I argue that legal punishment is morally wrong because it’s too morally risky. I first briefly explain how my argument differs from similar ones in the philosophical literature on legal punishment. Then I explain why legal punishment is morally risky, argue that it’s too morally risky, and discuss objections. In a nutshell, my argument goes as follows. Legal punishment is wrong because we can never sufficiently reduce the risk of doing wrong when we legally punish people. We can never sufficiently (...) reduce this risk because wrongful punishment is much worse than wrongful non-punishment and because punishment’s permissibility depends on the answers to a variety of difficult philosophical questions about which we’re fallible. (shrink)

Making a connection between ‘post-modernism’ and post-truth has by now become a standard trope, both within academia and popular discourse, despite post-truth’s only recent emergence as a concept. Such claims are often rather vague and fanciful and lack an altogether credible account of either phenomenon in many cases. This Chapter argues however that within a legal context, there is the emergence of a legal post-truth which is the direct consequence of a concrete form of post-modernity within legal practice and thought. (...) While law may be called upon to engage in judgments of ‘truth’ in numerous interesting ways, it does not itself have any particular form of privileged access to the truth of statements or allegations, even though it is often treated as doing so. However, the most persistent question which law must deal with, and indeed the most persistent question within legal philosophy, relates to a deeper form of inquiry into truth: the question of legal truth. In simple terms this refers to the correctness of any particular proposition of law. Within legal theory, this expands to the larger question of what makes, in general, any legal proposition valid, or true. Reflecting upon legal scholarship through the lens of truth reveals that theories of law can be broken down into two broad and radically distinct categories. On the one hand, there exist empirical accounts of law which fundamentally understand questions of legal truth as social questions whose answers are empirically demonstrable. On the other hand, there are ‘idealist’ accounts of law which view legal content, and hence truth, as existing in some way or other in a manner which transcends social practice and which is autonomous from it. Both of these classical accounts, while radically different, share an interesting paradox: they see truth in law as an objective fact, but one which is fleeting and distant, far from the paradigm of legal certainty upon which the ideology of law is partly based. However, such accounts of legal truth share many other unstated aspects, and are largely based upon ideas which place the separateness and completeness of legal systems at their heart, providing either a unified ideal or a unified empirically observable social practice. However, they are share a common flaw, namely the failure to account for what might be called a post-modern phase of development in law, in which ordinary legal questions now regularly require the complex and non-hierarchical interaction of competing legal systems with different ‘truths’ and different ways of arriving at such truths. Such phenomena are commonly referred to as legal or, at times, constitutional ‘pluralism’. This post-modern turn within law has also produced therefore what we might call a form of post-truth within law. This is particularly significant because it places under great strain both the empirical and ideal accounts of legal truth and require us to re-elaborate an account of what makes a legal proposition true. From certain perspectives, this legal post-truth shares certain important aspects with the cultural phenomenon of post-truth, namely its apparently capricious and deracinated nature. However, it is argued in this Chapter that, in the legal context at least, post-truth allows for the transcendence of the empirical/ideal divide and the revealing of deeper forms of legal truth and our ability to account for them through theory or, put more simply, explanation. Upon greater reflection, legal truth is generated by the very forms of argument, or modes, which allow access to it. Such forms of argument exist also to produce legal truths outside and between legal orders where these appear to conflict or collide. While some legal scholars and others claim that such pressures on structures of knowledge reveal the end of the potential for law to generate truth, it is argued here that, on the contrary, they require a more open and more transparent use of the pure methods and modes of reason which both reveal but also generate legal truth in the first place. This is relevant to post-truth more generally in one specific way, despite the numerous idiosyncrasies of legal truth and knowledge: when assertions of truth within structures of power seem to come to embody the perspectivism and relativism used as methods of deconstruction, the post-modern and deconstructionist projects themselves require radical change: they stay true to their goal of deconstructing structures and discourses of power by applying the classical epistemologies which are rejected by those in power. Just as legal outcomes which are asserted rather than reasoned or justified are most convincingly deconstructed through sober legal modes, so can the post-modernist project find purpose in a world where dominant epistemes seem to have come to embody a simplistic version of post-modernist critiques. (shrink)

The primary aim of this chapter is to explain the nature of evidential reasoning, the characteristic difficulties encountered, and the tools to address these difficulties. Our focus is on evidential reasoning in criminal cases. There is an extensive scholarly literature on these topics, and it is a secondary aim of the chapter to provide readers the means to find their way in historical and ongoing debates.

In a recently published paper, we argued that theories of cultural evolution can gain explanatory power by being more pluralistic. In his reply to it, Dennett agreed that more pluralism is needed. Our paper’s main point was to urge cultural evolutionists to get their hands dirty by describing the fine details of cultural products and by striving to offer detailed and, when explanatory, varied algorithms or mechanisms to account for them. While Dennett’s latest work on cultural evolution does marvelously well (...) on the first point, it has only whet our appetite on the second. Accordingly, the present paper aims to show what an evolutionary explanation of culture that takes the variety of cultural evolution mechanisms seriously would look like. We will focus on the cultural evolution of social epistemic mechanisms and we will propose that Darwinian algorithms should be complemented with a cultural analogue of the error reduction mechanism proposed to account for human cognition, with a particular emphasis on the necessity to build independencies between different sub-systems in charge of tracking states of the world. To illustrate our point, we will present how the evolution of the legal system as epistemic systems can be understood as a process of building increasingly better independencies and how various criticisms of the actual legal system calls for building even more of them. (shrink)

This volume examines the concept of falsification as a central notion of semantic theories and its effects on logical laws. The point of departure is the general constructivist line of argument that Michael Dummett has offered over the last decades. From there, the author examines the ways in which falsifications can enter into a constructivist semantics, displays the full spectrum of options, and discusses the logical systems most suitable to each one of them. While the idea of introducing falsifications into (...) the semantic account is Dummett's own, the many ways in which falsificationism departs quite radically from verificationism are here spelled out in detail for the first time. The volume is divided into three large parts. The first part provides important background information about Dummett’s program, intuitionism and logics with gaps and gluts. The second part is devoted to the introduction of falsifications into the constructive account and shows that there is more than one way in which one can do this. The third part details the logical effects of these various moves. In the end, the book shows that the constructive path may branch in different directions: towards intuitionistic logic, dual intuitionistic logic and several variations of Nelson logics. The author argues that, on balance, the latter are the more promising routes to take. "Kapsner’s book is the first detailed investigation of how to incorporate the notion of falsification into formal logic. This is a fascinating logico-philosophical investigation, which will interest non-classical logicians of all stripes." Graham Priest, Graduate Center, City University of New York and University of Melbourne. (shrink)

This paper advocates for a general policy of penal leniency: judges should often sentence offenders to a punishment less severe than initially preferred. The argument’s keystone is the relatively uncontroversial Minimal Invasion Principle (MIP). MIP says that when more than one course of action satisfies a state’s legitimate aim, only the least invasive is permissibly pursued. I contend that MIP applies in two common sentencing situations. In the first, all sentences within a statutorily specified range are equally proportionate. Here MIP (...) applies directly. In the second, judges reasonably believe that one of the sentences within the range is the most proportionate, but can’t identify it with any certainty. In these cases of sentencing uncertainty, judges must be indifferent between their preferred sentence and a softer one, and this indifference triggers MIP. MIP thus frequently mandates some degree of leniency. I conclude with some comments on statistical uncertainty. (shrink)

This paper analyzes legal fact-argumentation in the framework of the argumentation-based litigation game by Xiong :16–19, 2012). Rather than as an ontological one, an ALG treats a legal fact as a fact-qua-claim whose acceptability depends on the reasons supporting it. In constructing their facts-qua-claims, parties to an ALG must interact to maintain a game-theoretic equilibrium. We compare the general interactional constraints that the civil and common law systems assign, and detail what the civil, administrative, and criminal codes of mainland China (...) require of the suitor, the respondent, and the trier to establish their respective S-, R- and T-facts. We also offer an improved version of the legal syllogism. (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 place of the traditional epistemological view of knowledge as justified true belief we argue that artificial intelligence and law needs an evidence-based epistemology according to which scientific knowledge is based on critical analysis of evidence using argumentation. This new epistemology of scientific evidence (ESE) models scientific knowledge as achieved through a process of marshaling evidence in a scientific inquiry that results in a convergence of scientific theories and research results. We show how a dialogue interface of argument from expert (...) opinion, along with its set of critical questions, provides the argumentation component of the ESE. It enables internal scientific knowledge to be translated over into a wider arena in which individual nonexpert citizens and groups can make use of it. The external component shows how evidence is presented and used in a legal procedural setting that includes fact-finding, weighing the credibility of expert witnesses, and critical questioning of arguments. The paper critically reviews the standards of admissibility of scientific evidence using the ESE. (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 paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? Why do systems differ as to (...) criteria and standards? How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the functional connection between criteria and standards. (shrink)

The scarcity of resources required to produce justice is manifested in the relation between the accuracy, depth, and scope of materially possible forms of justice. Ceteris paribus , increases in the accuracy of justice must come at the expense of its depth and scope, and vice versa, though they are not linearly proportioned. The accuracy of justice is the degree of agreement between the possible results of attempts to implement a theory or principles of justice and the desired result according (...) to that theory or those principles of justice. The scope of justice measures how broadly the principle or theory of justice is intended to apply. The depth of justice measures the gap between existing social norms and the theory or principles of justice we examine within the specified scope. This three-dimensional model explains public policies, laws, and regulations that increase the scope or depth of justice at the cost of a decrease in its accuracy – rough forms of justice such as measures of transitional justice, affirmative action, mandatory sentencing, simplified tax codes, collective guilt and victimhood, and general amnesties. The scarcity of resources necessary for justice can contract or expand. The normative choice between principles of justice that prefer accuracy and those that favor scope or depth usually corresponds, respectively, with rights-based deontological theories and consequentialist ethics. (shrink)

The function and legitimacy of values in decision making is a critically important issue in the contemporary analysis of science. It is particularly relevant for some of the more application-oriented areas of science, specifically decision-oriented science in the field of regulation of technological risks. Our main objective in this paper is to assess the diversity of roles that non-cognitive values related to decision making can adopt in the kinds of scientific activity that underlie risk regulation. We start out, first, by (...) analyzing the issue of values with the help of a framework taken from the wider philosophical debate on science and values. Second, we study the principal conceptualizations used by scholars who have applied them to numerous case studies. Third, we appraise the links between those conceptualizations and learning processes in decision-oriented science. In this, we recur to the concept of methodological learning, i.e., learning about the best methodologies for generating knowledge that is useful for science-based regulatory decisions. The main result of our analysis is that non-cognitive values can contribute to methodological improvements in science in three principal ways: as basis for critical analysis, for contextualizing methodologies, and for establishing the burden of proof. (shrink)

The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless and until (...) he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences. (shrink)

Decision-making by a Data and Safety Monitoring Board (DSMB) regarding clinical trial conduct and termination is intricate and largely limited by cases and rules. Decision-making by legal jury is also intricate and largely constrained by cases and rules. In this paper, I argue by analogy that legal decision-making, which strives for a balance between competing demands of conservatism and innovation, supplies a good basis to the logic behind DSMB decision-making. Using the doctrine of precedents in legal reasoning as my central (...) analog will lead us to a decision-theoretic analogy for much more systematic documentation of decisions in clinical trials. My conclusion is twofold: every DSMB decision should articulate a clear general principle (a ratio decidendi) that gives reason for the decision; and all such decisions should be made public. I use Bartha’s (2010) theory of analogical arguments to both frame and assess my argument by analogy. (shrink)

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...) The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

In this paper I respond to Marcello Di Bello’s criticisms of the ‘normic account’ of the criminal standard of proof. In so doing, I further elaborate on what the normic account predicts about certain significant legal categories of evidence, including DNA and fingerprint evidence and eyewitness identifications.

Ever since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of (...) particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally. (shrink)

The use of risk assessment tools has come to play an increasingly important role in sentencing decisions in many jurisdictions. A key issue in the theoretical discussion of risk assessment concerns the predictive accuracy of such tools. For instance, it has been underlined that most risk assessment instruments have poor to moderate accuracy in most applications. However, the relation between, on the one hand, judgements of the predictive accuracy of a risk assessment tool and, on the other, conclusions concerning the (...) justified use of such an instrument in sentencing practice, is often very unclear. The purpose of this paper is to examine this relation. More precisely, it is argued that the relation between predictive accuracy and the question as to whether a new risk assessment tool should be introduced in sentencing practice is highly complicated. For instance, there may be cases in which a new risk assessment tool is more accurate than those currently in use, but should nevertheless not be introduced; and conversely, where a new tool is less accurate, but where its introduction instead of current tools would be morally preferable. (shrink)

El trabajo analiza la perspectiva que promueve la despenalización de la conducta de ofrecer sobornos –cohecho activo- como un modo de disuadir la aceptación de sobornos por parte de funcionarios públicos –cohecho pasivo-. En líneas generales, esta propuesta se apoya en el argumento de que, si el cohecho activo no constituyera un delito, ante el temor a ser denunciados por los sobornadores, desde el principio, los funcionarios se abstendrían de solicitar o aceptar el pago de sobornos. Luego de examinar diferentes (...) estudios teóricos y empíricos sobre el problema, se argumenta que, si bien en algunos casos la despenalización del cohecho activo resulta conveniente, en otros, hay razones para suponer que sería una medida contraproducente, pues daría lugar a un incremento tanto del ofrecimiento como de la aceptación de sobornos. (shrink)

Wikipedia has become increasingly prominent in online search results, serving as an initial path for the public to access “facts,” and lending plausibility to its autobiographical claim to be “the sum of all human knowledge.” However, this self-conception elides Wikipedia’s role as the world’s largest online site of encyclopedic knowledge production. A repository for established facts, Wikipedia is also a social space in which the facts themselves are decided. As a community, Wikipedia is guided by the five pillars—principles that inform (...) and undergird the prevailing epistemic and social norms and practices for Wikipedia participation and contributions. We contend these pillars lend structural support to and help entrench Wikipedia’s gender gap as well as its lack of diversity in both participation and content. In upholding these pillars, Wikipedians may unknowingly undermine otherwise reasonable calls for inclusivity, subsequently reproducing systemic biases. We propose an alternative set of pillars developed through the lens of feminist epistemology, drawing on Lorraine Code’s notion of epistemic responsibility and Helen Longino’s notion of procedural objectivity. Our aim is not only to reduce bias, but also to make Wikipedia a more robust, reliable, and transparent site for knowledge production. (shrink)

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology (...) and suggest a way to vindicate it. (shrink)

Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. A prominent line of argument—endorsed by Blome-Tillmann 2017; Smith 2018; and Littlejohn 2018—rejects the use of such evidence by appealing to epistemic norms that (...) apply to individual inquirers. My aim in this paper is to rehabilitate purely statistical evidence by arguing that, given the broader aims of legal systems, there are scenarios in which relying on such evidence is appropriate. Along the way I explain why popular arguments appealing to individual epistemic norms to reject legal reliance on bare statistics are unconvincing, by showing that courts and individuals face different epistemic predicaments (in short, individuals can hedge when confronted with statistical evidence, whilst legal tribunals cannot). I also correct some misconceptions about legal practice that have found their way into the recent literature. (shrink)

This paper defends the heretical view that, at least in some cases, we ought to assign legal liability based on purely statistical evidence. The argument draws on prominent civil law litigation concerning pharmaceutical negligence and asbestos-poisoning. The overall aim is to illustrate moral pitfalls that result from supposing that it is never appropriate to rely on bare statistics when settling a legal dispute.

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions—in particular, the disciplinary assumptions—implicit in influential contributions to debates on the presumption (...) of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers routinely treat the presumption of innocence as epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts. (shrink)

This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)

Durante los últimos años, el problema de cómo justificar aquellas creencias que se originan en testimonios ha ocupado un lugar central en la epistemología. Sin embargo, muy pocas de esas reflexiones son conocidas en el derecho probatorio. En el presente ensayo analizo la prueba testimonial a la luz de estas reflexiones con el fin de poner de manifiesto los supuestos epistemológicos de algunos principios procesales. En concreto, analizo la legislación colombiana y la estadounidense en el marco de la disputa entre (...) el reduccionismo y el antirreduccionismo en la filosofía del testimonio. Al final sugiero una nueva aproximación epistemológica que replantea los términos de la disputa y que tiene implicaciones importantes para la valoración de la prueba testimonial en los procesos judiciales. (shrink)

I argue that the concept of knowledge is a relic of a bygone age, erroneously supposed to do no harm. I illustrate this claim by showing how a concern with knowledge distorts the use of statistical evidence in criminal courts, and then generalize the point to show that this concern hampers our enterprises across the board and not only in legal contexts.

[full article, abstract in English; only abstract in Lithuanian] In Normativity of Scientific Laws explicit and implicit normativities were discerned and it was shown, following Joseph Rouse, that scientific laws implicitly harbour what Alchourrón and Bulygin imply to be the core of normativity. Here I develop this claim by discerning six aspects of implicit normativity in scientific laws: general and special conceptual normativity, concerning analytical thinking and special scientific terminologies; theoretical and material epistemic normativity, concerning mathematical and experimental accountability of (...) the world; narrow and broad practical normativity, concerning technologies in both narrower and broader senses. (shrink)

The relevance of scientific knowledge for science and technology policy and regulation has led to a growing debate about the role of values. This article contributes to the clarification of what specific functions cognitive and noncognitive values adopt in knowledge generation and decisions, and what consequences the operation of values has for policy making and regulation. For our analysis, we differentiate between three different types of decision approaches, each of which shows a particular constellation of cognitive and noncognitive values. Our (...) objectives are to present a structured analysis of the varying functions that different kinds of values can adopt, as well as the value-related tensions and trade-offs they give rise to. We argue that the operation of noncognitive values in scientific knowledge generation, policy, and regulatory decision making can be understood as an enabling factor, rather than a limiting one. (shrink)

In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. Prosecutors’ responsibilities (...) to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed. (shrink)

The starting frame with which jurors begin trials and the approach which they should take toward the presentation of evidence by the prosecution and defense are distinguished. A robust interpretation of the starting frame, according to which jurors should begin trials by presuming the material innocence of defendants, is defended. Alternative starting frames which are less defendant-friendly are shown to cohere less well with the notion that criminal trials should constitute stern tests of the government's case against those it has (...) charged with crimes. The intuitive case for the robust presumption of innocence is supplemented with empirical evidence concerning the psychology of belief formation and preservation. Various objections to the proposed starting frame are addressed. (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)

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)

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the rule (...) of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)

Journal of Political Philosophy, EarlyView.

This special issue for the Journal for General Philosophy of Science is devoted to exploring the impact and many ramifications of current research in evolutionary epistemology. Evolutionary epistemology is an inter- and multidisciplinary area of research that can be divided into two ever-inclusive research avenues. One research avenue expands on the EEM program and investigates the epistemology of evolution. The other research avenue builds on the EET program and researches the evolution of epistemology. Since its conception, EE has developed three (...) schools of thought: adaptationist, non-adaptationist, and applied EE. Although diverse in outlook and theoretical background, these research avenues and schools share the same agenda of understanding how knowledge evolves, and how it relates to the world. In this paper, we first explain wherefrom evolutionary epistemological schools of thought developed, and then we highlight current debates in EE by briefly reviewing the papers that form part of this special issue. (shrink)

Standards and norms for reasoning function, in part, to manage epistemic risk. Properly used, modal qualifiers like presumably have a role in systematically managing epistemic risk by flagging and tracking type-specific epistemic merits and risks of the claims they modify. Yet, argumentation-theoretic accounts of presumption often define it in terms of modalities of other kinds, thereby failing to recognize the unique risk profile of each. This paper offers a stipulative account of presumption, inspired by Ullmann-Margalit, as an inferentially generated modal (...) qualifier, “presumably, p,” distinguishing it from other, particularly epistemic modalities, e.g., standing commitments, assumptions, assertions, suppositions, hypotheses, and defeasible claims. By avoiding the tranching of inferential instruments of qualitatively different bona fides and risk profiles, this account provides a more accurate risk-rating system that better manages epistemic risk in inference, as well as contributing to the normative theory of the operation of presumption in reasoning and argument. (shrink)

Many jurisdictions prohibit or severely restrict the use of evidence about a defendant’s character to prove legal culpability. Situationists, who argue that conduct is largely determined by situational features rather than by character, can easily defend this prohibition. According to situationism, character evidence is misleading or paltry. -/- Proscriptions on character evidence seem harder to justify, however, on virtue ethical accounts. It appears that excluding character evidence either denies the centrality of character for explaining conduct—the situationist position—or omits probative evidence. (...) Situationism is, after all, presented as antithetical to virtue ethics. -/- This essay provides a virtue ethical defense of character evidence exclusion rules. We show that existing virtue ethical rebuttals to situationism themselves support prohibitions on character evidence; even if behavior arises from stable character traits, character evidence should be prohibited. In building our case, we provide a taxonomy of kinds of character judgment and reconcile the ubiquity and reasonableness of character judgments in ordinary life with the epistemic legitimacy of character evidence prohibitions in law. (shrink)

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive (...) regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

One of the most noticeable trends in recent years has been the increasing reliance of public decision-making processes on algorithms, i.e. computer-programmed step-by-step instructions for taking a given set of inputs and producing an output. The question raised by this article is whether the rise of such algorithmic governance creates problems for the moral or political legitimacy of our public decision-making processes. Ignoring common concerns with data protection and privacy, it is argued that algorithmic governance does pose a significant threat (...) to the legitimacy of such processes. Modelling my argument on Estlund’s threat of epistocracy, I call this the ‘threat of algocracy’. The article clarifies the nature of this threat and addresses two possible solutions. It is argued that neither solution is likely to be successful, at least not without risking many other things we value about social decision-making. The result is a somewhat pessimistic conclusion in which we confront the possibility that we are creating decision-making processes that constrain and limit opportunities for human participation. (shrink)

The probabilistic account of juridical proof meets insurmountable problems. A better explanation of juridical proof is that it is a form of inference to the best explanation that involves the comparative plausibility of the parties’ stories. In addition, discrete evidentiary matters such as relevance and probative value are also best understood as involving inference to the best explanation rather than being probabilistic.

The skeptical challenge to politics is that if knowledge is in short supply and it is a condition for the proper use of political power, then there is very little just politics. Cicero’s Republicanism is posed as a program for political legitimacy wherein both citizens and their states are far from ideal. The result is a form of what is termed negative conservatism, which shows political gridlock in a more positive light.

Every time we act in an effort to attain our epistemic goals, we express our epistemic agency. The present study argues that a proper understanding of the actions and goals relevant to expressions of such agency can be used to make ameliorative recommendations about how the ways in which we actually express our agency can be brought in line with how we should express our agency. More specifically, it is argued that the actions relevant to such expressions should be identified (...) with the variety of actions characteristic of inquiry; that contrary to what has been maintained by recent pluralists about epistemic value, the only goal relevant to inquiry is that of forming true belief; and that our dual tendency for bias and overconfidence gives us reason to implement epistemically paternalistic practices that constrain our freedom to exercise agency in substantial ways. In other words, when it comes to our freedom to express epistemic agency, more is not always better. In fact, less is often so much more. (shrink)

Los sesgos cognitivos afectan negativamente la toma de decisiones en todas las esferas de la vida, incluyendo las decisiones de los jueces. La imposibilidad de eliminarlos por completo de la práctica del derecho, o incluso de controlar sus efectos, contrasta con el anhelo de que las decisiones judiciales sean el resultado exclusivo de un razonamiento lógico-jurídico correcto. Frente el efecto sistemático, recalcitrante y porfiado de los sesgos cognitivos, una posible estrategia para disminuir su efecto es enfocarse, no en modificar el (...) comportamiento de los agentes judiciales, sino en moldear su entorno para que los sesgos tengan menos oportunidades de aparecer. En particular, es más provechoso concentrar los esfuerzos en identificar aquellas reglas procesales que faciliten o limiten el efecto de los sesgos. En este ensayo propongo un diálogo fructífero entre el derecho y la psicología que puede llevar a mejorar la calidad de los sistemas judiciales. La propuesta está basada en la creación de guías de práctica judicial que puedan servir de base para la creación de protocolos procesales que limiten en la medida de lo razonable sus efectos negativos y conduzcan a mejores decisiones judiciales. (shrink)

This dissertation addresses the issues of the indeterminacy of law and judicial discretion in the decision of the quaestio facti. It is composed of four papers: In the first paper, I develop an account of legal indeterminacy called the ‘systemic indeterminacy’ thesis. This thesis claims that legal indeterminacy and judicial discretion are the results of features of the structure of typical rational legal systems such as interpretative codes with a plurality of interpretative directives, the non-redundancy clause, and the non-liquet rule. (...) In the second paper, I criticise two approaches that support the thesis that law ought to ascertain the truth of the quaestio facti: the motivation approach and the legal approach. First, I advance two objections to a version of the motivation approach that I call the ‘behaviour-guidance’ theory. The first objection claims that the appearance of ascertaining the truth is enough to produce the psychological state of compliance. The second objection claims that the indeterminacy of law brings about the impossibility of an ex ante knowledge of the content of the law, thus, the governed cannot gain knowledge of the law’s efforts to ascertain the truth. Second, I explore if the legal approach is plausible. I provide five different legal reasons to support the claim that the law ought to ascertain the truth of the quaestio facti. However, I show that none of these reasons are particularly convincing. In the third paper, I advance three objections to the idea of reducing the indeterminacy of the standard of proof rules by adding new legal rules for their interpretation. The first objection claims that these interpretative rules, do not provide any guidance to the trier of fact to set the quantum of evidence. The second objection claims that insofar as these interpretative rules are posited in a natural language they are also indeterminate. The third objection claims that these interpretative rules are redundant legal rules. In the fourth paper, I develop the thesis that standards of proof are competence norms that grant competence to triers of fact to set the quantum of evidence in a case-by-case manner. (shrink)

Journalism and media studies lack robust theoretical concepts for studying journalistic knowledge ‎generation. More specifically, conceptual challenges attend the emergence of big data and ‎algorithmic sources of journalistic knowledge. A family of frameworks apt to this challenge is ‎provided by “social epistemology”: a young philosophical field which regards society’s participation ‎in knowledge generation as inevitable. Social epistemology offers the best of both worlds for ‎journalists and media scholars: a thorough familiarity with biases and failures of obtaining ‎knowledge, and a strong (...) orientation toward best practices in the realm of knowledge-acquisition ‎and truth-seeking. This paper articulates the lessons of social epistemology for two central nodes of ‎knowledge-acquisition in contemporary journalism: human-mediated knowledge and technology-‎mediated knowledge. ‎. (shrink)