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3 - Legal Probabilism

An Epistemological Dissent

Published online by Cambridge University Press:  05 August 2014

Susan Haack
Affiliation:
University of Miami
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Summary

[I]t is clear that some things are almost certain, while others are matters of hazardous conjecture. For a rational man, there is a scale of doubtfulness, from simple logical and arithmetical propositions and perceptive judgments, at one end, to such questions as what language the Myceneans spoke or “what song the Sirens sang” at the other…. [T]he rational man, who attaches to each proposition the right degree of credibility, will be guided by the mathematical theory of probability when it is applicable…. The concept “degree of credibility,” however, is applicable much more widely than that of mathematical probability.

–Bertrand Russell

Russell’s right. The mathematical calculus of probabilities is perfectly fine in its place; but that place is a limited one. In particular, this mathematical calculus sheds little or no light on the crucial concept Russell calls “rational credibility,” and I call “warrant.” One consequence, as I shall argue here, is that we can’t look to probability theory for an understanding of degrees and standards of proof in the law, but must look, instead, to an older and less formal branch of inquiry: epistemology.

Type
Chapter
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Evidence Matters
Science, Proof, and Truth in the Law
, pp. 47 - 77
Publisher: Cambridge University Press
Print publication year: 2014

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References

Boole, George, The Laws of Thought (1854; reprinted New York: Dover, n.d.), chapter XXI
Bailey, Linda A., Gordis, Leon, and Green, Michael D., “Reference Guide on Epidemiology,” in Federal Judicial Center, Reference Manual on Scientific Evidence (Washington, D.C.: Federal Judicial Center, 1990), 123–80, 168Google Scholar

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  • Legal Probabilism
  • Susan Haack, University of Miami
  • Book: Evidence Matters
  • Online publication: 05 August 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781139626866.004
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  • Legal Probabilism
  • Susan Haack, University of Miami
  • Book: Evidence Matters
  • Online publication: 05 August 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781139626866.004
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Legal Probabilism
  • Susan Haack, University of Miami
  • Book: Evidence Matters
  • Online publication: 05 August 2014
  • Chapter DOI: https://doi.org/10.1017/CBO9781139626866.004
Available formats
×