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Rational and Irrational Proof Revisited, 5 Cardozo Journal of International and Comparative Law 25 (1997)


It is interesting to examine fact-finding practices in culturally distant societies. These practices often seem thoroughly permeated by unreason, or else seriously defective in terms of the demands of rational inquiry. But if we look at them more carefully, placing them in their native cultural milieu, it usually emerges that they are not nearly as unreasonable as superficial inspection suggests. Our readiness to see them as tainted by unreason and radically different from our own, springs in large part from the failure to appreciate the degree to which the rationality of proof is culturally determined.' But as soon as the broad cultural perspective is introduced we also begin to wonder whether our own evidentiary arrangements are as free from admixtures of unreason as their theoretical sublimation suggests. The study of exotic forms of proof provides us with yet another benefit: it opens up vistas from which subtle differences among contemporary Western proof systems come into view that are otherwise barely noticeable. By studying culturally distant fact-finding practices and locating ourselves among different cultures, we come to understand somewhat better our own factfinding arrangements.

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