with law. (i) Fact finding by a court is based on abductive reasoning. (ii)
Making and intepreting law rest on causal explanations as to the effects that a
law or an interpretation of a law might cause. Abduction can be used to
uncover these causal laws.
Finding Facts
In the ideal world, a court would seek to demonstrate that facts it finds are
absolutely true. Unfortunately this is not possible. Certainly in some cases it
may be overwhelmingly clear that facts are true, but in many cases there is
some room for doubt. Given this, common law legal systems do not insist on
proof to the extent of 100% certain. Instead they adopt a style of reasoning
that is fundamentally probabilitistic.
164
There are two aspects to this –
abductive reasoning and the precautionary principle.
Abductive Reasoning
In both civil and criminal cases courts require a certainty of at least 51% (and
of course in a civil cases this is all that is required). This is based on abductive
reasoning. Faced with lack of certainty in fact finding, courts take the most
plausible view of the facts. The version of facts which is legally the ‘true’
version is the version that is most probable. Any stanard of proof of 51%, or
higher mus logically be the most probable.
Precautionary Principle
Since 51% is the minimum percentage to ensure that a version of facts is most
probably 51% is all that is necessary for the purposes of abduction. In other
words, 51% is pure abduction. However, in some cases, most noticeably
criminal trials, the standard of proof is higher than 51%. In these
circumstances of a standard of proof greater than 51%, the excess percentage
needs some other justification. This can be found in the precautionary
principle. This is a special means of coping with uncertainty and it is discussed
in that context.
165
Causal Laws
When making or interpreting law the first step involves identifying all of the
options. These are discussed later but an outline here will explain the
significance of abduction.
166
___________________
164
See, for example, Victor v Nebraska 511 US 1 (1994) 14, 22 per O’Connor J;
Ginsburg J concurred at p 25 while Blackmun J dissented at p 36. See also Re
Winship 397 US 358 (1970), p 370 per Harlan J.
165
Chapter 15 Cause: Responding to Uncertainty
166
Chapter 30 Model for Forming Law
 |
 |
 |