Some remarks about relative plausibility
| Date | 01 April 2019 |
| Published date | 01 April 2019 |
| DOI | 10.1177/1365712718815352 |
| Author | Michele Taruffo |
| Subject Matter | Articles |
Article
Some remarks about
relative plausibility
Michele Taruffo
University of Pavia, Pavia, Italy; Ca
´tedra de Cultura Jurı
´dica, Girona, Spain
Abstract
I submit a few remarks concerning some limits of the Allen and Pardo’s theory and about the
validity of narrativism as a theory of judicial decisions. Moreover, I discuss disputable ideas of
abductive inferences and of holistical decisions on the facts in issue. Finally I suggest the
opportunity of dealing with the ‘maximisation of the weight of evidence’.
Keywords
narratives, plausibility, truth, judicial decisions
Over the years I have read several essays written by Allen and Pardo, or by one of them, in which their
idea of relative plausibility was presented as the best solution to the problem of judicial decision. Now
Ron Allen sends me the text of this paper (Allen and Pardo, 2019), and this is for me a very welcome
opportunity to say something about such an important topic.
But before entering into the merits of the few remarks I am going to make, I have to stress that I have
nothing to say in defence of the critics that Allen and Pardo (AP) are criticizing. Actually I substantially
agree with the arguments that AP develop, arguing against the various criticisms that are aimed at
rejecting their theory. In particular, I share their criticisms of Kevin Clermont, based upon the conceptual
errors that he makes in building up his theory. However, this does not mean that I am accepting
unconditionally AP’s theory, for reasons that I will try to explain synthetically.
AP insist on stressing that their theory of relative plausibility is descriptive and not prescriptive or
normative, and then say that such a theory is aimed at interpreting what really happens in the American
administration of justice. Being a non-American, I am not able to determine whether or not AP’s theory
is a fair description of what happens in American courts, and I may easily admit that such a theory is a
faithful analysis of such a reality. My remark on this point is different, and is that AP’s theory is not only
correctly American: it appears to be, so to speak, strongly American, since it reflects only the basic
points of the well-known American conception of civil justice. For instance, saying that ‘the primary
objective in typical civil cases is to determine which party more likely deserves to win’ is something that
probably corresponds to the American way of dealing with the topic, but it does not correspond to the
idea that is commonly accepted in civil law procedural systems, according to which the main purpose of
Corresponding author:
Michele Taruffo, University of Pavia, Pavia, Italy; Ca
´tedra de Cultura Jurı
´dica, Girona, Spain.
E-mail: michelino.taruffo@unipv.it
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 128–133
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712718815352
journals.sagepub.com/home/epj
To continue reading
Request your trial