Thanks to McEvoy for his interesting, sensible points and commentary on
'onus probandi' (or 'burden of proof') and 'standard of proof', and how
confused (some) judges might be with this -- "if they don't count their
implicatures," I might add.
In a message dated 12/13/2015 10:03:08 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes: [Speranz] writes [...] on the ['onus
probandi']
and its alleged importance. Against this, certain simple considerations
lead to the conclusion that ['onus probandi'] plays no decisive role in
resolving legal issues. [The expression] been used in various senses by judges
over the years, sometimes in ways that are probably confused."
Well,
i. onus probandi.
should have ONE sense. ("Do not multiply senses beyond necessity"). So the
judges's confusson might well derived from not abiding with Grice's motto
("modified Occam's Razor").
McEvoy:
"Some of this confusion arises from taking ['onus probandi'] as a shorthand
for 'the burden and standard of proof'. But the clearest way to approach
issues of 'proof' in legal contexts is to separate out clearly the 'burden
of proof' from the 'standard of proof'."
I like that. In which case, we SURELY would have two senses: one for i. and
one for
ii. the standard of proof.
I don't think the Romans used the concept of the standard of proof --
(Geary knows more about this, since he has studied the Roman involvement -- or
lack of it -- in the death of Christ).
On the other hand, Witters did not seem to have like the idea of the
'standard' of proof. He used to wonder:
iii. How long is the Paris metre?
Witters idea is that if the Paris metre is one metre long --
iv. The Paris metre is one metre long.
the proposition becomes self-referential, anti-tautological, and nonsense.
Etymologically, 'standard' meant 'flag' (as Honey notes in "Standard
English and its enemies").
McEvoy:
"[T]he 'burden of proof' and the 'standard of proof' provide two distinct
but mutually exhaustive ways to resolve any legal issue. In most civil
cases, the 'standard of proof' is 'on the balance of probabilties'. Where
evidence is sufficient to decide an issue 'on the balance of probabilities',
that
issue is decided according to the 'standard of proof' as this standard is
accordingly satisfied - in such cases, the issue is not decided according
to the ['onus probandi'] at all, and the ['onus probandi]] can be said to
play no part in deciding the issue in so far as it has been decided on the
evidence (we may say the ['onus probandi'] may have played a procedural role
in that the party bearing the ['onus probandi'] will generally begin before
the party that does not bear the ['onus probandi]] - but this procedural
role will not have decided the issue, as the evidence that satisfies the
standard of proof may come from either party). As most cases before the courts
are decided because evidence on most issues satisfies the 'standard of
proof', we may say most issues are decided without reference to the ['onus
probandi'] and in these cases the ['onus probandi'] is simply a default rule
that waits in the wings for the opportunity to come on stage if the
'standard of proof' is not satisfied. That is also to say, the ['onus
probandi'] is
a default rule but it mostly plays no decisive role in resolving legal
issues as the 'standard of proof' is so often satisfied. What is true for
civil cases is substantially true for criminal cases also: a main difference
is
that the higher 'standard of proof' in criminal cases means there are many
cases where the prosecution offer 'no evidence' because their evidence
would not likely satisfy the higher 'standard of proof' - when 'no evidence'
is offered for this reason, the case is technically decided according to the
['onus probandi'] [not the 'standard of proof']"
I think THESE were the cases that appealed to Grice -- he could be macabre.
McEvoy: "[B]ut in reality the reason 'no evidence' is offered is due to the
'standard of proof' as this has affected the prospects of successful
prosecution. Of course, we just ignore all this fairly basic stuff and bang on
regardless about the ['onus probandi'] and its so-called 'analysis', and
even bring in Bayesianism and a host of other things quite foreign to how
things are argued out and resolved in courts (as Eric indicates)."
Well, someone -- perhaps Borges? -- should write a short story, "A legal
philosopher in the courts"!
For the record, 'onus probandi' was not foreign to the Romans!
Lewis's & Short's "Latin Dictionary" (Oxford, Clarendon Press) notes that
'onus probandi' is best analysed as "the burden of proof" but also as the
"obligation to prove".
It is used by Dig. 31, 1, 22.
it is also famously used by Cicero in The Republic 1, 23, 37.
In "The Legal Procedure of Cicero's Time", By A. H. J. Greenidge, M.A.,
Lecturer in Ancient History at Brasenose, Oxford, exemplifies this.
I would tend NOT to add "Oxford" after Brasenose, since I don't think
there is ANYWHERE else in the world a place where an MA who lectures in Ancient
History would be found! -- ah, them dreaming spires!
In any case, Greenidge's little booklet ("an tautology" -- Geary) was
ublished by the same publishers who published Grice's "Aspects of Reason" and
"Conception of Value" -- The Clarendon -- and it has been praised>
A good book in English on Roman procedure has long been wanted by students
of Roman (if not English) law, and Greenidge's booklet comes very near
giving them what they want.
Greenidge's leading design is to furnish students of Cicero's writings with
a clue to the chief legal difficulties which they will meet with in their
reading of Cicero.
But, even improving on Grice on this, he has wisely discarded the plan of
writing a commentary on Cicero's speeches.
Instead, Greenidge offers us a little treatise on both the civil and
criminal procedures of Cicero's time.
To make this intelligible -- to the somewhat confused judges that use 'onus
probandi' with various senses, when it only has one -- Greenidge discusses
the judicial organization and the civil and criminal procedure of the
republic.
In reconstructing the civil procedure of the republic Greenidge assumes
(rightly, too) that the formulary procedure described by Gaius was
substantially worked out before the time of Cicero, and that the 'onus
probandi'
usually rests on one who would deny the prevalence in the Ciceronian period of
a
legal rule enunciated by Gaius!
A delightful paradox, 'onus probandi' used metaphorically to apply to 'onus
probandi' used literally!
'Standard' is literally from the Frankish "standhard", again literally
"stand fast or firm," a compound of Frankish words "stand" and "hard", to refer
to the Frankish flag, so called because the Frankish flag -- as any other
flag, in principle -- was fixed, by the Franks, to a pole or spear and
stuck in the ground to stand upright. **
For Witters's problems with the 'sense' of one standard see "Philosophical
Investigations", §50:
"There is one thing of which one can say neither that it is one metre long,
nor that it is not one metre long, and that is the standard metre in Paris.
– But this is, of course, not to ascribe any extraordinary property to it,
but only to mark its peculiar role in
the language-game of measuring with a metre-rule.
It's more difficult for conceptual-analytic legal philosohers because they
now have to PLURALISE Wittgenstein's paradox into the 'standards'.
For a conceptual analysis of 'standard of proof' -- that avoid this alleged
truth-value "gappy" self-reference along Hartian lines read Hart, "The
concept of law".
Cheers,
Speranza
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