Assignment on Burden of
proof under evidence law.

Submitted to: Rubaiyat Nourin

Lecturer, LHR department.
University of Development Alternative.

Submitted from: Asma Khanam

Student of LHR department
University of Development Alternative
ID: 051151004, Batch-46th
Semester- 9
Course: The Law of Evidence-II
Submission Date: 15th May 2020.
INTRODUCTION
‘‘The burden of proof’’ plays an important practical role in a variety of contexts, most notably in
legal decision-making. There is a long-standing tradition that has sought to generalize the
concepts legal role to argumentation more generally. The burden of proof presently figures
centrally in normative accounts of argumentation and it has been used to explain argumentation
fallacies. In this article, we take the notion of burden of proof as defined in law and seek to
generalize it according to the key underlying characteristic, a link to action that it has in legal
discourse. This we then use to critically evaluate the various roles for the term in the general
argumentation literature, in particular in pragma-dialectical theories of critical discussion and
analyses of a classic fallacy, the so-called argument from ignorance. Here, it is argued that the
notion of Burden of proof has inappropriately been extended beyond its proper domain of
application, echoing concerns regarding the hasty transference of legal concepts to other kinds of
argumentation voiced bay range of authors (e.g., Gaskens, 1992; Raikka, 1997; Kauffeld, 1998,
2003). Specifically, we seek to demonstrate how and why the notion of burden of proof fails in
its intended role within fallacy research.

HISTORICAL BACKGROUND
Rescher (1977) discusses how the medieval disputation adopted general rules from Roman law,
among these the implicit idea that the burden of proof lay with the assertor. Explicitly, Whitely
(1827) introduced the notion of a burden of proof, and the corresponding notion of pre-gumption,
into his writings on rhetoric (on presumption see e.g. Wal-ton, 1996, and, in particular, Ullman-
Margalit, 19831). From here, the concept has spread to debating manuals, and theoretical
treatments of rhetoric, dialectic and argumentation. Its influence ranges from prig-ma-dialectical
theories of argumentation (e.g., van Eemeren and Grootendorst, 2004) to dialectical approaches
to epistemology (Rescher, 1977). Arguably, it is the most successful jurisprudential Export.
However, though ties between legal and extra-legal argumentation have been close since
antiquity (e.g., Cicero, De Inventione), the trans-ferrous of legal concepts to non-legal debate has
not always been viewed as entirely successful. For example, Gaskens (1992) comments on
Toulmin’s (1958) attempt to found a theory of practical argumentation on a jurisprudential
analogy in scathing terms.

‘‘Toulmin spends an entire book elaborating a jurisprudential analogy but explores none of the
territory of jurisprudence. Like a nineteenth century European tourist, he took his preconceptions
along with him, and then informed the audience back home that the natives ‘‘think like we do’’.
In borrowing from the judicial process, Toulmin overlooked virtually all its problematic
features.’’

Overlooking the central features of the burden of proof, we think, has been instrumental in its
widespread adoption as a key concept in argumentation research. In the following, we document
briefly the complexity and richness of the burden of proof in law. We then high-light what we
think is the key determinant of its central role in law, determinant that is conspicuously absent in
many extra-legal uses of the concept.

THE BURDEN OF PROOF WITHIN LAW

In dialectics and normative theories of argumentation such as Rescher (1977) or van Eemeren
and Grootendorst (2004), the burden of proof appears as a simple procedural rule, whereby the
proponent of a claim bears the burden of proof associated with it. In law, the concept is much
less straightforward, both in how it is allocated and in its ultimate function. Specifically, the
burden of proof is used by both legislature and judiciary to favor certain substantive outcomes
(see e.g.Gaskens, 1992). While presumptions and burden of proof are often formalized, they are
also spontaneously created and dynamically deployed by courts in the service of these intended
outcomes (hence the burden of proof is not always fixed in advance, cf Walton, 1996,p. 178).
One area in which this is readily apparent is liability to dam-ages for harmful acts. In general, it
is up to plaintiffs seeking redress to establish the various requirements supporting the legal claim
they are seeking to make. In the case of damages for harmful acts, this will typically mean
establishing that some damage was suffered by the plaintiff and that this damage was caused by
an action of the defendant that violated due care. Only in exceptional, legally clearly
circumscribed cases is liability’ ‘strict’’, that is, it follows directly from the fact that damages
have been caused -- without consideration of whether any kind of wrongdoing was involved.
Most cases of liability require some form of guilt, whether by intention or by negligence. Hence,
what the defendant did or did not know, or did or did not do, is of critical importance. In some
cases, this puts the plaintiff up against a formidable task. For example, in cases of product
liability where the plaintiff’s damage has been caused by a faulty product, most of the relevant
information resides within the defendant’s sphere of influence: was due care taken in the design
and manufacturing of the product, was relevant technical knowledge taken into account? While
the information pertinent to these questions should be quite accessible to the company
manufacturing the product through its internal documentation of design and production
processes, it is very difficult to access for an outsider seeking redress. Consequently, equity
considerations have led some Western legal systems to reverse the bur-den of proof with regards
to (some) product liability.2In other words, it is now up to the defendant to prove due care, not
for the plaintiff to prove its violation. As a consequence, uncertainty about whether due care was
followed allows the claim to go through, as opposed to blocking it. In the case of Germany, this
reversal of the burden of proof was instigated by the courts, not the legislature, giving an
interesting example of how the burden of proof not only figures centrally in how legal
argumentation works, but how it can itself be the topic of discourse (for reference on the German
laws concerning damages from wrongful acts see commentaries to paragraph 823 of the German
CivilCode, e.g, Rebman et al., 1986; for a recent treatment of argument about the burden of
proof itself see Prakken et al., 2005). Likewise is established in practice is hugely influenced by
allocation of the burden of proof. Of course, it is entirely possible that extra-legal argument need
not see all of the subtlety that the concept displays in law for the transference still to be
meaningful. Maybe some of its dynamical aspects, for example, could be lost. However, we
submit, that it is the link to specific practical out-comes that is what the burden of proof is all
about. Before we elaborate further on this link between the burden of proof and action, however,
it is useful to consider several terminological distinctions that legal systems draw with regards to
the burden of proof. Two main legal traditions, civil law and common law, dominate Western
societies. Both have developed a notion of burden of proof. The civil law tradition is exemplified
by German law, which has given considerable theoretical scrutiny to the term; the common law
tradition originates in England and governs US law. Within German law, there is a clear
terminological distinction between the so-called subjective burden of proof (in German
Subjective Be waitlist’, or literally subjective proof burden), the objective burden of proof, and
the standard or measure of proof. The subjective burden of proof refers to the obligation to put
forward evidence regarding acclaim, whereas the objective burden of proof determines which
party carries the consequences of any residual uncertainty, these consequences typically being
denial of the legal position that is being sought. US law makes a roughly corresponding
distinction within the burden of proof between the burden of production (also Proof of going
forward) and the burden of persuasion, or Risk of non-peruse-soon(some differences arise
because the burden of production functions in the division of labor between trial judge and jury
unknown in the German tradition).

STANDARDS OF PROOF
As we have seen throughout, the notion of burden of proof is intimately tied to the notion of a
measure or standard of proof that needs to be met by the proponent of a claim. In law, this
standard tends Tobe set by legal area, with one standard for private and one for criminal law.7In
the context of argumentation, it has sometimes been set to conviction of the opponent(see
above), seemingly regardless of what that might take. This standard is at once too restrictive and
too lenient. It is too restrictive in its uniformity, which, we argued above, trivializes the concept
of burden of proof. The only way in which the standard of actual conviction is universally
applicable is in conjunction with an objective burden of proof (risk of non-persuasion) that
reduces to whatever ulterior motives I had in engaging in dialogue in the first place. With this
standard, the burden of proof is no longer useful tool for practical decisions. At the same time,
the standard is too lenient because anything goes. There is nothing to tie the opponent in the
dialogue to rational or reasonable standards in determining conviction. This latter problem is
avoided if the standard is tied to some objective notion of correctness or proof. However, in an
uncertain world, this standard will very rarely be met. Consequently, those in the argumentation
literature that have examined the notion of burden of proof most extensively, have tended to
assume that the standard is flexible, and consequently can be set to considerably less than
certainty. At the same time, it has proved difficult to determine how exactly the standard might
be identified (see e.g., Kauffeld, 1998, 2002) Walton has repeatedly sought to identify types of
factors that might con-tribute (e.g., Walton, 1988), but with regards to exact levels readers are
always referred to ‘‘standards and knowledge of the domain in question’’ (e.g., Walton, 2005, p.
67).We think it one of the main assets of the decision-theoretic analysis that it helps identify how
the standard in a specific case might come about. As we have argued, a burden of proof arises
naturally wherever putative action imposes a binary outcome (e.g., ‘‘do’’ or ‘‘do not do’’,
‘‘action A or action B’’) that has to be reconciled with graded degrees of conviction. This gives
rise to a threshold degree of conviction above which an action should be adopted, given the
particular utilities associated with this action. Note, however, that different agents can, even
rationally, have different utilities, so that they can legitimately disagree about the required
standard of proof and there need be no external authority, as there is in the case of law, to
stipulate a standard. Arguments about the burden of proof and argumentative shifts in the burden
of proof seem to have become increasingly popular, according to the analysis of Gaskens (1992).
The decision-theoretic reconstruction of the burden of proofs origins highlights the
considerations – namely utilities associated with actions – which this kind of discourse should
emphasize if it is to have substance.

CONCLUDING REMARKS
In summary, we sought to characterize the burden of proof in law, arguing that it was a
procedural tool deployed, frequently, to a sub-sanative end. Argumentative discourse does not in
and of itself possess the characteristics that give rise to the burden of proof in law, suggesting
that the legal analogy has frequently been over-extended. We have also tried to provide a formal
characterization, in the language of decision theory, of what we think is the key raison deter fora
burden of proof in law, namely an inherent link to action. We have argued that where no action is
implied, there is no reason to impute a burden of proof on argumentative discourse. Furthermore,
without such an action and its associated utilities, the specification of the necessary standard of
proof is problematic. We have also argued that the pragmatics of speech acts such as assertion
give rise only to a commitment to provide support, not, how-ever, a commitment to provide
support to any particular degree, a fact that makes this pragmatic commitment dis-analogous to a
an objective burden of proof which always implies a particular standard. We have argued,
finally, that the burden of proof is insufficient as an explanatory tool for the fallacy of the
argument from ignorance. This is because an argument from ignorance can be seen as an ileitis-
mate attempt to shift the burden of proof only when it does not con-statute evidence. Given that
negative evidence can be good evidence, and can on occasion even be stronger than positive
evidence, an independent, prior explanation of why a given argument from ignorance is weak is
required. Illegitimately shifting the burden of proof might be a function or consequence of a
weak argument from ignorance; it is not, however, itself the cause of its weakness. These points,
though interrelated, are separable, and one might be convinced of some of them independently of
others. In particular, our critique of the burden of proofs intended role in fallacy research stands
independently of considerations as to how and why a burden of proof in argumentative discourse
might be thought to obtain in argumentative discourse in the first place, whether our decision-
theoretic analysis is apt, or how successful the concepts transference from laws deemed to be. In
conclusion, it is interesting to note, however, that the concepts intended use in fallacy research,
in a sense, parallels that in law in as much as a procedural tool is used for a substantive purpose,
namely argument evaluation. Procedure is invoked to explain why the argument is weak. This
parallel ultimately fails, however, because law and critical discussion are fundamentally different
in other regards. Legal discourse functions to achieve legal decisions and these are decisions that,
through the authority of the state backing the judiciary, change the way the world is.
Argumentative discourse in the general realm of fact does not have this crucial property. We do
not assume that our convictions, even where they are obtained rationally, have the capacity to fix
or alter the state of the world under debate. Procedural rules of discourse do not create facts.
Even for the most ardent supporter of dialectical approach to epistemology, knowledge of the
world is generated by more than procedural rules of argumentative debate, and more is involved
in gathering and evaluating evidence than just argumentation. Substantive evaluation of
arguments as strong or weak requires engagement with their specific content. Argument strength
is a content characteristic and it is a theory of content that its evaluation requires. Hence, a
complete theory of rational argument will need such theory alongside a theory of rules of
procedure.