I suggest the problem about the standard of proof (whetherit is singular or
plural/ univocal or multivocal) might be ‘solved’ this way. We are a judge in a
civil case and leave the issues to thejury to be decided ‘on the balance of
probabilities’. We say each issue and thecase overall should be decided
according to this standard but it is for you,the jury, the decide whether the
evidence satisfies you on any particular issueto the required standard – and,
we add, you may find you require more evidenceon some of the most serious
allegations made by the parties, before you aresatisfied, than you require on
some of the less serious allegations. This direction to jury is beyond
reproach. Yet it neitherstates clearly that the standard is the same for all
issues nor denies itclearly. Whether we interpret it in terms of the standard
being always the same,or as varying according to the seriousness of
allegations, is surely largely –perhaps entirely – a matter of whether (a) we
conceive the standard as holdingindependent of what is taken to satisfy it or
(b) we conceive the standard asdependent on, and perhaps measured by, what is
taken to satisfy it. The debate as to which is the better conception – (a) or
(b)– is essentially philosophical and may be of little practical effect – with
onecrucial caveat: (a) may be better because there is less chance of the jury
mistakenlythinking either (i) that they should not be looking at the ‘balance
ofprobabilities’ on all issues but tilting the balance according to
theseriousness of allegations/ “inherent probabilties”; or (ii) thinking
thatwhatever they take to satisfy the standard is de jure the correct measure
of the standard. It is very importantthat the standard of proof is applied
properly and (i) and (ii) arguablyconstitute, or may encourage, misapplication
of the standard.* It is this that provides some practical impetus to
Hale’sstance that the standard must be regarded as the same through-out,
regardlessof the varying seriousness of the issues or (what might be termed,
loosely andnon-logically) “inherent probabilities”. We might prefer the
approach thattreats the standard as if it is independent of what satisfies it
(or how it isapplied) because this makes the role of the standard more
“adamantine”. It seems to me secondary, and much less decidable, whether(a) or
(b) should be preferred on philosophical grounds. Btw I have little doubt that
Popper would prefer (a) onphilosophical grounds: that we should take the
‘standard of proof’ as a W3regulative principle and so independent of what we,
in W2, take to satisfy thestandard. But this kind of philosophical ground is
very much secondary, in alegal context, to arguments based on practical
effects.** DL* We may be somewhat sceptical, particularly in the absenceof
compelling research, as to how far directions on the standard of proof
areeffective for juries and even for judges. It may well be the case that in
some waysthe standard of proof is important, and few would doubt there is
largedifference between the prospects for success depending whether cases are
beingjudged according to the civil or the criminal standard. But the
criminalstandard may be regarded as sui generisand it may be that only in rare
civil cases is the standard of proof thatimportant to how verdicts and
judgments are reached i.e. in most civil cases decisions and judgments may be
made on theevidence as if unmediated by any standard (this would hardly be
surprising forthe ‘balance of probabilties’ may be tantamount to taking the
evidence ‘as itis’). **Still less am I suggesting that Hale, or other Justices
ofthe Supreme Court, are closet Popperians. (JLS is right to suggest that it
ismore likely they are closet Hartians, though of a harmless variety).
