The paper provides a conceptual distinction between evidence assessment criteria and standards of proof. Evidence must be assessed in order to check whether it satisfies a relevant standard of proof, ...and the assessment is operated with some criterion; so both criteria and standards are necessary for fact-finding. In addition to this conceptual point, the article addresses three main questions: (1) Why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? (2) Why do systems differ as to criteria and standards? (3) How can a system work if it neglects one of these things? The answers to the first and second question come from the historical and procedural differences between the systems. The answer to the third focuses on the
functional connection
between criteria and standards.
The Article addresses three main questions. First: Why do some scholars and decision-makers take evidence assessment criteria as standards of proof and vice versa? The answer comes from the fact that ...some legal systems are more concerned with assessment criteria and others with standards; therefore jurists educated in different contexts tend to emphasize what they are more familiar with, and to assimilate to it what they are less familiar with. Second: Why do systems differ in those respects? Here the answer stems from the historical, institutional and procedural differences that explain why some systems are more concerned with assessment criteria and others with standards of proof. And third, assuming that both criteria and standards are necessary to legal decision-making about facts: How can a system work if it neglects one of these things? Here the Article argues that there is a functional connection between criteria and standards. The functional connection account is distinguished from a functional equivalence account, and some systems and jurisdictions are referred to in greater detail to support the functional connection claim.
The Italian Pragmatists were a group of philosophers in the early 20th century. They gathered around the journal Leonardo, which was published in Florence. This volume emphasizes what they all ...shared, as well as their value for philosophy and culture.
RIASSUNTO:In primo luogo l’articolo considera l’analisi economica come un tipo di argomentazione giuridica. Gli argomenti che fanno leva sulle conseguenze economiche di un atto giuridico vengono ...considerati come una forma di argomentazione consequenzialista e viene osservato che tali argomenti competono con molti altri nel contesto dell’interpretazione e dell’applicazione giudiziale del diritto. In secondo luogo viene considerata la pretesa dell’analisi economica di concepire le norme giuridiche come incentivi e viene osservato che tale prospettiva dipende da una serie di argomenti metodologici e una serie di argomenti circa i valori da massimizzare e la razionalità degli agenti economici. ABSTRACT:Firstly, the article takes economic analysis as a type of legal argumentation. The arguments that leverage the economic consequences of legal acts are a form of consequentialist argumentation and it is noted that these arguments compete with many others in the context of judicial interpretation and application of law. Secondly, the claim of economic analysis to conceive of legal norms as incentives is considered and it is observed that this perspective depends on a series of methodological arguments and of arguments about the values to be maximized and the rationality of economic agents.
On “The Economy of Research” Tuzet, Giovanni
Transactions of the Charles S. Peirce Society,
03/2018, Letnik:
54, Številka:
2
Journal Article
Recenzirano
Brief introduction to four papers on the economy of research published in this issue of the Transactions. The papers were originally presented in a workshop on the economy of research at Bocconi ...University, October 5-6, 2017.
In this paper, we discuss the notion of
inevitable ignorance
that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim
Ignorantia legis non excusat
. In ...particular, we argue that the epistemic flavor of the notion extends to the notion of
inevitability
beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and on a discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as
belief
,
evidence
,
rationality
, and
trust
.
The idea of the paper is to look at the way we learn about norms, as a contribution to an understanding of their nature. It is the idea of an a posteriori ontology of norms. For it is pointless to ...argue about the nature of norms without paying any attention to what we do when we learn something about them or when we act with them. In its turn, the epistemic account presented here is discussed, in inferential terms: different cognitive sources and. inferences determine different degrees of epistemic novelty that help distinguish kinds of norms and. normative systems. keywords epistemic novelty, inference, Jorgensen's dilemma, normative systems
Expert Signs and Legal Burdens Tuzet, Giovanni
International journal for the semiotics of law,
02/2023, Letnik:
36, Številka:
1
Journal Article
Recenzirano
Odprti dostop
Expert signs and expert evidence generate a justification problem in legal factfinding: factfinders cannot form a justified belief about the relevant matter, nor justify the acceptance of an expert ...testimony, insofar as they do not understand it. The different profiles of factfinders in different legal systems (with jury trial or not) do not make a substantial difference for the point addressed, namely the epistemic or doxastic impasse generated by the inability to understand expert signs, for this occurs everywhere. However, legal systems have a way out of the impasse: burdens of proof. Burden rules govern the outcome of a case. If a burden is not discharged, decision must be against the burdened party. After discussing various aspects of the “Daubert trilogy” and performing a semiotic analysis of one case in particular (
Kumho
), the paper explores the impact that legal burdens have on expert evidence issues.
Why do we say that a certain fiction is
good
, or even
credible
? The paper discusses the issue of fiction acceptability or credibility, with reference to the literary and legal domains in ...particular. Coleridge claimed that ‘poetic faith’ involves a
suspension of disbelief
. If he was right, to be good a literary fiction must be credible. Literary credibility does not mean truth or truthfulness. The paper contends that it means, in some senses to be specified,
coherence
; hence it provides a coherentist theory of fiction which is checked against some literary and legal examples. Although the differences between these fictions must not be underestimated, the paper concludes that coherence provides a general account and justification of fictions and of our judgments on them.
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