When Toulmin, a Cantabrigian, published his "Uses of Argument", it was
thought as anti-Griceian; there was Toulmin proposing a NEW MODEL for logic,
not based on what philosophers do, but what lawyers do. -- Hence my interest
in 'proof', or rather what I detect was Toulmin's contribution: a need to
analyse 'proof' simpliciter, since it may well apply to things like 'onus
probandi' (as used both in law and philosophy) and reasoning in general (or
'argument') as used by both lawyers and philosophers.
In a message dated 12/15/2015 7:52:59 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
What Baroness Hale might have said is that no standard contains the
criteria for its own application (or something to that effect): but that kind
of
observation is too philosophical for most judicial taste.
Indeed, it may well that Baroness Hale is a distant descendant of
Alexander of Hales, the pre-Oxonian philosopher, and, as Plato said, "a
philosopher
is not made; a philosopher is born" (meaning there is a 'philosophical
gene' that Hale might have derived from Hales in Shropshire (not to mention
Bob Hale, a more contemporary philosopher -- of whom Baroness Hale is SURELY
a 'relative' -- and perhaps the pre-Kripkean philosopher Nathan Hale, who
famously said 'I only regret, that I have but one life to lose for my
country', perhaps as a challenge to the 'standard' that one is alleged,
analytically, to have only one life.)
For the record, Short and Lewis give two sources for 'onus probandi':
Cicero, which is more like a conceptual analysis ("Republic") and the "Dig.",
i.e. the Digest, also known as the Pandects (Latin: Digesta seu Pandectae,
adapted from Ancient Greek πανδέκτης pandektes, "all-containing"), a
compendium or digest of Roman law compiled by order of the emperor Justinian I
in the 6th century (AD 530-533). Helm was referring to this in a different
thread. The Digest spans 50 volumes, and represented a reduction and
codification of all Roman laws up to that time. The 'onus probandi' appears in
Dig. 31, 1, 22.
"Ei incumbit onus probandi qui dicit, non qui negat."
But back to Hale. I will requote the Baroness's words which touch on one
point about the 'analysis' of proof (although of course her 'issue' may be
approached from a problem-solving perspective). What Baroness Hale said was:
"Neither the seriousness of the allegation
nor the seriousness of the consequences
should make any difference to the standard of
proof to be applied in determining the facts.
The inherent probabilities are simply
something to be taken into account,
where relevant, in deciding where the truth lies."
"[T]here is no logical or necessary connection
between seriousness and probability.
Some seriously harmful behaviour, such as murder,
is sufficiently rare to be inherently improbable in most circumstances.
Even then there are circumstances, such as a body with its
throat cut and no weapon to hand, where it is not at all improbable.
Other seriously harmful behaviour, such as alcohol or drug abuse, is
regrettably all too common and not at all improbable. Nor
are serious allegations made in a vacuum. Consider the famous
example of the animal seen in Regent’s Park. If it is seen outside the
zoo on a stretch of greensward regularly used for walking dogs, then
of course it is more likely to be a dog than a lion. If it is seen
in the zoo next to the lions’ enclosure when the door is open, then
it may well be more likely to be a lion than a dog."
"The task for the tribunal then when faced with serious allegations
is to recognise that their seriousness generally means
they are inherently unlikely, such that to be satisfied that a
fact is more likely than not the evidence must be of a good quality. But
the standard of proof remains 'the balance of probabilities'."
I'm interested in McEvoy's above, "or something to that effect", an idiom
which, call me Oxonian, I always rephrase as "or something to the same
perlocutionary effect" -- since, as Austin used to say, "Good effects are
perlocutionary; and if they are not good, perhaps they are otiose.").
I loved McEvoy's emphasis on the criterion, the criteria, and the general
point about standard which may lead us to Witters and beyond! (his infamous
comment on the standard metre). Is Baroness Hale aware of this?
How this relates to Toulmin's legalese attempt to analyse the
philosopicalese concept of 'proof' in "Uses of Argument" (although a Cantabrian
at
heart, Toulmin indeed 'read' philosophy of science at Oxford) next.
Cheers,
Speranza
References:
Grice, Way of Words.
Hale, Baroness.
Toulmin, The uses of argument.
------------------------------------------------------------------
To change your Lit-Ideas settings (subscribe/unsub, vacation on/off,
digest on/off), visit www.andreas.com/faq-lit-ideas.html
