The explanationist revolution in evidence law

Abstract

According to Allen and Pardo, the field of evidence law has experienced a revolution -in Kuhn's sense- from probabilism to explanationism, which they identify with the relative plausibility theory. The explanationist revolution, argue Allen and Pardo, has placed explanationist -rather than probabilistic criteria- at the core of the fact-finding process and, in contrast to probabilism, has advanced a comparative understanding of the theory of legal proof. This paper develops an alternative interpretation of the explanationist revolution in evidence law. First, it elaborates on the concept of legal revolution and argues that it involves a kind of shift that is best characterized as a Hacking -rather than a Kuhnean- type of revolution and, thus, as an ‘emplacement’ instead of a ‘replacement’ revolution. Second, it claims that the shift from probabilism to explanationism involves a deep -genuinely revolutionary- change in the conception of rationality that is taken to govern the processes of evidence and legal proof. Other differences between probabilistim and explanationism, such as those mentioned by Allen and Pardo, are not central to the revolutionary shift, but rather emanate from this basic distinction. Last, it argues that the explanationist paradigm embraces, but cannot be reduced to, the relative plausibility theory; the identification of explanationism with the relative plausibility theory occludes the richness and possibilities harboured by the new, explanationist, paradigm.

Clarifying relative plausibility: A rejoinder

“…Second, a number of commentaries raise issues that may help with the refinement of relative plausibility specifically or with explanatory approaches more generally (see Amaya, 2019; Ribeiro, 2019; Tuzet, 2019; Vazquez, 2019). These possibilities include how best to account for specific evidentiary rules, concepts or practices within an explanatory framework, as well as the need for greater understanding of the roles played by specific explanatory criteria in legal inferences and decision-making.…”

“… 2. See Amaya (2019) (discussing the shift toward explanationism in evidence law as a revolution in styles of reasoning and inferential methods). …”

Reasoning from background knowledge: Evaluating and explaining behaviour in Finnish rape judgments

“…Due to constraints in both cognitive and institutional resources like time and computational processing power, fact-finders simply ask what most convincingly explains the occurrence of the evidence presented. This abductive form of reasoning does not result in logical necessity; rather, it is heuristic in nature (Allen and Pardo, 2019: 17; Amaya, 2019: 63; Mackor et al, 2021: 431).…”

“…For example, ‘incoherence’ in an oral testimony can refer to the testimony not proceeding in a clear, structured manner, to internal contradictions or to inconsistency with external knowledge. While ‘plausibility’ is a central concept for Allen and Pardo, Amaya (Amaya, 2019: 64) considers it too vague, 3 and when used by judges, it generally refers to coherence with background beliefs. ‘Inconsistency’ can refer to internal contradictions, lack of constancy over time or incoherence with the evidence or background beliefs.…”