The explanationist revolution in evidence law

2019 ◽  
Vol 23 (1-2) ◽  
pp. 60-67 ◽  
Author(s):  
Amalia Amaya
Keyword(s):  
Alternative Interpretation ◽  
Revolutionary Change ◽  
The Core ◽  
Basic Distinction ◽  
Evidence Law ◽  
Fact Finding ◽  
Legal Proof ◽  
Probabilistic Criteria

According to Allen and Pardo, the field of evidence law has experienced a revolution -in Kuhn's sense- from probabilism to explanationism, which they identify with the relative plausibility theory. The explanationist revolution, argue Allen and Pardo, has placed explanationist -rather than probabilistic criteria- at the core of the fact-finding process and, in contrast to probabilism, has advanced a comparative understanding of the theory of legal proof. This paper develops an alternative interpretation of the explanationist revolution in evidence law. First, it elaborates on the concept of legal revolution and argues that it involves a kind of shift that is best characterized as a Hacking -rather than a Kuhnean- type of revolution and, thus, as an ‘emplacement’ instead of a ‘replacement’ revolution. Second, it claims that the shift from probabilism to explanationism involves a deep -genuinely revolutionary- change in the conception of rationality that is taken to govern the processes of evidence and legal proof. Other differences between probabilistim and explanationism, such as those mentioned by Allen and Pardo, are not central to the revolutionary shift, but rather emanate from this basic distinction. Last, it argues that the explanationist paradigm embraces, but cannot be reduced to, the relative plausibility theory; the identification of explanationism with the relative plausibility theory occludes the richness and possibilities harboured by the new, explanationist, paradigm.

Philosophical Foundations of Evidence Law

2021 ◽  
Author(s):  
Christian Dahlman ◽  
Alex Stein ◽  
Giovanni Tuzet
Keyword(s):  
Evidence Theory ◽  
Common Interest ◽  
Rational Beliefs ◽  
Philosophical Foundations ◽  
Legal Evidence ◽  
The Core ◽  
Theoretical Approaches ◽  
Evidence Law ◽  
Core Issues ◽  
The Bayesian Approach

Philosophical Foundations of Evidence Law presents a cross-disciplinary overview of the core issues in the theory and methodology of adjudicative evidence and factfinding, assembling the major philosophical and interdisciplinary insights that define evidence theory, as related to law, in a single book. The volume presents contemporary debates on truth, knowledge, rational beliefs, proof, argumentation, explanation, coherence, probability, economics, psychology, bias, gender, and race. It covers different theoretical approaches to legal evidence, including the Bayesian approach, scenario theory, and inference to the best explanation. The volume’s contributions come from scholars spread across three continents and twelve different countries, whose common interest is evidence theory as related to law.

Coherence in Legal Evidence

2021 ◽  
pp. 231-248
Author(s):  
Amalia Amaya
Keyword(s):  
Constraint Satisfaction ◽  
Evidential Reasoning ◽  
Narrative Coherence ◽  
Coherent Systems ◽  
Legal Evidence ◽  
Structural Coherence ◽  
Fact Finding ◽  
Legal Proof ◽  
Legal Fact

This chapter discusses the concept of coherence and its role in evidential reasoning in law. It examines three main approaches to coherence, namely, structural coherence, narrative coherence, and coherence as constraint satisfaction, and argues that coherence as constraint satisfaction provides an account of the kind of coherence that is relevant to legal fact-finding that is both descriptively adequate and normatively appealing. Next, it addresses some problems concerning the relation between coherence and inference, coherence and virtue, and coherence and truth in the context of legal factfinding. More specifically, it examines three main objections facing a coherentist account of inference, i.e., conservatism, circularity and unfeasibility, and conceptualizes it as an explanatory kind of inference. Then, it articulates a problem that has not been traditionally discussed in the coherentist literature, to wit, the coherence bias, and argues that virtue coherentism has the resources to effectively counteract it. Last, it defends the coherentist approach to evidence and legal proof against three objections that put into question the truth-conduciveness of coherence, namely, the isolation or input objection, the alternative coherent systems objection, and the truth objection. The chapter concludes by suggesting some avenues for further research on coherence, evidence, and legal proof.

The Derivation without the Gap: Rethinking Groundwork I

1999 ◽  
Vol 3 ◽  
pp. 18-40 ◽  
Author(s):  
Berys Gaut ◽  
Samuel Kerstein
Keyword(s):  
Categorical Imperative ◽  
Alternative Interpretation ◽  
The Core ◽  
Metaphysics Of Morals ◽  
Supreme Principle

At the core of Kant's Groundwork of the Metaphysics of Morals lies his ‘derivation’ of the categorical imperative: his attempt to establish that, if there is a supreme principle of morality, then it is this imperative. Kant's argument for this claim is one of the most puzzling in his corpus. The received view, championed by Aune and Allison, is that there is a fundamental gap in the argument, which Kant elides by means of a simple but deadly confusion, thus robbing the argument of all validity. We will here contest the received view, as well as Korsgaard's alternative interpretation of the argument. In place of these positions we will offer a reconstruction of the derivation which reveals its coherence and force. We will show that it illuminates some interesting grounds for rejecting certain candidates, including a utilitarian principle, for status as the supreme principle of morality. While certainly not free of all defects, the argument will be shown to be far more powerful and interesting than it has commonly been held to be.

Justification, Coherence, and Epistemic Responsibility in Legal Fact-Finding

Episteme ◽  
2008 ◽  
Vol 5 (3) ◽  
pp. 306-319 ◽  
Author(s):  
Amalia Amaya
Keyword(s):  
Epistemic Responsibility ◽  
Fact Finding ◽  
Legal Proof ◽  
Legal Fact

ABSTRACTThis paper argues for a coherentist theory of the justification of evidentiary judgments in law, according to which a hypothesis about the events being litigated is justified if and only if it is such that an epistemically responsible fact-finder might have accepted it as justified by virtue of its coherence in like circumstances. It claims that this version of coherentism has the resources to address a main problem facing coherence theories of evidence and legal proof, namely, the problem of the coherence bias. The paper then develops an aretaic approach to the standards of epistemic responsibility which govern legal fact-finding. It concludes by exploring some implications of the proposed account of the justification of evidentiary judgments in law for the epistemology of legal proof.

scholarly journals Modern empires and nation-states

Thesis Eleven ◽  
2017 ◽  
Vol 139 (1) ◽  
pp. 11-29 ◽  
Author(s):  
John Breuilly
Keyword(s):  
World Order ◽  
Nation State ◽  
National State ◽  
The Core ◽  
Nation States ◽  
Basic Distinction ◽  
City States

Empires and nation-states are not opposed or distinct forms of polity but closely linked forms. Pre-modern empire existed without any contrasting form of polity we might call a nation-state. Rather, they contrasted with non-national state forms such as city-states, small kingdoms and mobile, nomadic polities. These in turn were in constant interaction with any neighbouring empire or empires, perhaps becoming the core of an empire themselves, perhaps taking over all or part of an existing empire, perhaps maintaining some autonomy by virtue of remoteness or lack of attractiveness, perhaps by balancing opposed empires against each other. Empires did not have a national core, and non-empires were not national. By contrast, modern empires have always had a clearly designated nation-state core and a physically separate set of non-national peripheries. This has been crucial to ensuring that when formal empire is ended, both the imperial core and the former colonies are defined as nation-states. But ex-imperial nation-states and ex-colonial nation-states are really two kinds of states. Much contemporary confusion about the prospect for a world order of nation-states revolves round the failure to make that basic distinction.

From Transitory Status to Perpetual Sententiae: Rethinking Polygamy in Islamic Traditions

Hawwa ◽  
2004 ◽  
Vol 2 (3) ◽  
pp. 290-300
Author(s):  
Ahmed Souaiaia
Keyword(s):  
Critical Analysis ◽  
Islamic Law ◽  
Alternative Interpretation ◽  
Formative Period ◽  
Male Bias ◽  
Linguistic Evidence ◽  
Legal Proof ◽  
Islamic Society ◽  
Alternative Understanding ◽  
The Way

AbstractPolygamy and inequity in inheritance rights are two fundamental concerns that continue to challenge the logic and practice concerning the way women are treated in Islamic society. These two subjects remain beyond the scope of critical analysis due in part to the explicit legal proof (dalīl) that is found in the Qur'ān. How explicit are such legal proofs in general and is there any scope for an alternative interpretation? The consensus that emerged on these two matters would suggest that there is none. However, in this paper, I would argue that the perceived consensus is guided and dictated by the fact that during the formative period of Islamic law, interpretive and normative disciplines were dominated by men; hence, the male bias. It can be argued, based on historical and linguistic evidence, that there is a very plausible alternative understanding that is radically different from any of those proposed by traditionalists.

How to Teach Factual Analysis: Assessing an Indian Evidence Law Course

2018 ◽  
Vol 5 (2) ◽  
pp. 122-136
Author(s):  
Ajay Kr Sharma
Keyword(s):  
Empirical Study ◽  
Positive Impact ◽  
Hybrid Approach ◽  
Teaching Experience ◽  
Analysis Methods ◽  
The Subject ◽  
Evidence Law ◽  
Fact Finding ◽  
Teaching Learning ◽  
Law Of Evidence

This article experientially narrates the innovative use of certain fact-finding and analysis methods, namely, ‘an investigation problem’, the Wigmorean chart method and the probability theory with Bayesian analysis (with the case law demonstrating its pragmatic application and limitation), by the author, an Indian law teacher, in teaching his ‘law of evidence’ course. This marks a departure from the conventional way of teaching evidence law in India, which presents its own challenges. In the course of this article, the author vividly shares his teaching experiences, discusses the academic resources used, highlights the key learning outcomes derived in administering these components, and delineates their overall positive impact on the learning of the subject. He further validates these experiences on the basis of the results of an empirical study conducted by him, in which a large number of his students voluntarily participated and gave their feedbacks. The results demonstrate the efficacy of these factual analysis methods individually, and their positive correlation with the increased understanding and knowledge of this course. This is descriptively demonstrated by the results obtained from Kendall’s Tau-b correlation which, along with the graphics, show a significant monotonic relationship between the said three methods and their cumulative contribution in terms of the overall learning of the subject. This empirical study also demonstrates an overall match between the author’s teaching experience as an evidence law teacher in teaching the avowed fact analysis methods, and his evidence law class’ experience as the students learning them, which is crucial for every effective teaching–learning exercise. After discussing important literature on teaching fact analysis and evidence law, the author concludes by justifying his overall use of the ‘hybrid approach’ in teaching his ‘law of evidence’ course. Consequentially, this study seeks to inspire other evidence law teachers to pedagogically assimilate similar methods in their curricula.

The Refoundation of Evidence Law

1996 ◽  
Vol 9 (2) ◽  
pp. 279-342 ◽  
Author(s):  
Alex Stein
Keyword(s):  
Upright Position ◽  
New Foundations ◽  
Core Principle ◽  
Evidence Law ◽  
Fact Finding

This article examines and criticizes the conventional evidence doctrine and its core principle (albeit with exceptions) of legally unregulated fact-finding. New foundations for evidence law are offered that reflect a principled allocation of the risk of error in conditions of uncertainty. Such conditions are present in virtually every litigated case. This article opposes the doctrine of ‘free proof’. That doctrine underlies the current flowering of discretion injudicial fact-finding and is responsible for the ongoing abolition of evidentiary rules. The evidence law theory developed in this article is of course itself theory-dependent. Far from claiming the theory here is uniquely correct rather than simply valid, I shall be satisfied by its survival as yet “another view of the Cathedral”. Nonetheless, evidence law as conventionally portrayed can hardly be compared with Monet’s Cathedral. It is conspicuously more like Pisa’s Leaning Tower. This article aims at returning the leaning tower of evidence law to an upright position.

Sign in / Sign up

Export Citation Format

Share Document