Standards of proof as competence norms

Abstract

ABSTRACT In discussions of standards of proof, a familiar perspective often emerges. According to what we call specificationism, standards of proof are legal rules that specify the quantum of evidence required to determine that a litigant’s claim has been proven. In so doing, they allocate the risk of error among litigants (and potential litigants), minimizing the risk of certain types of error. Specificationism is meant as a description of the way the rules actually function. We argue, however, that its claims are either mistaken or at a minimum deeply misleading, especially when it comes to standard of proof rules (SPRs) that contain indeterminate formulas, as is typical. As against specificationism, we argue that SPRs are best understood as rules that confer competence to decide whether a given standard has been met—according to whatever vague or inchoate interpretation (if any) of the rule in question triers of fact implicitly or explicitly employ. We call this the competence-norm approach.