Restatement of Rules
While these two rules are conventionally stated in the manner just described,
the analysis in this chapter restates the rules. It does this because it sees these
rules as two aspects of the same notion, namely the choices as to the standard
of proof that a legal system must adopt. This restatement is made by two
rules, Rule 1 Starting Point and Rule 2
Finishing Point, which are explained
below.
Alternative Analysis
Introduction
Rule 1: Starting Point and Rule 2: Finishing Point represent an alternative
analysis to that provided by the rules as to burden and standard of proof. Here
we justify this alternative approach. Then we outline the approach.
Basic Propositions
To explain these two rules we commence with three basic propositions. These
concern degrees of proof, the complementarity rule and the two sided nature
of proof.
Proposition 1: Degrees of Proof
Proof is a question of degree. These degrees range on a scale from 0% to
100%. In theory the law could require a part to prove their case absolutely,
that is, to a standard of 100%. In reality the law defines the level or degree of
proof to which a party must prove their case. The degree or level of proof that
a party must achieve is labelled the standard of proof. As already stated we
sometimes identify a point on the scale by stating that the “needle” rests on
this point.
Proposition 2: Complementarity Rule
The complementarity rule of probability applies to proof.
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This means that
each party has their own scale. We can illustrate this with the simple version of
a civil case where there are two competing versions of truth, one for the
plaintiff and one for the defendant:
(1)
Starting Point. The starting point for the plaintiff is 0% on the plaintiff’s
scale of proof. They have it all to do. By contrast, the starting point for the
defendant is the complement of 0%, namely 100%. This can be represented as
100% on the defendant’s scale of proof.
(2)
Finishing Point. The finishing point for the plaintiff is 51%, which can
be represented on their scale of proof. This also represents 49% on the
defendant’s scale of proof. For the defendant to win the case they must prove
their case to a standard of 50% on their scale of proof. This can be
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The complementarity rule of probability is explained in Chapter 21 Model
for Proving Facts.
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