scholarly journals STANDARDS OF PROOF: AID OR PITFALL?

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Andra le Roux-Kemp

During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. The existence of a standard of proof against which the presiding officer can measure the evidence submitted consequently plays a pivotal role. This standard of proof (bewysmaatstaf) represents the standard of guilt in legal science and has also been described as a standard of conviction. The standard of proof does not pertain to the inherent qualities of evidentiary material, but rather to the degrees of conviction of the presiding officer in a particular case. The function of thestandard of proof is furthermore to provide presiding officers with a guideline/yardstick to measure the degree of conviction that the general public believe the presiding officer should have over the correctness of all the factual conclusions in the particular proceedings. In this article, the standard of proof in law will be discussed from a comparative point of view; different standards of proof from different jurisdictions will be considered and juxtaposed against similar standards used in the natural sciences.

Dreyfus argues that there is a basic methodological difference between the natural sciences and the social sciences, a difference that derives from the different goals and practices of each. He goes on to argue that being a realist about natural entities is compatible with pluralism or, as he calls it, “plural realism.” If intelligibility is always grounded in our practices, Dreyfus points out, then there is no point of view from which one can ask about or provide an answer to the one true nature of ultimate reality. But that is consistent with believing that the natural sciences can still reveal the way the world is independent of our theories and practices.


2021 ◽  
Vol 165 (3-4) ◽  
Author(s):  
Elisabeth A. Lloyd ◽  
Naomi Oreskes ◽  
Sonia I. Seneviratne ◽  
Edward J. Larson

AbstractStandards of proof for attributing real world events/damage to global warming should be the same as in clinical or environmental lawsuits, argue Lloyd et al. The central question that we raise is effective communication. How can climate scientists best and effectively communicate their findings to crucial non-expert audiences, including public policy makers and civil society? To address this question, we look at the mismatch between what courts require and what climate scientists are setting as a bar of proof. Our first point is that scientists typically demand too much of themselves in terms of evidence, in comparison with the level of evidence required in a legal, regulatory, or public policy context. Our second point is to recommend that the Intergovernmental Panel on Climate Change recommend more prominently the use of the category “more likely than not” as a level of proof in their reports, as this corresponds to the standard of proof most frequently required in civil court rooms. This has also implications for public policy and the public communication of climate evidence.


2020 ◽  
Vol 25 (3) ◽  
pp. 49
Author(s):  
Silvia Licciardi ◽  
Rosa Maria Pidatella ◽  
Marcello Artioli ◽  
Giuseppe Dattoli

In this paper, we show that the use of methods of an operational nature, such as umbral calculus, allows achieving a double target: on one side, the study of the Voigt function, which plays a pivotal role in spectroscopic studies and in other applications, according to a new point of view, and on the other, the introduction of a Voigt transform and its possible use. Furthermore, by the same method, we point out that the Hermite and Laguerre functions, extension of the corresponding polynomials to negative and/or real indices, can be expressed through a definition in a straightforward and unified fashion. It is illustrated how the techniques that we are going to suggest provide an easy derivation of the relevant properties along with generalizations to higher order functions.


Author(s):  
Michael Gideon Josian ◽  
Maria Veronica Gandha

The future of dwelling has a very board context and will continue to be discussed, it is possible that the discussions about “dwelling” is come from the environment of farming and fishing. Things that are not much cared for but still have a role in the survival of the world. Therefore this matter will be discussed using the role of architecture as space, to be able to create an ideal system by paying attention to the quality of farming and fishing for the future, and leaving a trace or memory to be able to carry messages for the future. Talking about the future of an interaction that occurs between the general public and farmers and fishermen, especially considering that farmers and fishermen themselves can be compared to two different poles, a liminal space is needed, which may already exist indirectly in the environment. By letting go of individual egos and emphasizing ego to the point of view of farmers and fishermen. To present a common space, or a place that contains a special character of a city that contains a message for the future. Keywords:  dualism; hope; liminal; trace;  Abstrak Masa depan cara berhuni memiliki konteks yang sangat luas dan akan terus diperbincangkan. Tidak menutup kemungkinan datang dari pembahasan mengenai cara berhuni dengan bertani dan melaut. Hal yang tidak banyak dipedulikan tetapi tetap memiliki peran dalam kelangsungan dunia. Oleh karena itu, masa depan berhuni ini akan dibahas dengan menggunakan peran arsitektur sebagai ruang, untuk dapat menciptakan sistem yang ideal dengan memperhatikan kualitas bertani dan melaut bagi masa depan, dan meninggalkan sebuah jejak atau kenangan untuk dapat membawa pesan bagi masa depan. Berbicara mengenai masa depan dari sebuah interaksi yang terjadi antara masyarakat umum dengan para petani dan nelayan, apalagi mengingat para petani dan nelayan itu sendiri dapat diibaratkan berada pada kedua kutub yang berbeda, maka dibutuhkanlah sebuah ruang liminal, yang mungkin sudah hadir secara tidak langsung pada lingkungan masyarakat. Dengan cara melepaskan ego individual dan menekankan ego kepada sudut pandang para petani dan nelayan. Untuk menghadirkan sebuah ruang bersama, atau sebuah tempat yang mengandung sebuah karakter tersendiri dari sebuah kota yang berisi pesan bagi masa depan.


Author(s):  
Alice Guerra ◽  
Barbara Luppi ◽  
Francesco Parisi

AbstractIn litigation models, the parties’ probability to succeed in a lawsuit hinge upon the merits of the parties’ claims and their litigation efforts. In this paper we extend this framework to consider an important procedural aspect of the legal system: the standard of proof. We recast the conventional litigation model to consider how alternative standards of proof affect litigation choices. We analyze the interrelation between different standards of proof, the effectiveness of the parties’ efforts, and the merits of the case. We study how these factors jointly affect the parties’ litigation expenditures, the selection of cases brought to the courts, pretrial bargain solutions and preemptive strategies. Our results show that standards of proof are not only instrumental to balancing the competing goals of access to justice and judicial truth-finding, but they also play a critical role in affecting parties’ litigation investments and settlement choices, and in sorting the mix of cases that will actually be filed and defended in courts. The understanding of the sorting effect of standards of proof sheds light on their role as a policy instrument in civil litigation.


1949 ◽  
Vol 17 ◽  
pp. 87-173 ◽  
Author(s):  
Evelyn M. Jamison

The deliberate, senseless destruction of the documents belonging to the Grande Archivio di Stato of Naples is one of the greatest, if not the greatest, single crime against history committed by the German army during the late war. The circumstances and the results of the act which reduced to ashes this vast collection of records of Southern Italy, covering more than a thousand years, are not as widely known among scholars, much less the general public, as they should be, and they seem therefore to call for some brief account in order to explain the reason of the present publication. Evacuated because of the dangers of air-warfare over Naples from the Archivio to the Villa Montesano near to S. Paolo Belsito some thirty kilometres away, and packed for the most part into 866 solid cases, this priceless treasure of over 30,000 MS. volumes and 50,000 documents under the charge of a keeper of Archives remained undiscovered by the German command until the Allied troops were already approaching.On 28 September, 1943, however, a foraging party came to the Villa in search of calves wanted for food and found instead cases of records stored for safety. Next morning an officer accompanied by a single soldier arrived; he ordered one of the chests to be opened and carefully inspected the volumes packed within. After the purely historical nature of the deposit had been explained to him and its immense importance from this point of view, he professed himself satisfied and departed.


2019 ◽  
Vol 23 (1) ◽  
pp. 48-61
Author(s):  
Valeriy P Ivanskiy ◽  
Sergey I Kovalev

The relevance of the article, which consists of two parts, is that the various theories of rationality presented only in philosophical works are considered. Meanwhile, it should be noted that in recent decades in scientific works on jurisprudence there is a clear trend of borrowing such terms from philosophy as «classical», «non-classical» or «post-non-classical» science in the description of a concept of law. Nevertheless, in legal studies there is still no concept of rationality, the criteria for its classification, allowing to describe the diversity of manifestations of legal reality. The purpose of the study is: 1) to find new non-classical foundations for the development of legal knowledge; 2) to substantiate the point of view that the category of "scientific rationality" and its typology used in philosophy, it is necessary to introduce into scientific use of legal science, which will push the boundaries of knowledge of legal reality; 3) to describe the features of understanding of the term "scientific rationality" in law in the context of its classification into the following two groups: classical and neoclassical (post-classical), as well as non-classical and post-classical. In the process of studying the philosophy of rationality in legal studies used a diverse set of methodological tools: 1) General philosophical methods (dialectical and idealistic); 2) General scientific methods - analysis and synthesis, deduction and induction, analogy, comparison; 3) and private (special) - logical, comparative-legal, formal-legal, normative-dogmatic; 4) method of interpretation, including the method of problem-theoretical reconstruction. The main results of achieving the goal of the study were proposals on: 1) introduction of the concept of "types and models of legal rationality" into the scientific circulation of jurisprudence; 2) classification of legal rationality into classical and non - classical types and corresponding models-neoclassical (post-classical) and post-non-classical. It should be noted that the post-classical and post-non-classical styles of legal thinking are evolved versions, respectively, of the classical and non-classical types of legal rationality. The basis for the classification of types of scientific rationality in legal science was the anthropological factor-consciousness homo juridicus and methodological tools with which legal consciousness is known. The novelty of the study is that the above classification of epistemological paradigms allows us to look at the law as a multilevel reality, which is simultaneously inherent in the two mechanisms of its Constitution - external and internal. Moreover, the presented criteria-based classification of legal rationality is the basis for the development of legal knowledge.


Author(s):  
Varvara B. Khlebnikova ◽  

The author of the article considers the development of Montenegrin law in the 19th - early 20th centuries and tries to assess the results of the legislative activities of the Montenegrin authorities, that issued new regulations and carried out large-scale codification work on regular basis. From the point of view of the normative approach, widely used in legal science, these activities seemed quite successful; the laws that met urgent needs of the state's development were created within short periods of time. However according to the sociological approach, one has to admit that the significant part of Montenegrin legislation was just a formality and was hardly implemented in practice.


2021 ◽  
Vol 29 (116) ◽  
pp. 1-25
Author(s):  
Álvaro Pérez Ragone

The legal argumentation on controversial facts deals with the evidence that allows reaching a precise verdict on the facts. The evidence is necessary to support the factual assertions made by the parties and the conclusions of fact made by the decision makers. But the test per se does not yield verdicts. The evidence must be evaluated and whoever decides must consider whether or not it satisfies a basic minimum to consider a fact proven, if it meets a standard of proof. Much work has been done on the subject of legal standards of proof. Legal argumentation theorists, evidence scholars, civil and criminal process scholars, among others, have extensively addressed this issue. Some of them have made an analytical effort to clarify the idea of an evidentiary standard; others have done descriptive work to understand how the standards actually work; Others have done a kind of normative work in the hope of suggesting better or at least better defined standards; and the best contributions to the debate do more than one of these things at the same time.


Author(s):  
Carmina S. Nunes ◽  
Ana Estima ◽  
Judite Manso

The purpose of this chapter is to offer a new perspective on how business ethics, and more specifically ethical marketing, can be integrated into ethical education and the teaching of good practices, providing answers for different organizational ethical questions. The authors argue that ethical marketing currently plays a pivotal role in organizations, making it necessary to properly address issues from a moral point of view. Referring to elements related to the marketing area, such as the market itself, costumers, products, promotion, price, place, etc., the authors demonstrate that ethics and its purpose can add value to any organization. The sphere of ethical marketing has had extraordinary visibility, especially throughout the last decades, probably because of how they relate to the four marketing-mix P's. The authors argue that it is crucial to have a solid understanding of the significance of these principles.


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