Evidence, Risk, and Proof Paradoxes: Pessimism about the Epistemic Project

Giada FRATANTONIO*

*Corresponding author for this work

Research output: Journal PublicationsJournal Article (refereed)peer-review

2 Citations (Scopus)

Abstract

Why can testimony alone be enough for findings of liability? Why statistical evidence alone can't? These questions underpin the ‘Proof Paradox’. Many epistemologists have attempted to explain this paradox from a purely epistemic perspective. I call it the ‘Epistemic Project’. In this paper, I take a step back from this recent trend. Stemming from considerations about the nature and role of standards of proof, I define three requirements that any successful account in line with the Epistemic Project should meet. I then consider three recent epistemic accounts on which the standard is met when the evidence rules out modal risk (Pritchard 2018), normic risk (Ebert et al., 2020), or relevant alternatives (Gardiner 2019 2020). I argue that none of these accounts meets all the requirements. Finally, I offer reasons to be pessimistic about the prospects of having a successful epistemic explanation of the paradox. I suggest the discussion on the proof paradox would benefit from undergoing a ‘value-turn’.

Original languageEnglish
Pages (from-to)307-325
Number of pages19
JournalInternational Journal of Evidence and Proof
Volume25
Issue number4
Early online date3 Aug 2021
DOIs
Publication statusPublished - Oct 2021
Externally publishedYes

Bibliographical note

I have presented parts of this paper in 2019 and 2020 at the Legal Philosophy Workshop at the Surrey Centre for Law and Philosophy, at the Responsibility Knowledge and Belief Workshop hosted by the ERC-funded Roots of Responsibility Project at UCL, at the Spring Workshop hosted by the ERC-funded Competence and Success in Epistemology and Beyond Project at the University of Helsinki, at Maastricht school of Law, and at the Edinburgh Legal Theory Group. I am grateful to everyone who gave me feedback on those occasions and, in particular, to Aness Webster and Costanza Porro who gave responses to my talk in Surrey and UCL. Further thanks to Dylan Balfour, Dan Baras, Daniel Drucker, Philip Ebert, Antonella Frasca Caccia, Jaakko Hirvelä, Maria Lasonen-Aarnio, Lilith Newton, Angie O’ Sullivan, Petronella Randell, Xington Wei and Di Yang for useful discussion on this paper. I am also very grateful to Antony Duff, Claire Field, Lucas Miotto, Dario Mortini and Martin Smith for written comments on previous drafts of this paper. Thanks also to two anonymous referees for useful suggestions on how to improve this paper. Finally, special thanks to Martin Smith for countless moments of discussions on evidence, normic support, and proof paradoxes. The work for this paper was supported by the European Research Council (European Union's Horizon 2020 research and innovation program, 758539) and the Arts and Humanities Research Council (‘Varieties of Risk,’ AH/T002638/1).

Keywords

  • Epistemology
  • evidence-law
  • legal risk
  • modal risk
  • normic risk
  • proof paradoxes
  • relevant alternatives

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