Primary and Secondary Sources -- Proof is a Bugaboo

The ostensible reason for classifying sources into categories is to enable the concept of proof. However, proof in the absolute sense is unattainable in genealogy because there are really only tentative conclusions, always subject to revision with the discovery of additional data. As a result, definitions of "proof" are methodological rather than other possible epistemic approaches. To prove something in genealogy, you follow a systematic search (reasonably exhaustive search) and draw conclusions from the results of the search. Proof is the results of your search presented in an organized and rational manner.

Contrast this process with what occurs in a U.S. court situation. Courts are by their very nature adversarial. This means there are always, at least, two opposing sides. The discovery portion of the process is essentially a game of hide and seek even though the Court rules now require "full disclosure." The trial process is governed by the Rules of Evidence, which excludes all sorts of information as inadmissible for a variety of reasons. In this sense, using the courts as a model of seeking proof results in genealogy is not only an incomplete analogy, but one that is, at best, misleading. Trying to use the English/American legal system as a model for proving genealogical conclusions has resulted in focusing on the end product, i.e. a court decision or judgement, which is unattainable in genealogy. A court decision is final whether by judge or jury. The provisions for changing a judgement are extremely limited. Appeals focus on the law, not the facts. You can request a "new trial" but those requests are seldom granted. If you discover new evidence years later that may have affected the decision, you have almost no options for going back to the original premises and judgment are extremely limited especially in civil litigation. There are rules built into the civil and criminal law system, such as statutes of limitation, that make addressing old issues impossible.

Now, since there is such a dramatic contrast between our U.S. legal system and the process of doing genealogy, why do we insist on making proof analogies between the two separate systems? Why do we borrow terms from the Rules of Evidence such as "beyond a reasonable doubt" and "preponderance of the evidence?" In one sense, using such terms in the past was a method of validating what was otherwise, a non-academic and somewhat scornfully considered pursuit. But now, the concept of proof has so permeated genealogy as to create unrealistic expectations based on the concept of absolute proof rather than methodology. This is most evident in the so-called proof statement. To some extent, the genealogical proof statement is an attempt to do a summation before the court or jury. Here is a discussion of that idea as set forth in the FamilySearch Research Wiki in an article entitled, "Evaluate the Evidence:"

Later, after research on the family is mostly completed, carefully make a final, well-reasoned re-evaluation of all the sources compared to each other to help you reach a reasonable conclusion and write a proof statement subject to the Genealogical Proof Standard.

This admonition is not only analogous to writing a brief in the legal profession, it also tries to emulate the process of publishing rampant in the academic community. In both processes, the end product is adversarial, the writer has chosen his or her personal opinion and objective and is using the "proof statement" to convince the unlearned and unpersuaded. But you say, that is how you "do" history and law. Yes, you are correct. I do not ignore the need to publish our findings, whether they are found through legal research, historical research or genealogical research. My point is that this model is put together from widely disparate disciplines and hides the purely subjective nature of genealogy.

Hypothetically speaking, suppose we do extensive (exhaustive) research on a particular individual and find three differing birth dates each supported by equally authoritative sources. In law, I would take the one most supportive of my client's interests and only refer to the others if the issue was raised in the case. In the academic world, I would be my own client, so I would choose the one most supportive of my personal opinions and prejudices and put the others in footnotes. What do we do in genealogy? Or perhaps, better said, what should we do in genealogy? Record all three and see if the line can be extended using any one of the three. But if we assume the job is finished, we would be wrong. Genealogy, unlike law, is always open ended. In the academic world, you would be duty bound to defend your thesis. In both law and academics, the propounder of a thesis "owns" the position. In genealogy, ownership is extremely counter-productive.

There is a lot more to be said and, as you can probably guess, I will likely say it.