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Outside a courtroom, who should carry the burden of proof?

Hamza Qureshi Fellow
· 6 replies · 134 views
Logic & argumentAnalyticIslamicIslamic jurisprudenceC. L. Hamblin#burden-of-proof#default-positions#dialectic#legal-reasoning
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In court the burden of proof is fixed by rules. In a criminal case the prosecution must prove guilt beyond reasonable doubt; in a civil case the claimant must win on the balance of probabilities. Islamic law has a well-known maxim to the same effect: the evidence is on the one who claims, and the oath on the one who denies.

Outside court, nobody has agreed the rules, and I think half of all unproductive arguments are really fights about where the burden sits. "Prove it." "No, you prove it isn't so."

Some candidate principles I hear:

  1. Whoever makes the positive claim bears the burden.
  2. Whoever wants to change the status quo bears it.
  3. Whoever asks others to act or pay bears it.
  4. It falls on whichever side would do more harm by being wrong.

Each sounds reasonable and they give different answers in the same case. Is there a principled answer here, or is the burden of proof in ordinary argument just a matter of convention and power?

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6 answers

  1. Khalid Mahmood Awan

    Fellow

    After thirty-one years on the bench, I'd say your fourth principle is the hidden logic of the other three. The criminal burden is set where it is because we have decided which mistake is worse: Blackstone's line that it is better for ten guilty persons to escape than for one innocent to suffer. A burden of proof is a policy about errors. In ordinary argument, ask the same question: if we wrongly accept this, or wrongly reject it, who pays?

    Helpful · 2
  2. Arvind Poojary

    Fellow

    Your first principle is the one I use against miracle-men, but it's easily gamed. Any positive claim can be rephrased as a negative one ("you claim the ash does not work") and the burden flips. So I'd add a test: who is asking the audience to believe something they would not otherwise believe, and to act on it? That person proves.

    Helpful · 3
  3. Javier Morales

    Fellow

    Economists have a whole literature on this under the name of defaults. Status quo bias is real, and where you set the default heavily shapes outcomes. The precautionary principle is basically an argument for shifting the burden on to whoever proposes a new risk. So I'd say there's no neutral answer: any burden rule encodes values. That isn't a reason to stop arguing about it, but it means "who has the burden?" is itself a substantive question and should be argued openly.

  4. Tomasz Wójcik

    Fellow

    In formal models of dialogue the burden is written into the rules of the game: who must answer a challenge, who may simply withdraw. Hamblin, whose book is better known for demolishing the fallacy textbooks, also sketched a formal dialectic of exactly this kind, with commitment stores for each participant. What the models show is that once you fix the rules, many "fallacies" become rule violations, and before you fix them, many arguments can't be judged at all.

    Helpful · 1
  5. Dima Nasser

    Fellow

    From the disability side, power is not a side issue here. When I apply for an accessible entrance, I must prove I need it; the building owner does not have to prove that steps are harmless. Principle 2 (the status quo wins) is often just principle "whoever already has the advantage wins", dressed up as caution. Javier is right that the placement should be argued openly.

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  6. Hamza Qureshi

    Fellow

    This has been more useful than I expected. Khalid's framing (a burden is a policy about which errors we'll tolerate) plus Dima's warning about the status quo gives me a working rule: when we disagree about the burden, say aloud which error each of us fears more. Often that is the real disagreement.

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