It’s all relative: Explanationism and probabilistic evidence theory
| Author | Jonah B Gelbach |
| DOI | 10.1177/1365712718816747 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| Subject Matter | Articles |
Article
It’s all relative: Explanationism
and probabilistic evidence theory
Jonah B Gelbach
University of Pennsylvania Law School, Pennsylvania, USA
Abstract
I provide a brief comment on Allen & Pardo’s “Relative plausibility and its critics”. I agree that
their relative plausibility explanationism (RPE) provides an attractive positive description of fact
finding in litigation. But unlike Allen & pardo, I see RPE as methodologically consistent with the
leading conceptions of evidentiary probabilism, Bayesianism and likelihoodism. Thus, I argue,
the best view of the relationship between the approaches is that RPE is a friendly amendment
to–because it provides a positive foundation for–probabilism.
Keywords
evidence, relative probability, Bayesian, likelihoodism
Ronald J. Allen and Michael S. Pardo (hencefo rth ‘AP’) offer an engaging and thought-prov oking
summary of the case for a paradigm sh ift toward what they call explanat ionism as the organising
framework for evidence law theory (Allen and Pardo, 2019). AP’s article concentrates on the role of
‘relative plausibility’ in explanationism. I refer to AP’s proposed relative plausibility explanationism
paradigm as ‘RPE’.
The Kuhnian incumbent paradigm is probabilism. Although the Bayesian approach to probabilism
was first explicated precisely only in 1968, by John Kaplan, they write, ‘For literally hundreds of years,
proof at trial was assumed to be probabilistic’ (Allen and Pardo, 2019: 5; Kaplan, 1968). According to
AP, a core difference between RPE and probabilistic theory is that:
unlike the probability account, the explanatory account is inherently comparative—whether an explanation
satisfies the standard depends on strength of the possible explanations supporting each side (and not only the
party with the burden of proof). (Allen and Pardo, 2019: 15)
A primary objective of the present co mment is to show, as recent work has demo nstrated, that
probabilism is capable of expression in comparative terms. Probabilistic approaches can be conveniently
and powerfully expressed in terms of relative probabilities, raising the question of how different RPE
and probabilism really are.
Corresponding author:
Jonah B Gelbach, University of Pennsylvania Law School, 3501 Sansom Street, Pennsylvania, PA 19104, USA.
E-mail: jgelbach@law.upenn.edu
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 168–175
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712718816747
journals.sagepub.com/home/epj
To continue reading
Request your trial