I discuss the knowledge account of legal proof in Moss (2023) and develop an alternative. The unifying thread throughout this article are reflections on the beyond reasonable doubt (BRD) standard of proof. In Section 1, I will introduce the details of Moss’s account and how she motivates it via the BRD standard. In Section 2, I will argue that there are important disanalogies between BRD and knowledge that undermine Moss’s argument. There is however another motivation for the knowledge account: combined (...) with auxiliary claims, that is probabilistic knowledge and moral encroachment, it can provide a general solution to the puzzle of statistical evidence. Section 3 spells out the details. In Section 4, I suggest to combine the knowledge account with pragmatic encroachment, instead of moral encroachment, in order to stay clear of the thorny issues whether corporations have moral rights. In Section 5, I argue that the verdicts of Moss’s account in cases of false justified beliefs and non-luminous knowledge conflict with the BRD standard and thus call for abandoning the account. Based on the social function of the BRD standard, I suggest a replacement for the knowledge account that is also just as potent as a general solution for the puzzle of statistical evidence. While I will grant that knowledge is neither always necessary nor always sufficient for convictions, I will argue that the concept of knowledge nonetheless plays a significant and ineliminable role in legal decision-making. (shrink)

Three philosophical accounts of risk dominate the contemporary literature. On the probabilistic account, risk has to do with the probability of a disvaluable event obtaining; on the modal account, it has to do with the modal closeness of that event obtaining; on the normic account, it has to do with the normalcy of that event obtaining. The debate between these accounts has proceeded via counterexample-trading, with each account having some cases it explains better than others, and some cases that it (...) cannot explain at all. In this article, we attempt to break the impasse between the three accounts of risk through a shift in methodology. We investigate the concept of risk via the method of conceptual reverse-engineering, whereby a theorist reconstructs the need that a concept serves for a group of agents in order to illuminate the shape of the concept: its intension and extension. We suggest that risk functions to meet our need to make decisions that reduce disvalue under conditions of uncertainty. Our project makes plausible that risk is a pluralist concept: meeting this need requires that risk takes different forms in different contexts. But our pluralism is principled: each of these different forms are part of one and the same concept, that has a ‘core-to-periphery’ structure, where the form the concept takes in typical cases (at its ‘core’) explains the form it takes in less typical cases (at its ‘periphery’). We then apply our findings to epistemic risk, to resolve an ambiguity in how ‘epistemic risk’ is standardly understood. (shrink)

In a recent paper in this journal Duncan Pritchard responds to an objection to the modal account of risk pressed by Ebert, Smith and Durbach ( 2020 ). In this paper, I expand upon the objection and argue that it still stands. I go on to consider a more general question raised by this exchange – whether risk is ‘objective’, or whether it is something that varies from one perspective to another.

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology (...) and suggest a way to vindicate it. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This paper offers an articulation and defence of the modal account of legal risk in light of a range of objections that have been proposed against this view in the recent literature. It is argued that these objections all trade on a failure to distinguish between the modal nature of risk more generally, and the application of this modal account to particular decision-making contexts, such as legal contexts, where one must rely on a restricted body of information. It is argued (...) that once the modal account of legal risk is properly understood as involving information-relative judgements about the modal closeness of the target risk event, the objections to the view are neutralized. (shrink)

The notion of individualised evidence holds the key to solve the puzzle of statistical evidence, but there’s still no consensus on how exactly to define it. To make progress on the problem, epistemologists have proposed various accounts of individualised evidence in terms of causal or modal anti-luck conditions on knowledge like appropriate causation, sensitivity and safety. In this paper, I show that each of these fails as satisfactory anti-luck condition, and that such failure lends abductive support to the following conclusion: (...) once the familiar anti-luck intuition on knowledge is extended to individualised evidence, no single causal or modal anti-luck condition on knowledge can succeed as the right anti-luck condition on individualised evidence. This conclusion casts serious doubts on the fruitfulness of the move from anti-luck conditions on knowledge to anti-luck conditions on individualised evidence. I expand on these doubts and point out further aspects where epistemology and the law come apart: epistemic anti- luck conditions on knowledge do not adequately characterise the legal notion of individualised evidence. (shrink)

This essay presents a unified account of safety, sensitivity, and severe testing. S’s belief is safe iff, roughly, S could not easily have falsely believed p, and S’s belief is sensitive iff were p false S would not believe p. These two conditions are typically viewed as rivals but, we argue, they instead play symbiotic roles. Safety and sensitivity are both valuable epistemic conditions, and the relevant alternatives framework provides the scaffolding for their mutually supportive roles. The relevant alternatives condition (...) holds that a belief is warranted only if the evidence rules out relevant error possibilities. The safety condition helps categorise relevant from irrelevant possibilities. The sensitivity condition captures ‘ruling out’. Safety, sensitivity, and the relevant alternatives condition are typically presented as conditions on warranted belief or knowledge. But these properties, once generalised, help characterise other epistemic phenomena, including warranted inference, legal verdicts, scientific claims, reaching conclusions, addressing questions, warranted assertion, and the epistemic force of corroborating evidence. We introduce and explain Mayo’s severe testing account of statistical inference. A hypothesis is severely tested to the extent it passes tests that probably would have found errors, were they present. We argue Mayo’s account is fruitfully understood using the resulting relevant alternatives framework. Recasting Mayo’s condition using the conceptual framework of contemporary epistemology helps forge fruitful connections between two research areas—philosophy of statistics and the analysis of knowledge—not currently in sufficient dialogue. The resulting union benefits both research areas. (shrink)