LAUDAN_Strange Bedfellows - Inference to the Best Explanation and the Criminal Standard of Proof

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     T HE U NIVERSITY OF  T EXAS  S CHOOL OF L AW   Public Law and Legal Theory Research Paper Series Number 143  Strange Bedfellows: Inference To The Best  Explanation And The Criminal Standard Of  Proof  Larry Laudan Instituto de Investigaciones Filosifcas, UNAM University of Texas School of Law   All of the papers in this series are available at This paper can be downloaded without charge from the Social Science Research Network at   _______________________________________________________________________  Electronic copy available at:  1  Strange Bedfellows: Inference to the Best Explanation and the Criminal Standard of Proof  1   Larry Laudan “[O]ne problem with saying that abductive reasoning is inference to the best explanation is that we may not have any settled criterion for saying what is the ‘best’ explanation.” --David Schum 2   Introduction For almost half a century 3  —ever since Gil Harman coined the term ‘inference to the best explanation’ (hereafter: IBE) —a number of epistemologists and philosophers of science have been exploring his idea that the decision rule for the acceptance of hypotheses and theories should be pegged to the explanatory   virtues of the various candidates under consideration. In brief, his suggestion was that, if  we can figure out which among the known hypotheses for explaining the facts in question does the best job of explaining them, then that is the hypothesis to be accepted, defeasibly, as true. Of late, a variety of legal scholars, including Ron Allen and Michael Pardo, have suggested that IBE may provide crucial intellectual machinery for cracking the perennially tough nut of defining legal standards of proof in a robust fashion. 4  It is easy enough to appreciate the initial appeal of this move. There is broad agreement that the current criminal standard, proof beyond a reasonable doubt, is confused, ill-defined and often unintelligible to jurors (witness the fact that jurors often ask judges to clarify the notion). Even the civil standard, proof by a preponderance of the evidence –generally understood as meaning more likely than not—appears to be unhappily pegged to a theory of subjective probability estimates that jurors may be incapable of implementing with any degree of reliability. Under the circumstances, it is hardly surprising that legal scholars 1  I am very grateful to Amalia Amaya, Jordi Ferrer, and Ron Allen for helpful criticisms of an earlier draft of this essay. 2  David A. Schum, Species of Abductive Reasoning in Fact Investigation in Law  , 22 CARDOZO L. REV. 1645, at 1659 (2001). 3  The locus classicus   is G. Harman, The inference to the best explanation  , 74 P HILOSOPHICAL R  EVIEW   88 (1965).  Arguably, Harman’s model is a particular specification of what Peirce had earlier called abductive inference.  Accordingly, inference to the best explanation suffers from all the general epistemic debilities of abductive inference, apart from those added by Harman’s annexation of a relation of explanatoriness (as opposed to entailment) between the premises and conclusion of an inference to the best explanation. 4  Ron Allen and Michael Pardo, The Problematic Value of Mathematical Models of Evidence  , J OURNAL OF L EGAL S  TUDIES , forthcoming 2007. (My italics. p. 41)  Electronic copy available at:  2might look to larger debates in epistemology to see whether there are any promising ideas on which to ground a theory of legal evidence in general and a new account of the civil and criminal standards of proof in particular. I would be remiss if I did not declare an interest before proceeding further: I have spent much of my academic life arguing that IBE is a bad model for scientific knowledge. 5  I have shown that it routinely warrants the acceptance of scientific theories and hypotheses that subsequent empirical research has repeatedly revealed to be false. I have claimed that it is too permissive a criterion to use as a basis for decisions about what scientific theories to believe, not least because it is inescapably hostage to the hypotheses that we have already managed to concoct (between which it urges us to select the ‘best’). Over and again, theories that were indisputably the best scientific explanations of their time (Ptolemaic astronomy, Newtonian mechanics, classical chemical atomism, Galenic physiology, the corpuscular theory of light, theories of the electromagnetic ether) were subsequently shown to be false. In short, IBE as a strategy for belief evaluation in the natural sciences is not only fallible in principle (a feature that we could live with) but it frequently, even systematically, leads us to accept beliefs about the natural world that subsequent applications of IBE itself reveal to be false. It is thus decisively undermined by the so-called skeptical or pessimistic induction from the history of science. However, and this is crucial to stress, IBE’s failure to qualify as an adequate epistemology of science does not   entail that it need fail as an epistemology of the law. 6  The undoing of IBE in the sciences basically hinges on the fact that scientists routinely revise in wholesale fashion their stories about the basic stuff the universe is made of. 7  Fortunately for IBE theorists in jurisprudence, the law is not like that. While we occasionally discover that jurors have made mistakes in particular trials, no student of legal decisions believes that most verdicts are false most of the time. There is, in short, no legal counterpart to the dismaying discovery about science that our predecessors regularly accepted false theories (which, alas, were the ‘best explanations’ then available) about the phenomena they were trying to understand. 5  See Larry Laudan,  A Confutation of Convergent Realism  , 48 P HILOSOPHY OF S CIENCE  , 19 (1981) and B EYOND P OSITIVISM AND R  ELATIVISM  (Boulder: Westview Press, 1996). 6  Although, to sound a mildly cynical note, one is led to wonder why legal scholars might be inclined to borrow from the philosophy of science a model of hypothesis evaluation that fails so badly as a theory of scientific inference. 7  With every major scientific revolution, we face a change of underlying ontology that partially vitiates earlier claims about what there is and thus repudiates earlier ‘best’ explanations of what we see in the world around us (insofar as the latter were couched in terms of the then prevailing underlying ontology).   3 That said, however, I think that there are powerful reasons, specific to the law   (especially the criminal law), for doubting whether IBE can shed light on those questions about the nature of legal standards of proof which appear to be one of the principal motivations for the growing dalliance of evidence scholars and legal epistemologists with this particular strategy. In this short essay, I want to assay some of those concerns. In particular, I want to focus on the question whether IBE is a plausible candidate for grounding our thinking about the standard of proof, especially the criminal standard of proof.  There is no dearth of legal scholars who think it might be very promising. Recently, Ron Allen and Michael Pardo have asserted that “the best explanation of the evidence concerning trials is that proof at trial involves inference to the best explanation  from beginning to end  .” 8  The reference to ends and beginnings alludes to the thesis of Allen and Pardo that IBE operates not only at the micro-level (governing decisions about the credence given to particular bits of evidence) but equally at the macro-level (the decision about guilt or innocence). John  Josephson, in his lengthy study “On the Proof Dynamics of Inference to the Best Explanation,” has argued that IBE enables us to generate “a definition for the judicial standard of [proof] ‘beyond a reasonable doubt’.” 9  Paul Thagard has made similar claims (see below).  The central question of this paper will be whether IBE does, or in principle even could, illuminate the criminal standard of proof. While I will have far less to say about IBE as the civil standard than as the criminal one, I will briefly offer reasons to be skeptical about its utility as a mechanism for capturing the standard of proof in the civil law. To anticipate in a pair of slogans the conclusions to  which we will eventually be led, I will be claiming: that IBE is too weak  to serve as the criminal standard of proof and too strong   to serve as the civil standard. 10   General Features of Inference to the Best Explanation  Above all else, IBE purports to be a rule of detachment. It specifies a set of premises that, if satisfied in a particular case, would justify our inferring (with a probability greater than one half) the truth of a particular hypothesis. Like every other ampliative rule of detachment, it is acknowledged to be fallible but held by 8  Ron Allen and Michael Pardo, The Problematic Value of Mathematical Models of Evidence  , J OURNAL OF L EGAL S  TUDIES , forthcoming 2007. (My italics. p. 41) 9  John Josephson, Symposium: Abductive Inference: On the Proof Dynamics of Inference to the Best Explanation  , 22 C  ARDOZO L  AW R  EVIEW   1621, at 1642 (2001). 10  If one is desperate to find a role for IBE in the law, it might capture the meaning of the standard of clear and convincing evidence or it might model the micro-decisions about the appropriate weight to give to specific bits of evidence or testimony.)
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