Less probabilism and more about explanationism
| Date | 01 April 2019 |
| DOI | 10.1177/1365712718815353 |
| Published date | 01 April 2019 |
| Subject Matter | Articles |
Article
Less probabilism and more
about explanationism
Carmen Va
´zquez
University of Girona, Girona, Spain
Abstract
According to Allen and Pardo, ‘relative plausibility’ is the best explanation of judicial proof; and
the process to identify a best explanation would be, in short, holistic and comparative. My work
is a plea for clarification of some items that would constitute their theory, before I (or anyone)
give a holistic explanation of them and compare their account with alternatives. I raise three
issues: the epistemological relevance of the empirical data used, the kind of holism argued and
the fact-finder’s cognitive capacities role in their account.
Keywords
explanationism, Inferences from empirical data, Trier of facts’ background knowledge, Legal
epistemology
What would the criteria for correctness be for Allen and Pardo’s
descriptive project?
Allen and Pardo’s (A&P) relative plausibility (Allen and Pardo, 2019) is a very interesting account that:
i. allows us comprehend diverse issues about the American system and urges us to rethink our own,
particularly in the world of civil law, where debates on standards of proof are surprisingly recent;
and
ii. shows us a different way of doing academic work by using empirical information as a basis for
the arguments presented. Unfortunately, where I come from, this approach is very rare.
This first section will cover precisely this last issue, because, both in elaborating their arguments and
in responding to their critics, A&P repeatedly allude to their descriptive purpose, as opposed to other
normative projects concerning proof and evidentiary reasoning. There are, however, two issues in need
of clarification: What is the subject they are describing? And what kind of descriptive project are they
attempting to construct?
A&P are obviously describing the American system. However, they clearly specify that there are
many more than 51 ‘legal systems’ in operation coming under the larger label of ‘American system’. In
Corresponding author:
Carmen Va
´zquez, University of Girona, Plac¸a de Sant Dome
`nec, 3, 17004 Girona, Spain.
E-mail: carmen.vazquez@udg.edu
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 68–74
ªThe Author(s) 2018
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DOI: 10.1177/1365712718815353
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