Rethinking the Standards of Proof
Bibliographic Data
| ID | 5347235 |
|---|---|
| Authors | Michele Taruffo (0000-0002-9339-6803, University of Pavia, corresponding author) |
| Year | 2003 |
| Volume | 51 |
| Issue | 3 |
| Pages | 659 |
| Publication date | 2003-01-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | The American Journal of Comparative Law (JOURNAL) |
| Journal identifiers | ISSN: 0002-919X • E-ISSN: 2326-9197 |
| Publisher | Oxford University Press (OUP) (PUBLISHER) |
| DOI | 10.2307/3649122 |
| OpenAlex | W1974925229 |
| Language | EN |
| Citations received | 5 |
A recent article entitled A Comparative View of Standards of Proof by Kevin Clermont and Emily Sherwin' has the merit of discussing an issue that is not frequently analyzed and of proposing some interesting remarks about several complex and puzzling topics. Since the authors' intention seems to be also that of starting a debate,2 this is a welcome opportunity, for a civilian lawyer and a comparativist to take part. The Clermont and Sherwin essay is stimulating and provocative. Their main claim, that in civil litigation courts should apply a standard of proof based on the preponderance of evidence or on the prevailing probability, is sound, However, I believe -in contrast with their approach-that the Bayesian interpretation of judicial decisionmaking in terms of quantitative probability is largely unsatisfactory, and that models based on logical probability and fuzzy logic may provide better rationalizations of the evaluation of proofs.3 On the other hand, my main impression is that Clermont and Sherwin's discourse suffers from some substantial flaws. Since I believe that eliciting gaps and misunderstandings is an essential part of the trial and error method that characterizes the advancement of sciences, including the legal ones, I shall try to emphasize here what, to my view, are the main defects of Clermont and Sherwin's analysis. For sake of clarity, and leaving aside a number of other aspects that could also be disputed and contested, I shall focus my remarks upon three main points: 1) a reductivist fallacy 2) a lack of adequate specific information 3) a group of theoretical inadequacies
Aside · CLARITY · Epistemology · Fallacy · Focus (optics) · Interpretation (philosophy) · Jury · Mathematical proof · Political science · Sociology · Computer Science · Jury Decision Making Processes · Law · Law, Economics, and Judicial Systems · Legal processes and jurisprudence · Mathematics · Philosophy · Psychology
| Citations per year | 0.38 |
|---|---|
| Citation span | 2013 - 2026 (14) |
| Highly cited | No |