Larry Laudan

For more than a half-century, evidence scholars have been exploring whether the criminal standard of proof can be grounded in decision theory. Such grounding would require the emergence of a social consensus about the utilities to be assigned to the four outcomes at trial. Significant disagreement remains, even among legal scholars, about the relative desirability of those outcomes and even about the formalisms for manipulating their respective utilities. We attempt to diagnose the principal reasons for this dissensus and to suggest ways in which a broadly shared evaluation might be forged, both with respect to the appropriate equations for defining the standard of proof and with respect to the appropriate utilities to associate with the various trial outcomes. Where consensus cannot be forged, we hold that remaining differences can probably be finessed. We also suggest ways to elicit the utilities of individuals on these matters so as to avoid the usual flaws of such surveys. Along the way, we note a). the disproportionate role that the Blackstone ratio of errors continues to play in appraisals of the utilities of trial outcomes (despite its unintelligibility in the context of utilities) and b). the persisting belief -for which there is no theoretical basis-that every plausible assignment of utilities will inevitably result in a very high standard of proof. Finally, we examine some of the technical features associated with a proposed rank ordering of the utilities of trial outcomes.

It is widely supposed that the scientists in any field use identical standards for evaluating theories. Without such unity of standards, consensus about scientific theories is supposedly unintelligible. However, the hypothesis of uniform standards can explain neither scientific disagreement nor scientific innovation. This paper seeks to show how the presumption of divergent standards (when linked to a hypothesis of dominance) can explain agreement, disagreement and innovation. By way of illustrating how a rational community with divergent standards can encourage innovation and eventually reach consensus, recent developments in geophysics are discussed at some length

For positivists and post-positivists alike, methodology had a decidedly suspect status. Positivists saw methodological rules as stipulative conventions, void of any empirical content. Post-positivists (especially naturalistic ones) see such rules as mere descriptions of how research is conducted, carrying no normative force. It is argued here that methodological rules are fundamentally empirical claims, but ones which have significant normative bite. Methodology is thus divorced both from foundationalism and conventionalism.

Intuitionistic meta-methodologies, which abound in recent philosophy of science, take the criterion of success for theories of scientific rationality to be whether those theories adequately explicate our intuitive judgments of rationality in exemplary cases. Garber's (1985) critique of Laudan's (1977) intuitionistic meta-methodology, correct as far as it goes, does not go far enough. Indeed, Garber himself advocates a form of intuitionistic meta-methodology; he merely denies any special role for historical (as opposed to contemporary or imaginary) test cases. What all such positions lack is a base from which to inform, criticize, or restructure our core methodological intuitions. To acquiesce in this is to deny that exemplary cases can serve the sort of warranting role required for intuitionism. This point is reinforced by a series of reasons for denying the warranting role of pre-analytic judgments of rationality. These reasons point the way toward an improved approach to meta-methodology.