Killing Kaplanism: Flawed methodologies, the standard of proof and modernity
| Date | 01 July 2019 |
| Published date | 01 July 2019 |
| DOI | 10.1177/1365712718798387 |
| Subject Matter | Articles |
Article
Killing Kaplanism: Flawed
methodologies, the standard
of proof and modernity
William Cullerne Bown
London, UK
Abstract
Attempts to establish a quantitative framework for policy-making in the criminal justice system
in recent decades have coalesced around the problem of the standard of proof and Kaplan’s
influential 1968 paper. The central thread of work continues to use an equation he put forward
while abandoning some of his foundational assumptions, an approach I call ‘Kaplanism’. Despite
a growing awareness of deficiencies, elements of this school of thought, such as the parsing of
concerns into the two categories of ‘error reduction’ and ‘error distribution’, have entered the
general jurisprudential discourse. Here I launch a methodological attack and claim to kill this
approach. This allows me to refute Laudan and other ‘consequentialist’ approaches to the
standard identified by Walen, Walen’s own approach and an important part of Stein’s
underpinnings. The same tools allow me to also refute Laudan’s earlier m/n meta-
epistemology, Lippke’s ‘adage’, Stewart’s formalisation of Dworkin, Dahlman’s Bayesian
work and (at least in criminal law) Kaplow’s law and economics approach. I also refute Hamer’s
‘conventional rationale’ for the current standard, Lillquist’s approach to the same and what
Epps reports as ‘the Blackstone principle’. The law is left with no epistemic basis for policies,
which, I argue, leaves it struggling for public trust in the modern era.
Keywords
error distribution, feminism, meta-epistemology, mo dernity, sovereign, standard of proof,
Blackstone’s ratio
The law has to make decisions in a state of uncertainty—how? This is what, following Shapiro, we can
call the ‘problem of proof’. Its centrality cannot be overstated and clumsy handling can provoke a crisis
with potentially catastrophic consequences. One way to resolve it is to demand certainty, a position that
drove traditional Muslim law into irrelevance and Romano-canon law to wed itself to torture (Shapiro,
1991: 241).
Corresponding author:
William Cullerne Bown, London, UK.
E-mail: wockbah@gmail.com; https://www.quantitativejurisprudence.com
The International Journalof
Evidence & Proof
2019, Vol. 23(3) 229–254
ªThe Author(s) 2018
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DOI: 10.1177/1365712718798387
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Shapiro has described the evolution of such a crisis in the early modern period when English law lost
access to divine insight through the medium of Christian conscience. A vital part of the response that
allowed the law to convince society at large that the jury retained the divine spark was the development
of policies. Thus such policy-making can be seen fundamentally as a mechanism for cultivating trust.
This was the context in which Blackstone deployed his seminal dictum that, ‘ ...the law holds that it
is better that ten guilty persons escape than that one innocent suffer’.
1
He used the dictum as the first step
in a three-step argument, the next two being: a general principle that presumptive evidence should be
admitted only cautiously; and two particular rules, to never convict of murder or manslaughter unless the
body can be produced and to not convict of theft merely because someone will not explain how they
came by the goods.
Such policies can of course be justified or den ied on many grounds. Some kind of explanation
therefore is required both for the enthusiasm with which the dictum was immediately taken up, so that
Bentham felt obliged to warn against a vogue for ever higher numbers, and its enduring importance. This
need is especially pressing since the basic idea was not new and the dictum is something of a riddle, with
Blackstone making no attempt to justify any of the three steps of his argument.
2
The explanation seems to me to likely lie in a combination of four factors: the new need for a
justification for policies identified by Shapiro; the usefulness therefore of the very general applicability
of steps one and two in Blackstone’s argument; the dictum’s quantitative aspect, which chimed with the
beginnings of the general adoption of the quantitative in society at large, a movement which at about
the same time gave us Beccaria’s la massima felicita
`divisa nel maggior numero; and the ability of the
dictum to be read as shoving policy-makers towards policies that reduce both the number of wrongful
convictions and the ability of the state to seize and convict, which chimed with the new and popular
demands of the emerging democracies and was in contrast with other contemporary frameworks, such as
that noted by Franklin which invested judges under Robespierre with an absolute discretion (Franklin,
2015: 7).
The dictum therefore can be seen as a new kind of buttress of the law that was required in a new
kind of society. By virtue of the 10 and the clear analytical framework it suggests of four objectively
distinct outcomes, it partakes of the quantitative; by virtue of this apparent transparency and the shove,
it partakes of the democratic; and these two aspects together giveit one foot in modernity. But the lack
of a clear and cogent argument, of rationality, and the lack of a mechanism of policy-making suscep-
tible to democratic oversight leave it with one foot in the pre-modern.
Today, this half in, half out aspect can still be seen in jurisprudence. On the one hand, and primarily in
the United States, attempts have been made to develop a rigorous quantitative framework for making
policies in criminal law. These have coalesced around the standard of proof and have largely been based
on Kaplan’s 1968 article introducing decision theory.
3
On the other hand, large swathes of juris prudence—in the United Kingdom fo r example—have
quietly rejected this vein of work and instead developed explicitly unquantitative approaches. Thus
we have two bodies of what Kuhn called incommensurate scholarship, so that Hamer’s articulation of a
‘conventional rationale’ for the standard of proof derived from Kaplan co-exists with non-quantitative
accounts such as Allen’s explanationism or the moralised work of Lippke or Duff (Allen and Pardo,
2018; Duff, 1991: ch. 4; Kuhn, 1970; Lippke, 2016).
1. William Blackstone, Commentaries *352.
2. ‘At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim
more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the
prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to
be condemned, unless evidence amount to mathematical or absolute certainty’ (Volokh, 1997: 195). Fortescue, then Chief
Justice of the King’s Bench and arguably England’s most senior judge, suggested a ratio of 20:1 three hundred years earlier,
Hale one of 5:1 (Volokh, 1997: 182).
3. For a partial but compelling list of authorities, which in turn refer to further authors, see Hamer (2004: 83).
230 The International Journal of Evidence & Proof 23(3)
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