Legal Epistemology and Legal Proof

• Pages: 187-219
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Michael S. Pardo
• Subject Matter: Derecho Internacional

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio / International Journal on Evidential Legal Reasoning

Año 2025 10 pp. 187-219 DOI: 10.33115/udg_bib/qf.i10.23222

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio

Quaestio facti. International Journal on Evidential Legal Reasoning

Sección: Homenaje a Larry Laudan

2025 l 10 pp. 187-219

Madrid, 2025

DOI: 10.33115/udg_bib/qf.i10.23222

Marcial Pons Ediciones Jurídicas y Sociales

© Michael S. Pardo

ISSN: 2604-6202

Recibido: 17/10/2025 | Aceptado: 15/12/2025 | Publicado online: 19/01/2026

Editado bajo licencia Reconocimiento 4.0 Internacional de Creative Commons

LEGAL EPISTEMOLOGY AND LEGAL PROOF

Michael S. Pardo*

ABSTRACT: is article examines the relationship between legal epistemology and legal proof. On the

one hand, there has been an explosion of recent scholarship applying philosophical ideas, concepts,

and arguments from epistemology to the law of evidence and the process of proving facts in legal

settings. On the other hand, there has been ongoing theoretical debates about the law itself, focus-

ing on the best understanding of the evidentiary proof process and its component parts (including

the law of evidence). ese are distinct, but related, theoretical projects.

e article begins by presenting a picture of legal proof in the United States. e discussion focuses

on details of the evidentiary proof process that have been relatively neglected in legal epistemology.

ese details include the explanatory structure of the proof process; the role of the parties in the

adversarial system; and how courts evaluate the suciency of evidence. In light of the picture of le-

gal proof presented, the article then examines legal epistemology by the philosopher Larry Laudan.

A number of lessons emerge from this discussion for applying epistemology to evidence law and

legal proof. Finally, the article applies these lessons to other issues in recent legal epistemology,

including: statistical evidence; the “preponderance of the evidence” standard; epistemic safety;

knowledge; and epistemic injustice.

* Scott K. Ginsburg Professor of Evidence Law, Georgetown University Law Center. is article

is based on my plenary lecture at the 2nd Michele Taruo Girona Evidence Week in June 2025. I was

fortunate to meet Michele Taruo at a conference in Girona in 2011 and to have engaged with him

in print in a 2019 symposium. I was honored to give a lecture at the conference bearing his name. My

thanks to Jordi Ferrer Beltran and Diego Dei Vecchi for inviting me to deliver the lecture and to the

conference participants for many helpful comments and questions. My thanks also to Ron Allen, Me-

redith Render, and two anonymous referees for helpful comments on previous drafts. Both this article

and my lecture are dedicated to the memory of Larry Laudan—whom I am grateful to have known and

to have learned so much from.

188 MICHAEL S. PARDO

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio / International Journal on Evidential Legal Reasoning

Año 2025 10 pp. 187-219 DOI: 10.33115/udg_bib/qf.i10.23222

KEYWORDS: Legal proof, standards of proof, suciency of evidence, probative value, legal epistemol-

ogy, Larry Laudan, inference to the best explanation, error allocation, error reduction, statistical

evidence, preponderance of evidence, safety, knowledge, epistemic injustice

SUMMARY: 1. INTRODUCTION.— 2. A PICTURE OF LEGAL PROOF.— 3. THE LEGAL

EPISTEMOLOGY OF LARRY LAUDAN: 3.1 Error allocation and error reduction; 3.2 e illu-

sion of precision and the explanatory structure of proof.— 4. CONTEMPORARY LEGAL EPIS-

TEMOLOGY: 4.1 Statistical evidence; 4.2 e “preponderance of the evidence” standard; 4.3 Epis-

temic safety, 4.4 Knowledge; 4.5 Epistemic injustice.— 5. CONCLUSION.— BIBLIOGRAPHY

1. INTRODUCTION

is article examines the relationship between legal epistemology and legal proof.

On the one hand, there has been an explosion of recent scholarship applying phil-

osophical ideas, concepts, and arguments from epistemology to the law of evidence

and the process of proving facts in legal settings. On the other hand, there has been

ongoing theoretical debates about the law itself, including the best understandingof

the evidentiary proof process and its component parts (including the law of evi-

dence). It is important to recognize these as distinct, but related, theoretical scholarly

projects. By “legal epistemology,” I mean the use of philosophical concepts and ideas

from epistemology—for example, knowledge, justication, warrant, safety, sensiti-

vity, and epistemic injustice—to illuminate aspects of legal evidence and proof. By

“legal proof,” I mean the formal process, regulated by the law of evidence, by which

contested or disputed legal facts are considered to be “proven” for legal purposes.

e discussion will be broad in scope. I will try to sketch out some of the pos-

sibilities for, and some of the limitations on, using epistemology to understand the

law. Work in legal epistemology by the philosopher Larry Laudan will be used as a

detailed example to ground the analysis. en, the discussion will apply lessons from

the analysis of Laudan’s scholarship to other recent work in legal epistemology. But

rst, the article will present a picture of legal proof and some of the possible ways in

which epistemology may illuminate the evidentiary proof process.

ree caveats are necessary. First, the discussion is not meant to be a comprehen-

sive overview of the ways in which epistemology can contribute to understanding

legal proof. Rather, the article aims to present one particular vision in which “legal

epistemology” is understood as continuous with “evidence theory” (or theoretical

accounts of evidence law) more generally. 1 In this vision, epistemology brings an ad-

1 is is a very loose reference to the philosopher W.V. Quine’s notion of philosophy as “conti-

nuous with science” (Quine, 1969, p.126). e only similarity to the Quinean project that I wish to

emphasize is the following. In the vision presented, legal epistemologists are essentially in the same boat

as evidence scholars generally in trying to make sense of the part of reality dealing with law’s evidentiary

proof practices—with the former focused on some of the more abstract aspects of that reality and brin-

LEGAL EPISTEMOLOGY AND LEGAL PROOF 189

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio / International Journal on Evidential Legal Reasoning

Año 2025 10 pp. 187-219 DOI: 10.33115/udg_bib/qf.i10.23222

ditional set of conceptual tools and ideas—alongside the tools from other academic

disciplines—that may help us to better understand legal proof (and thus also perhaps

to critique and improve it).

Second, the focus in this article is on ways in which epistemology may contribute

to understanding law, not the other way around. A potentially apt methodological

notion from the philosopher W.V. Quine is the idea of “reciprocal containment”

(Quine, 1969, p.83). Quine was referring to the relationship between epistemology

and psychology in his image of “naturalized epistemology”—with epistemology con-

taining and making use of psychology and other empirical information, and psychol-

ogy simultaneously containing and studying aspects of epistemology. I am suggesting

a similar kind of “reciprocal containment” between law and epistemology—with law

making use of epistemology to the extent that it, like other tools, helps to illuminate

law, and with epistemology studying law as an example of an important institution-

alized epistemic context, among other social epistemic practices. A corollary of this

relationship is that there may be reasons internal to philosophy for philosophers to

discuss law and legal examples that do not necessarily shed much, if any, light on le-

gal proof. But that is not the focus of this article. e focus is on what use (pragmatic

or theoretical) epistemology may have for law.

ird, the discussion will focus on evidence and legal proof in the United States. 2

I am not a legal comparativist, and the discussion will not attempt to compare proof

practices among dierent legal systems. Nevertheless, the article aims to reveal some

general lessons through a sustained focus on legal proof in the United States. In-

deed, as the article will emphasize, part of the challenge—and a potential limitation

with applying epistemology to law—is the risk of mismodeling or misdescribing the

complex practices, rules, and doctrine that make up legal proof in particular juris-

dictions. To illustrate this, I will often use as examples standards of proof and the

epistemic suciency of evidence in the United States.

e article proceeds as follows. Part 2 spells out a general picture of legal proof

in the United States. Part 3 discusses the legal epistemology of Larry Laudan, with

a particular focus on standards of proof. Part 4 applies the lessons from the analysis

in Part 3 to recent work in legal epistemology. is Part discusses ve examples:

statistical evidence, the “preponderance of the evidence” standard, epistemic safety,

knowledge, and epistemic injustice. Part 5 concludes with some general reections

on the relationship between legal epistemology and legal proof.

ging to bear a set of philosophical tools and concepts. But, in the vision presented, there is no clear de-

marcation between the two enterprises (legal epistemology and evidence theory), nor does epistemology

necessarily provide a privileged a priori foundation or vantage point by which to assess those practices.

2 is is itself somewhat of an over-simplication, as there is some variation in the evidence law

and proof practices among the dierent State jurisdictions in the United States. My focus will be on

legal proof at the federal level and the constitutional issues that apply generally throughout the United

States.