Dare and Kingsbury Putting The Burden of Proof in Its Place
Dare and Kingsbury Putting The Burden of Proof in Its Place
Dare and Kingsbury Putting The Burden of Proof in Its Place
X V I
Abstract
I t is widely assumed t h a t legitimate differential allocations of t h e
burden of proof a r e ubiquitous: that i n all cases i n which opposing
views a r e being debated, one side h a s t h e responsibility of proving
t h e i r claim a n d if they fail, t h e opposing view wins by default. We
argue t h a t t h e cases i n which one party h a s t h e burden of proof a r e
exceptions. I n general, p a r t i c i p a n t s i n reasoned discourse a r e a l l
required to provide reasons for t h e claims they make. We distinguish
between truth-directed and non-truth-directed discourse, argue that the
paradigm contexts in which there are legitimate differential allocations
of the burden of proof (law and formal debate) a r e non-truth-directed,
and suggest t h a t in truth-directed contexts, except i n certain special
cases, differential allocation of the burden of proof is not warranted.
1. Introduction
To have the burden of proof is to be rationally required to argue
for o r provide evidence for your position. To have a heavier
burden than an opponent is to be rationally required to provide
better evidence o r better arguments than they are required to
provide. Many commentators suggest that differential or uneven
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5. Conclusion
We have argued that those who assume the ubiquity of legiti-
mate differential allocations of the burden of proof are mistaken.
We hope t o have shown that legitimate differential allocation is
much less common t h a n is typically supposed. The clearest
examples are those in which truth is not the main aim. Legal
contexts are one example. Contexts in which we do not mind
being wrong so long as we err (if at all) in the direction of cau-
tion are another. Generalizing from the obvious usefulness of
burden of proof allocations in such contexts is a mistake. In
particular, the common tendency to move directly from the
legitimacy of differential allocations in legal contexts to their
legitimacy in general overlooks something important about the
law, namely that its primary aim is something other than truth.
The legitimacy of differential allocations depends on whether
they tend toward the achievement of the aim of the practice in
question. When the aim is t r u t h , typically they do not do so.
Whether differential allocations a r e legitimate depends on
whether the practice in question is truth directed and, if it is,
whether and what differential allocations are truth conducive in
t h a t practice. There a r e some special cases i n which differ-
entially assigning the burden of proof in truth-directed practices
is truth conducive, but in general, in truth-directed inquiries, the
burden of proof is on all of us alike.8
Notes
Of course, we a r e not t h e first to think so. For example Keith
Lehrer remarks in passing that “generally arguments about where the
burden of proof lies are unproductive. It is more reasonable to suppose
t h a t such questions a r e best left to courts of law where they have
suitable application” (Lehrer 1978, 358).
Hence t h e lower burden of proof in civil cases, where-rightly or
not-the law considers that the stakes are lower: the civil law tends to
deal with “mere” monetary and property rights, rather than the tradi-
tionally more important rights directly associated with individual
liberty.
Such proceedings would not have been straightforward under the
law as it stands, but t h a t does not count against our point: if t h e law
were truly truth directed, it might be amended allow such proceedings
more easily than it currently does.
Max Steuer gained a n unlikely acquittal for his factory-owner
clients i n t h e infamous Triangle Shirtwaist Fire Case by destroying
the credibility of a key witness, though no one seriously doubted t h a t
the facts were as the prosecution alleged. Seventy-five years after the
fire, Daniel Kornstein wrote admiringly, “Steuer had to bring to bear
all of his considerable skills .... The undisputed facts-locked doors
forcing scores of women, clothes and hair ablaze, to leap from windows
to their deaths-made the defendants’ prospects bleak. Surely this was
a case that would result in convictions. But the ... prosecutor ... did not
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