4. My Story: Ascertaining the Truth in Cases of Incest

Dutch law does not have a jury system. In her plea for a better appreciation of scientific evidence and expert testimony in criminal proceedings, Haack (2005) suggests that in this respect the Dutch way is more rational than the American adversarial model of providing evidence in front of a jury: ‘It has been said that the use of court-appointed experts is “elitist” and “undemocratic,” even “totalitarian”; but this strikes me as something of an exaggeration. Certainly, trial by jury is a better way of getting at the truth than trial by oath or ordeal; certainly citizens’ service on juries is an expression of the democratic ethos (though it would be strange to deny that the Netherlands, say, is a democracy, simply because the Dutch judicial system routinely relies on experts appointed by the courts). Still, especially considering how tiny the proportion of federal cases decided by juries now is, it seems reasonable to be willing to consider adapting the adversarial culture a little in this way, if and when this would better serve the fundamental purpose of protecting against arbitrary and irrational determinations of fact’ (Haack 2005, p. 71).

In the words of the editor: ‘After countless days of interviews I have fitted the hundred pieces of her mammoth jigsaw puzzle, giving them some shape (...)’ (Yolanda and Snoijink 1994, Foreword).

Some authors point to similarities between law and literature, such as Cardozo (1921), White (1973), Dworkin (1986), Weisberg (1992) and Nussbaum (1995). Others emphasize the narrative rather than the literary character of law: for instance, Van Roermund (1993) and Den Boer (1990a, b).

In a polemic with Jackson, MacCormick (1991) maintains that, to be accepted as true, the account of the events in the minor premise has to meet the test of correspondence to the facts. In his view, narrative coherence serves as an additional evidentiary indication of truth. As in natural science, ‘all cases of law application refer to some facts which are “brute facts”’ that are relatively independent of human rules and conventions’ (but the typically legal process ‘is characterized by transformations of these facts into institutional facts, by interpreting them in the light of relevant rules and conventions’) (MacCormick 1992, p. 220). In this respect, law and science differ from literature—historical biographies, for instance, have a claim to truth that fictional biographies and novels do not. Jackson (1991) replies that the narrative theory does make a distinction between factual and fictional discourse. But only so as different categories of sense-making, for semiotics states ‘that there is no such thing as truly “brute” facts but rather that experience makes sense to us (…) through the medium of our sense-constructing mechanisms’ (Jackson 1991, p. 184). According to Jackson (1998), semiotics recognizes that facts exist outside language and that it makes sense to ascribe truth-values to propositions about them. It only denies the possibility of direct access to such ‘natural facts’ in the external world; they can only be perceived through the sense-creating filter of a particular language system.

For a more detailed version see Maris (1999).

HR 21.2.1995, NJ 1995, 415.

In other countries similar methods of research, such as that of Russell, also led to very high incest scores: ‘Studies where use is made of interviews by trained female interviewers and a large number of ‘entrance questions’ that could cause the subjects to recall possible questions of abuse (...) give the highest scores for the prevalence of sexual abuse by family members (these vary from 15% to 18%)’ (Draijer 1988, p. 103).

80% of the repeated cases had in one form or another mentally blocked out what had happened, making it unclear whether it was a consequence of dissociation or deliberate denial.

For a more detailed version, see Maris (1998).

Albeit at the request of her mother; soon thereafter she confirmed her original charge under the influence of the opposite party.

My uncle, Onno Zwier van Sandick, reminded me of the historical narrative of his family, as told in Van Sandick (1960): in this interpretation Van Haren was indeed guilty of incest attempts, but his sons-in-law had clean hands. Van Sandick and Van Hogendorp (1761) had nothing to gain by Van Haren’s fall. They could not succeed him in his offices, and were much richer than their father-in-law anyhow.

Fenoulhet, moreover, points to an analogy between Du Perron’s biographical mix of fact and fiction and his 1935 autobiographical novel The Country of Origin, which is ‘a fictional journal or memoir’ (Fenoulhet 2010, p. 261). She quotes Du Perron’s biographer, who describes Scandal in Holland as a ‘double biography disguised as a novel’ (Fenoulhet 2010, p. 261). It was intended as a challenge to traditional moralists.

Jackson admits that the semiotic rejection of knowledge of the external world ‘would appear to leave the semiotics of law in a radically sceptical position in relation to truth’ (Jackson 1998, p. 257). He also accepts that he has ‘to explain how most forms of discourse, including that of professional lawyers and fact finders in court, speak as if language were indeed referential and as if truth were a property directly perceptible from the world in which we live’ (Jackson 1998, p. 258). As a solution, he advocates a pragmatic approach: truth is attributed to those propositions that ‘refer’ to the external world ‘in accordance with the perspectives of the users of those propositions’ (Jackson 1998, p. 259). He recognizes that truth thus loses its claim to objectivity, as it is relative to a plurality of perspectives that depend on the discourse in which the concept of truth is constructed. Scientists, lawyers and laypersons all have their own perspective; no one can claim privileged access. ‘Rather, their various conceptions of truth reflect their particular interests, contexts, concerns’ (Jackson 1998, p. 61). Therefore, ‘the different participants in a trial internalize different forms of narrativised pragmatics, different stories of who tells the truth and how that truth is perceptible, and internalize them in different ways’ (Jackson 1998, p. 263). How can a verdict ever be justified in spite of this radical perspectivism? According to Jackson, one should at least be aware that claimed true knowledge always rests on interpretation, and thus evade naïve illusions of objectivity. Fortunately, this coincides with the perspective of legal practice: ‘the legal process attempts precisely to do this. English law often seeks to exclude evidence whose “prejudicial effect outweighs its probative value”’ (Jackson 1998, p. 272). Indeed, ‘The lawyer’s training in an adversarial stance towards potential witnesses suggests a pragmatic relationship of distrust’ (Jackson 1998, p. 264). In trials, then, Jackson’s semiotics does ascribe a privileged status to the lawyer’s perspective. Distrust, however, does not seem sufficient as a substitute to objectivity, in the light of the plurality of perspectives on truth that his narrative theory acknowledges.

This conflict between specialists is in part due to a clash at the meta-level of epistemology and scientific methodology: should one prove a theory of human consciousness with empirical data; or can one arrive at it by way of the hermeneutic perceptions of psychotherapists?

For a more detailed version of the following sections, see Maris (1999).

In the section on normative coherence as a standard for moral and normative legal discourse, I argue that it should be supplemented with the criterion of rational consensus.

In this line, later foundationalists, like Chisholm (1989) and BonJour (1997), replace the strong assumption of classical foundationalism that empirical basic beliefs are infallible by weaker versions that recognize their fallibility.

Haack: ‘The best model of those standards is not, as much recent epistemology has assumed, a mathematical proof, but a crossword puzzle. The clues are the analogue of experiential evidence, already-completed entries the analogue of background information. How reasonable an entry in a crossword is depends upon how well it is supported by the clue and any other already completed intersecting entries; on how reasonable, independently of the entry in question, those are; and on how much of the crossword has been completed. An empirical proposition is more or less warranted depending on how well it is supported by experiential evidence and background beliefs; how secure the relevant background beliefs are, independently of the proposition in question; and how much of the relevant evidence the evidence includes. How well evidence supports a proposition depends on how much the addition of the proposition in question improves its explanatory integration’ (Haack 1995, p. 24).

Tramel (2008) has argued that on closer inspection Haack’s foundherentism is a ‘feeble’ form of foundationalism, because it stops the justificational regress with empirical beliefs that, being directly based on experience, are partly justified in themselves—although these beliefs need further support from other beliefs. Haack (2016) responds that foundherentism is a form of experientialism: sensory experience has a special role in the justification of our beliefs about the world. However, this does not imply that foundherentism is a variant of foundationalism, since it does not distinguish a privileged class of ‘basic beliefs’. According to Haack’s holistic view, all justified empirical beliefs are partly justified by experiential evidence and partly by other beliefs.

As Haack remarks, the legal quest for truth differs in character from that of science because law is aimed at dispute resolution. ‘This is not at all to deny that it is desirable that legal determinations of guilt or liability be, so far as possible, factually correct; on the contrary, it is highly desirable. But that “so far as possible” includes “consistent with satisfying such non-truth-related desiderata as reaching a resolution within a reasonable period of time, proceeding in accordance with constitutional constraints, and taking certain policy-related considerations into account’ (Haack 2009a, b, p. 13).

For a critical discussion of Wagenaar, see Jackson (1996) and Morley (1996).

For a more detailed version of the following paragraphs, see Maris (1999).

For a more detailed version, see Maris (2000).

For a more extensive discussion of Christian legal morality see Chap. 2 on Sex, Morality and Law.

In this respect Casanova is a moderate forerunner of the radical amoralist George Bataille, who not only celebrated the transgression of taboos as the very essence of eroticism (see Chap. 3 on Sex, Morality and Law), but also picked the incest taboo as a central theme in some of his pornographic novels. Unlike Bataille, however, Casanova does not favour the maintenance of moralistic laws for their erotic effect. As a libertine he prefers freedom. In his pornographic novel Ma Mère, Bataille alludes to a bacchantic love between mother and son. In Le cadavre maternel he describes a son’s necrophilic act of incest with the corpse of his mother: ‘I found myself sleeping at night in the apartment of my deceased mother. The cadaver rested in an adjoining room. I slept badly and recalled that two years before, during my mother’s absence, I had abandoned myself to a drawn-out orgy in that room and in that bed which was serving as the support for the corpse. By chance this orgy in the maternal bed took place on the night of my birthday: the obscene postures of my accomplices and my ecstatic movements in the midst of them were interposed between the birth which had given life to me and the dead woman for whom I experienced a desperate love which was expressed on several occasions by terrible absurd sobs. The extreme sensual pleasure of my memories led me into the orgiastic bedroom to masturbate passionately as I looked at the corpse’ (Bataille 1970, p. 130). Bataille’s biographer Surya suggest that this story is autobiographical, even though Bataille may have derived it from Krafft-Ebing’s Psychopathia Sexualis: ‘Did he take this over in its entirety, in which case it would be a question of a fiction which, as such, would shed light on his oeuvre without telling us anything biographical? Or was this reading superimposed in a parasitic or identificatory way onto what Bataille already instinctively knew to be pathological? To tell the truth, we do not know (by its very nature such a moment has no witnesses)’ (Surya 2002, p. 149).

See Chap. 3 on Sex, Morality and Law: Casanova borrowed this adage from Ovid’s Ars Amatoria.

Casanova was certainly not a modern liberal. Like many Enlightenment philosophers he advocated freedom, but not equality and democracy. Only an enlightened elite has the competence to enjoy liberty, the primitive masses should be kept in their place with the use of force and superstition. During a discussion with Voltaire in 1760 Casanova remarked ‘I am for Hobbes. (...) A people without superstition would be philosophical, and philosophers will never obey. The people can be happy only if they are cursed, downtrodden, kept in chains’ (Casanova 1997, 6, p. 244). As an elitist libertine Casanova was a declared opponent of the French Revolution.

See Chap. 1, Introduction: having emerged as a satisfactory historical practice, the liberal principles can count on an overlapping consensus, which moreover can find support in reasonable arguments.

In spite of the fact that minors have reported that this kind of incest has not actually harmed them. For a positive fictious account of incestuous love between mother and son see Louis Malle’s film Le souffle au Coeur (Murmur of the Heart, 1971).

DePaul makes similar objections to the coherence methods of moral inquiry in general, and the method of reflective equilibrium in particular. The latter amounts to the construction of a moral theory in which one’s initial moral beliefs (after being filtered to considered moral judgments) cohere with a set of matching general moral principles and background theories. This method ‘cannot guarantee anything more than a systematization of our moral prejudices’ (DePaul 1993, p. 7). In the absence of reliable moral beliefs to build upon, the result may be just a set of coherent moral fictions. Indeed, basic moral intuitions mainly spring from particular moral traditions with all their prejudices and religious superstitions. There is no warrant that they make contact with some moral reality, argues DePaul with reference to Brandt (1979) and Singer (1974). Moral opinions, moreover, strongly diverge ‘both among cultures and among even supposedly enlightened individuals within our own’ (DePaul 1993, p. 27). Worse still, because of the wide divergence and incompatibility of initial as well as considered moral judgments, ‘the set of initial moral judgments made by all inquirers will surely contain a significant proportion of false propositions’ (DePaul 1993, p. 52). Therefore DePaul finds it unlikely that people will ever converge on a single coherent moral theory.

See Chap. 2, Can we learn from history?

See Chap. 3 on Sex, Morality and Law.

Obviously, Casanova shrugs his shoulders at the mythical punishment of Myrrha. In the version of the myth in Ovid’s Metamorphoses, Myrrha is conscious of the sinful character of her desire for her father, although she finds excuses in the incestuous habits of some animals and human races. ‘Human concern has made malign laws, and what nature allows, jealous duty forbids’ (X, 330). The incestuous acts occur in the dark, Cinyras is not aware that his sex partner is his own daughter; he ends his life as soon as he finds out. Myrrha’s penalty consists of a metamorphosis into a myrrh tree, which shortly after gives birth of Adonis. Orpheus, the storyteller, warns his readers: ‘Fathers and daughters, keep away: or if your mind takes pleasure in my song, put no faith in this story of mine, and imagine it did not happen’ (X, 300-302).

This conclusion is affirmed in the critical analyses of the evidence for the conviction of Yolanda’s father in Malsch and Nijboer (1999).

HR 3 oktober 1989, ECLI:NL:HR:1989:AB8522.

In his Discourses Zeno refers to Oedipus and his mother Jocaste: ‘what shame was it, then, if he stopped her grief and gave, and begat noble children by his mother?’ (Sextus Empiricus 1968, pp. 191-192).