One small step towards a metatheory of evidence and proof
| DOI | 10.1177/1365712718819509 |
| Date | 01 April 2019 |
| Published date | 01 April 2019 |
| Subject Matter | Articles |
The International Journal of
Evidence & Proof
One small step towards
2019, Vol. 23(1-2) 176–183
ª The Author(s) 2019
a metatheory of evidence
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and proof
DOI: 10.1177/1365712718819509
journals.sagepub.com/home/epj
Frederick Schauer
David and Mary Harrison Distinguished Professor of Law, University of Virginia, Virginia, USA
Abstract
Many challenges to a probabilistic account of evidence fail to distinguish two separate ques-
tions. One is the question of whether the evaluation of individual items of evidence is prob-
abilistic or non-probabilistic. And the other is whether the evaluation of multiple items of
evidence is sequential (Bayesian) or holistic. This paper seeks to distinguish these issues, to
argue that challenges to probabilistic accounts have not yet made their case, and to attempt to
clarify just what a theory of evidence and proof is a theory of.
Keywords
bayesianism, evidence, explanationism, probabilism, theory of proof
In ‘Relative plausibility and its critics’ (Allen and Pardo, 2019), Ronald Allen and Michael Pardo offer
and defend against multiple critics a theory of, in their words, ‘juridical proof’ (Allen and Pardo, 2019: 7,
fn 7). But what is a theory of juridical proof? And what would be necessary to defend one, to attack one,
to prove one or to falsify one? Allen and Pardo’s contribution, including its assumptions, its gaps and
indeterminacies as well as its insights, provides a valuable opportunity to address these issues. And
consequently this essay, although focused on Allen and Pardo, is also an attempt to clarify what theorists
can be understood as doing when they theorise about the nature of legal evidence and the process of legal
proof.
Is there a paradigm, and is it shifting?
Allen and Pardo describe their account as part of a ‘paradigm shift’ in thinking about the nature of
juridical proof, a shift from what they describe as the ‘probabilistic paradigm’ to what they label as
‘explanationism’. They acknowledge the tendency in legal scholarship to overclaim contributions as
paradigm shifts, but it is not clear that they have avoided the pitfall they have so admirably
recognised.
Corresponding author:
Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia, Charlottesville, Virginia, USA.
E-mail: fschauer@law.virginia.edu
Schauer
177
As introduced by Thomas Kuhn and then subsequently explained, embellished and expanded by
legions of others, a claim that there has been, or is now in progress, a paradigm shift is an empirical
sociological claim.1 What makes a paradigm sociological, and accordingly different from a theory (even
a sound one), an account or an explanation, is that the idea of a paradigm embeds the empirical and
sociological claim that this is how the bulk of working scientists, researchers or participants of any kind
in some enterprise understand and go about their work (see Barnes, 1982; Bird, 2018; Bloor, 2016). The
key ideas are consensus and agreement, both sociological ideas. A paradigm establishes the agreed-upon
examples, and the agreed-upon approaches of the field. In normal science, to use Kuhn’s term, those
working in the field agree upon the central examples, and upon the central methods or approaches that
participants will use. When working in normal mode, those in the field may debate about penumbral
cases or alternative explanations, but there is a consensus about the basic phenomena they are trying to
explain and on what would make an explanation successful or unsuccessful.
A paradigm is thus an empirical and sociological description of (most of) the behaviour of (most of) a
field’s major participants. What follows is that a paradigm shift occurs when these participants produce a
new consensus – when they replace what were formerly the agreed-upon exemplars of a phenomenon
with new and different exemplars, and so too with a replacement of agreed-upon methods with new and
different ones. In order to identify a paradigm shift, therefore, we must first identify the relevant cohort
of practitioners, and then identify the examples, methods and accounts that all or most of these practi-
tioners formerly shared, and finally identify the different examples, methods and accounts that this
cohort of practitioners now shares or is in the process of beginning to share.
Pace Allen and Pardo, there seems little empirical evidence that such a paradigm shift has taken place
or is even now in progress. Even if probabilism is the kind of thing that can constitute a paradigm, which
it likely is, and even if Allen and Pardo are not the only ones offering challenges to probabilism, which
they are plainly not, the core of the empirical sociological claim of a paradigm shift requires evidence of
a change in the practices or assumptions of the central participants in the enterprise. That some of the
participants adopt different assumptions and explanations, and that those participants hope that other
participants will agree with them, is, at best, a wish for a paradigm shift, but the claim that there has been
or is now in progress a paradigm shift requires far more of an empirical demonstration of an actual
change in the (participants in the) field’s assumptions, examples and methods than Allen and Pardo have
been able to provide. And although this complaint about the use (or misuse) of the idea of a paradigm
shift may seem trivial, it goes to the authoritativeness of the views and methods of the field as currently
constituted. If what is generally done by the participants is entitled to some deference just because it is
generally done – that is, if what is generally done has authority just because of its provenance as being
generally done – then we must be careful about the sociological claim. Allen and Pardo may be correct
on the merits, but it is premature, at least on the evidence they provide, to claim the authority of a widely
accepted mass shift in the consensus within the relevant field.
Is there a dispute, and, if so, what is it about?
Allen and Pardo offer what they variously describe as explanationism and relative plausibility as an
alternative to probabilism. Embedded in this contrast between two accounts, however, are two different
issues, and thus two different potential disputes, which it is important to distinguish.
First is the question whether the evaluation of individual items of evidence is necessarily a probabil-
istic process, or whether instead a probabilistic understanding of evidentiary evaluation misconceives
the process of evaluating such...
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