Some writers indeed altogether deny that any standard, in the common sense of the word, either is, or ought to be, aimed at in legal proceedings. For instance, Sir J. F.
Stephen, in his work on English Criminal Law,[25] after noticing and rejecting such standards as that last indicated, comes to the conclusion that the only standard recognized by our law is that which induces juries to convict:—“What is judicial proof? That which being permitted by law to be given in evidence, induces twelve men, chosen according to the Jury Act, to say that, having heard it, their minds are satisfied of the truth of the proposition which it affirms. They may be prejudiced, they may be timid, they may be rash, they may be ignorant; but the oath, the number, and the property qualification, are intended, as far as possible, to neutralize these disadvantages, and answer precisely to the conditions imposed upon standards of value or length.” (p. 263.)
To admit this is much about the same thing as to abandon such a standard as unattainable. Evidence which induces a jury to convict may doubtless be a standard to me and others of what we ought to consider ‘reasonably certain,’ provided of course that the various juries are tolerably uniform in their conclusions. But it clearly cannot be proposed as a standard to the juries themselves; if their decisions are to be consistent and uniform, they want some external indication to guide them. When a man is asking, How certain ought I to feel?[** TN: space] to give such an answer as the above is, surely, merely telling him that he is to be as certain as
he is. If, indeed, juries composed a close profession, they might, as was said above, retain a traditional standard. But being, as they are, a selection from the ordinary lay public, their own decisions in the past can hardly be held up to them as a direction what they are to do in future.
§ 31. It would appear therefore that we may fairly say that the English law, at any rate, definitely rejects the main assumption upon which the logical doctrine of modality and its legal counterpart are based: the assumption, namely, that different grades of conviction can be marked off from one another with sufficient accuracy for us to be able to refer individual cases to their corresponding classes. And that with regard to the collateral question of fixing a standard of certainty, it will go no further than pronouncing, or implying, that we are to be content with nothing short of, but need not go beyond, ‘reasonable certainty.’
This is a statement of the standard, with which the logician and scientific man can easily quarrel; and they may with much reason maintain that it has not the slightest claim to accuracy, even if it had one to strict intelligibility. If a man wishes to know whether his present degree of certainty is reasonable, whither is he to appeal? He can scarcely compare his mental state with that which is experienced in ‘the important affairs of life,’ for these, as already remarked, would indicate no fixed value. At the same time, one cannot suppose that such an expression is destitute of all signification. People would not continue to use language, especially in matters of paramount importance and interest, without meaning something by it. We are driven therefore to conclude that ‘reasonable certainty’ does in a rude sort of way represent a traditional standard to which it is attempted to adhere. As already remarked, this is perfectly practicable in the case of any class of professional
men, and therefore not altogether impossible in the case of those who are often and closely brought into connection with such a class. Though it is hard to believe that any such expressions, when used for purposes of ordinary life, attain at all near enough to any conventional standard to be worth discussion; yet in the special case of a jury, acting under the direct influence of a judge, it seems quite possible that their deliberate assertion that they are ‘fully convinced’ may reach somewhat more nearly to a tolerably fixed standard than ordinary outsiders would at first think likely.