For animal research, the precautionary principle was written into public policy through the so-called three R’s of replacement, reduction, and refinement. These guidelines, as developed by Russell and Burch six decades ago, aimed to establish safeguards against the abuse of animals in the pursuit of science. While these safeguards, which started from the basic premise that science itself would benefit from a reduction of animal suffering, seem compelling at first, the three R’s have in practice generated a degree of confusion (...) while opening up loopholes that have enabled researchers to effectively dismiss some of the more inconvenient aspects of ethical concerns. Such problems have been discussed in detail by multiple authors. Here, we suggest a different approach by arguing that a clear parallel can be drawn between the shortcomings evident in the current three R’s model and the flawed practice of early modern judicial torture, in which a set of elaborate safeguards that were designed to prevent abuses served instead to create the same combination of confusion and easily exploited loopholes. In the case of judicial torture, attempts to refine the system from within produced limited results, and effective change only took place when individual legal systems succeeded in enforcing clear absolutes. We explore the implications of this for the regulation of animal research by pointing to the need for achievable absolutes, based on a clear, evidence-based, and publicly deliberated rationale, in order to facilitate and improve research ethics. (shrink)

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of (...) juror bias, admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards. (shrink)

In his tractA Rationale of Judicial Evidence, Jeremy Bentham repeatedly refers to the courtroom as the ‘theatre of justice’. Bentham's description has been borne out by recent scholarship on Athenian law. As a form of civic space, the Athenian lawcourts were similar to the Theatre of Dionysos in many respects: litigants faced each other in a competitiveagon, delivering lines written for them by logographers to a mass audience which would range, ordinarily, from 200 to 1500 jurors. Moreover, (...) modern scholars have drawn on the notion of ‘social drama’ introduced by the anthropologist Victor Turner to describe the Athenian lawcourts as an arena for socially constructive feuding behaviour, as a public stage for the social élite to compete for prestige, or as a forum for ongoing communication between élite litigants and mass jurors ‘in a context which made explicit the power of the masses to judge the actions and behavior of élite individuals’. (shrink)

This twelfth volume of Correspondence contains authoritative and fully annotated texts of all known letters sent both to and from Bentham between July 1824 and June 1828. The 301 letters, most of which have never before been published, have been collected from archives, public and private, in Britain, the United States of America, Switzerland, France, Japan, and elsewhere, as well as from the major collections of Bentham Papers at University College London Library and the British Library.In mid-1824 Bentham was still (...) preoccupied with the Greek struggle for independence against Turkey, though his active involvement waned as he became disenchanted with the behaviour of the deputies sent to London by the Greek National Assembly. His international reputation was reflected in his continuing contact with Simón Bolívar and Bernardino Rivadavia in South America, and with John Quincy Adams, John Neal, Henry Wheaton, and others in the United States, and his forging of new contacts in Guatemala, India, and Egypt. In the autumn of 1825 he visited France, where he stayed with Jean Baptiste Say and La Fayette, and was fêted by the French liberals.Bentham made considerable progress drafting material for his pannomion, or complete code of laws, and in particular for his Constitutional and Procedure Codes, while John Stuart Mill edited the massive Rationale of Judicial Evidence. Bentham became increasingly active in the cause of law reform, and exchanged a series of letters on the subject with Robert Peel, the Home Secretary, and Henry Brougham. He maintained his friendships with John and Sarah Austin, George and Harriet Grote, James and John Stuart Mill, John Bowring, Joseph Hume, Francis Burdett, Francis Place, and Joseph Parkes, re-established contact with the third Marquis of Lansdowne, son of his old friend the first Marquis, and made new acquaintances in James Humphreys, Sutton Sharpe, and Albany Fonblanque. (shrink)

SUMMARYJeremy Bentham has two very strong commitments in his thought: one is to the principle of utility, or the greatest happiness principle, as the fundamental principle of morality; the other is to truth, as indicated, for instance, in his opposition to falsehood and fiction in the law. How, then, did Bentham view the relationship between utility and truth? Did he think that utility and truth simply coincided, and hence that falsehood necessarily led to a diminution in happiness, and conversely truth (...) led to an increase in happiness? This article addresses this issue through two bodies of material: the first consists of Bentham's writings on religion under the heading of ‘Juggernaut’ and dating from 1811 to 1821; the second consists of the writings on judicial evidence dating from 1803 to 1812 and which appeared in Rationale of Judicial Evidence. (shrink)

The path of those who would approach the study of Bentham's writings on Evidence has been considerably smoothed by the recent publication of William Twining's work on the evidence theories of Bentham and Wigmore. The material on evidence is now being tackled by the Bentham Project. It presents no easy task. The central core, The Rationale of Judicial Evidence, edited and published by John Stuart Mill in 1827, exists only in the printed version, the (...) MSS from which Mill worked having disappeared. But a substantial body of related material which survives has yet to be thoroughly investigated, though William Twining has made a gallant start. A new edition of the work hitherto known as ‘An Introductory View of the Rationale of Evidence’, first printed in full in the Bowring edition of the Works of Jeremy Bentham is in preparation. The first fruits of this endeavour is that the title of that work as it should appear in due course in the new Collected Works will be Introduction to the Rationale of Evidence: An Introductory View for the Use of Lawyers as well as Non-lawyers, the title in fact given to the work by Bentham. It is intended that what follows should similarly be of use to non-lawyers as well as lawyers. (shrink)

Jeremy Bentham, philosopher and reformer, is one of the most influential thinkers of the modern age. This introduction to his writings presents a representative selection of texts authoritatively restored by the Bentham Project, University College London. As well as more familiar pieces on utility, law, and politics/policy, highlights include the succinct essay “On Retrenchment” and a never-before-published treatise on sex. The volume is completed by major interpretative essays by Mark Canuel, David Lieberman, Jennifer Pitts, and Philip Schofield. The texts included (...) in the book are: -Sex -An Introduction to the Principles of Morals and Legislation, Preface and Chapters 1–5 -Place and Time -Rationale of Judicial Evidence, Specially Applied to English Practice, Book 1, Chapter 1 -Constitutional Code Rationale, Chapters 1 and 2 -Pannomial Fragments -Panopticon, or, the Inspection-House, Letters 1, 2, and 6 -Of Publicity -Manual of Political Economy, Chapters 1 and 2 -Nonsense Upon Stilts -On Retrenchment. (shrink)

The republication of David Bloor's Knowledge and Social Imagery is evidence of the continuing interest and importance of the work but also provides the clearest evidence of the shortcomings of the enterprise. The new Afterword of Bloor's second edition addresses criticisms of the Strong Programme, but the theses which Bloor now defends are substantially weaker claims than the iconoclastic tenets of the original manifesto. Moreover, in a related strategy, Bloor asserts that criticisms made since 1975 have given him (...) no reason to modify the original text, but there are judicious alterations which are revealing. These unacknowledged alterations are documented here. Bloor's Strong Programme was founded on the diametrical opposition between his causal sociological approach and the allegedly a?causal rationalist, psychologist or ?teleological? approach. However, once it was shown that the teleological position is not the straw?man he represented it to be, Bloor's diametrical opposition left him no retreat. Just as Bloor weakens the original claims of the Strong Programme to make them appear compatible with cognitive science, so he eradicates the suggestion that the opposing teleological position was ever as absurd as he had portrayed it. The common rationale of these independent tactics leaves little question about their purpose ? and their futility. (shrink)

John Stuart Mill was raised to be the Lenin of the revolutionary movement that we remember as utilitarianism, and whose members at the time were called the “Philosophical Radicals”. And as many philosophers know, Mill's youth was brought to a close by a bout of depression – what he called his “Mental Crisis” – that amounted to a crisis of commitment. Sandwiched between his training and his first not‐exactly‐breakdown (of three) we find two epiphanies that get little or no attention, (...) and I want to go some distance towards rectifying that omission. I think they will explain Mill's Crisis, and why he never became the Lenin of utilitarianism – but also why utilitarianism turned out not to be the sort of movement that needed a Lenin. (shrink)

Withdrawal of artificially delivered nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS) requires judicial approval in England and Wales, even when families and healthcare professionals agree that withdrawal is in the patient9s best interests. Part of the rationale underpinning the original recommendation for such court approval was the reassurance of patients’ families, but there has been no research as to whether or not family members are reassured by the requirement for court proceedings or how (...) they experience the process. The research reported here draws on in-depth narrative interviews with 10 family members (from five different families) of PVS patients who have been the subject of court proceedings for ANH-withdrawal. We analyse the empirical evidence to understand how family members perceive and experience the process of applying to the courts for ANH-withdrawal and consider the ethical and practice implications of our findings. Our analysis of family experience supports arguments grounded in economic and legal analysis that court approval should no longer be required. We conclude with some suggestions for how we might develop other more efficient, just and humane mechanisms for reviewing best interests decisions about ANH-withdrawal from these patients. (shrink)

A decision by the Supreme Court of California in the case Conservatorship of Wendland, issued in August 2001, forces us once again to confront the all-too-common situation in which an individual has, on multiple occasions, expressed strongly held personal convictions about life-sustaining interventions but failed to incorporate those convictions into a formal advance directive. Many courts have recognized that lay citizens do not consistently resort to written legal formalities in their day-to-day lives, and reasonable accommodation must be made to this (...) fundamental fact about human nature. However, a small but apparently growing minority of courts adamantly insist on either formal written directives or prescience and prophetic precision on the part of the patient before a surrogate can direct the withdrawal of life-sustaining treatment. The chronology of cases that comprise this minority position in American medical jurisprudence raise important ethical issues. (shrink)

Explains every part of the theory of the law of evidence, including the nature and species of judicial proof, means of protection against falsehood, grounds of excluding proof, and peculiarities of certain species of evidence.

This article investigates the question of how forensic toxicologists established the credibility of chemical analytical methods in poisoning lawsuits in the nineteenth century. After encountering the problem of laypersons in court, forensic toxicologists attempted to find strategies to make their evidence compelling to an untrained audience. Three of these strategies are discussed here: redundancy, standard methods, and intuitive comprehensibility. Whereas redundancy was not very practical and legally prescribed standard methods were not very popular with most forensic toxicologists, intuitive comprehensibility (...) proved effective and popular. This strategy relied on employing methods which did not require chemical knowledge to be understandable. The methods aimed to generate a visual aid and to be obvious in their results. Two forms of this strategy are discussed here: the presentation of the actual material and explicit comparison. I argue that this shift towards presenting forensic toxicology expertise as evident represents an important step in the history of forensic expertise. (shrink)

Causal analysis in the social sciences takes advantage of a variety of methods and of a multi-fold source of information and evidence. This pluralistic methodology and source of information raises the question of whether we should accordingly have a pluralistic metaphysics and epistemology. This paper focuses on epistemology and argues that a pluralistic methodology and evidence don’t entail a pluralistic epistemology. It will be shown that causal models employ a single rationale of testing, based on the notion (...) of variation. Further, I shall argue that this monistic epistemology is also involved in alternative philosophical theories of causation. (shrink)

This paper offers an epistemological discussion of self-validating belief systems and the recurrence of ?epistemic defense mechanisms? and ?immunizing strategies? across widely different domains of knowledge. We challenge the idea that typical ?weird? belief systems are inherently fragile, and we argue that, instead, they exhibit a surprising degree of resilience in the face of adverse evidence and criticism. Borrowing from the psychological research on belief perseverance, rationalization and motivated reasoning, we argue that the human mind is particularly susceptible to (...) belief systems that are structurally self-validating. On this cognitive-psychological basis, we construct an epidemiology of beliefs, arguing that the apparent convenience of escape clauses and other defensive ?tactics? used by believers may well derive not from conscious deliberation on their part, but from more subtle mechanisms of cultural selection. (shrink)

Suppose that it can be right to grant amnesty from criminal and civil liability to those guilty of political crimes in exchange for full disclosure about them. There remains this important question to ask about the proper form that amnesty should take: Which additional burdens, if any, should the state lift from wrongdoers in the wake of according them freedom from judicial liability? I answer this question in the context of a recent South African Constitutional Court case that considered (...) whether an officer having been granted amnesty for apartheid-era killings should be held to mean that the police force may not discharge him on the ground of having been convicted of a serious offence. The Court ruled that, despite amnesty having been granted to the guilty officer, the police force was permitted to discharge him. I distinguish the major ethical reasons the Court gives for its conclusion, which ultimately appeal to the value of national reconciliation, and I argue not only that the reconciliation-based rationales rest on empirical contingencies for which there is little evidence, but also that their logic in fact provides some reason to reject the Court’s conclusion. Then, I sketch an attractive new theory of right action, grounded on salient sub-Saharan values often associated with talk of ‘ubuntu’, that I maintain provides a stronger, unitary foundation for the Court’s key pronouncements. I conclude by discussing some of the broader implications of the moral theory for related matters, such as the rights of victims in the processes leading up to presidential pardons of those who have committed atrocities and the duties of newspapers with regard to the reputations of the latter. (shrink)

The paper takes a closer look at the role of knowledge and evidence in legal theory. In particular, the paper examines a puzzle arising from the evidential standard Preponderance of the Evidence and its application in civil procedure. Legal scholars have argued since at least the 1940s that the rule of the Preponderance of the Evidence gives rise to a puzzle concerning the role of statistical evidence in judicial proceedings, sometimes referred to as the Problem (...) of Bare Statistical Evidence. While this puzzle has led to the development of a multitude of accounts and approaches in the legal literature, I argue here that the problem can be resolved fairly straightforwardly within a knowledge-first framework. (shrink)

RATIONALE: The concept of evidence-based medicine is important in providing efficient health care. The process uses research findings as the basis for clinical decision making. Evidence-based practice helps optimize current health care and enables the practitioners to be suitably accountable for the interventions they provide. Little work has been undertaken to examine how allied health professionals change their clinical practice in light of the latest evidence. The use of opinion leaders to disseminate new evidence around (...) the management of low back pain into practice has been proposed. AIMS: The aim of this study was to investigate if physiotherapists' clinical management of patients with low back pain would change following an evidence-based education package, which utilized local opinion leaders and delivered the best evidence. METHOD: Thirty musculoskeletal physiotherapists from a Community Trust in North Staffordshire were cluster randomized by location of work, to two groups. The intervention group received an evidence-based programme on the management of low back pain, including advice regarding increasing activity levels and return to normal activity and challenging patients' fears and beliefs about their pain. The control group received a standard in-service training package on the management of common knee pathologies. The physiotherapists' clinical management of patients with low back pain was measured prior to training and 6 months post training. Outcome measures were based on physiotherapists completing 'discharge summary' questionnaires, which included information relating to the use and importance of therapies for treating their low back pain patients. RESULTS: There were few significant differences in treatment options between the intervention and control groups post training. Whilst there was some indication that physiotherapists were already utilizing aspects of psychosocial management for patients with low back pain, there was little change in what physiotherapists perceived to be important to patient recovery and actual clinical practice following the intervention. CONCLUSIONS: Psychosocial factors have been identified as an important factor in the recovery of patients with low back pain. This project incorporated the latest evidence on the management of low back pain and utilized the theory of opinion leaders to disseminate this evidence into clinical practice. Whilst there were some limitations in the overall size of the study, the results help to give an insight into the challenges faced by the health care system and researchers alike to ensure quality evidence is actually utilized by practitioners for the benefits of patient care. (shrink)

Many legal disputes turn on scientific, especially statistical, evidence. Traditionally scientists have accepted only that statistical evidence which satisfies a 95 percent (or 99 percent) rule — that is, only evidence which has less than five percent (or one percent) probability of resulting from chance.The rationale for this rule is the reluctance of scientists to accept anything less than the best-supported new knowledge. The rule reflects the internal needs of scientific practice. However, when uncritically adopted as (...) a rule for admitting legal evidence, the seemingly innocuous 95 percent rule distorts the balance of interests historically protected by the legal system. In particular, plaintiffs in toxic tort and employment discrimination suits are effectively held to a heavier burden of proof in showing that their injuries were more probably than not caused by the defendant's actions. The result is that too many victims of toxic torts or employment discrimination cannot win legal redress for their injuries. (shrink)

Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of (...) State v. Loomis, we investigate recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018). (shrink)

Evidence-based medicine (EBM) has long deemphasized mechanistic reasoning and pathophysiological rationale in assessing the effectiveness of interventions. The EBM+ movement has challenged this stance, arguing that evidence of mechanisms and comparative studies should both be seen as necessary and complementary. Advocates of EBM+ provide a combination of theoretical arguments and examples of mechanistic reasoning in medical research. However, EBM+ proponents have not provided recent examples of how downplaying mechanistic reasoning resulted in worse medical results than would have (...) occurred otherwise. Such examples are necessary to make the case that EBM+ responds to a problem in clinical practice that urgently demands a solution. In light of this, we examine the failed rollout of efavirenz as a first-line HIV treatment in Zimbabwe as evidence of the importance of mechanistic reasoning in improving clinical practice and public health policy decisions. We suggest that this case is analogous to examples commonly given to support EBM. (shrink)

Rationale In Belgium, several policies regulating reimbursement of acid suppressant drugs and evidence-based recommendations for clinical practice were issued in a short period of time, creating a unique opportunity to observe their effect on prescribing. Aims and objectives To describe the evolution of prescriptions for acid suppressants and explore the interaction of policies and practice recommendations with prescribing patterns. Method Monthly claims-based data for proton pump inhibitors (PPIs) and H-2-antihistamines by general practitioners, internists and "astroenterologists were obtained from (...) the Belgian national health insurance database (1997-2005). The evolution of reimbursed defined daily doses and expenses after introduction of reimbursement regulations and dissemination of practice recommendations was explored. Results Recommendations had no impact on prescribing. All changes can be related to concomitant policies. Lifting reimbursement restrictions for cheaper products did not control growth or save costs in the Iona term. Only restricting reimbursement of all PPIs managed to curb the growth. We observed an unintended increase of non-omeprazole PPIs by gastroenterologists. Conclusions Reimbursement policies influence prescribing, but their effect can be unintended. A dialogue between policymakers and guideline developers, and evidence-based policies that are linked to clinical guidelines, could be an effective way to pursue both cost-containment and quality of care. (shrink)

The Evidence-Based Medicine (EBM) movement is an ideological force in health research and health policy which asks for allegiance to two types of methodological doctrine. The first is the highly quotable motherhood statement: for example, that we should make conscientious, explicit and judicious use of current best evidence (paraphrasing Sackett). The second type of doctrine, vastly more specific and in practice more important, is the detailed methodology of design and analysis of experiments. This type of detailed methodological doctrine (...) tends to be simplified by commentators but followed to the letter by practitioners. A number of interestingly dumb claims have become entrenched in prominent versions of these more specific methodological doctrines. I look at just a couple of example claims, namely: Any randomised controlled trial (RCT) gives us better evidence than any other study. Confidence intervals are always useful summaries of at least part of the evidence an experiment gives us about a hypothesis. To offer a positive doctrine which might move us past the current conflict of micro-theories of evidence, I propose a mild methodological pluralism: in any local context in which none of a variety of scientific methodologies is clearly and uncontentiously right, researchers should not be discouraged from using any methodology for which they can provide a good argument. (shrink)

This paper seeks to determine the significance, if any, of epidemiological evidence to prove the specific causation element of liability in negligence or other relevant torts—in particular, what importance can be attached to a relative risk > 2, where that figure represents a sound causal inference at the general level. The paper discusses increased risk approaches to epidemiological evidence and concludes that they are a last resort. The paper also criticizes the proposal that the probability of causation can (...) be estimated with reference to the RR, such that RR > 2 is necessary and sufficient for causation. It is argued, following arguments by Sander Greenland and others, that RR > 2 is not necessary for proof of specific causation, except under restrictive biological assumptions that are not known to be satisfied for any important disease, and therefore must never be required. However, the paper argues that in some circumstances RR > 2 can be sufficient to prove causation at law. This position is defended against the widely held judicial and academic view that epidemiological evidence must be accompanied by something else, particular to the case at hand, if it is to have probative force for specific causation. It is argued that far from being epistemically irrelevant, to achieve correct and just outcomes it is in fact mandatory to take epidemiological evidence into account in deciding specific causation. Failing to consider such evidence when it is available leads to error and injustice. The conclusion is that in certain circumstances epidemiological evidence of RR > 2 is not necessary to prove specific causation but that it is sufficient. This “sufficiency” is confined to circumstances where there is no other evidence, as a way of getting clear on what the epidemiological evidence says. Once we have worked out what it says, this must be weighed against the other relevant evidence, if there is any. (shrink)

The increasing use of digital technologies in judicial and arbitration proceedings increases the usage of digital evidence by the parties, which brings the necessity of creating patterns for adjudicators to admit and assess this new type of evidence. This paper generally addresses digital evidence focusing on the second moment in international arbitration proceedings. It also narrows the topic to hacked and leaked evidence and its admissibility in international arbitration. The literature review showed a significant amount (...) of research devoted to the evidence in arbitration. Some considered electronic evidence within one jurisdiction; others focused on certain forms of digital evidence such as electronic signatures. Papers on digital evidence in international arbitration approach arbitration rules for digital evidence but skip admissibility issues. No systemic and complex works research digital evidence in arbitration, explicitly focusing on the admissibility of hacked and leaked digital evidence from a comparative perspective. Also, no research deals with enforcing international arbitration awards relying on illegally obtained digital evidence. In these cases, there could be a possible violation of domestic public policy under the New York Convention terms (art. V, 2, b). That is why the paper aims to offer the concept of digital evidence in international arbitration, including hacked and leaked evidence, criteria of its admissibility and relevance, and design the arbitration guidelines for assessing hacked and leaked evidence. Comparative legal analysis of the international arbitration rules and national procedure law allowed us to compare the regulatory approaches to the definition of digital evidence and its admissibility worldwide. The method of legal modeling allowed designing model guidelines for arbitral tribunals to evaluate the admissibility and relevance of digital evidence, including hacked and leaked evidence. Moreover, the case study method allowed us to analyze jurisprudence and define criteria for admission of hacked and leaked evidence. We conclude that the admissibility of hacked and leaked evidence depends solely on the arbitrator’s broad discretion to assess the evidence. Nevertheless, thorough evidence analysis and a well-reasoned award are always mandatory. (shrink)

Evidence-based medicine has beendefined as the conscientious and judicious useof current best evidence in making clinicaldecisions. This paper will attempt to explicatethe terms ``conscientious'''' and ``judicious''''within the evidence-based medicine definition.It will be argued that ``conscientious'''' and``judicious'''' represent virtue terms derived fromvirtue ethics and virtue epistemology. Theidentification of explicit virtue components inthe definition and therefore conception ofevidence-based medicine presents an importantstarting point in the connection between virtuetheories and medicine itself. In addition, aunification of virtue theories andevidence-based medicine will (...) illustrate theneed for future research in order to combinethe fields of virtue-based approaches andclinical practice. (shrink)

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for the epistemic (...) competence of the judiciary from a system‐oriented approach. I outline three epistemic features that set the judiciary and the judicial decision‐making process apart from other types of decision‐makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision‐making process with a specific focus on recent court decisions in health rights and health policy in Chile. (shrink)

Epistemic and practical interests are often in conflict. This also occurs in institutional settings such as the legal one. Rule 407 of the U.S. Federal Rules of Evidence is an example of that because it sacrifices some epistemic interests in favour of practical ones. It is the rule on subsequent remedial measures (SRM), which is mainly designed to answer a practical concern (reducing accidents) instead of the epistemic one of getting some evidence to find out whether the defendant (...) was negligent or whether there was a defect in a product. Some commentators and courts think that the rationale of the rule is more complex and deserves a more careful discussion, as this paper shows. Additionally, this paper discusses a modification proposal (from categorical ban of SRM evidence to case‐by‐case decision) and develops some theoretical considerations, in the spirit of philosophical pragmatism, on the best way to conceptualize the problem addressed. The idea is to see such conflicts as conflicts of goals and to explain them in terms of the incompatible desires that we happen to have. (shrink)

This article refers to the analysis of types of entrapment while gathering evidence in criminal proceedings. Based on the analysis of the laws of criminal procedure, theory and judicial practice, one could say that entrapment, as absolutely impermissible action in the course of simulation of a criminal act, could not be seen as mere pressure, active enticement or instigation to engage in criminal activity by restricting a person’s freedom of choice. As it happens, it is possible to provoke (...) a person without any active enticement or instigation to engage in criminal activity. This could be regarded as passive, indirect type of entrapment. The gist of the latter – creating the effect of minimum risk, meaning that a person, without any active enticement or instigation to engage in criminal activity, is acting in the course of a simulated situation, by thinking that the criminal activity he or she is committing will never be discovered by law enforcement authorities. The identification of passive entrapment is quite complicated, as it requires the precise assessment of the relation between the conduct of law enforcement authorities, the criminal and the criminal act, by using subjective and objective criteria. (shrink)

Researchers are studying how artificial intelligence (AI) can be used to better detect, prognosticate and subgroup diseases. The idea that AI might advance medicine’s understanding of biological categories of psychiatric disorders, as well as provide better treatments, is appealing given the historical challenges with prediction, diagnosis and treatment in psychiatry. Given the power of AI to analyse vast amounts of information, some clinicians may feel obligated to align their clinical judgements with the outputs of the AI system. However, a potential (...) epistemic privileging of AI in clinical judgements may lead to unintended consequences that could negatively affect patient treatment, well-being and rights. The implications are also relevant to precision medicine, digital twin technologies and predictive analytics generally. We propose that a commitment to epistemic humility can help promote judicious clinical decision-making at the interface of big data and AI in psychiatry. (shrink)

It is surely obvious that medicine, like any other rational activity, must be based on evidence. The interest is in the details: how exactly are the general principles of the logic of evidence to be applied in medicine? Focussing on the development, and current claims of the ‘Evidence-Based Medicine’ movement, this article raises a number of difficulties with the rationales that have been supplied in particular for the ‘evidence hierarchy’ and for the very special role within (...) that hierarchy of randomized controlled trials (and meta-analyses of the results of randomized controlled trials). The point is not at all to question the application of a scientific approach to evidence in medicine, but, on the contrary, to indicate a number of areas where philosophers of science can contribute to a proper implementation of exactly that scientific-evidential approach. (shrink)

I. Playing a Game II. The Precondition to Mete out a Legal Sanction III. A Non-cognitively Homogeneous Activity IV. The Reproduction of the Law as a System 1. The Claim for Normative Closedness 2. The Openness of the Communication about Facts Rule of law proclaims the ethos of legal distinctiveness through institutionalizing normative closure, while the rule of facts proclaims a legal functioning embedded in facts as rooted in common sense evidence, backed by practical openness in its functioning. All (...) in all, while rule of law argues for the law’s self-differentiation, the rule of facts ascertains why legal enterprise is (notwithstanding the same) what the heterogeneity of everyday practice and experience suggest it is. In the final analysis, I guess that these two aspects are able only in supplementation of one another to serve the common interest in making the law operate in a socially meaningful way. That is, they are to guarantee distinctively legal operation actually taking place, on the one hand, at a time when and under the conditions in which all its normative preconditions are fully met, on the other. (shrink)

Evidence, as viewed through the lens of statistical significance, is not always as it appears! In the investigation of clinical research findings arising from statistical analyses, a fundamental initial step for the emerging fraud detective is to retrieve the source data for cross-examination with the study data. Recognizing that source data are not always forthcoming and that, realistically speaking, the investigator may be uninitiated in fraud detection and investigation, this paper will highlight some key methodological procedures for providing a (...) sounder evidence base for withdrawing from a study on grounds of integrity. The promotion of patient safety is paramount. However, there is a broader rationale for disseminating these ideas. This includes empowering researchers to optimize their personal integrity, make informed choices regarding membership of future research collaborations and successfully voice their concerns to journal editors, particularly where a conflict of interests can render such dialogues particularly difficult. Recommendations will be supported by topical case studies and practical steps involving data exploration, testing of baseline data and application of Benford’s Law. While this paper has a clinical focus, the advice provided is transferrable to a wide range of multidisciplinary research settings outside of Medicine. (shrink)

Mitchel Lasser's Judicial Deliberations compares the argumentative practices of the French Cour de cassation, the US Supreme Court, and the European Court of Justice (ECJ), and examines how they achieve judicial legitimacy. In this review I firstly question the models of judicial legitimacy presented by Lasser. I believe that the French ‘institutional’ model relies far more on the interplay between the Cour de cassation and the legislature than on the system of selection of those who take part (...) in the judicial discourse or on their conception of law which would deny judicial decision a place among the sources of law. I also have doubts about the lack of institutional means of judicial control and the emphasis on ‘argumentative transparency’, which lies at the core of Lasser's presentation of the US system. Finally the ECJ, somewhat included rather as an afterthought in the book's central analysis, in my opinion faces rather different problems from those identified in the book. Secondly, I discuss a deeper problem of Judicial Deliberations: its lack of conceptual clarity and the rather scant evidence it provides for some of its bold claims. In conclusion I make the case for a ‘comparative jurisprudence’ approach, suggested some time ago by William Ewald, which in my view Judicial Deliberations follows only in name. (shrink)

In criminal trials with a jury, judges have many opportunities to engage in adjudicative fact-finding before the jury retires. English law has no conceptual framework for examining this judicial fact-finding which encompasses two categories of collateral fact (preliminary and underlying fact) and foreign law. A third category of collateral fact (conditional fact) is decided by the jury. The article examines the nature of judicial fact-finding and the history and rationale for this allocation of fact-finding responsibility between judge (...) and jury. (shrink)

Intracellular bacteria were recently shown to employ eukaryotic prenylation system for modifying activity and ensuring proper intracellular localization of their own proteins. Following the same logic, the proteins of viruses may also serve as prenylation substrates. Using extensively validated high-confidence prenylation predictions by PrePS with a cut-off for experimentally confirmed farnesylation of hepatitis delta virus antigen, we compiled in silico evidence for several new prenylation candidates, including IRL9 and few other proteins encoded by Herpesviridae, Nef, E1A, NS5A, PB2, HN, (...) L83L, MC155R, other Poxviridae proteins, and some bacteriophages of human associated bacteria. If confirmed experimentally, these findings may aid in dissection of molecular functions of uncharacterized viral proteins and provide a novel rationale for statin and FT/GGT1-based inhibition of viral infections. Prenylation of bacteriophage proteins may aid in moderation of microbial infections. Many human viruses, including HCV, HIV1, ASFV, and a number of Adeno-, Pox-, and herpesviruses, including CMV, encode the substrates for mammalian prenylation enzymes. Prenylation is advantageous for viral infection; its suppression by FT/GGT and FPPS inhibitors has antiviral effects. In bacteriophages, prenylation may aid in moderation of microbial infections. (shrink)

Analysis of the U.S., Canadian and English approaches to excluding illegally obtained real evidence, which passes the threshold test of authenticity, probative value and relevance, reveals various ways in which poisoned truths are treated in criminal legal systems. A person who has no interaction with the criminal legal system may of course be considerably sympathetic to the English rule which attempts always to reveal the immediate truth. For if one considers only an individual criminal case, the English rule certainlyappears (...) to value truth above all else. However, a contextual analysis makes it clear that there is a systemic effect in always revealing the truth that may result in fewer incidents of the truth being revealed in the future than if the immediate truth were suppressed in a particular case. The U.S. and Canadian exclusionary rules recognize the systemic harm of automatically revealing all truths the moment the truths become apparent. While the U.S. courts have had trouble agreeing on the rationale for excluding illegally obtained real evidence, they have come up with a rule which in the end balances the immediate harm of exclusion of the truth and the systemic harm of its inclusion. The U.S. rule is also very predictable, clearly setting out when a future truth is threatened by revealing an immediate truth. The Canadian rule is in the early stages of development, and, while there is a clearly stated rationale that seeks a justice of truth, it is not sufficiently concrete to allow one to predict when the rationale of a justice of truth will be achieved. In the final analysis, and in contrast to the English exclusionary rule, both the Canadian and U.S. rules address thesystemic harm of always including illegally obtained real evidence. (shrink)

In most common law jurisdictions worldwide, an offender’s remorse is a mitigating factor in sentencing. It matters whether or not a person who has committed a crime is truly sorry for what they have done. And yet how judges evaluate such expressions is unclear. Drawing on 18 interviews with judges in the New South Wales criminal justice system in Australia, this article examines the status of offenders’ live, sworn evidence in the judiciary’s assessment of offenders’ remorse. These interviews with (...) the judiciary reveal that remorse assessment often operates beyond semiotic, representational paradigms (such as ‘demeanour assessment’) and instead works, in experiential terms, as a feeling. When it comes to offenders getting into the witness box and speaking of their remorse, it seems that sometimes something gets felt by judges at the level of embodied affect that then enables them to declare: ‘This person is remorseful.’. (shrink)

De Neys argues against assigning exclusive capacities to automatic versus controlled processes. The dual implicit process model provides a theoretical rationale for the exclusivity of automatic threat processing, and corresponding data provide empirical evidence of such exclusivity. De Neys's dismissal of exclusivity is premature and based on a limited sampling of psychological research.

Background The ideal basis of age estimation is considered to be a combination of clinical, skeletal and dental examinations. It is not easy to determine how forensic physicians take account of evidence-based data obtained from medical journals in their medical decision-making. The question of what is an ethically acceptable probability that adolescents are incorrectly considered to be over 18 has not been answered. Methods In a retrospective study over 1 year (2007), 498 files (for 141 female subjects and 357 (...) male subjects) regarding age assessment requested by the public prosecutor's office for purposes of criminal or asylum proceedings were reviewed. Chronological age was estimated from a combination of physical examination, radiographic examination of the left hand and determination of dental status. Results Estimates of chronological age in 498 subjects claiming to be 9–14 years old were incompatible with the alleged age in 356 (71%) when made by the forensic physician but in only 17 (3%) when based on data from published studies on age estimation in adolescents. Conclusions The present study suggests that in most cases the forensic physician ignores the adolescent's word. Medical mission and ethics imply a need to listen to the claims of persons in custody, whatever the risk of false claims. This situation should prompt forensic physicians to keep up with published data on estimating the age of adolescents. (shrink)

In recent decades a number of criminal convictions have been reversed on appeal, partially on the basis of problems associated with the use of scientific evidence adduced by the prosecution during the trial. These miscarriage of justice cases have received considerable attention from news media, legal commentators, criminologists and in formal public inquiries. Most responses to these cases have been critical of the scientific evidence originally relied upon at trial. Few commentators have been critical of, or even reflective (...) about, the scientific evidence used to acquit. Generally, their analyses have utilized idealized images of science and scientists. In contrast, by importing the concept of methodological symmetry from science studies, this paper aims to identify and explore the conceptual disparity (or asymmetry) between the assessment of scientific evidence used to convict and the scientific evidence used to acquit. In order to illustrate some of the limits to conventional approaches to miscarriages of justice as well as examine the judicial use of scientific evidence this will be undertaken in relation to the successful appeal of the Birmingham Six. (shrink)

Evidence-based medicine is a clinical decision making framework which makes claims about what physicians ought to do. Though heralded as the cutting edge of medical science evidence-based medicine is a value laden normative theory which implicitly depends on substantive views regarding what is morally good or right. In this paper, I provide an ethical analysis of evidence-based medicine. I consider its normative underpinnings in three ethical theories: utilitarianism, Kantian deontology, and virtue ethics. In the face of uncertainty, (...) evidence-based medicine endorses expected utility theory using the best available evidence in order to avoid doing more harm than good. In accordance with the Kantian respect for individuals as ends in themselves, evidence-based medicine calls for integrating the values and preferences of the patient. De-emphasizing intuition, clinical expertise, and pathophysiologic rationale emphasizes the need for the intellectual virtues of curiosity, critical thinking, and courage. Evidence-based medicine is a successful clinical practice that can be morally justified by all three major ethical theories. Although its focus on maximizing good health outcomes and integrating respect for individual patients has been emphasized, the role of the intellectual virtues in evidence- based medicine remains highly under-explored. (shrink)

Evidence-based medicine is a clinical decision-making framework which makes claims about what physicians ought to do. Though heralded as the cutting edge of medical science, evidence-based medicine is a value-laden normative theory which implicitly depends on substantive views regarding what is morally good or right. In this paper, I provide an ethical analysis of evidence-based medicine. I consider its normative underpinnings in three ethical theories: utilitarianism, Kantian deontology, and virtue ethics. In the face of uncertainty, evidence-based (...) medicine endorses expected utility theory using the best available evidence in order to avoid doing more harm than good. In accordance with the Kantian respect for individuals as ends in themselves, evidence-based medicine calls for integrating the values and preferences of the patient. De-emphasizing intuition, clinical expertise, and pathophysiologic rationale emphasizes the need for the intellectual virtues of curiosity, critical thinking, and courage. Evidence-based medicine is a successful clinical practice that can be morally justified by all three major ethical theories. Although its focus on maximizing good health outcomes and integrating respect for individual patients has been emphasized, the role of the intellectual virtues in evidence-based medicine remains highly under-explored. (shrink)

This paper provides a re-assessment of the significance of turning king's evidence in late medieval England through a re-examination of the use of approvers' appeals as a method of prosecution. It puts forward the hypothesis that the process was not only popular with felons, but also actively encouraged by the Crown. Exploring attitudes towards confessions and their admissibility, it compares and contrasts contemporary Continental prosecution practices and considers the extent to which the English legal system was developing a form (...) of public prosecution through the encouragement of approvers, mainly at times of political stress or during law enforcement drives. Analysis of the verdicts returned by juries on persons arrested and tried on the basis of approvers' confessions indicates a high incidence of acquittal. This apparent failure in the system is explained in terms of the prejudices and practices of the juries, judicial scrutiny of the appeals, and putative government policy. (shrink)

Because few would object to evidence-based medicine’s (EBM) principal task of basing medical decisionmaking on the most judicious and up-to-date evidence, the debate over this prolific movement may seem puzzling. Who, one may ask, could be against evidence (Carr-Hill, 2006)? Yet this question belies the sophistication of the evidence-based movement. This chapter presents the evidence-based approach as a socio-medical phenomenon and seeks to explain and negotiate the points of disagreement between supporters and detractors. This is (...) done by casting EBM as more than the simple application of research findings to clinical care and improved health outcomes, but rather an umbrella term that harnesses a specific set of pedagogical objectives (some rather radical) under a name that makes it difficult to argue against. (shrink)

The exchange of forensic DNA data is seen as an increasingly important tool in criminal investigations into organised crime, control strategies and counter-terrorism measures. On the basis of a set of interviews with police professionals involved in the transnational exchange of DNA data between EU countries, this paper examines how forensic DNA evidence is given meaning within the various different ways of constructing a police epistemic culture, it is, a set of shared values concerning valid knowledge and practices normatively (...) considered adequate and legitimate. The police epistemic culture is fuelled by multiple dynamics of boundary work, revealing how police professionals involved in international cooperation (i) define their specific core activities and competencies; (ii) construct particular understandings of valid knowledge and how it should be produced; (iii) enact the police epistemic culture in contrast to the epistemic cultures of the judicial authorities and forensic scientists. (shrink)

This work deals with principles determined by an Ottoman judge who lived in the 16th century about which of the contradictory verses should be chosen. İt is known that it is only possible with a good evaluation of the evidence presented to the court in order to reach a fair decision. Because one of the most important things to pay attention is to the evidence presented to the court and the judge tries to reach a fair decision by (...) evaluating this evidence. However, the main problem encountered at this stage is a presentation of contradictory evidence to the court by the parties of the case. In this case, reaching the right decision is only possible by choosing the method that will lead to the right decision among these conflicting methods. In this study, the preference principles that Vankulu Mehmet Efendi (D.1000/1592) discussed in his work called Tercihul’l beyyinat will be examined. As far as we can determine, this work is the first to deal with the principles of choice among evidence. Vankulu Mehmet Efendi was a scholar who lived in the XVI-century Ottoman Empire and held important positions such as muderris, mufti and kaddish in different regions of the Ottoman Empire. The author has worked in the field of fiqh and language. His work Tercîḥu'l-beyyinât is a work about which there is no work until today. In this work, it is explained which of this evidence should be chosen if there is contradictory evidence presented by the parties in a case. In addition, with this study, it will be tried to make determinations about the level reached in the judicial procedure during the period in which the author lived. Therefore, while dealing with the subject, beyond analyzing the principles determined by the author in detail, it will be tried to determine which sources the author has reached these principles by referencing. Thus, it will be tried to contribute to the understanding of the sources used by the Ottoman qadi of the period while determining the principles of judgment. (shrink)