Workshop
Theories of Legal Proof
Munich Center for Mathematical Philosophy
LMU Munich
25-26 June 2024
Idea
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.
Program
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
Lunch Break
Liat Levanon: The Nature of Legal Proof
Coffee Break
Verena Klappstein: Reasons for Legal Reasoning
Coffee Break
Discussion
Abstracts
Anne Ruth Mackor: Judicial Evaluation of Evidence - Combining a Bayesian and Scenario Approach (slides)
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 to 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 Explanatory 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 explanatory 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 explanatory 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’ explanatory 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 (slides)
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 (slides)
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? (handout)
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? (handout)
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: The Nature of Legal Proof (handout)
Legal proof has various good-making properties. Two of these it shares with knowledge. The talk will seek to unfold and justify these two properties of legal proof. The first such property is substantive; it involves meeting a certain qualitative condition that allows discounting any remaining risk of error. One formulation of this condition is Sensitivity. It will be suggested that Sensitivity is legally relevant because it guarantees that practical reasons are responded to. According to this argument, practical reasons come in pairs: every reason to ϕ is paired by a reason to ϕ consistently with its grounding value. And ϕ-ing consistently with value normally requires Sensitivity. The second good-making property that legal proof shares with knowledge is formal. It concerns the tentativeness or conditionality with which conclusions are held. It will be suggested that legal conclusions can only be held tentatively, both because of the ineliminable risk of human error, and because of some tentativeness-presuming properties of practical value.
Verena Klappstein: Reasons for Legal Reasoning (slides)
Lawyers in a wider sense, such as judges, legislators, lawyers and legal scholars, look for certain reasons regarding Legal Reasoning, however, it is not at all clear, why certain reasons are included, such as an economic analysis of the law, but others are critically looked upon, such as philosophical Reasons.
Legal Reasoning is a method of argumentation and thought as utilized by legal scholars, lawyers and judges while applying legal rules to specific interactions among persons. Legal Reasoning follows a certain path: first, the issue, of what is debated, secondly the legal rule, which governs the issue, thirdly the facts, which are relevant for the rule, fourthly, an application of the rule to the facts and fifthly, the conclusion of the application of the rules to the facts, which is the outcome. That said, during the process of Legal Reasoning, different methods are applied, and different reasons are given.
To understand the different stages of Legal Reasoning, first Law’s subject matter will be looked upon and three different matters identified with discourses while legislating, discourses at court and the scholarly discourses on texts, oral words and non-verbal resources. The thus concretized subject matters will secondly be set in context with the requirement of jurisprudence as such to be – and/or attempt to be – a science. Thirdly the narrative of law, its history and development over time, will be looked upon. In the final and fourth step the purposes of law, identified in peace under law and justice in the form of an equal application of the law, will be determined.
Throughout these four steps it will be assessed, which reasons are generally given to create and identify the subject matter, the requirement of jurisprudence to be a science, law's history as well as its purposes, and which reasons could and should be given in each of these four steps. Within different subject matters, such as in legal or scientific discourses, different reasons are commonly included or excluded than in discourses at court or during discourses while legislating. However, it is not at all broadly reflected or theoretically/scientifically asked, why different reasons are considered to be sufficient or insufficient.
This paper stands with the Caveat – that it will not develop a safe new method of reasons to be recognized as such, but will advocate the necessity of an interdisciplinary discourse as well as an examination from the point of theory of science. Thus subjectivity prevails. As lawyers, judges, legal scholars and theoretical scientists are human beings, they are bound as hermeneutical subjects and can not entirely free themselves of their own preferences, prejudices and preconceptions. However, they can reflect on them and be thus self aware to critically assess these.
Locations
Conference Venue:
Catholic Academy in Bavaria (Katholische Akademie in Bayern)
Mandlstraße 23, 80802 München
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 Mario.Guenther@lmu.de.
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.