Preface
| Author | Jonathan Doak |
| DOI | 10.1177/1365712718816765 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
Preface
Jonathan Doak
Nottingham Trent University, Nottingham Law School, Nottingham, UK
Juridical proof—at a basic level—essentially refers to how facts are proven in court in the face of factual
uncertainty. Yet it is also a complex process, beginning with evidence gathering and trial preparation,
and only ending with the completion of appeals. Until relatively recently, it had been widely accepted
that fact-finding within courts rested upon mathematical probability. In other words, decision-making
essentially rests on how likely it is that assertions put forward by each party ring true. That theory has
been increasingly subject to challenge in recent years, and this special issue unpicks the nature of these
challenges and explores their normative and operational bases.
The special double issue begins with a substantial paper by Allen and Pardo, contending that a
paradigm shift is occurring within the law of evidence: a move from the probabilism to explanationism.
The authors advance a defence of the theory of relative plausibility which—as the leading alternative
theory to probabilism—projects that courts generally make decisions based on the explanations given by
parties concerning the cogency of the evidence. Allen and Pardo dissect, and ultimately reject, three
major objections that have been made against relative probability. In their view, relative plausibility
remains a stronger theory of juridical proof than probabilism.
The special issue contains some 20 responses to Allen and Pardo’s paper and comprises five parts.
The first of these contains 12 papers, the authors of which agree that the paradigm shift has occurred and
is generating new directions for resea rch (Amaya, Vasquez, Spottswood, Si mon, Bex and Walton,
Sullivan, Ribeiro and Tuzet, Kolflaath a nd Taruffo). The second part comprises two pa pers which
concede that a paradigm shift has occurred, but raise normative doubts (Hastie, Brennan-Marquez).
In the third part, papers by Clermont and Nance also accept the shift, but reject relative plausibility as an
alternative to probabilism. In the fourth part, papers by Di Bello and Gelbach take issue with Allen and
Pardo’s objections to probabilism, essentially arguing that probabilism and explanationism are—to some
extent at least—complementary. The final part consists of four papers which express scepticism about
the utility of either or both of the competing paradigms, or whether such a shift has taken place at all
(Schauer, Wittlin, Ho, Schwartz and Sober). The issue concludes with a rejoinder by Allen and Pardo.
Special thanks are due to Ron and Mike for proposing and collating papers for a special issue which I
am sure the Journal’s readers will find to be illuminating and thought-provoking. It is sometimes said
that the law of evidence is under-theorised, but it is hoped this special issue will g o some way to
addressing that shortcoming, at least insofar as juridical proof is concerned. Certainly this set of papers
should prove to be a key reference point for ongoing debates in the field for many years to come.
Corresponding author:
Jonathan Doak, Nottingham Trent University, Nottingham Law School, 50 Shakespeare Street, Nottingham, Nottingham NG1
4FQ, UK.
E-mail: jonathan.doak@ntu.ac.uk
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 3–4
ªThe Author(s) 2019
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DOI: 10.1177/1365712718816765
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