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4622 results in Criminal Law

Page 115 of 232

  • Chapter 8 - Conclusions: Transitional Justice and the Potential for Stronger Protection of the Rights of Children Involved in Armed Conflicts

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 213-230

  • Summary

    “I hope my family wants me back.”

    INTRODUCTION

    The number of child soldiers appears to have decreased slightly during the past several years, due to solutions in some long-term conflicts and significant releases of children. This is no doubt partly the result of the consistent advocacy and action taken by actors in the different spheres of transitional justice. Recently escalating conflicts, however, have generated significant reports of new recruitments of children under varying degrees of coercion to be used by armed forces and groups to wage war. There is still significant work to be done: the 2014 report includes the listing of eight government forces and 51 armed groups.

    Approaching the issue of child recruitment from the perspective of transitional justice provides a fresh perspective on ways to prevent and redress this grave violation of children's rights. This approach aims to systematize the law, knowledge, and practice across a wide range of legal fields. It allows for a synthesis of legal debate, a greater understanding of the established law and principles, and a more informed basis for practical engagement with transitional justice mechanisms.

    This concluding chapter focuses on two main streams: (1) it undertakes a final legal analysis of the law related to child recruitment, and (2) it makes suggestions about the way forward and how the different aspects of transitional justice can more successfully come together.

    ANALYSING INTERNATIONAL LAW RELEVANT TO CHILD RECRUITMENT THROUGH THE TRANSITIONAL JUSTICE FRAMEWORK

    This section brings together the lessons from having used the transitional justice framework as the point of departure. It begins with an exploration of the outcomes of having used the framework and then considers the conclusions that can be made on the state of the art with respect to international law related to child recruitment.

    ADVANTAGES OF AN OVERALL FRAMEWORK

    The key advantage of looking at children's issues through the lens of transitional justice rather than a single area of law is that it is possible to consider the entire “life cycle” of the event of child recruitment, from root causes and prevention to the nature of the violation itself, along with the options and solutions to address the violation.

Child Soldiers and Transitional Justice
  • Protecting the Rights of Children Involved in Armed Conflicts
  • Bo Viktor Nylund
  • Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016
  • In a political climate that holds limited promise for addressing the issue of child recruitment, Child Soldiers and Transitional Justice: Protecting the Rights of Children Involved in Armed Conflicts challenges the trend towards a narrow focus on recruitment and use of the child, and seeks to contribute to more effective prevention and responses that offer the child a chance of recovery, reconciliation and reintegration. This book adapts existing theoretical frameworks of transitional justice in order to analyse child recruitment, with a view to demonstrating how a society can address the issue in a holistic way. It systematises relevant knowledge across a wide range of legal fields to allow for greater understanding of the law and principles, and a more informed basis for practical engagement with transitional justice mechanisms.Delving deep into the travaux préparatoires of each of the fundamental legal instruments, the author analyses their evolution, spanning humanitarian law, human rights law, criminal law, and other aspects of public law, including peace agreements and action plans developed with armed groups and forces. He provides a particular focus on and in-depth analysis of the Lubanga case, and its implications for other components of transitional justice. The findings highlight arguments for placing child recruitment firmly on the transitional justice agenda. By considering child recruitment against a transitional justice framework, the book allows a detailed understanding of the distinct but complementary components - rule of law, criminal justice, historical justice, reparatory justice, institutional justice, and participatory justice - and reveals the untapped potential in interactions between different areas of transitional justice.About the authorBo Viktor Nylund is a protection and legal practitioner who has focused on state and non-state actor responsibility and accountability throughout his career. Bo Viktor has Masters degrees in law and political science from Columbia University Law School and Abo Akademi University and a PhD in international law from the Geneva Graduate Institute for International Studies. He has served UNHCR, UNICEF and OHCHR and is currently UNICEF's Representative in Burundi.

  • Chapter 6 - Child Recruitment and Institutional Justice

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 163-186

  • Summary

    If I were the president, I would talk to the rebel group leaders and build peace amongst the different ethnic groups. It does not make sense to fight this war.”

    INTRODUCTION

    Institutional justice considers reform of “public institutions that helped perpetuate conflict or repressive rule.” The laws and policies implemented through institutions at various levels are themselves the engine of change. Law can help distribute power more effectively and build or reform fair and efficient public institutions.

    While criminal sanctions are generally predicated on individual criminal responsibility, civil sanctions of an administrative nature are based on exclusionary conditions, chiefly of political loyalty, which, for example, systematically disqualifies certain groups of people from participation in the new government. But changes of an institutional and administrative nature may also be part of an overall effort to change the way institutions operate and interrelate. In the Secretary-General's report taking stock of progress made in the rule of law and transitional justice arenas, emphasis is placed on institution building that provides for greater levels of national ownership, more concerted efforts at sector-wide approaches, and more emphasis on initiatives to facilitate access to justice.

    Key legal questions that are considered in this chapter include:

  • – What does institutional justice signify in the context of the recruitment and use of children? What institutions are most important to safeguarding their rights?

  • – What areas of law in current contexts of child recruitment have developed during recent years, and how have they evolved?

  • – What role could business play in respecting and supporting children's rights within a context of child recruitment and transitional justice?

  • – What are the entry points in this otherwise big-picture area of transitional justice for issues related to children?

    • Much of what is implemented as part of institutional justice oft en has its beginning in early parts of the peace process, including ceasefire and peace agreements. An example of this type of transformation is the signing, in 2006, of the peace agreement for Darfur, where the Sudan Liberation Army leader became a vice-president as part of the peace agreement discussions.

  • Chapter 2 - Child Recruitment and the Rule of Law: International Law and the Prohibition against Recruiting and Using Children to Take Direct Part in Hostilities

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 33-68

  • Summary

    I asked: “What were your duties as a child soldier in the movement?”

    He said: “I led some of the boys in the armed group who prepared tea and food, washed the cars, and carried our belongings.”

    I asked him: “What happened if those boys did not do what you told them to?”

    He replied: “You hit him with the Kalashnikov.”

    I asked him: “Would the commander do the same to you if he found out?”

    He replied: “Nobody asks and nobody would report on you. You hit him so hard that the others will not be impolite again.”

    I asked him: “If somebody older than you, like a commander, ordered you to do something you do not like, what do you do?”

    He replied: “If he is a senior commander, I will obey him; but if he is an ordinary person, I hold a Kalashnikov and he holds a Kalashnikov and the one who fires first will defeat the other.”

    INTRODUCTION

    The rule of law implies that there is a high predictability as to how known rules will be applied, as opposed to arbitrary action by government or non-state actors. The situations where child recruitment and use take place are inherently unstable, however, underscoring the considerable need to promote the overall elements of the rule of law in order to strengthen this aspect of transitional justice. This can present both challenges and opportunities, as there is scope to introduce new ways of looking at the issues.

    One great challenge is to determine what law prevails in a situation where there could be several options. In this regard, both ex post facto legislation and differences in application of the law due to the nature of the conflict or the actor involved in carrying out the violation must be taken into consideration – recognizing that the law of a previous regime may have shortcomings or there may be no law in place on the issue of concern.

    Chapter 2 considers the circumstances of the child's participation during a conflict and extends the focus to encompass the end result for the child, as well as the aim of prohibiting and redressing the act itself – regardless of the situation on the ground.

  • Chapter 1 - Objective, Scope, and Transitional Justice as an Analytical Framework

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 1-32

  • Summary

    “I am opposed to the recruitment of any person under 18. I think it is dangerous for children like myself to join a movement or even government forces if you end up taking part in military operations. I believe that school is the natural place for any child, and when I get back home, I will pursue my education once again.”

    INTRODUCTION

    Following the first codification of the prohibition against child recruitment in international law in the late 1970s, the global debate about the recruitment and use of children in armed conflicts took on a new level of importance two decades later. The 1990s marked the first decade of implementation of programmes to “rehabilitate” children who had been involved in armed conflicts.

    The use of child soldiers is not a new phenomenon. Children have historically suffered disproportionately during war, and armed groups and forces have recruited children to serve in armed conflicts. But as international responses to providing for the recovery and reintegration needs of former child soldiers increased, the flow of information and awareness of this issue as a child rights violation led to a great deal of attention. As the focus intensified, approaches to ending the use of child soldiers evolved and diverged into separate actions by varying actors, not always consistently pulling in the same direction, yet all with the same aim in mind.

    This book offers an approach to establishing a coherent synthesis that will contribute to further protection of the rights of children in armed conflicts, building on developments through the spring of 2015. Chapter 1 outlines the overall objectives and scope, and the framework of analysis, and provides an introduction to the issue of child recruitment and how it entered the international legal and political debates.

    OBJECTIVE AND SCOPE

    Transitional justice is the organizing framework for this work on child soldiers, and an overall objective is to identify ways to enhance the response to address child recruitment.

    Since the 1980s, judicial and non-judicial approaches associated with a society's eff orts to come to terms with a legacy of abuses – the transitional justice mechanisms – have sought to address accountability, truth-seeking, institution building, and reconciliation and recovery among war-affected populations.

  • Chapter 7 - Children Involved in Armed Conflict and Participatory Justice: Balancing Rights and Responsibilities

  • Bo Viktor Nylund
  • Book:
    Child Soldiers and Transitional Justice
    Published by:
    Intersentia
    Published online:
    12 December 2017
    Print publication:
    21 March 2016, pp 187-212

  • Summary

    “They made you chop off an arm or kill someone in your family, then they gave you drugs to make you feel better, and then you did not care and you killed many more people.”

    INTRODUCTION

    Participatory justice is an area of transitional justice that includes elements of administrative and constitutional justice, but it has recently been viewed as a distinct field deserving focused attention. Although this field could be seen as a cross-cutting theme in transitional justice settings, participatory justice requires separate consideration in the context of child recruitment.

    Participatory justice offers an opportunity for children to make a significant contribution to the various processes related to transitional justice. It is every child's right to be heard and to express her or his views and opinions, but participatory justice not only conveys rights to an individual child, it confers responsibilities.

    The topic of child recruitment offers a particularly interesting paradox in the field of transitional justice: while child recruitment is defined as a war crime, children themselves may perpetrate human rights violations while serving as child soldiers.

    Key legal questions that are considered in this chapter include:

  • – What does the law provide for more generally that can be applied to support children's participation in justice processes in a transitional justice context?

  • – What is the situation of children who have participated in the conflict and who may have carried out crimes while in the ranks of an armed group or force?

  • – In both those instances, what approaches are in the best interests of children and society as a whole, inclusive of protecting the rights of children while also considering their responsibilities?

    • It is critical to be clear about the objectives in the processes of participatory justice. Are we seeking ways and means through which children can recover and reintegrate, or looking for ways to hold children accountable? Do we want to warn future child soldiers against participating in armed conflicts? Or do we want to achieve all of the above? It is in the best interests of the child and the wider society that justice is approached with a view to restore and recover so that child soldiers are able to reintegrate.

  • 6 - Conclusion

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp 292-304

  • Summary

    In his famous treatise, Wigmore compared ordinary practical decision making with adjudication, in the course of which he made the following comment regarding both: “So far as mere logic is concerned, it is perhaps questionable whether there is much importance in the doctrine of burden of proof as affecting persons in controversy.” While I have the utmost respect for the work of this giant of jurisprudence, much of the present book, if successful, will have shown just how misleading this comment can be.

    A Brief Summary

    My inquiry has elucidated an understanding of the burdens of proof in terms of two distinct kinds of evidential “weight.” On the one hand, an adjudicative tribunal is called on to assess weight in a sense that is comparative as between the two sides. The tribunal compares the support that the evidence gives to the claimant's case with that which the evidence gives to the opponent's case. This notion of weight I have called the “discriminatory power” of the evidence available to the tribunal, where it is understood that the evidence formally presented in court is assessed within the context of the general background information with which the tribunal legitimately approaches its task as well as the more case-specific, uncontroverted facts that are communicated to the fact-finder in numerous ways. Chapter 2 illustrated how the idea of discriminatory power can be developed. One powerful interpretive model, an adaptation of conventional decision theory, has identifiable strengths as well as some weaknesses. While it is largely agnostic about the process by which the fact-finder reaches its assessment, it does suppose that the outcome of that assessment can be captured by comparing an approximate probability or odds with a publicly stated standard. This judgment implements the law's policy regarding the allocation of the unavoidable risks of error.

    On the other hand – and to a large degree independent of how one gives specific content to a theory of discriminatory power – the tribunal is called on to assess weight in a sense that is comparative only in a different way: this sense of weight is the same for each of the contending hypotheses, but it varies with the amount of evidence considered with respect to them.

  • 5 - Tenacity of Belief: An Idea in Search of a Use 251

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp 251-291

  • Summary

    [I]n matters of probability, ‘tis not in every case we can be sure, that we have all the Particulars before us, that any way concern the Question; and that there is no evidence behind, and yet unseen, which may cast the Probability on the other side, and out-weigh all, that at present seems to preponderate with us.

    – John Locke (c. 1690)

    I have articulated a two-part theory of the burden of proof, applicable in all conventional forms of trial, whether inquisitorial or adversarial: (1) it is the duty of the court to ensure, through a variety of procedural devices, that the evidence is reasonably complete, that is, that Keynesian weight has been practically optimized, and (2) it is the duty of the fact-finder to determine whether the admissible evidence, assessed in its appropriate context, satisfies a threshold criterion of epistemic warrant, one that is determined by a public assessment of the relative benefits and costs of accurate and inaccurate verdicts. Ordinarily, the fact-finder's determination does not involve assessing Keynesian weight or the relative completeness of the evidence. Several scholars have suggested that a third idea is important in knowing whether the burden of proof has been satisfied. This idea is often expressed as “tenacity of belief.” There are several versions of this idea; it would be more accurate to say that it is a family of related ideas. In this book, I cannot examine every permutation of the idea that is available, but I will try to identify significant contributions along this line sufficient in number and variety to make clear their relatedness. I will argue that, provided that one takes appropriate account of discriminatory power and Keynesian weight, the idea of tenacity of belief is, in the end, a false lead. Whatever it has to contribute to our understanding of burdens of proof is already embedded in the ideas of discriminatory power and Keynesian weight.

    “Tenacity of belief” refers to the degree of resistance a person has to giving up the belief. As with discriminatory power and Keynesian weight, tenacity of belief is a gradational attribute associated with a person's epistemic assessments. It can be applied to beliefs that are conceived as gradational or to beliefs that are conceived as categorical.

  • 3 - Keynesian Weight and Decision Making: Being Prepared to Decide

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp 103-183

  • Summary

    He that judges without informing himself to the utmost that he is capable, cannot acquit himself of judging amiss.

    – John Locke (c. 1690)

    One of the criticisms directed at the decision-theoretic model discussed in Chapter 2 (§ 2.2) is that the probability (or odds) that the claim is true cannot capture all of a decision maker's epistemic concerns. The question persists as to whether some additional epistemic concept or factor needs to be put into the mix of decision making. A similar concern presents itself for criteria of discriminatory power that are focused not on posterior odds assessments but rather solely on assessments of the strength of the publicly produced evidence (§ 2.3.1) or that are theory focused in that they require the fact-finder to compare the probability (or “plausibility”) attaching to the claimant's theory of the case with that attaching to the defendant's theory of the case or to select the most plausible explanatory theory (§ 2.3.2). It is this quite general concern that gives rise to the question of Keynesian weight.

    I begin by motivating this concern through a look at the problem of “naked statistical evidence” (§ 3.1). I then examine the nature and importance of Keynesian weight (§ 3.2), and identify a crucial but underappreciated dimension of Keynesian weight, its excusable preference structure (§ 3.3). In the rest of the chapter, I relate the understanding thereby developed to modern theorizing about informal reasoning (§ 3.4), comment on the possibility of quantifying Keynesian weight (§ 3.5), illustrate how the misunderstanding of the role of Keynesian weight is sometimes attributable to the erroneous assumption that it must figure as merely one ingredient in a holistic judgment of epistemic warrant (§ 3.6), relate it to decision making with belief functions that do not conform with the axioms of probability (§ 3.7), and conclude by relating the solution of the problem of Keynesian weight to the goals of adjudication (§ 3.8).

    While I draw on Keynes's insights, this is not a work in intellectual history, and I do not purport to follow Keynes in any detail.

  • Preface

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp ix-xii

  • Summary

    Adjudication is a conspicuous example of decision making under uncertainty, with “burdens of proof” employed to structure the decision. At the center of the following discourse is a set of ideas that collectively constitute the burdens of proof. These ideas inhabit the intersection of diverse disciplines, including law (its principal subject), epistemology, and decision theory. My goal is to elucidate this fascinating interplay of ideas. This work's focus is not heavily doctrinal or historical, although doctrine plays an important part, as does the history of ideas. It is, ultimately, an elaboration of a philosophy of factual adjudication.

    In evidence law scholarship, much more attention has been paid to the rules of admissibility over the last two centuries, perhaps because rules regarding the “sufficiency” of evidence have languished: many that had once existed have disappeared, and the few that remain can be learned easily, at least at a superficial level. But among those who are concerned with the process and logic of proof, in the context of evidence that has passed the hurdles of admissibility, the rules that structure the decision take on great significance. And despite a recent surge of scholarly interest in the subject of legal proof, it remains decidedly undertheorized.

    It will be widely agreed that adjudication of disputed facts is properly based on the weight of evidence. But “weight” can mean many things. For most lawyers, the weight of evidence is understood as the degree to which the evidence favors one side of the dispute over the other, what I will call its “discriminatory power.” In modern legal scholarship, however, there has been considerable interest in the weight of evidence in a sense developed, most prominently, by John Maynard Keynes – which refers to the total amount of relevant evidence considered, regardless of which side is favored thereby. The interest in this subject has been limited to a relatively small number of theorists, to judge by the impact that it has had on mainstream evidence scholarship. Perhaps this is because there remains significant disagreement about what lessons to take from the conversation. This is an unfortunate state of affairs, I believe, because these lessons are of considerable theoretical and practical import.

  • 2 - Discriminatory Power: Adjudication as Practical Reasoning

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp 15-102

  • Summary

    The conduct of our Lives, and the management of our great Concerns, will not bear delay: for those depend, for the most part, on the determination of our Judgments in points, wherein we are not capable of certain and demonstrative Knowledge, and wherein it is necessary for us to embrace the one side, or the other.

    – John Locke (c. 1690)

    In this chapter, I explore what is involved in the idea of the “discriminatory power of the evidence” and what determines the margin by which that power must favor the claimant (assumed here to be the party bearing the burden of persuasion) in order to warrant a positive verdict. To do this, we consider the nature of a verdict itself and its relationship to the goals of adjudication (§ 2.1). This will lead naturally to the well-known decision-theoretic model specifying the degree of discriminatory power necessary for a verdict (§ 2.2). By briefly examining two competing theories of discriminatory power, I will show how certain contemporary debates about the viability of the decision-theoretic model are largely tangential to the issues addressed in subsequent chapters, though they place those issues in clearer context (§ 2.3). Theories of discriminatory power are also related to complex questions about how the inference process can be understood, modeled, or described (§ 2.4), and they must recognize the importance of background information, information that is not part of the evidence formally presented (§ 2.5). I explore these ideas and hope thereby to contribute to our understanding of discriminatory power. But I emphasize that this is not my primary purpose. Rather, these ideas simply serve as a backdrop for the critical discussion of Keynesian weight in the following chapters.

    Practical Reasoning in the Adjudicative Context

    Verdicts seem declaratory in the sense that they declare certain facts to be true or false. But these declarations are not made in a vacuum; they are not idle speculations. The facts declared in adjudication very often, though not always, entail the attribution of the breach of serious social obligation, and almost always, serious consequences attach to them. So it would be more precise to say that verdicts declare that certain facts are to be taken as true for the serious purposes of such application.

  • 4 - Keynesian Weight in Adjudication: The Allocation of Juridical Roles

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp 184-250

  • Summary

    The first therefore, and most signal Rule, in relation to Evidence, is this, That a Man must have the utmost Evidence, the Nature of the Fact is capable of; … less Evidence doth create but Opinion and Surmise, …, for if it be plainly seen in the Nature of the Transaction, that there is some more Evidence that doth not appear, the very not producing it is a Presumption, that it would have detected something more than appears already, and therefore the Mind does not acquiesce in any thing lower than the utmost Evidence the Fact is capable of.

    – Chief Baron Geoffrey Gilbert (c. 1726)

    In Chapter 3, the decision maker was treated as unitary: the same individual, or undifferentiated group of individuals, was treated as responsible for all the actions necessary to decision making. In particular, this decision maker had responsibility for making both the principal decision – to accept the claim or to reject it – and the preemptive decision – to postpone (or not to postpone) the principal decision to allow for the augmentation of Keynesian weight, as well as the responsibility for conducting the investigations that would effectuate such augmentation. In this chapter, this assumption is relaxed. I differentiate between the roles of the various persons and subsidiary groups of persons (such as juries), who participate in decision making in the adjudicative context. This allows me to work out some of the implications of the foregoing analysis for practical adjudication.

    Of course, the devil is in such details, and because the roles of adjudicative participants are complex and not so clearly delineated as one might expect, there is more here with which the legal practitioner or academic lawyer may want to disagree. Still, the framework developed in the preceding two chapters will motivate insights that otherwise are not available, and the result is a coherent theory of adjudicative proof burdens and their management. I do not, of course, claim that the resulting theory captures every nuance of our adjudicative systems. As emphasized at the end of Chapter 3, there are a number of goals and concerns that can compete with the essentially epistemic focus presented in this book. Still, it is striking just how much of our extant practices are illuminated by the present analysis.

  • 1 - Introduction

  • Dale A. Nance, Case Western Reserve University, Ohio
  • Book:
    The Burdens of Proof
    Published online:
    05 March 2016
    Print publication:
    11 March 2016, pp 1-14

  • Summary

    In adjudication, facts matter. Cases are often disputes over conflicting versions of the facts. In both civil and criminal cases, certain important, so-called ultimate facts are specified as determinative by the applicable substantive law. When there is uncertainty about these facts, and trials become necessary to resolve the dispute, burdens of proof structure the tribunal's factual assessments. In American civil cases, for example, the ultimate facts that define a cause of action or defense usually must be shown by the plaintiff to be true “by a preponderance of the evidence,” and in criminal cases, the ultimate facts must be shown by the prosecution to be true “beyond reasonable doubt.” The epistemic components of these requirements reflect the fact that they do not involve a surrender to some kind of pure proceduralism, in which the quest for accuracy is ignored in favor of whatever results from fair procedures. Instead, they reflect the necessity of judgment under uncertainty and the need to exercise that judgment in a way that makes the best use possible of our unavoidably fallible assessments of the facts. This, at any rate, is the premise on which the following account will build.

    But what exactly does it mean to prove a civil case “by a preponderance of the evidence”? Or to prove a criminal case “beyond reasonable doubt”? Much appellate ink has been spilled, and many issues settled, on how to formulate these standards verbally, on which standard applies in which kinds of cases, and on the applicability of yet other intermediate standards to some classes of cases. Nevertheless, fundamental questions about what these standards mean remain deeply controversial. In this book I address a set of issues critically important to answering these questions. Specifically, I explore the relationships among three ideas that infuse modern scholarship regarding the burdens of proof. Clarification of these ideas and their relationships promises significant advances in our understanding of the proof process.

    Before stating these ideas, a few preliminary comments are in order. The present discourse concerns proof of “adjudicative” facts, facts concerning the conduct of parties to litigation that trigger the applicability of substantive legal rules – such as the fact that the defendant's conduct caused the injury to the plaintiff or the fact that the accused had the intent to kill the deceased.

Page 115 of 232