“The law of evidence that reigns in the domain of childhood is essentially medieval”

The law of evidence that reigns in the domain of childhood is essentially medieval. “Fight you for it,” the kid said. “Race you for it,” I countered. A long historical precedent stands behind these judicial methods for the establishment of truth, for knowing how to know what’s true and what’s not. In the West, for centuries, trial by combat and trial by ordeal—trial by fire, say, or trial by water—served both as means of criminal investigation and as forms of judicial proof. Kid jurisprudence works the same way: it’s an atavism. As a rule, I preferred trial by bicycle. If that kid and I had raced our bikes and I’d won, the bat would have been mine, because my victory would have been God-given proof that it had been mine all along: in such cases, the outcome is itself evidence. Trial by combat and trial by ordeal place judgment in the hands of God. Trial by jury places judgment in the hands of men. It requires a different sort of evidence: facts.

A “fact” is, etymologically, an act or a deed. It came to mean something established as true only after the Church effectively abolished trial by ordeal in 1215, the year that King John pledged, in Magna Carta, “No free man is to be arrested, or imprisoned . . . save by the lawful judgment of his peers or by the law of the land.” In England, the abolition of trial by ordeal led to the adoption of trial by jury for criminal cases. This required a new doctrine of evidence and a new method of inquiry, and led to what the historian Barbara Shapiro has called “the culture of fact”: the idea that an observed or witnessed act or thing—the substance, the matter, of fact—is the basis of truth and the only kind of evidence that’s admissible not only in court but also in other realms where truth is arbitrated. Between the thirteenth century and the nineteenth, the fact spread from law outward to science, history, and journalism.

Jill Lepore, “After the Fact”, The New Yorker (21 March 2016), 92.