Call for Papers - Evidence in Law and Ethics - SYNTHESE

Theory of Legal Evidence - Evidence in Legal Theory

The volume “Theory of Legal Evidence: Evidence in Legal Theory” deals with theoretical and philosophical problems of legal evidence. The concept of evidence is expected to fill a number of distinct roles in science, philosophy, but also in legal theory and law. Some of these roles are complementary, while others stand in tension or have little in common. The title of this volume suggests two types of problems. Chapters authored by legal theorists experienced in different legal cultures, including Europe, but also Latin America and the United States, address those problems and the need for an interdisciplinary approach to the study of standards of proof and evidence-taking in law. This interdisciplinary approach is put to work in the present volume with regard to two specific dimensions of integration of legal scholarship. First, the authors differ in their theoretical profiles and methodologies but share the interdisciplinary and externally-integrating view of legal scholarship, calling for the inclusion of social sciences and humanities in order to grasp the complex picture of law in action, and evidence functioning within it. Second, the contributors track down the problem of evidence within argumentation and thinking of legislators, judges, lawyers and legal scholars as calling for a side by side internal integration of legal sciences, which has to do with rethinking the strengths and weaknesses of ‘the new evidence scholarship' movement. The chapters are ordered in such a way that they start with more general and theoretical ones questions, zooming in to more specific theoretical questions put in context with philosophical concepts, and finally end with practical questions of legal evidence as they occur during legal proceedings.

The Modern Law Review, 1984

AN inaugural lecture, like an after dinner speech, is the price that one pays for one's seat. This is my third. As Lady Bracknell might have said: one may be regarded as a misfortune; to be involved in two looks like carelessness; to undertake a third smacks of masochism. On this occasion, I shall follow precedent in attempting three things. First, I shall pay tribute to my predecessors and especially to Professor Lord Lloyd of Hampstead; secondly, I shall restate my perspective on the subject that I am to profess; and, thirdly, I shall illustrate this general view by considering its application to a particular subject-the study of evidence with special reference to the ways in which rethinking a field within a broadened conception of academic law involves a number of different kinds of theoretical tasks. To many of us, there can be little doubt that Jeremy Bentham is England's greatest jurist. He was never an incumbent of the Chair of Jurisprudence at London; he had, and still has, a seat of his own to which he is unprecedentedly attached; yet he remains the single most important figure in jurisprudence in this college, in this country and in many other parts of the world. The survival of Bentham is a An abbreviated version of an inaugural lecture, delivered at University College, London on June 2, 1983. The intention of this article'is to restate and develop in general terms a number of themes that have been explored at greater length in a series of papers over the last 10 years. The view of legal theory and its place in the discipline of law is

Iowa Law Review, 2006

Contemporary Anglophone epistemology makes much use of the term ‘evidence’. As contemporary epistemologists use the term, ‘evidence’ is supposed to stand for something of special normative significance. In some way, evidence is meant to be a source of justification for beliefs: if your evidence “supports” believing a proposition, then you have a reason for believing it. In this chapter, I shall argue that making use of the word ‘evidence’ in this way is a strategic mistake. Admittedly, we can in principle stipulate technical senses for the term ‘evidence’ which will allow it to play this sort of normative role. However, the word ‘evidence’ also has a meaning in everyday English; and as I shall argue, the meaning that the word ‘evidence’ has in everyday English inevitably encourages assumptions that fundamentally conflict with the thesis that “evidence” has the normative significance that it is supposed to have in contemporary epistemology. As I shall argue, these considerations support the conclusion that, in giving a theory of rational or justified belief, the word ‘evidence’ is best avoided.

European Journal of Risk Regulation, 2016

In the context of the UK Supreme Court decision in Sienkiewicz v Greif (20n1) this article discusses the question whether so-called "naked statistical evidence" can satisfy the civil standard of proof in English law, the "balance of probabilities" It argues that what is required to satisfy the standard is a judicial belief that causation is more likely than not, rather than a categorical belief that causation occurred. Whether such a belief is justified depends on the weight of the evidence as well as the degree of probability it purports to establish, but there is no reason of principle why epidemiological evidence alone should not satisfy this standard.

2020

Informal logic, is faced with the problematic of persuasive arguments in contexts where evidence is rich, diverse and preferentially selected on the basis of pre-established attitudes. This requires that the standard view of challenge by presenting inconsistent evidence be rethought. In this paper, I will argue that the solution is to focus less on evidence that contradicts claims and to confront the network of warrants that support the selecting and evaluating of evidentiary moves.

Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars often view statistical evidence with suspicion, treating it as inadmissible even when it is probabilistically equivalent to individualized evidence. But attempts to vindicate the suspicion or to dismantle it altogether have been largely unsuccessful. The aim of this Article is to provide a comprehensive answer to the statistical evidence debate. The Article offers a novel explanation for the suspicion toward statistical evidence, pointing to the epistemic inferiority of statistical evidence due to its lack of “Sensitivity”—namely, the requirement that a belief be counterfactually sensitive to the truth as a necessary condition of “Knowledge.” After exposing the epistemic distinctions between statistical and individualized evidence, the Article turns to examining their implications for the legal arena. It claims that while the epistemic story provides an explanation for the suspicion toward statistical evidence, it does not provide a justification for this suspicion, for Sensitivity (like epistemology more generally) is not significant in the legal arena. Instead, this Article proposes an incentive-based vindication of the reluctance to use statistical evidence in court and points to the interesting interaction between the epistemic and the incentive-based approaches. After laying down the theoretical foundation, this Article demonstrates its descriptive potential. It demonstrates the proposed theory’s capacity to explain the prevailing legal doctrine and the rules governing the admissibility and sufficiency of statistical evidence across various categories, including DNA evidence and propensity-for-crime evidence as well as incriminating versus exonerating statistical evidence. On the prescriptive front, the Article provides criteria for legal reform and suggests that the admissibility of statistical evidence should be contingent on the type of offense or misconduct alleged against the defendant.

Routledge Handbook of Applied Epistemology

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. A family of influential cases suggests standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards.

The International Journal of Evidence & Proof, 2024

In this article, I want to draw attention to a class of cases that is ignored, sometimes deliberately, in the debate about the probative value of naked statistical evidence (NSE). I am talking about cases in which ‘statistical’ propositions are the principal subject of proof. I will show that they are legally relevant and remain immune to the arguments against NSE put forward in the evidence literature. All of this, I will conclude, makes it convenient to pay more attention to them. First, I will highlight the hypothetical cases discussed in the NSE debate and the kind of propositions that must be proved in them: ‘singular’ propositions. Second, I will show that there are other cases, also relevant in legal systems, in which the principal factum probandum are ‘statistical’ propositions. Third, I will argue that this difference is substantial for the NSE debate.

2005

First things first. I am lucky to have friends whose unconditional friendship matches their quality as scholars. Eyal Benvenisti read my entire manuscript and made a number of important suggestions. Zohar Goshen read and commented on Chapter 5. Ariel Porat, with whom I have co-authored several publications in the area of torts, has been a partner to discussions that validated and invalidated many of my ideas. Alon Harel has engaged me in a decadelong conversation about legal theory that extended to many issues discussed in this book. Alon also facilitated the book's completion by persistently asking me whether I really want to finish it. My first acquaintance with evidence law took place in Eliahu Harnon's Evidence class, which I took as a student at the Hebrew University of Jerusalem. Several years later, Eliahu became my friend and colleague when I joined the Hebrew University Faculty of Law. I hope that this book lives up to his expectations. This book expounds a general perspective under which evidence rules allocate the risk of error under uncertainty, rather than facilitate the discovery of the truth. The initial development of this idea took place in my doctoral dissertation at University College London. I am profoundly grateful to William Twining for supervising this dissertation and for being an exemplary mentor. I wrote this book at the Benjamin N. Cardozo School of Law of Yeshiva University, where I have found a wonderful academic environment, thoroughly conducive to scholarly research and writing. For this I thank Dean David Rudenstine and the entire Cardozo community. I also thank my colleagues who participated in a faculty workshop in which I presented Chapter 3. Special thanks go to Paul Shupack, Stewart Sterk and Martin Stone for their individual comments and suggestions. Last but not least, I am grateful to Dr Peninah Petruck for superb editorial assistance that much improved the book's style and substance.