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How perponderance of evidence arises is a market.

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Hefty Posted: Fri, Apr 13 2012 1:20 AM

Perponderance of evidence is a legal principle that means an arbitrator can make a decision without being sure, depending on the evidence on either side of a dispute the arbitrator must take the side of that where there is stronger evidence. This is used today in contrast to the principle of "beyond reasonable doubt". A fair and previously agreed upon definition can be found here.

Perponderance of evidence has been explicitly rejected by Rothbard (indeed is very important to the conclusions there). In a recent interesting and slightly heated discussion (here) mainly with Clayton and gotlucky it was also rejected (as far as I can summarize) on the grounds that it perverted the justice process.

@Clayton The term you're looking for is preponderance of evidence. It's a really horrible principle because it implies that evidence is like some kind of massive substance which can be weighed on two sides of a scale. Of course, this idea only makes sense in a statist monopoly court where "the Judge" sits on a judgment throne like God Himself and "weighs the souls" of the parties. In private law society, the arbitrator is just a contractor, someone hired to assist the disputants in settling their dispute. The impetus for settlement comes from the disputants themselves, not from "the Judge." The sole criterion of reasonableness or evidentiary finality is the assent of the parties themselves to a settlement.

Previously I argued about this on the basis that it is innevitable in certain situations where there are counter-suits. However some people did not accept this because it required assuming that the individuals would agree to such a cases and perhaps it has to assume the existence of a judge.

I also tried to argue that it is ethical on the basis that all people make decisions based on "weighing" evidence, and considering their preferences and losses associated with making an error. 
Particularly, my view remains that "unreasonable doubt" is assessed in the same way, the only detail is that punishing an innocent person is taken as a heavy loss that comes into the decision, while the loss for letting a guilty person free is taken to be much lower. Whereas in "perponderance of evidence" the loss is equal for both decisions and preferences should be equal because the law should not be prejudice on either side, so we are only left with assessing the likelihoods.
In case I get something wrong about possible counter-arguments, I will refer anyone that cares to this discussion here.

I will now discuss an argument for the innevitability of perponderance of evidence without making the assumptions in my previous post.

Now I will assume as a basis the common foundational example given in this video [] that Clayton supplied to me at a previous post and the assumptions in it were also accepted by gotlucky. I use this as a basis for discussion in the hope that this time we can agree on the premises of the discussion.

I'll descibe the scenario as it was defined in the video.

  1. A picks an apple
  2. B takes the apple
  3. A and B disagree to who should eat the apple
  4. It is noticed that A and B may or may not resolve the conflict with violence
  5. C is assumed to exist
  6. A and B can now resolve the conflict by asking C on his opinion and agree with his resolution.

Notice that the arbitrator has a case involving with 2 counter-suits. A claims ownership of the apple and wants compensation from B, and vice-versa. However, I won't even make use of this interesting fact.

Let's now consider what happens if the judge uses "unreasonable doubt" without much evidence for either side. (I assume nobody will be so fanatical as to claim all cases will have sufficient evidence "beyond reasonable doubt")

When judging if B stole the apple from A, C will have to find that B is not guilty. When judging if A was picking apples from B's tree, C will have to find that A is not guilty. So C cannot come up with any decision, because there is "reasonable doubt" in either case. Thus A and B are left off where they started. The whole point of the arbitration was for C to make a decision. Clearly they will seek another arbitration, until they find one that will use more lax principles that will advise in favour of one of them.

Note that the obvious idea of splitting the apple or something of that sort implicitly assumes that there is some shady "weighing" of evidence or even worse there are arbitrary rules if you propose it should get divided in half.

From this I have to conclude that the market will sometimes use "perponderance of evidence" as a principle. This obviously says nothing about whether "perponderance of evidence" is a "good" or "bad" principle. We may want to oppose the principle on the basis of a literary picture, but that's like opposing usury on the basis that it corrupts human relationships, even after it was explained why usury serves a legitimate function and is a natural innevitable process. Hope this convinces you.

There should be separation of X and state... for all X.
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gotlucky replied on Fri, Apr 13 2012 2:16 AM

Not every dispute can be resolved by mediation.  Some disputes will inevitably turn to violence.  In that case, one party can back down, conceding the point to the other party (right or wrong), or they can duel (formally or informally).  Logistic Earth wrote a good post about the Zimmerman/Martin case here.  I will quote, again, what I believe to be the most relevant part:



Ultimately, I really doubt we'll ever get enough evidence to either convict or fully vindicate Zimmerman.  He was apparently going to be charged with manslaughter, but that lack of evidence caused the state to drop the case.  At this point, there's not much more one can do.  Unfortunately, the mob on both sides have formed thier own opinions and seem to be making judgements and accusations about both Martin and Zimmerman.

The bottom line is though, we don't know precisely what happened, there is not enough evidence to convict or vindicate, and we must leave it at that unless something new comes to light. The only thing one can do is to draw personal insights from the tragedy, about racial prejudices, about the dangers of escalating situations, and rushing to judgements.

Some crimes may go "unsolved".  The thing is, if you cannot prove that a person is guilty, then how do you know if he is guilty.  In the case of Zimmerman and Martin, if the prosecutor cannot prove that Zimmerman is guilty of murder, then how can we know if he actually is?  We cannot.  If Zimmerman were to be okay with a preponderance of evidence, that would be most perplexing.

To now address the apple dispute.  If you cannot prove that B stole the apple from A, then how do you know he is guilty?  If the apple means that much to A, then he may challenge B to a duel.  If it doesn't, then he can just concede the dispute to B.  It is possible that A might want to take his chances with a lower standard of proof, but it is actually B who would have to agree to it, as he is the one being accused.  Why would the accused ever agree to a lower burden of proof?  It can only mean he would be more likely to lose.

It is for that reason that I find it highly unlikely that preponderance of evidence would arise in a private law society.


When judging if B stole the apple from A, C will have to find that B is not guilty. When judging if A was picking apples from B's tree, C will have to find that A is not guilty. So C cannot come up with any decision, because there is "reasonable doubt" in either case. Thus A and B are left off where they started. The whole point of the arbitration was for C to make a decision. Clearly they will seek another arbitration, until they find one that will use more lax principles that will advise in favour of one of them.

You need to prove the bolded statement.  It is not clear that they will necessarily seek another arbitration.  That costs resources, and people do not have unlimited resources to spend towards more arbitration.

PS It is preponderance, not perponderance.


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Clayton replied on Fri, Apr 13 2012 3:21 AM

... the market will...

This phrasing suggests you may misunderstand the nature of the market at a fundamental level - the market itself never does anything. Firms within the market may do this or that. The market is simply the relationships between actors over time - it is completely ephemeral and has no real existence and cannot do anything.


Let me try a different tack in answering your question - I think you are confusing several things together that are best reasoned about separately, in turn:

- The market
- The market in law services (legal advice, arbitration/mediation, etc.)
- The law
- Philosophy of law
- Industry-standard legal practices

The market - as already mentioned - is simply the relationship between actors over time, nothing more. Hence, the market does not produce law, it does not enforce law, it does not evaluate standards of legal practice, and so on.

The market in law services is that portion of the market (insomuch as it is not completely monopolized by the State) which specializes in the production of law-related services such as giving legal advice or mediating/arbitrating disputes. It may also - as David Friedman theorizes - be "bundled" with protection services and sold to consumers as a bundled package. To a very tiny extent, the current state of the world with many nations that a person could, in theory, choose to reside in acts somewhat like this market, just with extremely high switching costs and with certain switches being prohibited (not just anyone can become an Israeli citizen and vice-versa) altogether and with a very limited selection of firms which also happen to have territorial monopolies.

The law is something that stands above and beyond what anyone may write about it. Despite the fact that we refer to them as the law, statutes certainly are not the law, at least, not when they're first written (they may infuse into the culture over time and become law, however). The "packages" offered by Friedman's hypothetical protection agencies would not be the law. The positions and opinions of arbitration courts would not be the law.

The law - like language itself - is not up to anybody. Oxford can write its dictionary, the King can speak his English and the Atlantic can look down their grammatically-correct noses at the rest of us but, at the end of the day, the English language is whatever people use it to be. Like the law, it varies from place to place and time to time. Similarly, the law is whatever the norms are "out there" that individuals will actually accept in the resolution of their disputes.

Those norms are discovered in the process of settling real disputes. The mechanics by which disputes get settled are immaterial - whether it involves protection agencies or not, whether it involves arbitrators or not, whether it involves aggression insurance (Hoppe) or not. All that matters is that a dispute arose, it got settled, and there were some terms by which it was settled and the settlement either stuck or it did not. Those are the only really important parameters to uncovering the normative content of the law.

The one thing I dislike about Friedman approach to analyzing the law market is that it obscures the role of the individual by starting the analysis with the firms (protection and arbitration agencies). Because Friedman's protection agencies are trying to sell their services to customers, what those agencies offer as bundled "law" is ultimately up to the consumer, that is, the individual. However, it does have the advantage of being a kind of "superset" of the existing order which makes it easier for people to comprehend the conditions for its realization.

Philosophy of law is the subject that is concerned with explaining everything I've written above and, ultimately, with answering OP's question. The philosophy of law has to do with discovering what are the essential or constitutive features of law (what is law versus non-law), generalizing the particular normative contents of law and developing justifications for legal practice, that is, answering the question "what is the right way to do law?"

Industry-standard legal practices are what emerge out of the market in law. Just as cellphone makers are all driven by consumer demand to include texting features in their phones or whatever, so producers of legal services are driven to conform to social norms* (that is, the law) and legal practice (including things like standards of evidence, trust and verification protocols, and so on).

OP's question is a question about industry-standard legal practice in the absence of state monopoly of law that should be answered by the philosophy of law. (Sorry this post is so long but the entire thing is necessary to give a proper reply).

Questions such as "what are the proper standards of evidence for deciding questions of fact?" hinge on both the philosophy of law (specialists who provide analysis of the relative merits of the best known standards) and industry-standard practice (the extent to which real arbitrators actually listen to the philosophers).

There is no simple answer to your question "will 'preponderance of evidence' be used in the free market in law" - I think the answer could depend on the kind of question of fact that is under consideration, it depends on how "preponderance" is evaluated or whether it can be evaluated at all, the nature of the evidence (tained by conflict of interest, coercion, blackmail, etc.) and so on.

If you want to get an idea of what I'm talking about, take a gander at the Rules of Civil Procedure in the State of Oregon. Most of these rules are not set by the legislature (they just get rubber-stamped), they are set by the judiciary. And when you read the nature of the rules, you will realize that they are, by far, more important than any particular legislative rule because they determine the conditions under which such rules can at all be applicable! It doesn't matter if you can be sued by the State for such-and-such petty reason if the Rules of Civil Procedure determine that the evidence in your case is inadmissable. The Rules of (Civil, Criminal) Procedure are the law's law.

Clayton -

*This is another deficiency in Friedman's exposition as his gives the impression that social norms can be arbitrarily chosen and he illustrates this with the somewhat compromised illustration of a pro-death penalty versus anti-death penalty protection agencies/arbitration
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