Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgments
- 1 Introduction
- 2 Discriminatory Power: Adjudication as Practical Reasoning
- 3 Keynesian Weight and Decision Making: Being Prepared to Decide
- 4 Keynesian Weight in Adjudication: The Allocation of Juridical Roles
- 5 Tenacity of Belief: An Idea in Search of a Use 251
- 6 Conclusion
- References
- Index
5 - Tenacity of Belief: An Idea in Search of a Use 251
Published online by Cambridge University Press: 05 March 2016
- Frontmatter
- Contents
- Preface
- Acknowledgments
- 1 Introduction
- 2 Discriminatory Power: Adjudication as Practical Reasoning
- 3 Keynesian Weight and Decision Making: Being Prepared to Decide
- 4 Keynesian Weight in Adjudication: The Allocation of Juridical Roles
- 5 Tenacity of Belief: An Idea in Search of a Use 251
- 6 Conclusion
- References
- Index
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.
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- Information
- The Burdens of ProofDiscriminatory Power, Weight of Evidence, and Tenacity of Belief, pp. 251 - 291Publisher: Cambridge University PressPrint publication year: 2016