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)

The paper argues for a pragmatist understanding of the reasonable doubt standard in law. It builds on the idea that our dispositions to act signal the epistemic states we are in. This helps clarify the notion of a reasonable doubt and the idea of being certain beyond it. More specifically, the paper points out three major standards of proof used in legal contexts and the rationale of their distinction. It articulates the received view according to (...) which the reasonable doubt standard is superior to allegedly subjective standards as the French “intime conviction”; then it addresses what I call the “rampant critique” of the reasonable doubt standard, namely the view that, as the notion of a reasonable doubt is obscure and undetermined, the standard is irremediably subjective. The paper finally presents a pragmatist understanding and defense of the standard, building on the idea of beliefs as dispositions to act. (shrink)

Criminal defendants cannot be punished unless found guilty “beyond a reasonable doubt”. Under probabilistic accounts, this means that the probability of guilt given the evidence is above a certain numerical threshold, such as 0.9. Under psychological accounts, by contrast, what is essential is that a factfinder reaches a certain psychological attitude toward guilt, such as certainty or unwavering belief, when contemplating the evidence. An adequate account should provide a normative explanation for why guilt BARD warrants punishment. Psychological (...) accounts are more likely to meet this challenge than probabilistic, it is argued. The permissibility of punishment is likely to be relative to the cognitive attitudes of the punisher, but not to the conditional probability of guilt in light of the evidence. (shrink)

Ideology criticism, like scepticism, calls into question the objective or justified status of beliefs. However, where scepticism only refutes, and never puts forward, a substantive claim about anything, the ideology critic must maintain some criterion for distinguishing ideas which support relations of domination from those that do not, in virtue of her criticism of a particular set of ideas as “ideological”. The trouble for the ideology critic is that the sceptical methods she deploys undermine any critical thesis, including her own. (...) Thus, the theory of ideology tends to undercut ideology criticism with a fundamental problem of self-implication. This paper draws on the epistemological problem of the criterion to explain and define a basic problem of justification for the theory of ideology. A problem of self-implication is introduced in part one. I argue that the basis for ideology criticism inevitably succumbs to the very doubt it puts forward. I draw on various criticisms of ideology criticism to formulate a specific account of the basic, fundamental problem for the theory of ideology. I show how norms for ideology criticism are vulnerable to an Ancient sceptical problem for epistemic criteria, which brings the ideology critic to a dilemma: either (i) find independent grounds for criticism, immune to ideology, or (ii) show how ideology is self-undermining. Each horn of the dilemma is ideological. (shrink)

The extensive literature on the Learning Organisation proposes that a competitive advantage can be achieved through the systematised generation and application of knowledge. Consequently, much of the debate concerns the processes, routines and organisational features that a firm should adopt to learn more, and faster, than its competitors. Less attention is given to understanding the nature of the knowledge that is created by these Learning Organisations. We hold that the topic is more important than its current weight in the literature (...) because the performance claims of the models proposed critically depend upon the newly acquired knowledge replacing ignorance or knowledge with less utility. In this paper we explore the nature of knowledge that Learning Organisation theory seeks to create by articulating implicit epistemological assumptions found within the literature. We show that the capacities of each epistemology to help an organisation reject falsehood and make greater use of its knowledge are critically undermined by these very routines. The paper concludes by highlighting the importance of a sceptical epistemology and outlines a process that would strengthen doubting behaviour. (shrink)

In criminal cases at common law, juries are permitted to convict on wholly circumstantial evidence even in the face of a reasonable case for acquittal. This generates the highly counterintuitive—if not absurd—consequence that there being reason to think that the accused didn’t do it is not reason to doubt that he did. This is the no-reason-to-doubt problem. It has a technical solution provided that the evidence on which it is reasonable to think that the accused didn’t (...) do it is a different subset of the total evidence from that on which there is no reason to doubt that he did do it. It lies in the adversarial nature of criminal proceedings in the common law tradition that the subsets of the total evidence on which counsel base their opposing arguments are themselves different from and often incompatible with one another. While this solves the no-reason-to-doubt problem, it does so at the cost of triggering a second problem just as bad. It is the no-rival problem, according to which incompatible theories of the case based on incompatible subsets of the evidence cannot be rivals of one another. If neither party’s case contradicts the other’s then, by the burden of proof requirement, criminal convictions are impossible. Once having generated the dilemma, the object of the paper is to determine how it might be escaped. (shrink)

In criminal trials, judges or jurors have to decide whether the facts described in the indictment are proven beyond a reasonable doubt. However, these decision-makers cannot always imagine every relevant sequence of events—there may be unconceived alternatives. The possibility of unconceived alternatives is an overlooked source of reasonable doubt. I argue that decision-makers should not consider the defendant’s guilt proven if they have good reasons to believe that plausible, unconceived scenarios exist. I explore this thesis (...) through the lens of the two most influential accounts of rational criminal proof—Bayesian and explanation-based approaches. I draw on related ideas from the philosophy of science to show why and when unconceived alternatives lead to reasonable doubt on either account. (shrink)

Explanationist accounts of rational legal proof view trials as a competition between explanations. Such accounts are often criticized for being underdeveloped. One question in need of further attention is when guilt is proven beyond a reasonable doubt in criminal trials. This article defends an inference to the best explanation -based approach on which guilt is only established BARD if the best guilt explanation in a case is substantially more plausible than any innocence explanation, and there is no (...) good reason to presume that we have overlooked evidence or alternative explanations that could realistically have exonerated the defendant. This is a comparative account, which I argue is better suited for arriving at accurate verdicts than the non-comparative ‘no plausible alternative’ account that many explanationists tacitly assume. Furthermore, this account is not susceptible to the most important arguments against IBE in criminal trials or to arguments against other, non-explanationist interpretations of the BARD standard. I use a case study to illustrate how this account provides meaningful guidance for decision makers in criminal trials. (shrink)

The present article proceeds from the mainstream view that the conceptual framework underpinning adversarial systems of criminal adjudication, i.e. a mixture of common-sense philosophy and probabilistic analysis, is unsustainable. In order to provide fact-finders with an operable structure of justification, we need to turn to epistemology once again. The article proceeds in three parts. First, I examine the structural features of justification and how various theories have attempted to overcome Agrippa’s trilemma. Second, I put Inferential Contextualism to the test and (...) show that a defeasible structure of justification allocating epistemic rights and duties to all participants of an inquiry manages to dissolve the problem of scepticism. Third, I show that our epistemic practice already embodies a contextualist mechanism. Our problem was not that our Standard of Proof is inoperable but that it was not adequately conceptualized. Contextualism provides the framework to articulate the abovementioned practice and to treat ‘reasonable doubts’ as a mechanism which we can now describe in detail. The seemingly insurmountable problem with our efforts to define the concept “reasonable doubts” was the fact that we have been conflating the surface features of this mechanism and its internal structure, i.e. the rules for its use. (shrink)

The present article proceeds from the mainstream view that the conceptual framework underpinning adversarial systems of criminal adjudication, i.e. a mixture of common-sense philosophy and probabilistic analysis, is unsustainable. In order to provide fact-finders with an operable structure of justification, we need to turn to epistemology once again. The article proceeds in three parts. First, I examine the structural features of justification and how various theories have attempted to overcome Agrippa’s trilemma. Second, I put Inferential Contextualism to the test and (...) show that a defeasible structure of justification allocating epistemic rights and duties to all participants of an inquiry manages to dissolve the problem of scepticism. Third, I show that our epistemic practice already embodies a contextualist mechanism. Our problem was not that our Standard of Proof is inoperable but that it was not adequately conceptualized. Contextualism provides the framework to articulate the abovementioned practice and to treat ‘reasonable doubts’ as a mechanism which we can now describe in detail. The seemingly insurmountable problem with our efforts to define the concept “reasonable doubts” was the fact that we have been conflating the surface features of this mechanism and its internal structure, i.e. the rules for its use. (shrink)

The present article proceeds from the mainstream view that the conceptual framework underpinning adversarial systems of criminal adjudication, i.e. a mixture of common-sense philosophy and probabilistic analysis, is unsustainable. In order to provide fact-finders with an operable structure of justification, we need to turn to epistemology once again. The article proceeds in three parts. First, I examine the structural features of justification and how various theories have attempted to overcome Agrippa’s trilemma. Second, I put Inferential Contextualism to the test and (...) show that a defeasible structure of justification allocating epistemic rights and duties to all participants of an inquiry manages to dissolve the problem of scepticism. Third, I show that our epistemic practice already embodies a contextualist mechanism. Our problem was not that our Standard of Proof is inoperable but that it was not adequately conceptualized. Contextualism provides the framework to articulate the abovementioned practice and to treat ‘reasonable doubts’ as a mechanism which we can now describe in detail. The seemingly insurmountable problem with our efforts to define the concept “reasonable doubts” was the fact that we have been conflating the surface features of this mechanism and its internal structure, i.e. the rules for its use. (shrink)

The present article proceeds from the mainstream view that the conceptual framework underpinning adversarial systems of criminal adjudication, i.e. a mixture of common-sense philosophy and probabilistic analysis, is unsustainable. In order to provide fact-finders with an operable structure of justification, we need to turn to epistemology once again. The article proceeds in three parts. First, I examine the structural features of justification and how various theories have attempted to overcome Agrippa’s trilemma. Second, I put Inferential Contextualism to the test and (...) show that a defeasible structure of justification allocating epistemic rights and duties to all participants of an inquiry manages to dissolve the problem of scepticism. Third, I show that our epistemic practice already embodies a contextualist mechanism. Our problem was not that our Standard of Proof is inoperable but that it was not adequately conceptualized. Contextualism provides the framework to articulate the abovementioned practice and to treat ‘reasonable doubts’ as a mechanism which we can now describe in detail. The seemingly insurmountable problem with our efforts to define the concept “reasonable doubts” was the fact that we have been conflating the surface features of this mechanism and its internal structure, i.e. the rules for its use. (shrink)

There is a substantial literature on the Bayesian approach, and the application of Bayes'' theorem, to legal matters. However, I have found no discussion that explores fully the issue of how a Bayesian juror might be led from an initial "presumption of innocence" to the judgment (required for conviction in criminal cases) that the suspect is "guilty beyond a reasonable doubt". I shall argue here that a Bayesian juror, if she acts in accord with what the law (...) prescribes, will virtually never reach such a judgment. In section I, I discuss Bayesianism, Bayes'' rule and the relation between them. Section II addresses the two legal notions key to my worries about Bayesian jurors: the presumption of innocence and the reasonable doubt criterion. Section III explores what a Bayesian is to make of these notions, and how the legal system requires her to reason in their light. If I am right, there emerges a conflict between current legal prescriptions and the Bayesian approach. Section IV explores the import of this conflict and how it might be resolved. (shrink)

Argues for a minimal level of quantification for the "proof beyond reasonable doubt" standard of criminal law: if a jury asks "Is 60% enough?", the answer should be "No.".

We study the strategic interactions within testing in a model of political agency. A principal decides between convicting and acquitting an agent of unknown innocence based on a noisy signal that is manipulable by the agent’s unobserved actions. We identify conditions under which the principal sets a threshold conviction strategy in the form of “beyond a reasonable doubt.” We show that, in spite of strategic concerns, the amount of information that a principal can glean from the test (...) is entirely determined by the threshold; in equilibrium, the threshold is set where the signal realization conveys just enough information to validate a conviction. As such, the game of testing is analytically equivalent to the principal’s statistical inference problem. We next examine how exogenous shocks on preference parameters affect the principal’s equilibrium threshold and welfare. In general, the principal benefits from being better at distinguishing types; whether she should increase or decrease the threshold depends crucially on whether the agent’s distribution of signals varies with types in the absence of manipulation. (shrink)

Most legal evidence scholars agree that proof of guilt beyond a reasonable doubt requires the belief that the defendant probably committed the alleged acts. However, they also agree that this is not a sufficient condition, as this belief may be unreasonable. I focus on two popular proposals for additional conditions: (i) that the degree of belief should be robust and (ii) that it should be reasonable given the available evidence (should be an evidential probability). Both criteria (...) face difficulties regarding their meaning and utility. I propose an interpretation which overcomes these difficulties and which combines the two conditions into a single criterion on which both conditions are about the possibility of overlooked, exculpatory information. Proof of guilt beyond a reasonable doubt requires that we are sufficiently certain that we did not miss such information for the sake of achieving accurate beliefs and a just error distribution. How certain we can be that we did not miss anything relevant depends on our higher-order evidence. One important type of higher-order evidence is whether the hypotheses under consideration are sufficiently detailed. This point leads to a novel way of combining the Bayesian and explanation-based accounts of rational legal proof. (shrink)

In criminal trials the state must establish, to a particular standard of proof, the defendant's guilt. The most widely used and important standard of proof for criminal conviction is the ‘beyond a reasonable doubt' standard. But what legitimates this standard, rather than an alternative? One view holds the standard of proof should be determined or justified – at least in large part – by its consequences. In this spirit, Laudan uses crime statistics to estimate risks the average (...) citizen runs of being violently victimised and falsely convicted. He argues that since the former risk is higher, and the aggregate harms are worse, the standard of proof should be substantially lowered. He presents a formula for calculating the preferred standard. In this article I outline various ways Laudan's uses of crime statistics are flawed, and explain how he substantially overestimates risks of victimhood and underestimates costs of false convictions. I also explain why his formula is mistaken, and illuminate consequences Laudan neglects. I conclude that, even if consequences determine the appropriate standard of proof, Laudan's arguments fail to show the standard is too high. I conclude by suggesting that the inadequacies of Laudan's reasoning might be good news for consequence-based justifications of the standard of proof. (shrink)

During the 1960s, Howard M. Temin (1934-1994), dared to advocate a "heretical" hypothesis that appeared to be at variance with the central dogma of molecular biology, understood by many to imply that information transfer in nature occurred only from DNA to RNA. Temin's provirus hypothesis offered a simple explanation of both virus replication and viral-induced cancer and stated that Rous sarcoma virus, an RNA virus, is replicated via a DNA intermediate. Popular accounts of this scientific episode, written after the discovery (...) of an RNA-directed DNA polymerase in 1970, tend to describe the reaction to his proposition as ardent opposition. Typically these accounts use a 'molecular biology' standpoint emphasizing the central dogma's part in its rejection. In this article, however, this episode will be examined from a joint perspective of virology and experimental cancer research. From this perspective it is clear that Temin's work was well within the epistemological and methodological boundaries of virology and cancer research. Still, scientists did have reasons to doubt the provirus hypothesis, but these do not seem to be good enough to either justify an account that portrays Temin as a renegade or his ideas as heretical. (shrink)

I comment on two analyses of the Simonshaven case: one by Prakken (2019), based on arguments, and the other by van Koppen and Mackor (2019), based on scenarios (or stories, narratives). I argue that both analyses lack a clear account of proof beyond a reasonable doubt because they lack a clear account of the notion of plausibility. To illustrate this point, I focus on the defense argument during the appeal trial and show that both analyses face difficulties (...) in modeling key features of this argument. (shrink)

This paper explores ‘reasonable doubt’ as an enlightening notion to think of reasoning and decision-making generally, beyond the judicial domain. The paper starts from a decision-theoretic understanding of the notion, whereby it can be defined in terms of degrees of belief and a probabilistic confirmation threshold for action. It then highlights some of the limits of this notion, and proposes a richer analysis of epistemic states and reasoning through the lens of ‘reasonable doubt’, which in (...) turn is likely to supplement the DT framework. The strategy consists in fighting on two fronts: with DT, the paper claims that there is no absolute notion of ‘reasonable doubt’ but, pace DT, it shows that reasonable doubt cannot be accounted for only in terms of degrees of belief and probabilistic threshold. We argue that the lens of reasonable doubt sheds light on aspects of belief dynamics, as well as of the nature of epistemic attitudes, which are often obscured by belief-centred approaches. In particular, when it comes to acknowledging the necessary ignorance and irreducible uncertainty that we face in our everyday-life decisions, studying the various facets of doubt rather than focusing on what can be believed, enables one to do justice to the richness and diversity of the mental states in play. (shrink)

The “beyond a reasonable doubt” standard of proof, currently used in criminal trials, is notoriously vague and undermotivated. This paper discusses two popular strategies for justifying our choice of a particular precise interpretation of the standard: the “ratio-to-standard strategy” identifies a desired ratio of trial outcomes and then argues that a certain standard is the one that we can expect to produce our desired ratio, while the “utilities-to-standard strategy” identifies utilities for trial outcomes and then argues that (...) a certain standard maximizes expected utility. I argue that both strategies fail on their own terms, by requiring us to perform calculations that we simply cannot perform. No version of either strategy can be performed by jurors or legislators in our actual epistemic position, in which, since we do not know which of the defendants in our trial system are genuinely innocent and which are genuinely guilty, we cannot determine the extent to which our trial system tends to produce evidence that misleadingly incriminates the innocent or misleadingly exonerates the guilty. But we would need to determine this in order to perform the calculations required by any possible version of the ratio-to-standard or utilities-to-standard strategies. I then suggest some empirical reasons to be pessimistic about the evidence produced by our actual trial system. The upshot is that the “beyond a reasonable doubt” standard lacks a clear interpretation and rationale, nor do we have a promising way to identify an alternative. This is the trouble with standards of proof. (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)

Lacking a subtitle as it does, the name of this work might lead one unfamiliar with Stephen Toulmin’s previous writings to expect an extended criticism and condemnation of postmodern thought and its skeptical excesses; although postmodernity also is implicitly caught in the dragnet of the argument, the book’s target is in fact modernity. Expanding upon a theme introduced in his previous books The Uses of Argument and Cosmopolis, in Return to Reason Toulmin reflects on the origin and spread of the (...) Cartesian obsession with demanding mathematical rigor in every inquiry seeking to be dubbed “science,” from the birth of mathematical physics in the seventeenth century to economics, sociology, and ethics in the nineteenth and twentieth. Explicitly stated in the introductory chapter, Toulmin’s thesis is that this modern focus on what he calls “rationality” has eclipsed the more moderate, and in fact ancient, goal of “ reasonableness,” meaning “substantive argumentation” that “has the body and force needed to carry conviction” and “to put a conclusion ‘ beyond a reasonable doubt’”. Following a semiautobiographic approach—anyone expecting a theoretical analysis, he explains, “misses the point. …The only way to proceed, … is to go behind all the rival theoretical positions and present a narrative with a personal perspective” —Toulmin’s aim is “to steer a middle way, and to show how the idea of Reasonableness [sic] lets us keep on an even keel” that will allow us to “reestablish the proper balance between Theory and Practice, Logic and Rhetoric, Rationality and Reasonableness”. Thus the work is not only a critique of modernity, but also an outline of how we can undo, and in many ways are already undoing, its latent errors. (shrink)

Contextualism answers skepticism by proposing a variable standard of justification, keyed to the context of utterance. A lawyer's situation with respect to a criminal defendant's factual guilt is a special one. The argument here is that in this special context an especially high standard of epistemic justification applies. The standard is even more exacting than the proof-beyond-reasonable-doubt standard that juries are sworn to follow. The upshot is that criminal defense lawyers normally cannot know that a client is (...) factually guilt. (shrink)

Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder’s cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application (...) to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored. (shrink)

What is our nature? : What does government do for us, and to us? -- Cooperation : lepers & pirates -- Punishment : Drop City & the utopian communes -- Justice : 1850's San Francisco & the California gold rush -- Injustice : the Attica uprising & the Batavia shipwreck -- Survival : the Inuits of King William Land & the mutineers on Pitcairn Island -- Subversion : hellships & prison camps -- Credibility : America's prohibition -- Excess : committing (...) felony murder while asleep in bed & life in prison for an air-conditioning fraud -- Failure : getting away with murder beyond a reasonable doubt -- Collapse : Escobar's Colombia -- Taking justice seriously five proposals -- Epilogue : what are they doing now? (shrink)

I do not think it is possible to show beyond reasonable doubt that the two slaves who open the play either must have been, or cannot have been, visually identifiable by portrait-masks or otherwise as Demosthenes and Nikias. I wish however to point out a piece of evidence that appears to have gone unnoticed.

This is the first full-length commentary on De Motu Animalium since Albertus Magnus's thirteenth century treatise, De Principiis Motus Progresivi. Several paraphrases, and numerous editions, have appeared over the years, but a general belief, particularly in the nineteenth century, that MA was not an authentic work of Aristotle's, and doubt about the overall importance of this brief and cryptic work, had served to discourage more ambitious projects. Scholarly opinion changed in this century, and the authenticity of MA is now (...) generally accepted. Nussbaum relates this history, establishes MA's authenticity beyond a doubt, and finds ample philosophical reason for bringing her--and our--attention to a full-length commentary. For MA, as she shows, is a treatise not only in biology, but also in cosmology, philosophy of science, philosophy of mind, theory of action, and practical reasoning. (shrink)

Is there a world beyond the senses? Can we perceive future events before they occur? Is it possible to communicate with others without need of our complex sensory-perceptual apparatus that has evolved over hundreds of millions of years? Can our minds/souls/personalities leave our bodies and operate with all the knowledge and information-processing ability that is normally dependent upon the physical brain? Do our personalities survive physical death?

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)

This paper argues for a novel solution to the Cartesian Circle by emphasising the important epistemic role of the Second Meditation and Descartes’ faculty epistemology. I argue that, for Descartes: doubt requires a ‘good reason’ to doubt ; whether a reason qualifies as a ‘good reason’ depends on which faculty produces that reason ; and for distinct metaphysical perceptions from the faculty of the intellect, no other faculty can provide ‘good reasons’ to doubt. The upshot of §2 (...) is that the doubts raised up to the Third Meditation do not apply to the distinct metaphysical perceptions of the intellect, and in particular do not apply to the premises of the proof of the existence of God. I present the role of God as primarily to secure clear and distinct perceptions beyond the intellect, and knowledge of conclusions when those conclusions are no longer being clearly and distinctly perceived. Finally, I give an account of Descartes’ use of ‘ cognoscere ’, ‘ scire ’, and ‘ scientia ’ as three distinct epistemic levels, providing a valuable structure within which one can see the meditator progress. (shrink)

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As (...) the analysis shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty. (shrink)

On July 27th, 2013, Sammy Yatim was shot and killed by Toronto Police Services’ Constable James Forcillo during a verbal confrontation on a streetcar as Yatim brandished a switchblade knife. Forcillo was charged, initially with second degree murder, and later attempted murder—a decision that confused media commentators as attempted murder is a lesser-and-included offense to second degree murder in Canadian law. In January 2016, Forcillo was found not guilty of second degree murder and guilty of attempted murder. Video evidence, recovered (...) from the streetcar’s onboard security cameras, was described by the presiding judge, Justice Edward Then, as proving beyond a reasonable doubt that Forcillo’s testimony was unreliable, especially in light of other evidence. This paper examines the use of video evidence to arrive at a ‘compromise verdict’ and the paradox of being convicted of attempting to murder someone who was killed. (shrink)

That the medieval Latin version of Ibn al-Haytham's Kitāb al-Manā[zdotu]ir was translated into Italian in the fourteenth century has been known for well over a century. Recent studies have shown that this translation, which is contained in Vat. Lat. 4595, was instrumental in the composition of Lorenzo Ghiberti's Commentario terzo on art. Some eight years ago, the author of the present article tentatively identified the actual manuscript-source of that translation as MS Royal 12.G.7, which is currently held in the British (...) Library. This study establishes beyond reasonable doubt that his tentative identification was correct: MS Royal 12.G.7 is indeed the Latin source for the Italian translation in Vat. Lat. 4595. (shrink)

Formation of branching epithelial trees from unbranched precursors is a common process in animal organogenesis. In humans, for example, this process gives rise to the airways of the lungs, the urine‐collecting ducts of the kidneys and the excretory epithelia of the mammary, prostate and salivary glands. Branching in these different organs, and in different animal classes and phyla, is morphologically similar enough to suggest that they might use a conserved developmental programme, while being dissimilar enough not to make it obviously (...) certain that they do. In this article, I review recent discoveries about the molecular regulation of branching morphogenesis in the best‐studied systems, and present evidence for and against the idea of there being a highly conserved mechanism. Overall, I come to the tentative conclusion that key mechanisms are highly conserved, at least within vertebrates, but acknowledge that more work needs to be done before the case is proved beyond reasonable doubt. BioEssays 24:937–948, 2002. © 2002 Wiley Periodicals, Inc. (shrink)

The chief aim of this paper is to demonstrate beyond reasonable doubt how, through an essential misunderstanding of the nature of philosophy, and science, over the past several centuries, the prevailing Western tendency to reduce the whole of science to mathematical physics unwittingly generated utopian socialism as a political substitute for metaphysics. In short, being unable speculatively, philosophically, and metaphysically to justify this reduction, some Western intellectuals re-conceived the natures of philosophy, science, and metaphysics as increasingly enlightened, (...) historical and political forms of the evolution of human consciousness toward creation of systematic science, a science of clear and distinct ideas. In the process they unwittingly wound up reducing contemporary philosophy and Western higher education largely into tools of utopian socialist political propaganda. (shrink)

Whether levonorgestrel taken as an emergency contraceptive has an abortifacient effect is a matter of great importance for Catholic bioethics. While many have argued that LNG-EC does not have a postovulatory effect, a recent literature review has convincingly established that inhibition of ovulation cannot account for all of the pregnancy reduction observed in clinical settings among those who take LNG-EC. This essay proposes a secondary mechanism of action of LNG-EC that is postovulatory but prefertilization; it argues that LNG-EC may act (...) in a contraceptive fashion by interfering with transport of the ovum to the site of fertilization in the timely fashion needed for reproductive success. While this mechanism of action cannot be established with the moral certitude required of these matters of life and death, further research may validate this mechanism beyond a reasonable doubt. National Catholic Bioethics Quarterly 14.2 : 235–244. (shrink)

Salutary reading for all philosophers, and not only for inductive logicians, philosophers of science and law, this important book presents an elaborate theory of inductive reasoning whose substantive features are as strikingly original as the approach is rare. First, the theory is based on concrete, real, actual, and significant instances of inductive reasoning, e.g., Karl von Frisch’s work on bees; that is, though its aim is genuinely theoretical in the sense that it engages in the proper amounts of idealization, abstraction, (...) systematization, precision, and rigor, it never loses sight of the fact that "theories in the philosophy of science, like theories in science itself, have to face up to the challenge of appropriately accredited experience within their appointed domains". Second, a central subject matter being analyzed is legal reasoning, that is, the types of proofs and arguments used by juries, judges, and lawyers in the Anglo-American system of jurisprudence, where criminal charges have to be proved beyond reasonable doubt and civil cases have to be argued on the balance of probability. Thus, in effect, Cohen’s synthesis of juridical and of scientific reasoning is an admirable example of the bridging of two "cultures." Third, and most importantly, the concept of "inductive probability," in terms of which Cohen makes sense out of his subject matter, is incommensurable with that of "mathematical probability," namely the classical calculus of chance according to which probability is measurable, additive, transitive, and obeys a multiplicational principle for conjunction and a complementational one for negation. This is not to say that "inductive probability" is a hazy, mysterious, or unstructured concept, and Cohen goes to great lengths to show that it is ordinal, modal, and formally analyzable; what it does mean is that essential types of reasoning in science and in law involve probable inferences whose probabilities are nonquantitative. Hence, though Cohen does not stress the qualitative nature of inductive probability, his book will be welcome by those who conceive of philosophy as scientia qualitatum. Specific conclusions reached by Cohen are that, in general, probability may be conceived as degree of provability, that differences in proof-rules generate different special cases of probability, that inductive probability may be viewed as the special case where the proof-rules are incomplete, that inductive probability is to inductive support as deducibility is to logical truth, and that some recent epistemological scepticism may be refuted by Cohen’s inductive logic. Finally, he sees himself in the British inductivist tradition, interpreting his predecessors as groping toward a logic of inductive support and probability rather than a methodology of discovery: from Bacon he develops the notion of eliminative induction but rejects that of induction by enumeration; Mill’s canons are analyzed as special cases of Cohen’s own "method of relevant variables," except for the method of residues, which is rejected as invalid ; he takes his critique of mathematical probability as a vindication of Hume’s thesis that "probability or reasoning from conjecture may be divided into two kinds, viz., that which is founded on chance and that which arises from causes" ; Whewell’s consilience of induction is justified ; and from Keynes, he develops the notion of the "weight" of evidence but rejects his mathematicist approach.—M. A. F. (shrink)

I desire to invite the attention of students of Plato and of Greek mathematics to a solution of a passage which has long been a field of controversy for critics. For brevity's sake I shall take for granted an acquaintance with the two solutions which at present dispute the field, and further adopt certain positions which previous enquirers have established beyond reasonable doubt.

Discussion in this paper focuses on how strongly we should prefer non-punishment of persons guilty of serious crimes to punishment of persons innocent of them. William Blackstone's version of that preference, expressed as a ten to one ratio, is first shown to be untenable on standard accounts of legal punishment's justifying aims. Somewhat weaker versions of that ratio also appear suspect. More to the point, Blackstone's adage obscures the crucial way in which there are risks to be assessed in setting (...) up a criminal justice system - the risk that it will not be eff ective enough at apprehending and punishing serious off enders, as well as the risk that it will expose innocent persons to harsh punishment. I urge a balancing of such risks, and argue that the salient features of many contemporary criminal justice systems can be plausibly interpreted as attempting to achieve and maintain such a balance. We do not grant criminal defendants a presumption of innocence that the state must overcome with proof of guilt beyond a reasonable doubt in order to institutionally express a strong degree of preference for non-punishment of the guilty to punishment of the innocent. Instead, we do so in order to ensure that institutions of legal punishment have suffi cient scope while preserving their ability to accurately sort the guilty from the innocent. (shrink)

Existing discussions of legal proof address a host of apparently disparate questions: What does it take to prove a fact beyond a reasonable doubt? Why is the reasonable doubt standard notoriously elusive, sometimes considered by courts to be impossible to define? Can the standard of proof by a preponderance of the evidence be defined in terms of probability thresholds? Why is statistical evidence often insufficient to meet the burden of proof? -/- This paper defends an (...) account of proof that addresses each of these questions. Where existing theories take a piecemeal approach to these puzzles, my theory develops an insight that unifies them—namely, the thesis that legal proof requires knowledge. Although this thesis may seem radical at first, I answer several common objections to it, and I argue that it does better than several competing accounts when it comes to making sense of our intuitions about what legal proof requires. (shrink)

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing—i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action—in particular, about how to treat individuals. If this is correct, it seems that they should not overlook (...) one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as ‘proof beyond a reasonable doubt’ is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn’t trials work as ‘ex post facto bets,’ whereby the response that the state is willing to ‘wager’ correlates with the fact finder’s confidence in the defendant’s guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts. (shrink)

Beyond reasonable doubt, the influence of Western culture and civilizations has enervated traditional African family systems, and their functions as providers of social welfare. Hitherto, traditional African family and clan by extension served as the plausible medium by which Africans proffered solutions to those social, economic and other existential problems found within their communities. However, measuring and evaluating the successes of the various social welfare programs organized by the family and clan was a difficult task to achieve. (...) It seems the services rendered merely controlled the social problems but did not improve the standard of living of the victims. This paper seeks to critically analyse the traditional African family system and its role as a provider of social welfare and argues that it can complement the Western models towards holistic social integration. Thus this work adopts the theory of change as a tool for understanding how Western models of social welfare should be integrated with traditional African approaches to care for the ‘weak’ in the society. Advocating for a paradigm shift from the modern models of providing social welfare to the traditional African family and clan model is consequent upon the claim that the latter is more embracing in approach. (shrink)

Douglas Husak’s book is an intelligent, wide-ranging exploration of the legal principle ‘ignorance of law is no excuse’. This principle is one of the few pieces of legal doctrine known by many regular folks, along with the criminal standard of proof ‘beyond a reasonable doubt’. The traditional approach to the doctrine might be explained in this way: in some cases, ignorance of the law fails to excuse offenders from culpability because as a matter of policy we feel (...) they ought to have known the law governing their behaviour. Placing upon citizens the responsibility to know the law is good policy because it may increase both knowledge of law (by inspiring persons considering questionable action to investigate legal rules, etc.) and law-abiding behaviour (by dissuading those who discover their possible act is illegal from acting). Although many believe the criminal law’s primary purpose is state-imposed backwards-looking ‘just deserts’ for moral wrongs, the law also serves to accomplish forward-looking aims such as enhancing moral agency and decreasing crime. From this perspective, the principle that ignorance of the law does not excuse contributes to rule of law and social order by encouraging awareness of legal rules. Husak’s position on ignorance of law is sometimes difficult to discern amongst the detailed critique and commentary on competing views that occupy most of the first 100 pages. In the end, Husak bucks a forward-looking account of the principle and concludes that ignorance of the law – or more exactly, ignorance of the law related to ignorance of the morality underpinning the law – ought to serve as an excuse to criminal guilt in most cases. Further, he claims ignorance of law ought to excuse in the same way that that ignorance of an important fact regarding one’s crime excuses. That he is mistaken regarding an important fact about his crime matters to a defendant’s blameworthiness – e.g. if the defendant kills in self-defence, mistaking the toy gun their victim is carrying with a real gun. A person who honestly believes they are in immediate danger from an armed aggressor is less than fully blameworthy for killing that aggressor even if they were mistaken about the threat. Similarly, knowledge or ignorance that some act is morally wrong clearly matters to moral blameworthiness, says Husak: other things being equal, a person who is ignorant of the moral wrongness of her act is less blameworthy than someone who is aware that what she is doing is wrong. Where ignorance of that an action violates a criminal law is related to ignorance regarding the morality of the act, a person is less than fully culpable. (shrink)

Mr. M. P. Charlesworth seems to have been too sceptical when he remarked that ‘the names of the Indian princelets given in the Periplus are unidentifiable, or rather too easily identifiable with any one, to be of any use’. Actually, the ruler mentioned in ch. 41 is identifiable beyond reasonable doubt, and his date is practically certain.

Mr. M. P. Charlesworth seems to have been too sceptical when he remarked that ‘the names of the Indian princelets given in the Periplus are unidentifiable, or rather too easily identifiable with any one, to be of any use’. Actually, the ruler mentioned in ch. 41 is identifiable beyond reasonable doubt, and his date is practically certain.

Both Kant and Dilthey distinguish between cognition and knowledge, but they do so differently in accordance with their respective theoretical interests. Kant's primary cognitive interest is in the natural sciences, and from this perspective the status of psychology is questioned because its phenomena are not mathematically measurable. Dilthey, by contrast, reconceives psychology as a human science.For Kant, knowledge is conceptual cognition that has attained certainty by being part of a rational system. Dilthey also links knowledge with certainty; however, he derives (...) the latter from life-experience rather than from reason. Dilthey's psychology begins with the self-certainty of lived experience and life-knowledge, but this turns out to fall short of cognitive understanding. In the final analysis, both Kant and Dilthey move beyond psychology to arrive at self-understanding. Because of his doubts about introspection, Kant replaces psychology with a pragmatic anthropology to provide a communal framework for self-understanding. Dilthey supplements psychology with other human sciences as part of a project of anthropological reflection. (shrink)