Legal Probabilism—A Qualified Rejection: A Response to Hedden and Colyvan

Abstract

The best explanation of juridical proof has evolved from probabilism to explanationism. In a recent article, Brian Hedden and Mark Colyvan criticize the evolution from probability to explanation based on a sparse review of some of the pertinent literature, joining a cottage industry of experts from cognate disciplines attempting to rescue probability theory from the corroding effects of legal scholarship. Their major point is to “fault” this transformation “for assuming an outdated and inexhaustive catalogue of ‘interpretations’ of probability. . . which . . . ignores the possibility of integrating the explanatory and other epistemological considerations . . . into a probabilistic framework.” This claim is false. The legal literature has vetted the two decades old literature that Hedden and Colyvan refer to as a new development in epistemology, which in any event has no value in resolving the problems the legal literature on juridical proof addresses. A proper understanding of both the dated literature that Hedden and Colyvan refer to, and what actually are “new developments” in epistemology support the progression from probabilism to explanationism as the best explanation of juridical proof. In addition, H&C make a fundamental error about what the conceptual problem is. Together these errors vitiate their criticisms of explanationism as the best explanation of juridical proof at present. Correcting these mistakes and misapprehensions may assist those in other fields in their understanding of what the actual issues are.

Keywords: evidence, proof, probability, epistemology, relative plausibility, bayes theorem