Naturalized Epistemology and the Law of Evidence: a Reply to Pardo, Spellman, Muffato, and Enoch

• Author: Ronald Allen
• Pages: 253-272

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

Año 2021 N. 3 pp. 253-272 DOI: 10.33115/udg_bib/qf.i3.22597

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio

Quaestio facti. International Journal on Evidential Legal Reasoning

Sección: Conjeturas y Refutaciones

N. 3 | 2022 pp. 253-272

Madrid, 2022

DOI: 10.33115/udg_bib/qf.i3.22597

© Marcial Pons Ediciones Jurídicas y Sociales

© Ronald J. Allen

ISSN: 2604-6202

Received on 23/03/2021 | accepted on 06/04/2021 | published online 27/05/2021

Editado bajo licencia Reconocimiento 4.0 Internacional de Creative Commons

NATURALIZED EPISTEMOLOGY AND THE LAW OF EVIDENCE:

A REPLY TO PARDO, SPELLMAN, MUFFATO, AND ENOCH

Ronald J. Allen*

ABSTRACT: In «Naturalized Epistemology and the Law of Evidence Revisited», the original target ar-

ticle for the various refutations that I comment on here, I revisited through a slightly dierent lens

the subject of the article that I coauthored with Brian Leiter close to twenty years ago. at article

has prompted four responses from Professors Pardo, Spellman,Muato, and Enoch. Professors

Pardo and Spellman basically accept the implications of the original article and oer useful but

friendly amendments. Prof.Muatoapparently does not want to dispute over my ground and so

changes the subject, and in doing so oers a number of interesting points. Only the fourth, Prof.

Enoch, has the same doubts about the utility of my original article as I do of the genre that gave

rise to it. I can thus be quite brief in discussing professors Pardo, Spellman, andMuato, but it will

take bit more eort to lay out the limits of Prof. Enoch’s analysis.

KEYWORDS: probability; relative plausibility; epistemology; safety; sensitivity.

CONTENTS: 1. PARDO.—2. SPELLMAN.—3. MUFFATO .—4. ENOCH.—BIBLIOGRAPHY

RECOMMENDED CITATION: RONALD J. ALLEN, 2021: «Naturalized Epistemology and the

Law of Evidence: A Reply to Pardo, Spellman, Muato, and Enoch», publicados en Quaestio Facti

2/2021», in Quaestio facti, 3: 253-272. Madrid: Marcial Pons Ediciones Jurídicas y Sociales. DOI:

http://dx.doi.org/10.33115/udg_bib/qf.i3.22597

* John Henry Wigmore Professor, Northwestern University Pritzker School of Law; President,

International Association of Evidence Science; Fellow, e Forensic Science Institute, China University

of Political Science and Law. I am indebted to William Lawrence for excellent research assistance and

to the Julius Rosenthal Foundation Fund for supporting this research.

254 RONALD J. ALLEN

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

Año 2022 N. 3 pp. 253-272 DOI: 10.33115/udg_bib/qf.i3.22597

In «Naturalized Epistemology and the Law of Evidence Revisited», the original

target article for the various refutations that I comment on here, I revisited through

a slightly dierent lens the subject of the article that I coauthored with Brian Leiter

close to twenty years ago. 1 At the time, we focused on the distinction between purely

a priori conceptual analysis on the one hand, and empirical inquiry on the other, and

the admonition that «should implies can.» I had been in the grip of this methodology

long before we wrote that article, although I would not have used the language of

epistemology to describe my research program, and remain in its grip today, although

with a slight evolution in focus if not in meaning. In the original article, I described

my research program today as involving «inquiries—analytical or empirical—into

how the human mind engages with its environment and the implications of that

form of engagement for western legal systems—in particular the legal systems within

the United States.» 2 e original article was intended to do two things. First, show

the fecundity of this approach by briey describing one of its major achievements,

which has been to replace probabilism as the best explanation of juridical proof in

the United States 3 with explanationism. e second objective was to cast doubts on

one common methodology used to explicate juridical proof that does not subscribe

to such an approach and remains focused on a priori conceptual analysis.

ese latter eorts come in two general avors. One focuses on the interior de-

mands of the discipline in question and is not concerned with instructing the judicial

system or its scientists in what to think or do. As I made clear, my original article is

not addressed to them; I would not presume to instruct people working within other

disciplines how to go about their tasks. e other avor involves purported expla-

nation of or prescription for juridical proof—which is the manner, from beginning

to end, in which a system structures and resolves legal disputes—for, I presume,

real legal systems, including the American system. is avor does presume to be

instructing jurists about the object of their inquiry, and on occasion the instruction

is interesting and valuable. But often it is not, and I identied three variables com-

mon to the a priori approach that seem to explain this particular slip between cup

and lip. First, much of this work is focused on weird hypotheticals that have no

relationship to the American legal system. Second, and relatedly, this theorizing

commonly neglects critical aspects of the actual state of aairs in the object being

theorized about. ird, and I must candidly say quite remarkably for many of these

commentators are well versed in the intricacies of epistemology, much of the theo-

rizing entails literally impossible epistemological demands. As I also explained, my

suspicion is that these three variables are derivative of a deeper conceptual problem

that often inicts the analytic disciplines of approaching juridical proof as a static

rather than dynamic system that will yield simple and direct prescriptions, solutions,

analyses, whatever, and this is false. is completely misconceives legal systems (and

1 A and L, 2001.

2 A, 2021: 1.

3 I return to the focus on U.S. law below in my comment on Enoch’s paper.