Genealogical writings are not limited to legal analogies. They are also replete with pseudo-scientific terminology. So the discussion about the need for proof or the amount or degree of evidence needed in genealogical discussions is often colored by a mixture of legal jargon, scientific analogies and the sprinkled with some history and philosophy. The results of these combined jargons leave the genealogist without any real evidentiary foundation. What do we mean as proof? What do mean by using the term "evidence."
I woke up the other morning to a fresh layer of snow over my yard. As I examined the scene a little more closely, I realized that the snow was crisscrossed with animal tracks. The deer were particularly evident. It took me a few minutes to recognize rabbit tracks but some of the other sets of tracks were a mystery. Later in the morning, just about sunrise, I saw a weasel jumping across the snow. Aha, one more set of tracks was identified. Snow is not a particularly good preservative of the form of a track and shortly after the sun was fully up, most of the tracks had disintegrated into formless voids in the snow.
From a very general and common point of view, I saw "evidence" of deer and rabbits. Now, I didn't see either of these animals, but past experience in our neighborhood led me to believe that these particular animals had crossed my yard. Now let's suppose I wanted to pursue this a little further. I could have rushed outside with my camera and taken a photograph of the tracks, come back in from the cold, and spent the morning doing some online research. I might have come to the conclusion that other animals had passed by my window in the night. For some of the tracks, I am sure I would never have reached a conclusion. There would simply be not enough "evidence."
Now let's further suppose that later in the day, I talked to one of my children on the telephone and told him about the tracks in the yard, saying, "I saw a lot of evidence of deer, rabbits and tracks of a weasel." The response: how did you know it was a weasel and not a mink or a ferret? My answer, "Oh, I saw the weasel later in the day, jumping across the snow and that proved to me what made those type of tracks." If this were really a discussion with one of my own children, I would probably get some followup questions about how I went about identifying the animal I had seen as a weasel and not some other animal. Of course, I would explain how, after seeing the animal, I had gone online and done some research to identify the animal and a discussion would ensue.
This extended hypothetical situation illustrates some of the basic considerations of what we call evidence and what we consider to be proof. I don't think that this scenario could be considered either legal or scientific. It bears the closest relationship to what would be considered an historical investigation although it does have elements of uniformitarianism. Uniformitarianism is the assumption that the same natural laws and processes that operate in the universe now have always operated in the universe in the past and apply everywhere in the universe. See Wikipedia: Uniformitarianism. By the way, this is an extremely risky method of approach to human history when we know that political, religious, social and economic conditions that existed in the past can be dramatically different than those today.
A scientist would have approached the evidence of the tracks in a different way. The conclusion I reached about the cause of the tracks would become an hypothesis subject to "proof" by further investigation and perhaps experimentation. My conclusion would be tentative, a theory, until generally accepted by the larger scientific community. Since I saw the weasel (or whatever) making some of the tracks, I would be justified in claiming for at least those tracks, I had identified the origin. This would be the case until there was a more definite identification of the type of animal I saw.
I hope you are seeing the relationship here with the way genealogists proceed with their "research" to draw conclusions about ancestry. The basic scientific method of observation, theory or hypothesis, experimentation and conclusion, cannot apply to an historical fact. There is no way to reproduce or even identify the exact conditions that existed at the time of an event in the past. This is especially true for events that involve decisions made by individuals who are no longer available to give testimony of what happened. In genealogy, we are basically limited to the information that was preserved and which we subsequently discover. Scientists do investigate the past and draw theories and conclusions about what happened and so it is appealing to use the scientific jargon and allude to the scientific model of investigation when discussing history and genealogy. The use of DNA testing in genealogy has further awakened an active support for the idea that genealogy will be put on a purely scientific basis and that our ancestors will be "proved" by DNA testing. Of course, this is not the case now, but the hope is that it will be in the future.
When I was a lot younger, I was taught that there was no such thing as continental drift and that Alfred Wegener's Continental Drift Theory was unproven and likely false. Over the years, I watched as scientific discoveries "proved" Wegener to be right and supplied a mechanism for the cause of the continental drift. Wegener's theories were originally met with ridicule and as one geologist, Barry Willis, stated, "further discussion of it merely incumbers the literature and befogs the minds of fellow students." See Wegener and Continental Drift Theory. See also as quoted in Frankel, Henry R. The Continental Drift Controversy: Wegener and the Early Debate Volume 1. Volume 1. Cambridge: Cambridge University Press, 2012.
The history of science is replete with similar examples, from Galileo to early models of the atom. See Wikipedia: Superseded scientific theories. Genealogists find resorting to claims of a scientific basis for their conclusions attractive because such claims lend credence to what is, in reality, a very uncertain and tentative pursuit. Are we, as genealogists, to be seduced by claims of a scientific basis for our ancestry? That is still very much an open question.
Now how would an attorney view my observations of the tracks? The very first question is why would you want to know what kind of animal made the tracks? That question would be followed up with a question about what is you interest in proving what animal made the tracks, i.e. how much do you want to pay to prove your position? The question would have to be put in the form of an issue that could be proved in court. This is referred to as a "justiciable issue." In fact, it would have to go further and become a "justiciable controversy." Here is the definition of justiciability:
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual adversarial issue exists.In short, to arouse the interest of an attorney in your claim as to the identity of the animal tracks in your yard, you do not just need to have an opinion, there has to be someone else who has a different opinion and then the conflict of those opinions has to rise to the level where the matter would be considered by a court. Sometimes attorney do seek what is called a "declaratory judgment." In those cases, the parties approach the court and state that the there is a controversy and that the parties want the court's opinion as to the application of the law to the facts in order to prevent some future conflict resulting in claims in court. But even a declaratory judgment request infers that there are at least two parties who disagree about how the matter should be decided by a court. I might add that courts are very hesitant in hearing declaratory judgment actions and the are not favored, i.e. the courts will seldom hear such actions.
OK, so my animal tracks are not going to get into court because I would have to have some pecuniary reason and a controversy with someone to present the matter to the court. This is a fundamental reason, put differently than my previous discussions, of why genealogy is not like law. It is true that in some limited cases, genealogical techniques are used in courts to "prove" relationships for various reasons, including claims against estates. But these instances where controversies do arise in a genealogical context do not imply a change in the nature of genealogy but merely prove that some sort of conflict can exist about practically anything.
So, we have to come to a point where we either claim both law and science should be models for genealogy or reject one or the other or both. That is the subject of the next installment.
Here is the previous installment:
The Ins and Outs of Evidence for Genealogists -- Part One