We are considering different conceptual analyses of 'legal proof' trusting
that 'proof' has just ONE SENSE, different USAGES. We are especially
concerned with the diachrony of the conceptual analysis of 'legal proof' and
the
Roman analysis of the concept of 'onus probandi', but surely we may throw
'reasoning to the best explanation' into the bargain.
It is the alleged "holistic" (as Quine would have it) nature of evidential
REASONING -- and in law in particular -- that has inspired a conceptual
analysis of explanatory or relative plausibility. This conceptual analysis
aims to provide the necessary and sufficient conditions by which a
fact-finder reasons, and comes up with something like, the fact-finder reasons
from p
to q iff
(i) the fact-finder generates an explanation or a hypothesis H on the
available evidence E by via "ab-ductive" (to use Peirceian jargon that Grice
usually dismissed but not here) reasoning, that is, if and only if the
fact-finder draws, to use the vernacular, an "inferences to the best
explanation".
(ii) the fact-finder's explanation or hypothesis H is then compared in the
light of the E with some alternative explanation or hypothesis H2.
(iii) the fact-finder compares not of H1 with ~H1 where the probability of
H1 is compared with the probability of its negation.
(iv) the fact-finder compares H1 with H2 -- which may not be ~H1 -- and it
may be some H2 advocated by some party or 'concocted' by the fact-finder
himself.
On this conceptual analysis of 'the fact-finder reasons to the best
explanation', the plausibility of the factual account of the case -- X1 --
that
establishes the accused’s guilt or defendant’s liability, is compared with
the plausibility of a hypothesis H2 that birngs in a different specific
alternative account X2 that points to the accused’s innocence or the defendant
’s non-liability.
On this conceptual analysis, evidence E is SUFFICIENT to satisfy the
preponderance of legal "proof" standard when the alleged "best" available
hypothesis -- say H1 -- that explains E and the underlying events X1 include
ALL
of the elements of the claim.
So we need a further clause for a specific scenario:
(v) In a negligence case, the "best" available hypothesis H1 hs to include
(a) a breach of duty of care by the plaintiff -- and
(b) causation of harm to the defendant
(as these are the elements that must be PROVED to succeed in the legal
claim).
For the intermediate clear and convincing standard of legal "proof", the
"best" available "explanation" must be SUBSTANTIALLY (the jargon is
Aristotelian) better than the alternative H2.
We may then go on to provide a conceptual analysis of "beyond reasonable
doubt" -- a phrase that Descartes hated: "all my doubts are reasonable,
including the one that I exist; since this is based on the mere hypothesis of
the 'cogito'" --.
Leaving Descartes -- who is playing Pyrrho, and thinking using ordinary
language based on PHILOSOPHICALESE rather than LEGALESE -- a fact-finder
establishes the standard of legal "proof" "beyond reasonable doubt", iff
(a) there is a plausible explanation of the evidence E that includes ALLl
of the elements of the crime and, in addition, a typical exclusionary
clause typical in conceptual analysis of the Griceian type (consider his
clause
that for Utterer U to mean that p by uttering x, there must not be any
'covert' intention behind his uttering):
(b) there must be no plausible explanation -- where this is symbolised
using "~(Ex)" -- that is consistent with innocence.
It might be argued that some verdict is not CONTROLLED by the best
explanation -- so this may require an extra analysis.
It might be argued, as an alleged counter-example, that, even if the
prosecution’s hypothesis H1 is "better" than the defence’s hypothesis H2,
neither may be "very good", to use a vernacular that is hardly legalese (vide
Philippa Foot, "Natural goodness").
In these circumstances, the court MUST reject the prosecution’s hypothesis
H1 even though it is the alleged "best" of alternatives.
To mitigate this type of alleged counter-example to the conceptual analysis
of "to reason to the best explanation" analytical legal philosophers have
placed some sort of demand (or other) on the epistemic (or as Grice
prefers, 'alethic', based on belief -- he borrowed 'alethic' from von Wright
but
never returned the adjective) effort that the trier of fact must take in
constructing the set of hypotheses from which the 'best', H1, is chosen --
and this may proceed in a way that analytic legal philosophers -- and usually
Grice -- love, 'case by case' -- casuistic --, e.g. the trier of fact is
sufficiently diligent and thorough).
In a message dated 12/12/2015 3:11:11 A.M. Eastern Standard Time,
mr.eric.yost@xxxxxxxxx that as for 'proof':
"Any Roman nose, such as Sherlock's, may accept
inference to the best explanation."
-- which is good, since the alleged counter-example surely is a minor one,
and alleged at that!
Yost goes on:
"Yet a lesser Latin audience, the majority, will fall for appeal to emotion
every time, as shown by TV-polarized electorates, Dreyfus, and the
pre-Roman inculpation of Socrates."
-- Indeed, ah, emotion. The root of emotivism -- Grice is supposed to have
hated it; at least he takes the trouble to quote JUST one author in his
seminal "Meaning" (1948), and that is the then newly published (by Yale
University Press, of all presses) "Language and Ethics" by C. L. Stevenson!
Cheers,
Speranza
------------------------------------------------------------------
To change your Lit-Ideas settings (subscribe/unsub, vacation on/off,
digest on/off), visit www.andreas.com/faq-lit-ideas.html
