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Theories of Legal Proof

Munich Center for Mathematical Philosophy
LMU Munich
25-26 June 2024


When should a defendant be found guilty or liable in a trial? The workshop will bring together philosophers and legal theorists to discuss the prospect of a theory of legal proof. It should be of interest to researchers working on legal reasoning, argumentation theory, the interface between probability, psychology and argumentation; legal scholars in evidence law, as well as criminal and civil procedure; philosophers of law, legal epistemologists, logicians and probability theorists. More information about the workshop idea may be found here.


          Tuesday, June 25

9:00      Opening

9:15      Anne Ruth Mackor: Judicial Evaluation of Evidence

10:45    Coffee Break

11:00    Michael Preisig: An Anatomy of Evidential Reasoning

12:00    Lunch Break

14:00    Ronald Allen: The Prospects for a Theory of Legal Proof

15:30    Coffee Break

15:45    Mario Günther: A Theory of Legal Proof

16:45    Coffee Break

17:00    Minkyung Wang: Epistemic Utility Theory of Legal Belief

19:00    Conference Dinner at Café Reitschule

Wednesday, June 26

Martin Smith: What's Wrong With Partial Punishment?

Coffee Break

Lewis Ross: Civil Blame?

Lunch Break

Liat Levanon: Knowing Our Reasons, Tentatively

Coffee Break


Coffee Break



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Anne Ruth Mackor: Judicial Evaluation of Evidence - Combining a Bayesian and Scenario Approach

In my presentation I will discuss two theoretical approaches to evidence and proof in criminal law: Bayesian probabilistic and explanation-based, more specifically scenario, thinking.

It has been argued that Bayesian and scenario thinking are competing approaches evidence and proof. I will argue, however, that they are complementary and that they can be meaningfully combined.

On the one hand, or so I will argue, Bayes' rule is superior to the criteria of the scenario approach when it comes to evidence evaluation. On the other hand, I will show how scenario thinking not only offers legal investigators a method to select the most plausible hypotheses and relevant evidence, but also provides (Dutch) judges with a method for a crucial task they have, viz to assess the scope and the completeness of the investigations.

Michael Preisig: An Anatomy of Evidential Reasoning - The Weight of Evidence for Hypotheses and the Explanative Power of Hypotheses for Evidence

In this article I argue that by thinking of hypotheses as at the same time both pre- or retrodictions and theories, we can, under exhaustive- and mutual exclusiveness, translate their explanative power for the evidence into their ‘anchoring’, or the weight of that evidence for the hypotheses, and thereby create a common standard for the choice of the ‘best’ of all alternative hypotheses. A standard whose ‘commonness’ must be extended to include not only the ‘anchoring’ and explanative power of hypotheses, but also their coherence and plausibility. An ‘encore’ shows that in probabilistic evidential reasoning Bayes’ rule allows us to translate a hypothesis’ explanative power for the evidence into the weight of that evidence for the hypothesis.

Ronald Allen: The Prospects for a Theory of Legal Proof


What are the prospects for a theory of legal proof? Fairly good, apparently, as there are many of them. Are any of them any good? That depends on what “good” means. Under various interpretations of “good” the various theories of legal proof normally associated with philosophical approaches succeed splendidly in being interesting and creative. Various theories of legal proof associated with legal analysists succeed in explaining limited aspects of legal proof.  Neither set is very helpful in explaining, and thus modifying in operation if need be, the nature of juridical proof. That requires embracing the complexity of legal systems and the “law” of evidence rather than engaging in the reductionist methodologies of most legal scholarship, whether done by the philosopher or the legal scholar.

Mario Günther: A Theory of Legal Proof

We provide a unifying theory of legal proof which says when a defendant should be found guilty or liable. We spell out the standards of proof beyond reasonable doubt and preponderance of the evidence as well as the presumption of innocence in terms of probabilities. The resulting theory explains how evidence may justify a finding of guilt or liability, suggests a notion of statistical evidence, and solves the paradoxes of legal proof. If time permits, we show how the theory overcomes the problems levelled at probabilistic accounts of legal proof.      

Minkyung Wang: Epistemic Utility Theory of Legal Belief

We begin by establishing three fundamental rationality requirements for legal beliefs. (1) Legal beliefs ought to track the truth. (2) Legal beliefs ought to be consistent and deductively closed. (3) Legal beliefs should appropriately consider the weights of evidence. Fulfilling these norms demands the development of a novel framework in epistemic decision theory. This paper aims to introduce a new epistemic decision theory tailored to legal contexts and proposes a solution to the legal proof paradox.

Martin Smith: What's Wrong With Partial Punishment? 

Decisions over punishment seem to work differently from decisions of other kinds.  When we’re unsure how our decisions will turn out, we will often choose intermediate or compromise options, sacrificing our chance at an optimal outcome in order to avoid the risk of a costly error.  But in a criminal trial there are only two alternatives – a defendant is either convicted and punished or acquitted and released.  There is no ‘halfway’ option on which a defendant is partially punished as a result of uncertainty about their guilt.  In this paper I will investigate why this might be.  I will argue that the distinctive way we make punishment decisions is mirrored in our ordinary practice of blaming, and has a much broader significance, even threatening to unseat expected utility theory as a general account of rational decision-making.

Lewis Ross: Civil Blame?

The attribution of blame has long been thought to be a distinguishing feature of criminal law according to certain influential theories. However, many moral notions also appear in the normative standards used in civil law. Moreover, one can be held civilly liable for behaviours that are defined in the same way as criminal wrongs. This talk considers whether we should also think of the civil law as a blame-attributing enterprise and what this means for broader questions in legal philosophy about the difference between the criminal and civil law.

Liat Levanon: Knowing Our Reasons, Tentatively

Evidence law seems to align with epistemic norms rather than with practical norms. This indicates a connection between epistemic normativity and practical normativity. But what connection exactly? I will suggest that practical reasons come in pairs: any practical reason to ϕ is paired by a reason to ϕ well, or to ϕ consistently with the value that grounds the reason to ϕ. And ϕ-ing well normally requires knowledge of the reason to ϕ, and hence also of the non-normative facts that give rise to it. Moreover, given the nature not only of knowledge claims but also of value, knowledge of reasons ought to be held merely tentatively, or conditionally on the available evidence and on the lack of a better hypothesis.


Conference Venue:

Catholic Academy in Bavaria (Katholische Akademie in Bayern)

Mandlstraße 23, 80802 München

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Conference Dinner Venue:

Café Reitschule

Königinstraße 34, 80802 München

Organised by Mario Günther and Conrad Friedrich. For attendance, please register by sending an email to

Acknowledgment: The workshop is supported by Mario Günther's Junior Research Fund of LMUexcellent, funded by the Federal Ministry of Education and Research (BMBF) and the Free State of Bavaria under the Excellence Strategy of the Federal Government and the Länder.

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