method plus the resurgence of learning based on classical theory during the Renaissance, the word scientia came to mean knowledge of the natural world and became increasingly associated with natural science.

The Italian historian Carlo Ginzburg traces the trajectory of what he terms the “conjectural or evidential paradigm” throughout European history, attempting to excavate the historical lineage of “disciplines based on reading the evidence” (Ginzburg 1980, p. 14). Since this history is rarely researched, the exposition of this part of the philosophical history of the forensic process is resumed from his seminal piece: Morelli, Freud and Sherlock Holmes: Clues and Scientific Method (1980). The roots of this paradigm, Ginzburg argues, can be found well beyond the civilizations of Ancient Greece with the earliest hunters and the skills they developed for reading signs in nature to track down the game and in the Mesopotamian cultures different forms of divination. These skills he argues, played a significant role in the invention of writing and the capacity for abstract thinking, which is based on the use of purposefully crafted signs to represent inherent meanings. The common characteristics of these roots of skills leading onward to modern science, are that, both traditions, hunting and divination, “require minute examination of the real, however trivial, to uncover the traces of events which the observer cannot directly experience” (Ginzburg 1980, p. 13). The way hunters used their senses – sniffing, listening, and observing – to give meaning and context to the slightest trace, “in the shadowy and treacherous clearing,” Ginzburg argues, endowed them with the ability to make complex calculations in an instant. Hunters inferred from part to whole, effect to cause. The Mesopotamian model of divination gradually intensified this tendency to generalize from basic facts, thus strengthening this mode of inferring cause from effect. The model for explanation and divination decipherable in Mesopotamian texts is one which could be oriented toward past, present, or future, depending on which form of knowledge was called upon. Seeking signs to form knowledge oriented toward the future, was divination proper. Orientation toward the past was related to jurisprudence or the body of legal knowledge. Divination oriented towards the past, present, and future in concert was that of medical knowledge of symptoms. The latter contained all of the orientations by way of its double character of diagnosis, explaining past and present, and prognosis, suggesting the likely future following from the illness running its course.

The conjectural paradigm lies at the root of modern science in general. It is, however, the development into scientific disciplines of these original practical arts (hunting, divination, medicine, and law) of deciphering various signs and symptoms as well as individual cases to infer generalized meanings, which serves to characterize the philosophical basis of the forensic process in the Modern Age. It is however not well researched nor generally acknowledged how these artistic aspects of producing knowledge inform the growth of science and ultimately forensic science. Retracing this history is however the goal in the following.

Ancient Greek Philosophy: The Cradle Of Modern Science

What characterized the Greek culture and the city-states, of which Modern European legal culture and science are heirs, was the emergence of a group of disciplines which all “depended on the deciphering of various kinds of signs, from symptoms to writing” (Ginzburg 1980, p. 14). Passing on to the civilizations of ancient Greece, these disciplines changed considerably, giving rise to new lines of study such as history and philology while acquiring also independence from older disciplines, such as medicine. In and through these disciplines, one finds the seeds of the development of a general scientific stance or method. Through these disciplines the “body” (e.g., medicine), “speech” (e.g., rhetoric, philology), and “history” were all for the first time subjected to dispassionate investigation, excluding the possibility of divine intervention. An important part of this change can, according to Ginzburg, be ascribed to a model of knowledge acquisition based on symptoms and signs – the evidential or “conjectural model” of knowledge.

This development is most evident in the case of Hippocratic medicine. Hippocrates’ model of medicine based its central methods on the concept of “the symptom”, in Greek semeion (hence semiotics). The central tenet in the Hippocratic model was the idea that by carefully observing and registering every symptom, it was possible to establish precise histories of each disease, despite the fact that the disease as an entity would remain intangible. The insistence on the evidential nature of medicine, prevalent with the Hippocratic model, probably stemmed from a distinction between the certainty of divine knowledge and the provisional, conjectural nature of human knowledge, expounded by the Pythagorean doctor, Alcmaeon of Croton in his work Peri Physeos (or On nature). This was the first scientific treatise devoted to the art of medicine. The work itself has not been preserved, but its contents and chief findings have been passed on by commentators and collectors of ancient knowledge such as Aristotle, Theophrastus, and Aetius. From these it is known that Alcmaeon held that if reality was not necessarily clear – then by implication – it was right to proceed by building up knowledge of the whole from the parts, using conjecture.

Proceeding by using conjecture was in fact the most common approach in a number of spheres of activity in Ancient Greece, where physicians, historians, politicians, potters, joiners, mariners, hunters, fishermen, and women in general were held to be adept in the vast areas of conjectural knowledge. This conjectural or semiotic paradigm, continued however to be merely implicit up through the ages, since it was completely overshadowed by Plato’s theory of knowledge, holding sway in more influential circles, hence shrouded in more prestige. Plato’s theory of knowledge emphasized the existence of an ideal (i.e., ideational) world of universal untainted truth existing independently of the human species and lost to the human subject. To Plato, knowledge could only be regained or recollected (anamnesis) through inspired contemplation and philosophy.

The Science Of The Universal And The Problem Of The Individual

While Ancient Greece and the developments of disciplines of dispassionate investigation of various subjects and forms, may be the cradle of modern science, the genesis of scientific method is generally acknowledged to be the Middle Ages. The emergence of a truly scientific paradigm is commonly associated with Galileo (1564–1642). The scientific paradigm based on, but outliving, Galileo, provided significant changes in the concepts of “rigor” and “science.” The model of Galilean science was fundamentally different from any of the disciplines using conjecture to form knowledge of their subject. None of these would meet the criteria of scientific inference set out by the Galilean approach. The ancient disciplines were concerned with the qualitative, the individual and the case particular, i.e., the individual body, document or situation itself. Galilean physics were altogether different. It used mathematics and experimental method to gain knowledge of the universal order of nature. This was in stark contrast to the conjectural model of the Ancient disciplines in the results of which there was always an element of chance (Ginzburg 1980, p. 15). In the science that grew from the Galilean model, chance was sought tamed by a dependence on measurement and repetition of results. Creating knowledge by induction from experimental design and observation of results, science increasingly became associated with the need to measure and repeat phenomena in order to draw rigorous conclusions about the phenomenal world. Paradigms following the Galilean tradition were concerned alone with knowledge of the universal and generalizable, while being unable to say anything about the individual and particular. The rise of the scientific paradigm resulted in a division of fields of knowledge which would meet the criteria of scientific inference set by and essential to the Galilean approach, and those who could not. A host of the classical disciplines could not meet or make do with the criteria set for science by the new scientific paradigm. However, one discipline in particular diverged from the rest, proclaiming its scientific status while drawing on a model of inquiry stemming from the conjectural or semiotic model – medicine.

The philosophical history of forensic science leads in many ways directly to an origin in medicine. This is generally acknowledged not least in the fact that subjects of medicine such as the autopsy and toxicology are some of the first forms of knowledge enrolled in the service of law to decide on the issues of identifying and discriminating between a criminal act and a legitimate or natural one. However, there are more subtle philosophical roots to be discerned from the relation between medicine and the forensic process as a process of inquiry and theory of knowledge.

The Rise Of The Semiotic Model

The trajectories of thought and ideas informing the move from hunter to the scientific detective are manifold and diverse. It is therefore not possible to delineate them in detail here. However, their different results may be indicated by zooming in more directly on the common denominator through which they all at some point pass – medical science and the paradigms informing it. The roots of this paradigm may, following Ginzburg, be traced to the contemporaries of Galileo and described through a historical event in which the medical expertise was enrolled to decide on the nature of a new phenomenon: a two-headed calf born outside of Rome in April 1625. The event became object for discussion among a group of naturalists in the Vatican Belvedere Garden, which was documented in detail by Giovanni Faber (a friend of Galileo and secretary of the Lincei Academy, a center of a thriving intellectual group founded in 1603 by Frederico Cesi). The discussion was attended besides Faber, by another friend of Galileo, a Cardinal, Pope Urbano VIII, and the pope’s chief medical man, a physician from Siena, Giulio Mancini (Ginzburg 1980, p. 20).

Mancini was besides being a brilliant diagnostician renowned for his ability to divine the seat of disease by a rapid look at the patient, also a keen intellectual and the author of a book about art recognition titled: Considerazioni sulla pittura (or Some considerations concerning painting as an amusement for a noble gentleman and introducing what needs to be said) (Mancini ed. Marucchi 1956–1957 ref. in Ginzburg 1980). Part of this book was devoted to the recognition of paintings, and set out a method for telling originals from copies, by recognizing the particular strokes of the hand of the master in areas of the painting that were swiftly executed. The underlying assumption of Mancini’s views, were never stated, but were nevertheless important to the later development of connoisseurship in the century to follow and its role in transmitting the semiotic model to other areas of European cultural life and knowledge, Ginzburg argues. The core assumption of deep relevance to the rise of the conjectural paradigm was that there are ineradicable differences between a canvas painted by the hand of Rafael, for example, and any copy of it (Ginzburg 1980, p. 20).

The discussion between the parties participating in the event represents a historical example of differing perspectives of different disciplines on the individual case and its relation to the general, as well as a moment in the history of a converging of differing paradigms, embodied in the practitioner of medicine and art connoisseur Giulio Mancini. The first question addressed by the group was whether the animal should count as one animal or two. For the physicians the feature distinguishing the individual was the brain, whereas for followers of Aristotle it was the heart.

To some extent, Mancini in the discussion of the two-headed calf represents a point of contact between the divinatory approach of the conjectural paradigm (as a diagnostician and a connoisseur) and the generalizing model of the Galilean approach to physics (as anatomist and naturalist). He represents the emergence of a generalizing paradigm within medicine while at the same time being the skilled artistically inclined diagnostician, reading the signs of the disease in the bodies of the patient or identifying the hand of the master versus that of the copyist in a piece of art. By adopting the role of the physician, Mancini was ascertaining the character of the individual as a “type” (i.e., within a scheme of classification) rather than of the character of the individual calf itself. The physician, in other words, participated with a view to arrive at a more accurate definition of what was normal – and therefore repeatable for the individual of the species, i.e., establishing the “common character” of it rather than the one peculiar to it (Ginzburg 1980).

The medical paradigm that developed through the eighteenth and nineteenth centuries thus consisted of two paradigmatic models – the anatomical model and the semiotic model (Foucault and Sheridan 1973). The first aspired for a system of knowledge which could be generalized and ascertained through empirical observation and classification (continuing the natural history starting with Aristotle) and making use of the organ associated with the sciences of the time, which could not be reduced to numbers and mathematical calculation: sight. Vision and observations became synonymous with “objectivity” – the defining character of empirical science (Daston and Galison 2007). The second model of medicine aspired for an effective diagnostics which were able to identify and treat illnesses in individual cases (Foucault and Sheridan 1973) and thus keep the subject alive, healthy, and maintain a productive population to the benefit of the state (Foucault and Sheridan 1979).

The conjectural or semiotic model of medicine was, however, intimately connected with knowledge of the general, in the form evoked by the anatomical model. The latter was based on the dissection of corpses and the description of the anatomy of the human body. This practice was used to create knowledge of the general character of the human body, which in turn could be used as a general norm against which pathology could measure the particular body’s deviance or abnormalities to achieve new knowledge of pathologies and their effects and signs in the human body. The anatomical model, and its knowledge of the general achieved from observations and generalizations of many individual bodies was promoted and spread through the medical atlases, which became a significant artifact through which medical science flourished (Daston and Galison 1992). It did so in coexistence and mutual development with a semiotic model of medicine, based in the clinic, and the experience and knowledge of the emergence, courses, symptoms, and effects of different illnesses, which arose from the diagnostician’s effort to device the proper treatment in each individual case (Foucault and Sheridan 1973). In a similar way, the discussions and the tiny incisions made in the animal to reveal the internal organs representing the roots of the modern scientific autopsy, which developed during the Renaissance, represents the meetings of divination and science in the anatomical model of medicine. In a review article of the history of the autopsy, King and Meehan (1973) find its roots in former practices of divination using animal organs, the so-called haruspicy. Autopsy, which literally means “seeing for oneself,” reflects the central role of sight referred to above, as the key component of the scientific method of “observation” and scientific objectivity. “Seeing,” however, here has roots of a different kind, namely, that of ancient diviners looking for signs to foretell the future by the reading of organs and tissues of dead animals. The medical atlases of the nineteenth century thus also had a predecessor in Babylonian models of livers with diagrammatic markings used for the instruction of diviners.

The predicament of medical science, that is, its apparent lack of absolute scientific rigor and certainty while aspiring to be a science proper, can be said to have two basic reasons. On the one hand, there is a discrepancy between theory and practice. Theoretically adequate descriptions of particular diseases are not necessarily so in practice, where diseases can present itself in different ways in different bodies. On the other hand, knowledge of disease in the living body remains indirect and conjectural, since it is per definition out of reach (Ginzburg 1980, p. 21).

Medicine And The Birth Of The Detective

It was however from the diagnostic branch of medicine that the ideas giving birth to both detective fiction and forensic science originated. In the late nineteenth century, there was a general upsurge in the semiotic paradigm, giving birth to the practice of art connoisseurship, the theories of psychotherapy, and the detective novel. There are actual biographical and inspirational links between the key figures representing each of the three, in the form of Giovanni Morelli, Sigmund Freud, and Arthur Conan Doyle. The connecting factor between them is medicine. Freud was a doctor, Morelli had a degree in medicine, and it is generally acknowledged that the inspiration for Sherlock Holmes was Sir Arthur Conan Doyle’s esteemed professor in medical school (he was a doctor before he started writing) Professor Joseph Bell. Bell was renowned for his diagnostic abilities, and there are key passages in the stories of Sherlock Holmes, for example. The Cardboard Box (1892), where Holmes uses the actual methods of Morelli. Furthermore the peculiar similarity of the activities of Holmes and Freud have been discussed in literature (e.g., Marcus 1976).

At the same time however, they represent a point in history where the semiotic model (or the conjectural paradigm) resulted in different ideational developments, all however sharing a common feature, namely, that they were based on an interpretive method where one takes the evidence at hand as “signs” which stands for something else otherwise inaccessible for observation. In psychotherapy, art connoisseurship, and detective fiction, methods were devised which made tiny details the key to a deeper reality or knowledge hereof that are inaccessible by other methods. These details may be symptoms for Freud, clues for Holmes, or features of paintings for Morelli, but in all three cases they are seen as evidence to inferences about the nature and characteristics of something hidden to the inquirer: the psyche, the identity of the criminal and the structure of the criminal event, or the identity of the painter and the characteristics of his paintings, behind a given piece of art. Sir Arthur Conan Doyle’s character Sherlock Holmes has been deemed inspirational for one or more of the pioneers in forensic science in the area of criminalistics, such as Bertillon and Locard. Whether or not this is a historical fact, we encounter also in the foundation of the field of forensics the medical common factor, as Locard’s teacher and mentor was Alexandre Lacassagne, a physician and chair of Me´decine Le´gale de la Faculte´ de Lyon, and, Bertillon the son of a medical professor.

However, developments within the natural and social sciences occurring at the same time were also influenced by the conjectural paradigm and the problem of the individual. Thus the semiotic or conjectural paradigm generated forensic science from several trajectories of thought, which in concert gave rise to the idea of the scientific detective and the forensic process.

The Social Sciences And The Rise Of Technologies Of Government

The problem of the individual in the generalizing Galilean model of science was encountered from another field of knowledge, namely, that of the emerging social sciences. During the eighteenth and nineteenth centuries, a tendency evolved for the state to impose a close-meshed net of control on society: one based on knowing its individual members and submitting them to forms of surveillance that became increasingly more subtle and that was based on knowledge of its population, statistical as well as biographical (Foucault 1970; Foucault and Gordon 1980; Foucault et al. 2007, 2008; Foucault and Sheridan 1979).

With the emergence of a capitalist economy based on production in the late eighteenth and early nineteenth century, new concepts of property and the introduction of a still greater number of punishable offenses and punishments of more severity were introduced. Thus, prison systems were built up to contain the resultant growing population of criminals. With the rise in the number and types of crimes came the problem of identifying repeat offenders. This problem became a specific subset of the more general one of keeping a complete and general track on the whole of society, that is, keeping order through knowledge. It also represents the point where the models derived from Galilean physics start to impinge on and interact with the semiotic model of medicine, in the development of new forms of control and methods for identification, devised in the same period of the 1800s as the detective novel, psychoanalysis, and connoisseurship evolved.

This was evident in two competing systems for identification initiated or developed by Francis Galton (1822–1911) and Alphonse Bertillon (1853–1914), respectively. In both cases, however, science meets conjecture to give rise to the methods of scientific investigation based on classifications of the individual and interpretations of effects of specific causes in particular cases.

In the first case, the system of Bertillionage, a classification scheme for identifying repeat offenders through anthropometric measures plus the description and classification of physical characteristics, was based on the idea of probability statistics used within astronomy and physics to get a measure of errors, introduced to the study of society and crime by Adolphe Quetelet (1796–1874) in his conceptualisation of a “social physics”. Quetelet’s work provided a major inspiration to Bertillon and the anthropometric method, by suggesting that while single measures might be just probative, the higher number of specific measures made per individual the higher the probability of identification.

In the second case, the system of fingerprint identification introduced by Francis Galton, yet not originally discovered by him (for a history of fingerprint identification, see Cole 2001; Sengoopta 2004), was based on the idea that the individual has an identity that may be recognized in his every characteristic, even the most imperceptible and the slightest, and that there will be an internal norm or “typus,” which maintains the variety of each species within its limits. The philosophical input, as well as the study of fingerprints as the empirical example of the rule, was made by a physiologist founding the subject of study of organ tissues: Purkyne´ in a work in 1923.

Bertillon, being the son of a medically educated statistician and inspired by an influential figure in the emerging science of society especially criminology developed by Adolphe Quetelet, represents the meeting point of the conjectural model derived from medical semiotics and that of divining probability through the science developed to this end: statistics. Galton’s discoveries of the individuality of the fingerprint and its possible practical implications, on the other hand represent the point of contact between old divinatory traditions; the problem of identification of the complex society and the risks posed by the transgressor of laws and regulations, and the anatomical model of medicine and its attempt at understanding the relation between individual and general type, in order to diagnose individual symptoms and secure the proper treatment in each individual case.

Forensic science arose from the interconnections of these ideas and trajectories of thought spanning detective fiction, graphology, art connoisseurship, statistics, sociology, criminology, administrative practices, psychology, linguistics, history, etc., as they were developed and promoted in the works of Hans Gross, Alexandre Lacassagne, Edmond Locard, Alphonse Bertillon, Francis Galton, and many more in a range of subdisciplines to emerge within the field.

New Philosophies Of Science: Conjecture And “The Scientific Man”

In the late nineteenth century and early twentieth century, the philosophy of science saw new developments which were influenced by processes rooted in the conjectural or semiotic paradigm. One of the ways in which semiotics was developed into scientific theories and new approaches to knowledge were through the ideas of American Pragmatism. In addition to being an exemplification of the broader upsurge and explication of semiotics as a theoretical discipline, (which itself developed into a range of different philosophical theories, for example, critical theory, post-structuralism, hermeneutics, reflexivity, etc.) this particular theoretical paradigm has overt links to the developments of forensic science. The credited founder of Pragmatism Charles Sanders Peirce (1839–1914) was deeply inspired by the detective figure in his exposition of his thoughts on reasoning and the “scientific man”, which again was part of a more general theory of signs and sign processes as a distinct theory of knowledge (Eco and Sebeok 1983). Besides, Peirce was and is generally acknowledged as a natural scientist, above being a philosopher, although his philosophy of science is seminal.

Based among other on the figure of the scientifically reasoning detective fashioned by Conan Doyle, Peirce developed a new concept of inference – abduction – which served to integrate the approach to science initiated with Galileo and the necessity of using incomplete knowledge and conjecture – not least in face of lack of enough data – to form hypotheses and predictive conditionals to be tested as a means of approaching what could qualify as secure beliefs. Abduction is Peirce’s designation of an inference which is made from an observation to its possible explanation; that is, from evidence to a hypothesis or conclusion – where the phenomenon to be explained, through the evidence of it observed, itself constitutes a significant part of the reason to presume that the explanation is correct (Lipton 2000).

Peirce held that all inquiry, including science, is to be described as a struggle to move from irritating, inhibitory doubt born of surprise, disagreement, and the like, toward the reach of a secure belief. Belief being defined as that on which one is prepared to act, rather than as the pursuit of truth per se. Scientific inquiry, to Peirce, was thus just one part of a broader spectrum and spurred, like inquiry generally, by genuine doubt, rather than by mere verbal or hyperbolic doubt, which he held to be fruitless. Having grouped all forms of inquiry under the same pursuit, he also devised a theory of inquiry and logic, which introduced a new logic of inference to the description of science.

Peirce held that abduction, induction, and deduction made a complementary whole which together constitute scientific method. None of the modes of inference could be dispensed with – since abduction to Peirce is the only way new knowledge can arise. Logic was based on all the modes of inference, including abduction, which he perceived as a precondition for the development of science. Peirce also replaced the conception of science as a collection of certified truths or systematized knowledge with a definition of science as an inquisitorial attitude, the defining characteristics of science to be found in the approach to inquiry and the controls put on it rather than in the contents of its canons.

Being deeply inspired by Aristotle, whose concept of apagoge seems to entail all the things that Peirce describes as retroduction or abduction and who may be the original inspiration for his thinking (Aliseda 2006), he picks up on the same theme that Vico (as mentioned earlier) raised during the Renaissance: that all actions, whether practical decisions, medical diagnosis or scientific inquiry make use of the principle of the topics (i.e., those culturally formed beliefs, habits of experience and expectations to the order and workings of the empirical world) to form judgments and beliefs on which to act whether practically or theoretically (Miner 1998). One can legitimately speak of pragmatism as a reinterpretation of Greek philosophy about knowledge and thus a rekindling with the roots of the development of the sciences and their conjectural roots.

While Peirce is not a prominent figure in the canons of forensic science – if at all present, the practices, which inspire his philosophical positions, are indeed those of the forensic practitioner. It therefore seems in keeping with the micro-history of science and the conjectural paradigm delineated by Ginzburg, to point to the pragmatist philosophy as an example of trends in the philosophy of science, which are informed by the conjectural and semiotic paradigm running from Ancient Greek philosophy to some of the developments in thinking about science making way from the nineteenth century and onward, and which are in keeping – however subtle and mutely – with the philosophical basis of the forensic process.

Conclusion And Further Perspectives

The Forensic Process: Conjecture And Science Or Conjectural Science?

The philosophical basis of the forensic process is not to be discerned as a linear development of thought but rather as a meshwork of ideas. However, the influence of the ideas delineated is clear considering the principles brought to bear on the forensic process by the founding fathers and key figures in forensic science, for example: (a) the principle of transfer: that two physical objects coming into contact with each other will result in minute traces, imprints or effects of this contact (also known as the principle of exchange) commonly attributed to Edmond Locard (1928, 1930), but by him attributed to the inspiration from Alexandre Lacassagne; (b) the goal of individualization based on the identification and/or classification of the physical or chemical nature of the evidence (Saferstein 1998); (c) the idea of classification/individualization and the attempt to determine the source of evidence (Kirk 1963); (d) the idea of association linking person to crime scene and leading to inferences of source and target (Osterburg 1968), and (e) the purpose of reconstruction of past events (DeForest et al. 1983) (for an overview description, see Inman and Rudin 2001). All the central ideas of forensic analysis are based on a combination of topical inspiration (i.e., attempts at answering the 6W’s essential to legal deliberation) and the foundational concepts of the semiotic paradigm that infers causes from effects and which on the basis of classifications of the nature of the physical world discerns individual characteristics of the particular situation, object, or document. Characteristics which in turn serves to discern the history, meaning, and causes of the phenomenon under scrutiny, (i.e., of the physical evidence left over from an event (possibly criminal) passed).

In much the same way as the clinician of early modern medicine, the forensic practitioner may be said to embody a point of contact between two differing yet cognate paradigms – that of semiotics and that of Galilean natural science. Each has differing goals and criteria for valuing truth claims: one related to abstract disinterested truth and one related to practical effects and rationality. Like the physicians of the late nineteenth century, the forensic practitioner is a “diagnostician” and “expert connoisseur” with respect to assisting the investigative inquiry and translating the topics and questions of law into scientific questions. He is also a “naturalist” and “empiricist scientist” with respect to analyzing artifacts believed to adhere to an incident under legal scrutiny and providing conclusions regarding their identity based exclusively on knowledge obtained through observable and verifiable data. The first form of knowledge tends to be unspoken and does not easily lend itself to formalization, since nobody learns how to be a connoisseur or diagnostician simply by applying the rules.

The allusion to one of the key works in Modern scientific philosophy by Karl R. Popper: Conjectures and refutations: The growth of scientific knowledge (1963) in the heading above is intended as a pun on words which may serve as the key points of further perspectives, since the question is not whether conjecture is part of what informed the growth of forensics but rather: How much conjecture is allowed and under what circumstances for forensic science to qualify as science? The key concern of the forensic sciences and thus the key philosophical problem with which it grapples is that of individualization (Kirk and Thornton 1974). Forensic science – arising out of the conjectural paradigm and the semiotic model of medicine – is in many ways the science of the individual par excellence. Seeking from beginning to end of the forensic process and through the fields of knowledge informing the practical process of forensic inquiry (i.e., the forensic process) answers, which may provide individuation of both people and cases – of “who” and “what” of the Ciceroean topics. In this way, the forensic process is heir not only of the key topics identified by Cicero for the presentation of a legal case but also of the quest of the sciences build on the Galilean model and the problems facing these in their attempt to explain and describe the particular and the characteristics of the individual, and the ways that phenomena known through theoretical classifications may play out in particular situations, hereby ascertaining the span of characteristics to be associated with the phenomena in a given situation and thus ascribed to it.

This problem is becoming increasingly acute to the forensic sciences, due to emergence of debates in scientific circles of is scientific status. Yet in the philosophical history of the forensic process of inquiry, can also be identified ideas and principles stemming from a semiotic paradigm, which has grown large in the human and social sciences, and which holds promise of a new formulation of a model of science, which may provide an alternative route to the problems faced, by introducing a concept of scientific rigor which is more “elastic.”

Forensic sciences is finding itself in a position where new developments are imminent, if not already in process. Developments which may prove decisive for the future role and status of forensic evidence, and which springs exactly from the problem having faced sciences developed in the image of Galilean physics, since the beginning of the Modern Era. This dilemma is coined by Ginzburg (1980) as that of choosing between: (a) achieving significant results from a scientifically weak position, or (b) to establish a strong scientific position, but get meager results.

Rethinking and revisiting the philosophical basis of the forensic process, and turning to key thinkers within this paradigm for new approaches to the dilemma may provide an alternative route bypassing the deadlock of the debates. The theories, models, and scientific content of the conjectural model that might inspire new ways of theorizing and conceptualizing the foundational and defining principles of the forensic process are still however largely unexcavated, even though it provides the philosophical basis and seed of development for a broad range of contemporary disciplines in all areas of science.

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