The Project in Overview
The Known Unknowns project investigates, from a comparative historical perspective, the ways in which the law frames and responds to problems of intractable factual uncertainty.
Since laws are imposed on facts, legal systems need rules for ascertaining these facts. Where these ordinary fact-finding rules cannot produce a (satisfactory) answer, the law must choose how to respond. This might, for example, involve the creation of a tie-breaking or default rule to resolve the impasse. Examples include ‘commorientes rules’ which apply where multiple persons die in a sequence which cannot be established, though for reasons of inheritance that sequence is critical.
Scenarios that raise this problem of uncertainty are usually seen in isolation. This project, however, adopts a broader perspective and focuses on responses to intractable uncertainty in multiple areas, drawing those particular instances together and analysing them alongside one another. In doing so, the project identifies overarching trends in the law’s approaches to uncertainty, and explores inconsistencies and potential solutions.
The uncertainties with which we are concerned are not constrained by doctrinal or jurisdictional boundaries, and they have recurred repeatedly throughout history. This makes them prime targets for analysis beyond traditional, national doctrinal scholarship and, in particular, for comparative historical treatment. Our project therefore compares treatments of these intractable uncertainties across boundaries in doctrine, time and jurisdiction.
Key Substantive Questions
Within each area afflicted by the existence of a ‘known unknown’, we and our contributors are considering the following key substantive questions:
a) The Scope of the Uncertainty Problem
- How is the relevant element of uncertainty defined and circumscribed in the chosen systems (across the period of its development)? Does the definition or do the limits of the concept change?
- Are there multiple levels or regions of uncertainty and how do they relate to one another?
- At what point is an intractable uncertainty requiring some form of special rule recognised to exist? Are attempts made to reason the problem out of existence?
- Is there variation in the incidence or frequency of scenarios giving rise to the relevant uncertainty, and in what ways do these bear on the understanding of the problem?
- What social or historical trends accompany changes in the uncertainty problem?
- Does uncertainty remain central to understandings?
- Is the relevant uncertainty explicitly related to others dealt with by the law?
b) Solutions and Policy Goals
- What solutions are in fact selected in the relevant jurisdictions and in what periods? Are those solutions consistent across eras and jurisdictions?
- Do the solutions prefer all-or-nothing or compromised results?
- How significant (if at all) are concerns over a particular result imposed by default/presumption being (un)likely to be factually accurate?
- Are policy ideas brought to bear in resolving the uncertainty problem and, if so, what are they?
- Are those policy ideas used to justify the creation of a rule per se, a particular rule, or both?
- Do the policy choices involved change in kind/content and/or in form/extent? What guides these changes?
- Are ideas of fault or responsibility for the creation of the uncertainty involved?
Brief Introduction to Our Methodology
As noted, in brief terms our method is both comparative and historical.
The comparative element is intended to cover at least a core of western European thought, for which we have focused on the UK, France, and Germany. However, appropriate comparisons largely depend on the nature of each particular area. For example, where an issue seems especially significant in common law jurisdictions, an analysis of common law systems can be more suitable. Our contributors have therefore been given freedom to select jurisdictions based on the demands or interests of their area, including any non- or transnational legal systems and frameworks (e.g. canon law).
The extent of the historical element is determined by the demands of each particular area. Our contributors do, though, all consider the development of the relevant ideas and issues, and are working to situate them in their historical context. Discussion predominantly concentrates on developments post-1100.