Known Unknowns: Uncharted Waters

This chapter introduces the aims, scope, approach, and conceptual background to the volume. It sets out the concept of ‘intractable factual uncertainty’, distinguishing this from legal uncertainty, subjective ignorance, lack of evidence, and ex ante uncertainty. The chapter then introduces the legal tools that we might ordinarily expect to deal with uncertainty, including evidential rules, presumptions and fictions, and decision-making rules, demonstrating that these fail to address the problem fully, and that analyses of them cannot properly target the functional issue of uncertainty. Finally, the chapter outlines the comparatively and historically informed method of the volume, and identifies the doctrinal areas that the other chapters will investigate in detail. The chapter lays the groundwork for the analysis that will be undertaken throughout the rest of the volume and especially in Chapter 12.