Retributive theories of punishment argue that punishing a criminal for a crime she committed is sufficient reason for a justified and morally permissible punishment. But what about when the state gets lucky in its decision to punish? I argue that retributive theories of punishment are subject to “Gettier” style cases from epistemology. Such cases demonstrate that the state needs more than to just get lucky, and as these retributive theories of punishment stand, there is no anti-luck condition. I’ll argue that (...) Gettier-style cases demonstrate an impermissible instance of punishment, even though they meet the conditions of retributive theories of punishment. Retributive theories are, therefore, too weak. The safety condition from epistemology provides the anti-luck condition needed for permissible punishment. I argue that two forms of retributivism, rights-forfeiture and what I call standard retributivism, are both subject to Gettier-style cases. Unlike the literature on standards of proof, this paper argues that safety is a condition on punishment itself, i.e., in all nearby possible worlds, the accuser must correctly accuse the convicted for the crime they actually committed. (shrink)

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP (...) applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can’t identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty. (shrink)

Epistemologists have posed the following puzzle, known as the proof paradox: Why is it intuitively problematic for juries to convict on the basis of statistical evidence and yet intuitively unproblematic for juries to convict on the basis of far less reliable, non-statistical evidence? To answer this question, theorists have explained the exclusion of statistical evidence by arguing that legal proof requires certain epistemic features. In this paper, I make two contributions to the debate. First, I establish the Criminal Verdict Asymmetry, (...) a previously-unarticulated asymmetry between the epistemic norms of guilty and not guilty verdicts. I argue that the prosecution and defense’s different epistemic burdens influence whether statistical evidence can generate the type of verdict each side pursues. Second, I point out a mistake in how theorists have understood the role of statistical evidence in criminal trials. Though epistemologists have primarily focused on whether statistical evidence can generate specific epistemic features required for convictions, I consider whether statistical evidence can demonstrate a lack of such features. I find that there are epistemic advantages to allowing the defense to introduce statistical evidence which can reveal the prosecution’s failure to prove the defendant’s guilt. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 146-166, October 2021.

In this paper, I provide an argument for rejecting Sarah Moss's recent account of legal proof. Moss's account is attractive in a number of ways. It provides a new version of a knowledge-based theory of legal proof that elegantly resolves a number of puzzles about mere statistical evidence in the law. Moreover, the account promises to have attractive implications for social and moral philosophy, in particular about the impermissibility of racial profiling and other harmful kinds of statistical generalisation. In this (...) paper, I show that Moss's account of legal proof crucially depends on a moral norm called the rule of consideration. I argue that we have a number of reasons to be sceptical of this rule. Once we reject the rule, it is not clear that Moss's account of legal proof is either plausible or attractive. (shrink)

In this paper I will discuss some issues related to a recent trend in experimental philosophy (or x-phi), and try to show the reasons of its late (and scarce) involvement with aesthetics, compared to other areas of philosophical investigation. In order to do this, it is first necessary to ask how an autonomous experimental philosophy of aesthetics could be related to the long-standing tradition of psychological experimental aesthetics. After distinguishing between a “narrow” and a “broad” approach of experimental philosophy, I (...) will then make a distinction between topics in aesthetics pertaining to perceptual and cognitive processes, and traditional issues involved in the analysis of general and culturally-laden concepts. The narrow program of experimental philosophy, focused on the investigation of folk intuitions, is particularly effective only when two general conditions are met: the use of hypothetical scenarios (testing of thought experiments) and the heuristic role of folk intuitions in drawing philosophically relevant conclusions. I will argue that, when aesthetics is concerned, these requirements are not easily met. These difficulties notwithstanding, I will support a pluralistic view where aesthetics is revealed as an instructive example of how experimental approaches and traditional “armchair” philosophy integrate, and enrich each other. (shrink)

Der Beitrag beleuchtet einen bisher kaum gewürdigten Grund dafür, dass die Gettier-Debatte nicht zu einer systematisch verbesserten Analyse des Wissensbegriffs geführt hat. Es wird die These entwickelt und verteidigt, dass diejenigen Komplikationen, die einen Gettierfall zu einem solchen machen, sich stets in den blinden Flecken der Situationsrepräsentation des epistemischen Subjekts befinden. Diese These ist in die metaphilosophische Fragestellung eingebettet, was das Gettierproblem uns über das Verhältnis von sprachlichen Intuitionen und Begriffsanalysen lehrt. Es gibt unter kompetenten Sprechern beträchtliche Einmütigkeit darüber, dass (...) paradigmatische Gettierfälle als Fälle von Nichtwissen zu klassifizieren sind, aber ungleich weniger Einigkeit darüber, ob und wie die klassische Analyse des Wissensbegriffs verbessert werden kann. Zu der Frage, warum es so schwer ist, konvergierende sprachliche Intuitionen über Einzelfälle in eine gettierfallsichere allgemeine Analyse zu überführen, werden folgende Thesen entwickelt: Was in Gettierfällen konfligiert, sind nicht Analyse und Intuition als solche, sondern die Charakterisierung eines Situationstyps und die Beurteilung einer einzelnen Situation angesichts einer bestimmten Gettierkomplikation. Die Aufgabe, eine allgemeine Beschreibung der mit Wissen unvereinbaren Komplikationen zu geben, geht weit über die kompetente Beurteilung von Einzelfällen hinaus. Möglicherweise ist sie unlösbar, weil das wörtliche Zutreffen der Beschreibung einer epistemischen Situation niemals garantieren kann, dass sich in den Leerstellen der Beschreibung keine Gettierkomplikation verbirgt. (shrink)

In “The Gettier Problem and Legal Proof,” I argue that epistemic conditions that undermine knowledge in Gettier-type cases also potentially undermine legal verdicts. For this reason, I argue, there is a deeper connection between knowledge and legal proof than is typically presupposed or argued for in the scholarly legal literature. To support these claims, I present several examples illustrating how conditions that render epistemically justified beliefs merely accidentally true (and thus disqualify them as cases of genuine knowledge) may also render (...) evidentially well-supported verdicts merely accidentally true for similar reasons. Such “Gettierized” verdicts, I contend, fail to realize the epistemic goal or aim of legal proof. Thus I conclude there, legal proof includes something like a knowledge requirement—in the sense that legal verdicts aim not only at truth and sufficient evidential support but also, as with knowledge, at an appropriate connection between their truth and justifying evidential support. (shrink)

ABSTRACTThis article defends the importance of epistemic safety for legal evidence. Drawing on discussions of sensitivity and safety in epistemology, the article explores how similar considerations apply to legal proof. In the legal context, sensitivity concerns whether a factual finding would be made if it were false, and safety concerns how easily a factual finding could be false. The article critiques recent claims about the importance of sensitivity for the law of evidence. In particular, this critique argues that sensitivity does (...) not have much of an effect on the value of legal evidence and that it fails to explain legal doctrine. By contrast, safety affects the quality of legal evidence, and safety better explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof. (shrink)

Epistemic and practical interests are often in conflict. This also occurs in institutional settings such as the legal one. Rule 407 of the U.S. Federal Rules of Evidence is an example of that because it sacrifices some epistemic interests in favour of practical ones. It is the rule on subsequent remedial measures (SRM), which is mainly designed to answer a practical concern (reducing accidents) instead of the epistemic one of getting some evidence to find out whether the defendant was negligent (...) or whether there was a defect in a product. Some commentators and courts think that the rationale of the rule is more complex and deserves a more careful discussion, as this paper shows. Additionally, this paper discusses a modification proposal (from categorical ban of SRM evidence to case‐by‐case decision) and develops some theoretical considerations, in the spirit of philosophical pragmatism, on the best way to conceptualize the problem addressed. The idea is to see such conflicts as conflicts of goals and to explain them in terms of the incompatible desires that we happen to have. (shrink)

The aim of this essay is to develop a coherence theory for the justification of evidentiary judgments in law. The main claim of the coherence theory proposed in this article is that a belief about the events being litigated is justified if and only if it is a belief that an epistemically responsible fact finder might hold by virtue of its coherence in like circumstances. The article argues that this coherentist approach to evidence and legal proof has the resources to (...) meet some of the main objections that may be addressed against attempts to analyze the justification of evidentiary judgments in law in coherentist terms. It concludes by exploring some implications of the proposed version of legal coherentism for a jurisprudence of evidence. (shrink)

The purpose of this paper is to define the general features of a suitable epistemology for law. In particular, the paper is concerned with a very influential project that is nowadays offered in the literature: robust virtue epistemology. As I will show here, such a project is untenable for law, since a satisfactory and complete epistemology of legal proof requires the conjunction of both the agent’s perspective and the inquiry system’s perspective. Keywords: legal epistemology, judicial reasoning, legal fact-finding, epistemic virtues, (...) virtue jurisprudence. (shrink)