Enlightenment Error, by Orin S. Kerr

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By Orin S. Kerr, from the Spring 2015 issue of The Green Bag, a journal edited by Ross Davies, who is a professor at the George Mason University School of Law. During an interview at the Fourth Circuit Court of Appeals annual conference in June 2011, Supreme Court Chief Justice John Roberts said that if you “pick up a copy of any law review . . . the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.” Kerr is a professor of law at George Washington University.

Chief Justice Roberts has drawn attention to the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria. No scholarship has analyzed Kant’s influence in that context. This article fills the gap in the literature by exploring Kant’s influence on evidentiary approaches in eighteenth-century Bulgaria. It concludes that Kant’s influence, in all likelihood, was none.

Immanuel Kant was born in 1724 and died in 1804. He lived most of his life in Königsberg, Prussia, a city on the Baltic Sea, on the northern tip of Europe. Kant’s influence did not extend to Bulgaria, a thousand miles to the south, until long after his death. Kant first became influential in Bulgarian philosophy circles in the second half of the nineteenth century. The earliest reference to Kant’s work in a Bulgarian journal appeared in 1859. That reference dismissed his ideas as “obscure and awkward.”

Even if Kant had influenced Bulgarian philosophers in the eighteenth century, it seems unlikely that such influence could have extended to the legal system. During the eighteenth century, Bulgaria was part of the Ottoman Empire. Its legal system derived from a mixture of sharia law, feudal practices, and the customary law of local ethnicities that was permitted by the Ottomans. European thought in general had little influence on the Bulgarian legal system until Bulgaria became an independent state in 1908.

The possibility of Kantian influence on the field of evidence law is particularly remote. Kant’s legal views are difficult to summarize, as they bear no direct relationship to the categorical imperative for which he is best known in philosophy. But however one assesses Kant’s writings about law, they primarily concerned matters of legal philosophy rather than trial procedure. Kant’s work addressed topics such as the nature of property, contracts, and the proper limits of punishment. He also wrote about the proper conditions of a republican constitution and democratic government. It appears that Kant never wrote about evidence law, which concerns the procedures for establishing facts in a legal proceeding.

Finally, a study of Bulgarian evidence law in the eighteenth century suggests no Kantian influence. According to a treatise on the Bulgarian law of procedure in the Ottoman period, eyewitness testimony taken under oath was the primary form of trial testimony. Relatives of the accused were not permitted to testify. Women could testify, although children were allowed to testify only in cases involving border disputes over land plots. According to one account, the custom was to bring children to the relevant plot and then painfully pull their hair to ensure that they would remember the borders and be able to testify about them in court. Confessions were considered the best evidence of guilt in criminal cases, even though it was common for confessions to be obtained under torture or threat of violence.

There is no apparent connection between these rules and Immanuel Kant. For all of these reasons, it appears very likely that Kant had no influence on evidentiary approaches in eighteenth-century Bulgaria.

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