The explanationist revolution in evidence law
| Author | Amalia Amaya |
| DOI | 10.1177/1365712718816239 |
| Date | 01 April 2019 |
| Published date | 01 April 2019 |
| Subject Matter | Articles |
Article
The explanationist revolution
in evidence law
Amalia Amaya
National Autonomous University of Mexico, Mexico
Abstract
According to Allen and Pardo, the field of evidence law has experienced a revolution -in Kuhn’s
sense- from probabilism to explanationism, which they identify with the relative plausibility
theory. The explanationist revolution, argue Allen and Pardo, has placed explanationist -rather
than probabilistic criteria- at the core of the fact-finding process and, in contrast to probabi-
lism, has advanced a comparative understanding of the theory of legal proof. This paper
develops an alternative interpretation of the explanationist revolution in evidence law. First, it
elaborates on the concept of legal revolution and argues that it involves a kind of shift that is
best characterized as a Hacking -rather than a Kuhnean- type of revolution and, thus, as an
‘emplacement’ instead of a ‘replacement’ revolution. Second, it claims that the shift from
probabilism to explanationism involves a deep -genuinely revolutionary- change in the con-
ception of rationality that is taken to govern the processes of evidence and legal proof. Other
differences between probabilistim and explanationism, such as those mentioned by Allen and
Pardo, are not central to the revolutionary shift, but rather emanate from this basic distinction.
Last, it argues that the explanationist paradigm embraces, but cannot be reduced to, the
relative plausibility theory; the identification of explanationism with the relative plausibility
theory occludes the richness and possibilities harboured by the new, explanationist, paradigm.
Keywords
legal revolutions, explanationism, probabilism, Kuhn, Hacking, legal rationality
Introduction
Allen and Pardo have been building over the years a relative plausibility theory of evidence and proof
that is meant to provide an alternative to the controversial probabilistic approach. In the target essay,
they contend that the embracement of this theory is a veritable re volutionary move in the field of
evidence law. In their view, evidence scholarship is experiencing a revolution from probabilism to
explanationism, by which they understand the relative plausibility theory. The essay deftly shows how
their view may be defended agains t the criticisms that have been raised by those who oppose the
Corresponding author:
Amalia Amaya, National Autonomous University of Mexico, CDMX, 04510, Mexico.
E-mail: amalia.amaya@gmail.com
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 60–67
ªThe Author(s) 2019
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DOI: 10.1177/1365712718816239
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