According to a common conception of legal proof, satisfying a legal burden requires establishing a claim to a numerical threshold. Beyond reasonable doubt, for example, is often glossed as 90% or 95% likelihood given the evidence. Preponderance of evidence is interpreted as meaning at least 50% likelihood given the evidence. In light of problems with the common conception, I propose a new ‘relevant alternatives’ framework for legal standards of proof. Relevant alternative accounts of knowledge (...) state that a person knows a proposition when their evidence rules out all relevant error possibilities. I adapt this framework to model three legal standards of proof—the preponderance of evidence, clear and convincing evidence, and beyond reasonable doubt standards. I describe virtues of this framework. I argue that, by eschewing numerical thresholds, the relevant alternatives framework avoids problems inherent to rival models. I conclude by articulating aspects of legal normativity and practice illuminated by the relevant alternatives framework. (shrink)

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential (...) cases suggests standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

An introduction to philosophical research on the standards of legal proof.

In this paper I respond to Marcello Di Bello’s criticisms of the ‘normic account’ of the criminal standard of proof. In so doing, I further elaborate on what the normic account predicts about certain significant legal categories of evidence, including DNA and fingerprint evidence and eyewitness identifications.

The debate on the ethical permissibility of autonomous weapon systems (AWS) is deadlocked. It could therefore benefit from a differentiated assignment of the burden of proof. This is because the discussion is not purely philosophical in nature, but has a legal and security policy component and aims to avoid the most harmful outcomes of an otherwise unchecked development. Opponents of a universal AWS ban must clearly demonstrate that AWS comply with the Law of Armed Conflict (LOAC). This requires (...) extensive testing of specific models to verify compliance in realistic combat situations; working on appropriate testing regimes is also one of the most important future tasks for AWS ethics. In this context, however, it is easy to refute the claim put forward by prohibitionists that AWS violate LOAC a priori. A state’ s right to ensure security and the protection of human rights through military capacity has a high ethical value. Other arguments against the use of AWS that are not based on LOAC conformity must therefore meet a substantial burden of proof, as they call on governments to abandon a military technology which is at least potentially transformative. None of those objections meet this standard. They include not only culturally or even individually divergent norms and ideas regarding the use of weapons, but also consequentialist (security policy) concerns on the one hand and so-called deontological arguments on the other. While the former at least point to the need for essential regulation, the latter are based on rather dubious premises. For the purposes of solutions beneficial to humanity, prohibitionist should formulate narrower and more specific points of criticism. (shrink)

Criminal courts make decisions that can remove the liberty and even life of those accused. Civil trials can cause the bankruptcy of companies employing thousands of people, asylum seekers being deported, or children being placed into state care. Selecting the right standards when deciding legal cases is of utmost importance in giving those affected a fair deal. This Element is an introduction to the philosophy of legal proof. It is organised around five questions. First, it introduces (...) the standards of proof and considers what justifies them. Second, it discusses whether we should use different standards in different cases. Third, it asks whether trials should end only in binary outcomes (e.g. guilty or not guilty) or rather use more fine-grained or precise verdicts. Fourth, it considers whether proof is simply about probability, concentrating on the famous 'Proof Paradox'. Finally, it examines who should be trusted with deciding trials, focusing on the jury system. (shrink)

Is it right to convict a person of a crime on the basis of purely statistical evidence? Many who have considered this question agree that it is not, posing a direct challenge to legal probabilism – the claim that the criminal standard of proof should be understood in terms of a high probability threshold. Some defenders of legal probabilism have, however, held their ground: Schoeman (1987) argues that there are no clear epistemic or moral problems with convictions (...) based on purely statistical evidence, and speculates that our aversion to such convictions may be nothing more than an irrational bias. More recently, Hedden and Colyvan (2019, section VI) describe our reluctance to convict on the basis of purely statistical evidence as an ‘intuition’, but suggest that there may be no ‘in principle’ problem with such convictions (see also Papineau, forthcoming, section 6). In this paper, I argue that there is, in some cases, an in principle problem with a conviction based upon statistical evidence alone – namely, it commits us to a precedent which, if consistently followed through, could lead to the deliberate conviction of an innocent person. I conclude with some reflections on the idea that the criminal justice system should strive to maximise the accuracy of its verdicts – and the related idea that we should each strive to maximise the accuracy of our beliefs. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible (...) standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This essay introduces the ‘she said, he said’ paradox for Title IX investigations. ‘She said, he said’ cases are accusations of rape, followed by denials, with no further significant case-specific evidence available to the evaluator. In such cases, usually the accusation is true. Title IX investigations adjudicate sexual misconduct accusations in US educational institutions; I address whether they should be governed by the ‘preponderance of the evidence’ standard of proof or the higher ‘clear and convincing evidence’ standard. -/- Orthodoxy (...) holds that the ‘preponderance’ standard is satisfied if the evidence adduced renders the litigated claim more likely than not. On this view, I argue, ‘she said, he said’ cases satisfy the ‘preponderance’ standard. But this consequence conflicts with plausible liberal and feminist claims. In this essay I contrast the ‘she said, he said’ paradox with legal epistemology’s proof paradox. I explain how both paradoxes arise from the distinction between individualised and non-individualised evidence, and I critically evaluate responses to the ‘she said, he said’ paradox. (shrink)

I defend the thesis that legal standards of proof are reducible to thresholds of probability. Many have rejected this thesis because it seems to entail that defendants can be found liable solely on the basis of statistical evidence. I argue that this inference is invalid. I do so by developing a view, called Legal Causalism, that combines Thomson's (1986) causal analysis of evidence with recent work in formal theories of causal inference. On this view, legal (...) standards of proof can be reduced to probabilities, but deriving these probabilities involves more than just statistics. (shrink)

This paper puts forward three critiques of pardo’s second-order proof rules thesis. The first criticism states that these rules are not suitable to guide the interpretation of standards of proof rules because they confuse matters of legal interpretation with matters of epistemology. The second criticism states that second-order proof rules are affected by the same indeterminacy problems they are designed to resolve, thereby rendering them unsuitable for the task they are purposely designed for. The third (...) criticism renders pardo’s proposal redundant. a reconceptualization of second-order proof rules is offered. (shrink)

Recent attempts to resolve the Paradox of the Gatecrasher rest on a now familiar distinction between individual and bare statistical evidence. This paper investigates two such approaches, the causal approach to individual evidence and a recently influential (and award-winning) modal account that explicates individual evidence in terms of Nozick's notion of sensitivity. This paper offers counterexamples to both approaches, explicates a problem concerning necessary truths for the sensitivity account, and argues that either view is implausibly committed to the impossibility of (...) no-fault wrongful convictions. The paper finally concludes that the distinction between individual and bare statistical evidence cannot be maintained in terms of causation or sensitivity. We have to look elsewhere for a solution of the Paradox of the Gatecrasher. (shrink)

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to (...) our sentencing case law,” as the Supreme Court recently put it. Kansas v. Carr, 577 U.S. 108, 119 (2016). According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply. -/- Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations, and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context; and moral questions—"are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized "factual findings” in the guilt phase to control outcomes at sentencing. (shrink)

An annotated bibliography of legal epistemology.

Discusses the idea that legal proof should use variable standards rather than a single fixed threshold.

Medicine, like law, is a pragmatic, probabilistic activity. Both require that decisions be made on the basis of available evidence, within a limited time. In contrast to law, medicine, particularly evidence-based medicine as it is currently practiced, aspires to a scientific standard of proof, one that is more certain than the standards of proof courts apply in civil and criminal proceedings. But medicine, as Dr. William Osler put it, is an "art of probabilities," or at best, a (...) "science of uncertainty." One can better practice medicine by using other evidentiary standards in addition to the "scientific." To employ only the scientific standard of proof is inappropriate, if not impossible; furthermore, as this review will show, its application in medicine is fraught with bias. Evidence is information. It supports or undermines a proposition, whether a hypothesis in science, a diagnosis in medicine, or a fact or point in question in a legal investigation. In medicine, physicians marshal evidence to make decisions on how to best prevent, diagnose, and treat disease, and improve health. In law, courts decide the facts and render justice. Judges and juries assess evidence to establish liability, to settle custody and medical issues, and to determine a defendant's guilt or innocence. (shrink)

Smith argues that, unlike other forms of evidence, naked statistical evidence fails to satisfy normic support. This is his solution to the puzzles of statistical evidence in legal proof. This paper focuses on Smith’s claim that DNA evidence in cold-hit cases does not satisfy normic support. I argue that if this claim is correct, virtually no other form of evidence used at trial can satisfy normic support. This is troublesome. I discuss a few ways in which Smith can (...) respond. (shrink)

Abstract: When do we meet the standard of proof in a criminal trial? Some have argued that it is when the guilt of the defendant is sufficiently probable on the evidence. Some have argued that it is a matter of normic support. While the first view provides us with a nice account of how we ought to manage risk, the second explains why we shouldn’t convict on the basis of naked statistical evidence alone. Unfortunately, this second view doesn’t help (...) us understand how we should manage risk (e.g., the risk of violating rights against wrongful conviction) and faces counterexamples of its own. I shall defend an alternative approach that builds on the strengths of these two accounts. On the approach defending here, it is objectively suitable to punish iff we know a defendant to be guilty. To determine what is consistent with procedural justice and to determine what we prospectively ought to do, we need to think about the risks we face of deviating from this objective ideal. (shrink)

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...) Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question. (shrink)

Over almost a half-century, evidence law scholars and philosophers have contended with what have come to be called the “Proof Paradoxes.” In brief, the following sort of paradox arises: Factfinders in criminal and civil trials are charged with reaching a verdict if the evidence presented meets a particular standard of proof—beyond a reasonable doubt, in criminal cases, and preponderance of the evidence, in civil trials. It seems that purely statistical evidence can suffice for just such a level of (...) certainty in a variety of cases where our intuition is that it would nonetheless be wrong to convict the defendant, or find in favor of the plaintiff, on merely statistical evidence. So, we either have to convict with statistical evidence, in spite of an intuition that this is unsettling, or else explain what (dispositive) deficiency statistical evidence has. -/- Most scholars have tried to justify the resistance to relying on merely statistical evidence: by relying on epistemic deficiencies in this kind of evidence; by relying on court practice; and also by reference to the psychological literature. In fact, I argue, the epistemic deficiencies philosophers and legal scholars allege are suspect. And, I argue, while scholars often discuss unfairness to civil defendants, they ignore a long history of relying on statistical evidence in a variety of civil matters, including employment discrimination, toxic torts, and market share liability cases. Were the dominant arguments in the literature to prevail, it would extremely difficult for plaintiffs to recover in a variety of cases. -/- The various considerations I advance lead to the conclusion that when it comes to naked statistical evidence, philosophers and legal scholars who argue for its insufficiency have been caught with their pants down. (shrink)

The standard of proof applied in civil trials is the preponderance of evidence, often said to be met when a proposition is shown to be more than 50% likely to be true. A number of theorists have argued that this 50%+ standard is too weak – there are circumstances in which a court should find that the defendant is not liable, even though the evidence presented makes it more than 50% likely that the plaintiff’s claim is true. In this (...) paper, I will recapitulate the familiar arguments for this thesis, before defending a more radical one: The 50%+ standard is also too strong – there are circumstances in which a court should find that a defendant is liable, even though the evidence presented makes it less than 50% likely that the plaintiff’s claim is true. I will argue that the latter thesis follows naturally from the former once we accept that the parties in a civil trial are to be treated equally. I will conclude by sketching an alternative interpretation of the civil standard of proof. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments (...) of legal epistemology and suggest a way to vindicate it. (shrink)

Martin Smith has recently proposed, in this journal, a novel and intriguing approach to puzzles and paradoxes in evidence law arising from the evidential standard of the Preponderance of the Evidence. According to Smith, the relation of normic support provides us with an elegant solution to those puzzles. In this paper I develop a counterexample to Smith’s approach and argue that normic support can neither account for our reluctance to base affirmative verdicts on bare statistical evidence nor resolve the pertinent (...) paradoxes. Normic support is, as a consequence, not a successful epistemic anti-luck condition. (shrink)

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea (...) of statistical frequency. The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

This article examines the domestic use of drones by law enforcement to gather information. Although the use of drones for surveillance will undoubtedly provide law enforcement agencies with new means of gathering intelligence, these unmanned aircrafts bring with them a host of legal and epistemic complications. Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II explores philosopher Wittgenstein’s notion of actional certainty as (...) a means to interpret citizens' expectations of privacy with regard to their patterns of movement over time. Part III discusses how the theory of actional certainty can apply to the epistemic challenge of determining what is a “reasonable” expectation of privacy under the law. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment. (shrink)

We review the definition of the Full Bayesian Significance Test (FBST), and summarize its main statistical and epistemological characteristics. We review also the Abstract Belief Calculus (ABC) of Darwiche and Ginsberg, and use it to analyze the FBST’s value of evidence. This analysis helps us understand the FBST properties and interpretation. The definition of value of evidence against a sharp hypothesis, in the FBST setup, was motivated by applications of Bayesian statistical reasoning to legal matters where the sharp hypotheses (...) were defendants statements, to be judged according to the Onus Probandi juridical principle. (shrink)

The aim of this study is to proof the argument – i.e. ‘there are significant linkages amongst tolerance, hybrid identities and migration.’ These linkages can be comprehended by means of conceptualising extensions of hybrid identities in aggregate trans/inter-migration processes. It can be put forward that arising hybrid identities are embedded in a blurring structure of thoughts, beliefs, states of affairs, facts, belongings and so forth. From multiculturalism and cosmopolitanism viewpoints, it is argued that tolerance and migration ought to be (...) analysed in frame of sociology of law, human rights, international migration law, and of course the European Union law. So far, normative arguments and soft law approaches are very much well integrated with social aspects of migration, tolerance, identity and culture. In this context, the study examines to what extent cultural and human components are protected by law in multiple levels from an interdisciplinary perspective. In this framework, it is crucial to raise the research enquiries: What are possible criteria for the limits of tolerance? To what extent tolerance is related to human rights and morality? What ought to be the limit of tolerance towards hybrid identities in multicultural and cosmopolitan societies? In a consistent manner, the criteria and standards developed by some leading scholars were reconstructed and discussed throughout this paper. These criteria and standards are both moral (part of a universal system of morality) and legal (international, supranational, or national – i.e. constitutional). In order to apply such standards their validity was discussed (i.e. the respective normative power has the norms at the various levels). In the case of morals, their difference to particular ethnic systems was established (i.e. criteria by which the two can be distinguished). Then the research argument was elaborated on whether and how the legal standards comply with the moral standards, how national standards comply with supranational or international standards. Likewise, the study highlights the crucial contributions of “World Society and World System Paradigms” that are associated with social space, global civil society, cosmopolitanism, ethnic diversity, cultural hybridity, human rights activism and public sphere. Recent debates in Refugee Studies (e.g. Syrian Refugee Crisis, Dual and Multiple Citizenship Issues and so forth) highlight the fact that the European Union needs to consider new aspects of tolerance for hybrid identities and tolerate cultural rights of hybrid identities, create cohesion in communities and establish intercultural dialogue amongst home-states and host-states. Sanguinely, the efforts of hybrid identities are strengthening the relations between home-host states and these ought to attract some considerable attention. The authors of this study hope that their endeavours may contribute somewhat towards that. (shrink)

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard (...) have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty. (shrink)

Aunque el derecho probatorio y el derecho procesal se han dedicado desde siempre al estudio de los problemas relacionados con las pruebas y el establecimiento de los hechos en los procesos judiciales, el énfasis ha estado siempre en el aspecto formal, doctrinal y procedimental en detrimento de los fundamentos filosóficos y teóricos. Durante los últimos años ha habido un intento sostenido de explorar estos fundamentos combinando no sólo las herramientas tradicionales proporcionadas por la lógica, la gramática y la retórica, sino (...) también los avances hechos en ciencias como la estadística y la probabilidad, la medicina y la psicología forenses, la psicología de la percepción, la epistemología y la filosofía de la ciencia. El presente libro reúne las contribuciones de destacados juristas y filósofos latinoamericanos a esta nueva perspectiva interdisciplinaria, conocida como epistemología jurídica. El libro está dividido en tres grandes temas: la primera parte explora los problemas epistemológicos del conocimiento de los hechos en los procesos judiciales; la segunda se enfoca en el problema de los estándares de prueba; y la sección final discute el testimonio de los expertos. En su conjunto el libro ofrece un panorama tanto de los problemas centrales de la epistemología jurídica, como del estado del arte de la disciplina. (shrink)

The proof paradox results from conflicting intuitions concerning different types of fallible evidence in a court of law. We accept fallible individual evidence but reject fallible statistical evidence even when the conditional probability that the defendant is guilty given the evidence is the same, a seeming inconsistency. This paper defends a solution to the proof paradox, building on a sensitivity account of checking and settling a question. The proposed sensitivity account of legal proof not only requires (...) sensitivity simpliciter but sensitivity of each relevant step of the proof procedure and/or sensitivity concerning all relevant alternatives. This account avoids problems that have been identified for other sensitivity views of legal proof. Moreover, it is argued that sensitivity, rather than safety, is the crucial modal condition for legal proof. It is, finally, shown that the provided account can fruitfully support very different existing views on the relationship between knowledge and legal proof. (shrink)

Presumption is a complex concept in law, affecting the dialogue setting. However, it is not clear how presumptions work in everyday argumentation, in which the concept of “plausible argumentation” seems to encompass all kinds of inferences. By analyzing the legal notion of presumption, it appears that this type of reasoning combines argument schemes with reasoning from ignorance. Presumptive reasoning can be considered a particular form of reasoning, which needs positive or negative evidence to carry a probative weight on the (...) conclusion. For this reason, presumptions shift the burden of providing evidence or explanations onto the interlocutor. The latter can provide new information or fail to do so: whereas in the first case the new information rebuts the presumption, in the second case, the absence of information that the interlocutor could reasonably provide strengthen the conclusion of the presumptive reasoning. In both cases the result of the presumption is to strengthen the conclusion of the reasoning from lack of evidence. As shown in the legal cases, the effect of presumption is to shift the burden of proof to the interlocutor; however, the shift a presumption effects is only the shift of the evidential burden, or the burden of completing the incomplete knowledge from which the conclusion was drawn. The burden of persuasion remains on the proponent of the presumption. On the contrary, reasoning from definition in law is a conclusive proof, and shifts to the other party the burden to prove the contrary. This crucial difference can be applied to everyday argumentation: natural arguments can be divided into dialectical and presumptive arguments, leading to conclusions materially different in strength. -/- . (shrink)

The objective Bayesian view of proof (or logical probability, or evidential support) is explained and defended: that the relation of evidence to hypothesis (in legal trials, science etc) is a strictly logical one, comparable to deductive logic. This view is distinguished from the thesis, which had some popularity in law in the 1980s, that legal evidence ought to be evaluated using numerical probabilities and formulas. While numbers are not always useful, a central role is played in uncertain (...) reasoning by the ‘proportional syllogism’, or argument from frequencies, such as ‘nearly all aeroplane flights arrive safely, so my flight is very likely to arrive safely’. Such arguments raise the ‘problem of the reference class’, arising from the fact that an individual case may be a member of many different classes in which frequencies differ. For example, if 15 per cent of swans are black and 60 per cent of fauna in the zoo is black, what should I think about the likelihood of a swan in the zoo being black? The nature of the problem is explained, and legal cases where it arises are given. It is explained how recent work in data mining on the relevance of features for prediction provides a solution to the reference class problem. (shrink)

I discuss two types of evidential problems with the most widely touted experiments in evolutionary psychology, those performed by Leda Cosmides and interpreted by Cosmides and John Tooby. First, and despite Cosmides and Tooby's claims to the contrary, these experiments don't fulfil the standards of evidence of evolutionary biology. Second Cosmides and Tooby claim to have performed a crucial experiment, and to have eliminated rival approaches. Though they claim that their results are consistent with their theory but contradictory to (...) the leading non-evolutionary alternative, Pragmatic Reasoning Schemas theory, I argue that this claim is unsupported. In addition, some of Cosmides and Tooby's interpretations arise from misguided and simplistic understandings of evolutionary biology. While I endorse the incorporation of evolutionary approaches into psychology, I reject the claims of Cosmides and Tooby that a modular approach is the only one supported by evolutionary biology. Lewontin's critical examinations of the applications of adaptationist thinking provide a background of evidentiary standards against which to view the currently fashionable claims of evolutionary psychology. (shrink)

The lie detector test has long been treated with suspicion by the law. Recently, several authors have called this suspicion into question. They argue that the lie detector test may have considerable forensic benefits, particularly if we move past the classic, false-positive prone, autonomic nervous system-based (ANS-based) control question test, to the more reliable, brain-based, concealed information test. These authors typically rely on a “comparative advantage” argument to make their case. According to this argument, we should not be so suspicious (...) of lie detection evidence if it has comparative advantages over the epistemic methods currently utilised by the legal system. In this article, I add to this growing support by making a novel comparative advantage argument in favour of brain-based lie detection evidence. The argument focuses on the P300 concealed information test (P300 CIT), which has several unique properties, and on the effect it may have on pre-trial bargaining in criminal cases rather than in-court evidence. The thesis is that P300 CIT could allow for innocent defendants to credibly signal their innocence to investigators and prosecutors during pre-trial bargaining more effectively than current proposed methods for doing the same thing. I defend this argument from a number of objections, and suggest that it opens up an interesting avenue in the ongoing debate about the merits of this technology. Although the argument is presented with the criminal law in mind, it could form part of a more general cumulative case in favour of this technology. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are (...) multiple sources of incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

The right to a dignified death is largely overlooked by Brazilian law. This neglect of the end-of-life process and its ramifications is the focus of this study, which aims at an exploratory survey to identify pertinent aspects requiring development to ensure a dignified end-of-life experience. In total, 50 publications were examined with online and physical surveys of works published up to March 2023. They express concerns regarding ethical dilemmas in caring for individuals nearing the end of life, yet they do (...) not delve into existing mechanisms for safeguarding end-of-life dignity or identify areas that still lack standardization to ensure effective care. This study should contribute to the enhancement of critical perspectives on the issue of end-of-life experiences, considering current safeguards, the legal boundaries set by the State, and potential future strides toward advancing studies aimed at the practical update of the Brazilian legal system. (shrink)

Most work at the intersection of law and the philosophy of action focuses on criminal responsibility. Unfortunately, this focus has been at the expense of reflecting on how the philosophy of action might help illuminate our understanding of issues in civil law. In this essay, focusing on Anglo-American jurisprudence, we examine the conditions under which a party to a legal agreement is deemed to have the capacity required to be bound by that agreement. We refer to this condition as (...) the capacity condition. We begin by showing how recent work on the metaphysics of powers might ground an account of the role of capacities in the metaphysics of intentional agency. After discussing the capacity to contract in Anglo-American jurisprudence, we show how the general ontology of capacities and agency sketched can ground and help clarify legal thinking about capacity. We argue that when we couple our understanding of capacity with relevant recent data from developmental neuropsychology, a lacuna in Anglo-American contract law becomes evident. Specifically, it appears that persons in early adulthood do not clearly satisfy the conditions requisite for them to satisfy the capacity condition. In the light of this, we sketch some potential solutions that are compatible with existing legal standards and would contribute to a more consistent application of the capacity condition in contract law. (shrink)

This paper analyzes ethical issues relating to lawyer mobility.

Discusses the question of whether trials should just use two verdicts (e.g. guilty or not guilty) or whether they use multiple verdicts.

With his contribution on "The Natural Law in the American Tradition," Judge Diarmuid O'Scannlain has begun the indispensable task of laying the groundwork for sound jurisprudential reasoning in the natural law tradition. It is on the basis of this groundwork that we can begin to appreciate what natural law reasoning might mean, and what it does not mean, for contemporary American legal thinking. More specifically, it is on the basis of this groundwork that one can begin to articulate what (...) might be called a "third way" of jurisprudential reasoning. This "third way" would steer clear of two opposed and equally problematic jurisprudential views; that is, it would steer clear of what we might call "standard legal positivism" (on the one hand), and (on the other hand) what Judge O'Scannlain calls the "aggressive" natural law jurisprudence of some contemporary theorists. (shrink)

Why can testimony alone be enough for findings of liability? Why statistical evidence alone can’t? These questions underpin the “Proof Paradox” (Redmayne 2008, Enoch et al. 2012). Many epistemologists have attempted to explain this paradox from a purely epistemic perspective. I call it the “Epistemic Project”. In this paper, I take a step back from this recent trend. Stemming from considerations about the nature and role of standards of proof, I define three requirements that any successful account (...) in line with the Epistemic Project should meet. I then consider three recent epistemic accounts on which the standard is met when the evidence rules out modal risk (Pritchard 2018), normic risk (Ebert et al. 2020), or relevant alternatives (Gardiner 2019 2020). I argue that none of these accounts meets all the requirements. Finally, I offer reasons to be pessimistic about the prospects of having a successful epistemic explanation of the paradox. I suggest the discussion on the proof paradox would benefit from undergoing a ‘value-turn’. (shrink)

US criminal courts have recently moved toward seeing juveniles as inherently less culpable than their adult counterparts, influenced by a growing mass of neuroscientific and psychological evidence. In support of this trend, this chapter argues that the criminal law’s notion of responsible agency requires both the cognitive capacity to understand one’s actions and the volitional control to conform one’s actions to legal standards. These capacities require, among other things, a minimal working set of executive functions—a suite of mental (...) processes, mainly realized in the prefrontal cortex, such as planning and inhibition—which remain in significant states of immaturity through late adolescence, and in some cases beyond. Drawing on scientific evidence of how these cognitive and volitional capacities develop in the maturing brain, the authors sketch a scalar structure of juvenile responsibility, and suggest some possible directions for reforming the juvenile justice system to reflect this scalar structure. (shrink)

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is being used to argue for wider recognition of the legal capacity of people with mental disabilities. This raises a question about the implications of the Convention for attributions of criminal responsibility. The present paper works towards an answer by analysing the relationship between legal capacity in relation to personal decisions and criminal acts. Its central argument is that because moral and political considerations play an essential (...) role in setting the relevant standards, legal capacity in the context of personal decisions and criminal acts should not be thought of as two sides of the same coin. The implications of particular moral or political norms are likely to be different in these two legal contexts, and this may justify asymmetries in the relevant standards for legal capacity. However, the analysis highlights a fundamental question about how much weight moral or political considerations should be given in setting these standards, and this is used to frame a challenge to those calling for significantly wider recognition of the legal capacity of people with mental disabilities on the basis of the Convention. (shrink)

The abolition of death penalty is one commonplace issue over global jurisdictions. Nevertheless, it is also true that a surfeit of research has been dealt either in any specific way of legal research or general method of social science. This tends to create a track of practice that they approach the issue in its own national standard of research or discrete logic and narrative. The author proposes an orthodox of legal research by exemplifying the issue of death penalty. (...) By demonstrating a process of legal research in exemplary concerns of death penalty between Korea and US, the article would raise several implications for the future studies; (i) the orthodox of legal research as compared with the quantitative and qualitative methods (ii) key implications of three traditional sources of legal research, i.e., secondary, primary-statute, and primary-court cases (iii) encouragement of comparative social studies between the parallel nations. (shrink)

The current industrial revolution is said to be driven by the digitization that exploits connected information across all aspects of manufacturing. Standards have been recognized as an important enabler. Ontology-based information standard may provide benefits not offered by current information standards. Although there have been ontologies developed in the industrial manufacturing domain, they have been fragmented and inconsistent, and little has received a standard status. With successes in developing coherent ontologies in the biological, biomedical, and financial domains, an (...) effort called Industrial Ontologies Foundry (IOF) has been formed to pursue the same goal for the industrial manufacturing domain. However, developing a coherent ontology covering the entire industrial manufacturing domain has been known to be a mountainous challenge because of the multidisciplinary nature of manufacturing. To manage the scope and expectations, the IOF community kicked-off its effort with a proof-of-concept (POC) project. This paper describes the developments within the project. It also provides a brief update on the IOF organizational set up. (shrink)

Disciplinary issues -- Field studies -- Appendix: Theory of law : legal ethnography, or, the theoretical fruits of the inquiries into folkways. /// Reedition of papers in English spanning from 1995 to 2008 /// DISCIPLINARY ISSUES -- LAW AS CULTURE? [2002] 9–14 // TRENDS IN COMPARATIVE LEGAL STUDIES [2002] 15–17 // COMPARATIVE LEGAL CULTURES: ATTEMPTS AT CONCEPTUALISATION [1997] 19–28: 1. Legal Culture in a Cultural-anthropological Approach 19 / 2. Legal Culture in a Sociological Approach 21 (...) / 3. Timely Issues of Central and Eastern Europe 24 // COMPARATIVE LEGAL CULTURES? [2001] 29–48: 1. Legal Comparativism Challenged 29 / 2. Comparative Legal Cultures versus Comparative Law 34 / 3. Contrasting Fields 40 [a) The Historical Understanding of Socialist Law 42 / b) Convergence of Civil Law and Common Law 44] 4. Concluding Remarks 46 // THEATRUM LEGALE MUNDI: ON LEGAL SYSTEMS CLASSIFIED [2005] 49–75: 1. Preliminaries 49 / 2. Proposals 50 / 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping 69 / 4. Diversity as a Fundamental Quality of Human Existence 74 // LEGAL TRADITIONS? IN SEARCH FOR FAMILIES AND CULTURES IN LAW [2004] 77–97: 1. Comparative Law and the Comparative Study of Legal Traditions 78 / 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classification of Law 80 / 3. Different Traditions, Differing Ways of Thinking 85 / 4. Different Expectations, Differings Institutionalisations in Law 88 / 5. Different “Rationalities”, Differing “Logics” 92 / 6. Mentality in Foundation of the Law 94 / 7. Defining a Subject for Theoretical Research in Law 96 // SOMETHING NEW, SOMETHING OLD IN THE EUROPEAN IDENTITY OF LAW? [1995] 99–102 --- FIELD STUDIES -- MEETING POINTS BETWEEN THE TRADITIONS OF ENGLISH–AMERICAN COMMON LAW AND CONTINENTAL-FRENCH CIVIL LAW: DEVELOPMENTS AND EXPERIENCE OF POSTMODERNITY IN CANADA [2002] 105–130: I. Canadian Law in General 105 / II. Canadian Legal Developments in Particular [1. The Transformation of the Role of Precedents 112 / 2. The Transformation of Law-application into a Collective, Multicultural and Multifactorial Search for a Solution 116 / 3. Practical Trends of Dissolving the Law’s Positivity 120 / 4. New Prerogatives Acquired by Courts 125 {a) Unfolding the Statutory Provisons in Principles 126 / b) Constitutionalisation of Issues 127 / c) The Supreme Court as the Nation’s Supreme Moral Authority 129}] // MAN ELEVATING HIMSELF? DILEMMAS OF RATIONALITY IN OUR AGE [2000] 131–163: I. Reason and its Adventures 1. Progress and Advance Questioned 131 / 2. The Human Search for Safety Objectified 133 / 3. Knowledge Separated from Wisdom 135 / 4. Pure Intellectuality thereby Born 137 / II. The Will-Element Formalised in Law 5. Mere Voluntas in the Foundation of Legal Positivism 141 / 6. Formalism with Operations Fragmented 145 / III. The State of America Exemplified 7. “Slouching into Gomorrah” 147 / IV. Consequences 8. Utopianism-cum-Voluntarism 154 / 9. With Logic in Posterior Control of Human Formulations Only 159 / V. Perspectives 10. And a Final Resolution Dreamed about 161 // RULE OF LAW? MANIA OF LAW? ON THE BOUNDARY BETWEEN RATIONALITY AND ANARCHY IN AMERICA [2002] 165–180: {Transformation of American Law and Legal Mentality 165 / With Repercussions on the Underlying Ethos 168 / Legislation through Processualisation 170 / With Hyperrationalism Added 172 / Example: Finding Lost Property 172 / Practicalness Veiled by Verbal Magic 173 / Ending in Jurispathy 175 / Transubstantiating the Self-interest of the Legal Profession 178 / Post-modernity, Substituting for Primitiveness 178} // TRANSFERS OF LAW: A CONCEPTUAL ANALYSIS [2003] 181–207: 1. Terms 182 / 2. Technicality 190 / 3. Contrasts in Transfers of Law 200 {Contrasts 200 / Criticisms 202 / Alternatives205} 4. Conclusions 206 // THE DANGERS FOR THE SELF OF BEING SELF-CENTRED: ON STANDARDS AND VALUES [2002] 209–212 --- APPENDIX -- THEORY OF LAW – LEGAL ETHNOGRAPHY, OR THE THEORETICAL FRUITS OF THE INQUIRIES INTO FOLKWAYS [2008] 213–234 1. Encounters 213 / 2. Disciplines 218 / 3. The Lawyerly Interest 223 / 4. Law and/or Laws 226 / 5. Conclusion 233 --- Index of Subjects 235 / Index of Normative Materials 242 / Index 244 . (shrink)

ArgumentIn the United States, scientific knowledge is brought before the courts by way of testimony – the testimony of scientific experts. We argue that this expertise is best understoodfirstas related to the quality of the underlying scienceand thenin terms of who delivers it. Bloodstain pattern analysis (BPA), a contemporary forensic science, serves as the vaulting point for our exploration of objectivity as a metric for the quality of a science in judicial contexts. We argue that BPA fails to meet the (...) minimal standard set by Helen Longino’s social-procedural account of objectivity (1990, 2002). In light of some pressing issues for social-procedural accounts, we offer an infrastructural account of objectivity. This account offers what amounts to a friendly amendment to Longino’s account and adds to the ways in which we might analyze social-procedural objectivity. Finally, we address an issue that is pressing in the legal context: given that scientific knowledge is delivered by individuals, not communities, at least in U.S. courts, we (may) need a way to evaluate individual scientific and epistemic agents. We suggest a means for making this evaluation that is derived from our infrastructural account of objectivity. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the (...) distinctive perspective of law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)

This note discusses three issues that Allen and Pardo believe to be especially problematic for a probabilistic interpretation of standards of proof: (1) the subjectivity of probability assignments; (2) the conjunction paradox; and (3) the non-comparative nature of probabilistic standards. I offer a reading of probabilistic standards that avoids these criticisms.