Beweislastverteilung und Intuitionen in philosophischen Diskursen

Allocating the burden of proof and intuitions in philosophical disputes.– This paper criticises the view that in philosophical disputes the onus probandi rests on those who advance a position that contradicts our basic intuitions. Such a rule for allocating the burden of proof may be an adequate reconstruction of everyday justification, but is unreasonable in the area of philosophy. In philosophy it is not only difficult to determine the plausibility of a proposition, at the same time contradictory claims may be equally plausible. – In contrast to such common sense proposals I try to show that in philosophical disputes the burden of proof does not depend on the material content of speech acts. A speaker simply bears the burden of proof for a proposition p if he has asserted that p and has agreed to justify it. This revised version was published online in August 2006 with corrections to the Cover Date.     

Burden of Proof Rules in Social Criticism

The article discusses burden of proof rules in social criticism. By social criticism I mean an argumentative situation in which an opponent publicly argues against certain social practices; the examples I consider are discrimination on the basis of species and discrimination on the basis of one's nationality. I argue that burden of proof rules assumed by those who defend discrimination are somewhat dubious. In social criticism, there are no shared values which would uncontroversially determine what is the reasonable presumption and who has the burden of proof, nor are there formal rules which would end the debate and determine the winner at a specific point.     

PUNISHMENT AS DETERRENCE: REPLY TO SPRAGUE

In my 'A Deterrence Theory of Punishment', I argued that a deterrence system of punishment can avoid the charge that it illegitimately uses offenders if its punishments are carried out 'quasi-automatically': threats are issued by a legislature for deterrent purposes, but those who carry out the punishments have no authority to take deterrent considerations into account. Sprague has objected that under such a system, those who carry out punishments will be unable to justify their actions. I reply that if it is justifiable to set up the system in this way in the first place, then this justification will transmit to all actions carried out under it; and that it is justifiable to set up an institution of punishment in this way.     

The elusive goal of informed consent by adolescents

While parents have traditionally provided proxy consent for minors to participate in research, this has proven inadequate for adolescents who are mentally and emotionally capable of making their own decisions. Research has proven that even young children, and certainly most adolescents, are developmentally prepared to make such decisions for themselves. The author challenges the assumption that both consent and assent are static concepts, and proposes that a sliding scale of competence be created to ascertain the adolescent's comprehension of the proposed research by shifting the burden of proof to those who believe a particular adolescent is unable to provide informed consent.     

Logical Truth and Tarskian Logical Truth

This paper examines the question of the extensional correctness of Tarskian definitions of logical truth and logical consequence. I identify a few different informal properties which are necessary for a sentence to be an informal logical truth and look at whether they are necessary properties of Tarskian logical truths. I examine arguments by John Etchemendy and Vann McGee to the effect that some of those properties are not necessary properties of some Tarskian logical truths, and find them unconvincing. I stress the point that since the hypothesis that Tarski's definitions are extensionally correct is deeply entrenched, the burden of proof is still on the shoulders of Tarski's critics, who have not lifted the burden. This revised version was published online in June 2006 with corrections to the Cover Date.     

Prove it! The Burden of Proof Game in Science vs. Pseudoscience Disputes

The concept of burden of proof is used in a wide range of discourses, from philosophy to law, science, skepticism, and even in everyday reasoning. This paper provides an analysis of the proper deployment of burden of proof, focusing in particular on skeptical discussions of pseudoscience and the paranormal, where burden of proof assignments are most poignant and relatively clear-cut. We argue that burden of proof is often misapplied or used as a mere rhetorical gambit, with little appreciation of the underlying principles. The paper elaborates on an important distinction between evidential and prudential varieties of burdens of proof, which is cashed out in terms of Bayesian probabilities and error management theory. Finally, we explore the relationship between burden of proof and several (alleged) informal logical fallacies. This allows us to get a firmer grip on the concept and its applications in different domains, and also to clear up some confusions with regard to when exactly some fallacies (ad hominem, ad ignorantiam, and petitio principii) may or may not occur.     

Putting the Burden of Proof in Its Place: When Are Differential Allocations Legitimate?

It is widely assumed that legitimate differential allocations of the burden of proof are ubiquitous: that in all cases in which opposing views are being debated, one side has the responsibility of proving their claim and if they fail, the opposing view wins by default. We argue that the cases in which one party has the burden of proof are exceptions. In general, participants in reasoned discourse are all required to provide reasons for the 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) are non‐truth‐directed, and suggest that in truth‐directed contexts, except in certain special cases, differential allocation of the burden of proof is not warranted.     

Evaluating Dialectical Structures

This paper develops concepts and procedures for the evaluation of complex debates. They provide means for answering such questions as whether a thesis has to be considered as proven or disproven in a debate or who carries a burden of proof. While being based on classical logic, this framework represents an (argument-based) approach to non-monotonic, or defeasible reasoning. Debates are analysed as dialectical structures, i.e. argumentation systems with an attack- as well as a support-relationship. The recursive status assignment over the arguments is conditionalised on proponents in a debate. The problem of multiple status assignments arising on circular structures is solved by showing that uniqueness can be guaranteed qua reconstruction of a debate. The notion of burden of proof as well as other discursive aims rational proponents pursue in a debate is defined within the framework.     

Changing Conceptions of “Message Effects” A 24-Year Overview

Jackson and Jacobs (1983) argued for three changes in the conduct of message effects research: inclusion of multiple message replications as instances of a treatment, recognition of message replications as a source of random variation in the estimation of treatment effects, and attention to issues of message sampling. This review updates their argument and examines 24 years of research published in Human Communication Research for evidence of attention to these recommendations. The review shows the following: the prevalence of studies failing to replicate has declined, replications are still rarely recognized as random factors, and researchers who use replications appear to do so for purposes of generalizability and control over confounding but without carefully analyzing the burden of proof associated with those purposes. An explicit framework for discussion of treatment effects in communication is proposed as an advance over the original reasoning of Jackson and Jacobs.     

Criminal Quarantine and the Burden of Proof

In the recent literature a number of free will skeptics, skeptics who believe (as I do) that punishment is justified only if deserved, have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level of certainty - perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence - that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I make two parallel points against a quarantine theory of criminal justice. First, the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely. Second, there is not sufficient evidence for that conclusion either. I believe that the quandary that this creates for criminal justice can be resolved by distinguishing the methods associated with a particular approach from the approach itself: if our choice is between the methods of punishment and the methods of quarantine, the methods that constitute punishment are, I would argue, morally preferable to those that constitute quarantine.

     

Burdens of Proof and the Case for Unevenness

How is the burden of proof to be distributed among individuals who are involved in resolving a particular issue? Under what conditions should the burden of proof be distributed unevenly? We distinguish attitudinal from dialectical burdens and argue that these questions should be answered differently, depending on which is in play. One has an attitudinal burden with respect to some proposition when one is required to possess sufficient evidence for it. One has a dialectical burden with respect to some proposition when one is required to provide supporting arguments for it as part of a deliberative process. We show that the attitudinal burden with respect to certain propositions is unevenly distributed in some deliberative contexts, but in all of these contexts, establishing the degree of support for the proposition is merely a means to some other deliberative end, such as action guidance, or persuasion. By contrast, uneven distributions of the dialectical burden regularly further the aims of deliberation, even in contexts where the quest for truth is the sole deliberative aim, rather than merely a means to some different deliberative end. We argue that our distinction between these two burdens resolves puzzles about unevenness that have been raised in the literature.     

举证责任倒置对医疗纠纷诉讼的影响

举证责任倒置是一般举证责任原则的例外,在医疗纠纷诉讼中施行举证责任倒置的法理依据。主要是医患双方的诉讼地位不平等和医患双方的信息不对称,导致患方举证困难,实施新的举证规则后,必将会对医疗纠纷诉讼产生一系列的影响,医方对此要有深刻的认识并积极研究其对策。     

Metadialogues for Resolving Burden of Proof Disputes

In this paper, a solution to the problem of analyzing burden of proof in argumentation is developed by building on the pioneering work of Erik C. W. Krabbe on metadialogues. Three classic cases of burden of proof disputes are analyzed, showing how metadialogue theory can solve the problems they pose. The solution is based on five dialectical requirements: (1) global burden of proof needs to be set at the confrontation stage of a dialogue, (2) there need to be special mechanisms for resolving disputes about burden of proof at all four stages of the dialogue, (3) they are especially significant during the argumentation stage, where burden of proof often shifts back and forth at each move, (4) such local shifts need to be partly regulated by the global burden of proof already set, and (5) the connection between burden of proof and the speech act of making a presumption in a dialogue needs to be clarified.     

Burden of proof

This paper presents an analysis of the concept of burden of proof in argument. Relationship of burden of proof to three traditional informal fallacies is considered: (i) argumentum ad hominem, (ii) petitio principii, and (iii) argumentum ad ignorantiam. Other topics discussed include persuasive dialoque, pragmatic reasoning, legal burden of proof, plausible reasoning in regulated disputes, rules of dialogue, and the value of reasoned dialogue.     

Does awareness of penalties influence deterrence mechanisms? A study of young drivers’ awareness and perceptions of the punishment applying to illegal phone use while driving

This research implemented both qualitative and quantitative methods to 1) explore young drivers’ (aged between 17 and 25 years) awareness and perceptions of legal sanctions associated with phone use while driving and 2) identify whether the accuracy of their knowledge influences deterrence-related perceptions. In the qualitative phase, 60 Queensland motorists participated in focus groups. The findings of the focus groups highlighted that greater awareness of the penalty for phone use while driving would enable this punishment to act as a more salient deterrent. More specifically, the penalty for hands-free phone use was considered too high, whereas when the penalty was applied to hand-held phone use it was considered reasonable, with some commenting that increasing the fine could be a greater deterrent. However, the penalty also appeared to be linked to the perceived legitimacy of the rule. The quantitative phase utilised a cross-sectioanl survey design and consisted of 503 drivers. Overall, more participants appear to be underestimating (63% underestimated the fine and 37% underestimated the demerit points) as opposed to overestimating (14% overestimated the fine and 22% overestimated the demerit points) the penalty for phone use while driving. As expected, compared to those who accurately estimated the extent of the punishment (both the monetary sanction and the number of demerit points) associated with phone use while driving, drivers who underestimated the phone punishment (points and fine) had significantly lower perceptions of the severity of punishment. These findings suggest that some young drivers do not have sufficient knowledge of mobile phone sanctions, which has significant implications for ongoing attempts to maximise deterrent mechanisms.     

Jurors' Use of Standards of Proof in Decisions about Punitive Damages

Standards of proof define the degree to which jurors must be satisfied that a fact is true, and plaintiffs in civil lawsuits assume the burden of proving their claims to the requisite standard of proof. Three standards—preponderance of evidence, clear and convincing evidence, and beyond a reasonable doubt—are used by different jurisdictions in trials involving liability for punitive damages. We investigated whether individual mock jurors apply these standards appropriately by instructing them to read two personal injury trial summaries and to use one of three standards in either qualitative or quantitative format when deciding punitive liability. Results showed that jurors tended not to incorporate the standard into their judgments: defendants were just as likely to be found liable when the plaintiff's burden was high (“beyond a reasonable doubt”) as when the burden was low (“preponderance of evidence”). The format of the instruction also had a negligible effect. We suggest that nonuse of the standard of proof is related to jurors' preferences for less effortful or experiential processing in situations involving complicated or ambiguous material. Copyright © 2012 John Wiley & Sons, Ltd.     

The Theory of Epistemic Justification and the Theory of Knowledge: A Divorce

Richard Foley has suggested that the search for a good theory of epistemic justification and the analysis of knowledge should be conceived of as two distinct projects. However, he has not offered much support for this claim, beyond highlighting certain salutary consequences it might have. In this paper, I offer some further support for Foley’s claim by offering an argument and a way to conceive the claim in a way that makes it as plausible as its denial, and thus levelling the playing field. The burden of proof then lies with those who seek to deny Foley’s radical suggestion.     

From the Editors

This article examines the relationship between global poverty and terrorism. The approach is built around a concept of ‘social bandit’ developed by Eric Hobsbawm. By social bandits, Hobsbawm refers to those outlaws in pre-capitalist societies who robbed the rich, and gave (at least some of their loot) to the poor. What was common to social bandits is a myth that surrounded their activity, and a strong popular sympathy and support. This article uses Hobsbawm's notion of social bandit to deal with the fact that in today's international setting, particularly in the context of huge international inequality and widespread poverty in the non-western world, violence against western states, particularly the United States, enjoys significant sympathy elsewhere. This is not only an outcome of inequality and has to do with other factors, particularly certain political or military actions of the USA and other western states, but what is important to note here is that violence perpetrated by terrorists is directed at those who are seen as beneficiaries of the existing order, of international inequalities and injustices. In short, the operation of the international order, its asymmetries and inequalities, riches and wealth in developed countries and poverty and misery elsewhere, seems to play a role in the creation of such social bandits, and in providing them with support and legitimacy which they otherwise would not have had.     

论医疗侵权诉讼中的举证责任倒置规则

医患关系的紧张再次引起了人们对医疗侵权诉讼中举证责任倒置这一规则的关注。在对有关基本知识和人们争议焦点的分析之后,提出了应该在准确理解医疗侵权诉讼中举证责任倒置的适用条件和内容的基础上,结合这一规则设置的目的在当事人之间合理地进行举证责任的分配。