The explanationist revolution in evidence law

Abstract

According to Allen and Pardo, the field of evidence law has experienced a revolution -in Kuhn's sense- from probabilism to explanationism, which they identify with the relative plausibility theory. The explanationist revolution, argue Allen and Pardo, has placed explanationist -rather than probabilistic criteria- at the core of the fact-finding process and, in contrast to probabilism, has advanced a comparative understanding of the theory of legal proof. This paper develops an alternative interpretation of the explanationist revolution in evidence law. First, it elaborates on the concept of legal revolution and argues that it involves a kind of shift that is best characterized as a Hacking -rather than a Kuhnean- type of revolution and, thus, as an ‘emplacement’ instead of a ‘replacement’ revolution. Second, it claims that the shift from probabilism to explanationism involves a deep -genuinely revolutionary- change in the conception of rationality that is taken to govern the processes of evidence and legal proof. Other differences between probabilistim and explanationism, such as those mentioned by Allen and Pardo, are not central to the revolutionary shift, but rather emanate from this basic distinction. Last, it argues that the explanationist paradigm embraces, but cannot be reduced to, the relative plausibility theory; the identification of explanationism with the relative plausibility theory occludes the richness and possibilities harboured by the new, explanationist, paradigm.