T H E U NI V E R SI T Y OF T E X A S

S C H OOL OF L A W
Public Law and Legal Theory Research Paper Series Number 143

Strange Bedfellows: Inference To The Best

Explanation And The Criminal Standard Of
Proof
Larry Laudan
Instituto de Investigaciones Filosifcas, UNAM
University of Texas School of Law

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Strange Bedfellows: Inference to the Best Explanation and the Criminal

Standard of Proof1

Larry Laudan

“[O]ne problem with saying that abductive reasoning is

inference to the best explanation is that we may not have any
settled criterion for saying what is the ‘best’ explanation.” --David Schum2

Introduction

For almost half a century 3—ever since Gil Harman coined the term ‘inference to
the best explanation’ (hereafter: IBE) —a number of epistemologists and
philosophers of science have been exploring his idea that the decision rule for the
acceptance of hypotheses and theories should be pegged to the explanatory virtues
of the various candidates under consideration. In brief, his suggestion was that, if
we can figure out which among the known hypotheses for explaining the facts in
question does the best job of explaining them, then that is the hypothesis to be
accepted, defeasibly, as true.

Of late, a variety of legal scholars, including Ron Allen and Michael Pardo, have
suggested that IBE may provide crucial intellectual machinery for cracking the
perennially tough nut of defining legal standards of proof in a robust fashion.4 It
is easy enough to appreciate the initial appeal of this move. There is broad
agreement that the current criminal standard, proof beyond a reasonable doubt,
is confused, ill-defined and often unintelligible to jurors (witness the fact that
jurors often ask judges to clarify the notion). Even the civil standard, proof by a
preponderance of the evidence –generally understood as meaning more likely
than not—appears to be unhappily pegged to a theory of subjective probability
estimates that jurors may be incapable of implementing with any degree of
reliability. Under the circumstances, it is hardly surprising that legal scholars

1 I am very grateful to Amalia Amaya, Jordi Ferrer, and Ron Allen for helpful criticisms of an earlier draft of this
essay.
2 David A. Schum, Species of Abductive Reasoning in Fact Investigation in Law, 22 CARDOZO L. REV. 1645, at 1659

(2001).
3 The locus classicus is G. Harman, The inference to the best explanation, 74 PHILOSOPHICAL REVIEW 88 (1965).

Arguably, Harman’s model is a particular specification of what Peirce had earlier called abductive inference.
Accordingly, inference to the best explanation suffers from all the general epistemic debilities of abductive
inference, apart from those added by Harman’s annexation of a relation of explanatoriness (as opposed to
entailment) between the premises and conclusion of an inference to the best explanation.
4 Ron Allen and Michael Pardo, The Problematic Value of Mathematical Models of Evidence, JOURNAL OF LEGAL

STUDIES, forthcoming 2007. (My italics. p. 41)

Electronic copy available at: http://ssrn.com/abstract=1153062

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might look to larger debates in epistemology to see whether there are any
promising ideas on which to ground a theory of legal evidence in general and a
new account of the civil and criminal standards of proof in particular.

I would be remiss if I did not declare an interest before proceeding further: I

have spent much of my academic life arguing that IBE is a bad model for
scientific knowledge.5 I have shown that it routinely warrants the acceptance of
scientific theories and hypotheses that subsequent empirical research has
repeatedly revealed to be false. I have claimed that it is too permissive a criterion
to use as a basis for decisions about what scientific theories to believe, not least
because it is inescapably hostage to the hypotheses that we have already managed
to concoct (between which it urges us to select the ‘best’). Over and again,
theories that were indisputably the best scientific explanations of their time
(Ptolemaic astronomy, Newtonian mechanics, classical chemical atomism,
Galenic physiology, the corpuscular theory of light, theories of the
electromagnetic ether) were subsequently shown to be false. In short, IBE as a
strategy for belief evaluation in the natural sciences is not only fallible in principle
(a feature that we could live with) but it frequently, even systematically, leads us
to accept beliefs about the natural world that subsequent applications of IBE
itself reveal to be false. It is thus decisively undermined by the so-called skeptical
or pessimistic induction from the history of science.

However, and this is crucial to stress, IBE’s failure to qualify as an adequate

epistemology of science does not entail that it need fail as an epistemology of the
law.6 The undoing of IBE in the sciences basically hinges on the fact that
scientists routinely revise in wholesale fashion their stories about the basic stuff
the universe is made of.7 Fortunately for IBE theorists in jurisprudence, the law
is not like that. While we occasionally discover that jurors have made mistakes in
particular trials, no student of legal decisions believes that most verdicts are false
most of the time. There is, in short, no legal counterpart to the dismaying
discovery about science that our predecessors regularly accepted false theories
(which, alas, were the ‘best explanations’ then available) about the phenomena
they were trying to understand.

5 See Larry Laudan, A Confutation of Convergent Realism, 48 PHILOSOPHY OF SCIENCE, 19 (1981) and BEYOND
POSITIVISM AND RELATIVISM (Boulder: Westview Press, 1996).
6 Although, to sound a mildly cynical note, one is led to wonder why legal scholars might be inclined to borrow

from the philosophy of science a model of hypothesis evaluation that fails so badly as a theory of scientific
inference.
7 With every major scientific revolution, we face a change of underlying ontology that partially vitiates earlier

claims about what there is and thus repudiates earlier ‘best’ explanations of what we see in the world around us
(insofar as the latter were couched in terms of the then prevailing underlying ontology).

Electronic copy available at: http://ssrn.com/abstract=1153062

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That said, however, I think that there are powerful reasons, specific to the law
(especially the criminal law), for doubting whether IBE can shed light on those
questions about the nature of legal standards of proof which appear to be one of
the principal motivations for the growing dalliance of evidence scholars and legal
epistemologists with this particular strategy. In this short essay, I want to assay
some of those concerns. In particular, I want to focus on the question whether
IBE is a plausible candidate for grounding our thinking about the standard of
proof, especially the criminal standard of proof.

There is no dearth of legal scholars who think it might be very promising.

Recently, Ron Allen and Michael Pardo have asserted that “the best explanation
of the evidence concerning trials is that proof at trial involves inference to the
best explanation from beginning to end.”8 The reference to ends and beginnings
alludes to the thesis of Allen and Pardo that IBE operates not only at the micro-
level (governing decisions about the credence given to particular bits of evidence)
but equally at the macro-level (the decision about guilt or innocence). John
Josephson, in his lengthy study “On the Proof Dynamics of Inference to the Best
Explanation,” has argued that IBE enables us to generate “a definition for the
judicial standard of [proof] ‘beyond a reasonable doubt’.”9 Paul Thagard has
made similar claims (see below).

The central question of this paper will be whether IBE does, or in principle even
could, illuminate the criminal standard of proof. While I will have far less to say
about IBE as the civil standard than as the criminal one, I will briefly offer
reasons to be skeptical about its utility as a mechanism for capturing the standard
of proof in the civil law. To anticipate in a pair of slogans the conclusions to
which we will eventually be led, I will be claiming: that IBE is too weak to serve as
the criminal standard of proof and too strong to serve as the civil standard.10

General Features of Inference to the Best Explanation

Above all else, IBE purports to be a rule of detachment. It specifies a set of

premises that, if satisfied in a particular case, would justify our inferring (with a
probability greater than one half) the truth of a particular hypothesis. Like every
other ampliative rule of detachment, it is acknowledged to be fallible but held by

8 Ron Allen and Michael Pardo, The Problematic Value of Mathematical Models of Evidence, JOURNAL OF LEGAL
STUDIES, forthcoming 2007. (My italics. p. 41)
9 John Josephson, Symposium: Abductive Inference: On the Proof Dynamics of Inference to the Best Explanation, 22 CARDOZO

LAW REVIEW 1621, at 1642 (2001).

10 If one is desperate to find a role for IBE in the law, it might capture the meaning of the standard of clear and

convincing evidence or it might model the micro-decisions about the appropriate weight to give to specific bits of
evidence or testimony.)
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its proponents to be generally reliable. Here is a typical representation of the

inference rule in question, along with a brief commentary11:

General Schema for an Inference to the Best Explanation

(1) e1, e2 ,…, en are the salient facts to be explained.

(2) h1, h2, …, hn each explain e1, e2, …, en.

Note that this premise is a major departure from earlier models of explanation
(for instance, the so-called deductive-nomological model associated with C. G.
Hempel and many others) that specified that a necessary condition for hi
genuinely explaining e was that h1 was independently known to be true or at least
highly probable. That is to say, earlier theories of explanation supposed that we
had already established the epistemic credentials of the explanans and were simply
deciding whether it explained what it purported to explain. Likewise, earlier
accounts of explanation denied the coherence of claiming, as IBE does, that
various mutually incompatible hypotheses can all be said to explain the same
fact(s). By contrast, IBE leaves the epistemic status of each hi up in the air in
determining whether the hypothesis does or doesn’t explain e1, e2, …, en. The
epistemic legitimation of hi emerges, if at all, only by virtue of a determination
that hi is the best explanation of e1, e2, …, en (as spelled out in (4) below).

(3) Rival explanations for e1, e2,,…, en have been earnestly sought out but the
search has produced only h1, h2, …, hn.

Proponents of IBE explicitly recognize that the set of explanatory hypotheses

under active consideration will rarely if ever be known to exhaust the possible
hypotheses for explaining the salient facts. As one Friend of the IBE model,
Kola Abimbola, puts it: “…inference to the best explanation does not require us
to wait until all possible explanations are in. We simply infer the best of all the
available explanations…. [unless] there is no good explanation about to be
found!”12

(4) hi is the best explanation in the set {h1, h2, …, hn}.

11 Bill Lycan has described a slightly briefer schema for IBE inferences as follows:

F1…Fn are facts.

Hypothesis H explains F1…Fn . (“Explains” here is to be read in its nonsuccess sense as “would explain if true”).
No available competing hypothesis explains the Fi as well as H does.
Therefore, (probably) H is true.
(William Lycan, JUDGMENT AND JUSTIFICATION 129 (1988))
12 Kola Abimbola, Abductive Reasoning in Law, 22 CARDOZA LAW REVIEW, 1683, at 1689 (2???). My italics.
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The meaning of ‘best’ here is hotly contested among IBE modelers. Gil Harman
has stressed that the goodness of an explanatory hypothesis depends upon its
simplicity, its plausibility, and the absence of ad hoc elements in it. Paul Thagard
has suggested that an hypothesis qualifies as the best explanation only if it is able
to explain different kinds of facts, it possesses simplicity (understood as a reflection of
the number and nature of the assumptions the hypothesis requires to explain
given facts), it exhibits appropriate analogies with known, successful hypotheses,
and it strongly coheres with our background beliefs. John Josephson’s take on the
nature of the explanatory virtues stresses the internal consistency of the
hypothesis, its predictive power, how decisively it surpasses its rivals, and the
thoroughness of the search for rivals. Bill Lycan includes simplicity, explanatory
power, high degree of testability, and coherence with background beliefs among
the features that make for explanatory virtue.13 While one can find some
common threads here, it is obvious that we lack anything like a consensus about
what precisely it is that makes one hypothesis a better explanation than another.14
That should already raise alarm bells about whether IBE is a single, identifiable
thing or a many-splendored one since if we cannot unambiguously determine
when one hypothesis is better than another, we patently cannot decide which is
the ‘best’. But I will leave those concerns to one side since they are not crucial to
my argument.15 I will hereafter assume, for the sake of argument, that we have a
mechanism for determining, among any given group of rival hypotheses, which is
the best.

(5) Therefore, hi is probably true.

All models of IBE emphasize –and quite rightly—that the mere existence of a set
of rival hypotheses for explaining a set of events does not by itself guarantee that
any one of those explanations qualifies as ‘good’ let alone as ‘best’. For instance,
if all the available explanations for some set of facts were ad hoc, then Harman
would deny that any of the lot was a ‘best explanation’. Thagard would say the

13 Lycan, op. cit. note 10, 130.

14 Other familiar proposals for the explanatory virtues include plausibility, economy, loveliness [sic], probability,
epistemic responsibility (that is, the earnest search for alternatives), high posterior probability, intuitiveness, and
the refutation of alternatives.
15 Straightening out this particular mess (which we might call, following the epigraph, ‘Schum’s problem’) would

require a paper in its own right. I will simply note for the record here that there is no unanimity about what the
explanatory virtues are and, in the remainder of the paper, will generously suppose for the sake of the argument
that there is some fix for this problem. A less charitable approach would urge the advocates of IBE in the law to
go back to their drawing boards until they can tell hammer out a unified story about what explanatory virtuosity
consists in.
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same if none was simple or none could explain different kinds of facts. Absent
signs of a thorough search for alternatives, Josephson would deny that any of the
available hypotheses could count as the ‘best’. This point is of crucial import
because it drives the epistemological status that IBE theorists want to confer on
an hypothesis by virtue of it being the best explanation. As (5) makes clear, they
assert a warrant for supposing that the best explanation for a set of facts is
probably true. That would not enjoy even a surface plausibility if they allowed
this rule of inference to apply to situations in which all the available hypotheses
were weak, or in which the search for rivals had been less than intense and
systematic.

Legal Standards of Proof and IBE

In any trial, we have at least two stories or narratives or related sets of assertions
in play: that offered by the plaintiff or prosecutor and that offered by the
defendant. Even when the defendant offers no story as such, he is still
propounding an hypothesis, to wit, that the other party’s account of events is
importantly false. It falls to the trier of fact to decide, not which story or
hypothesis is true, but whether the party carrying the burden of proof has
established, to the requisite level of proof, his story. The puzzle, of course, is
how the trier of fact should make that determination. For a couple of centuries,
the familiar reply in Anglo-Saxon circles has been to argue that she must do this
by asking whether the case against the defendant has been proved in a criminal
case beyond a reasonable doubt (hereafter: BARD) or, in a civil case, whether
liability has been proved to a preponderance of the evidence. The trouble is that,
especially in the criminal context, no one is quite sure what it is to have proved
an hypothesis beyond a reasonable doubt. Particularly now that the US Supreme
Court has divorced the criminal standard from its traditional moorings in the
Lockean theory of moral certainty, jurors and judges alike exhibit signs of
considerable confusion about what a proof BARD amounts to.16

Several scholars, among them both academic lawyers and philosophers, have
suggested that the IBE model offers a satisfactory solution to this conundrum.
What it means to prove defendant’s guilt beyond a reasonable doubt, they
suggest, is to have established that the prosecution’s story satisfies the strictures
associated with an inference to the best explanation. Absent a clear
determination that the prosecution’s narrative of events is the best explanation of
them, an acquittal is required. More specifically, writers in this camp have
16See Larry Laudan, Is Reasonable Doubt Reasonable? 9 LEGAL THEORY, 295 (2003) and TRUTH, ERROR AND THE
CRIMINAL LAW: ESSAYS IN LEGAL EPISTEMOLOGY. (Cambridge and New York: Cambridge University Press,
2006).
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proposed that a necessary and sufficient condition (or, for a few authors, a
necessary but not a sufficient condition) for a conviction is that the prosecution’s
theory of the case qualifies as the best explanation of the events established at
trial.

There are two distinct problems with this suggestion. The first is what van
Fraassen, in other contexts, has called the ‘best of a bad lot problem’.17 Imagine
that we have two hypotheses in play, h1 and h2, proffered respectively by the
prosecutor and the defendant. Suppose that jurors correctly determine that h1 is
a better hypothesis than h2 and thus, in this context, the best hypothesis on offer.
Would this justify a conviction? Clearly not, at least not without further ado. If
neither of the hypotheses of the case is very good, then the jury is obliged to
reject the guilt hypothesis and acquit the defendant, even though the prosecutor
has offered the best explanation of the case. This is because, whatever
disagreements we might have about how precisely to define the criminal standard
of proof, there is very broad social agreement that, in any acceptable system of
criminal justice, we do not want to find ourselves convicting very many innocent
persons (certainly less than one in ten) and we likewise don’t want to find
ourselves acquitting a great many guilty ones (no more than, say, one in two).
What these two widely-shared intutions entail is that the standard of proof,
whatever its other features, must be very demanding where a conviction is
concerned, for an undemanding standard of proof will arguably allow the
conviction of too many innocent defendants. To be specific: if IBE were to allow
--returning to the case before us--that a defendant could be convicted when the
case against him was relatively weak (but still stronger than the case for his
innocence), then it is foreseeable that an unacceptably high proportion of
innocent defendants, facing a trial that includes some inculpatory evidence, will
be falsely convicted. Unfortunately, the difficulties with IBE do not stop here.

The more intriguing problem arises, not when both parties have lousy
explanations on offer, but when both offer reasonably plausible hypotheses.
Hence, we may call it the best of a good lot problem. Let us suppose that, by
every conceivable criterion of goodness of explanation, h1 is superior to h2. It is,
in short, unqualifiedly the best explanation. But if defendant’s h2 is not a

17 van Fraassen on the best of a bad lot:

To believe is at least to consider more likely to be true, than not. So to believe the best explanation requires more
than an evaluation of the given hypothesis. It requires a step beyond the comparative judgment that the
hypothesis is better than its actual rivals. While the comparative judgment is indeed a ‘weighing (in the light of)
the evidence,’ the extra-step –let us call it the ampliative step- is not. For me to take it that the best of set X be
more likely than not, requires a prior belief that the truth is already more likely to be found in X, than not.17 (Bas
van Fraassen, LAWS AND SYMMETRY 143 (1989).)
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particularly bad explanation, an acquittal would be required simply because IBE

imposes a significant risk of convicting an innocent defendant who has a
reasonably plausible story to tell. What we face here is a presumably common
situation in which the IBE model would demand a conviction (for we are
supposing it uncontroversial that the prosecutor’s is the best explanation of the
events of the case) even though all our sensibilities about the respective costs of
false acquittals and false convictions tell us that an acquittal would be required. In
short, the best explanation is often simply not good enough for the purposes of
the criminal law: it makes a false conviction too easy to come by.

Some IBE theorists have apparently grasped that the IBE model needs some sort
of supplementation in the case of criminal trials, although they have not expressly
formulated the dilemmas facing that model in the terms I have just used. It is
worth looking briefly at how they propose to deal with these conundrums. Paul
Thagard, for instance, has suggested that the normal rules about coherence and
IBE need to be supplemented in the case of a criminal trial by an additional
premise, to wit:
From the perspective of the theory of explanatory coherence,
reasonable doubt might be viewed as an additional constraint …
requiring that hypotheses concerning guilt must be substantially more
plausible than ones concerning innocence.18
The force of this ‘additional constraint’ is to say that offering the best
explanation, as usually understood (and as defined by the schema (1) –(5) above),
is not sufficient for the prosecutor to win; additionally, his theory must be, not
merely better, but much, much better than the story of the defendant. This is
commendable candor on Thagard’s part but it does rather take the wind out of
IBE’s sails. Recall that one of the major motives for looking to IBE models in
the first place was to remedy the perceived deficiencies in the current notion of
proof beyond a reasonable doubt. IBE was going to be a rival alongside various
other efforts (for instance, from the probability theorists) at replacing or at least
reformulating the BARD standard. But if the application of IBE to criminal
trials requires that we somehow use BARD as a side constraint to define a
plausibility ‘gap’ that must obtain between the plausibility of the prosecutor’s
story and that of the defendant’s (in order to secure a conviction), it becomes
wholly unclear that IBE will be any less ambiguous than BARD itself. (Absent
clear definition, Thagard’s “substantially more plausible” rule seems an invitation
to confusion and disparate interpretations of the standard. Does Thagard really
believe that jurors, without further ado, could often or easily reach consensus

18 Paul Thagard, Why wasn’t O.J. Convicted? Emotional Coherence in Legal Inference, 17 COGNITION AND EMOTION 361,

at 366-67 (2003).
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about whether the prosecution’s case was “substantially more plausible” than the
defendant’s?)

Indeed, if the trier of fact has to figure out whether the prosecutor’s theory of
the case is not merely more plausible than the defendant’s but that the difference
in their respective plausibilities is sufficiently great to satisfy the demands of
BARD, then it is wholly unclear why a juror should bother herself with all the
arcana of inference to the best explanation in the first place. Unless IBE has
something specifically to say about what proof beyond a reasonable doubt is,
then it cannot be touted as a mechanism for solving what Allen and Prado call
the macro-level problem of laying bear the structure of the standard of proof. It
is hard to see how IBE becomes more than an idle wheel if its utilization in a
criminal trial still depends on the existence of an IBE-independent sense of proof
beyond a reasonable doubt.

Problems of a different sort afflict a second, widely-cited attempt to use IBE to

capture the logic of a criminal trial, that of Josephson. In a long article devoted to
expounding the merits of IBE, he defines the criminal standard of proof thusly:
This suggests a definition for the judicial standard of "beyond a
reasonable doubt." Guilt has been established beyond a reasonable
doubt when there is no plausible alternative explanation for the data
that does not imply the guilt of the defendant. An explanation is
plausible if it is internally consistent, consistent with the known facts,
not highly implausible, and it must represent a "real possibility" rather
than a mere logical possibility. A real possibility does not suppose the
violation of any known law of nature, nor does it suppose any
behavior that is completely unique and unprecedented, nor any
extremely improbable chain of coincidences.19
The idea, apparently, is that a conviction is justified just in case the prosecution’s
theory of the case is plausible and there is no plausible alternative theory
compatible with defendant’s innocence. This principle —which Ron Allen
formulated in more or less identical terms a decade ago20 — is not a bad stab at

19 Josephson, CARDOZA LAW REVIEW, at 1642. The third sentence here is a puzzler. We read that “an
explanation is plausible if it is … [among other things] not highly implausible…” This is about as informative as
the response of the trial judge in a federal case from the Utah Territory who, when asked by jurors what a
reasonable doubt was, responded that it was ‘not an unreasonable doubt’. (Dunbar v. US, 156 US 185 (1894).
That reply was unresponsive but unexceptional because tautologous. But what if the judge had responded, taking
a cue from Josephson, that a reasonable doubt was not a highly unreasonable one? Josephson seems to allow that
a mildly implausible hypothesis might also be a plausible one and that only wildly implausible beliefs cannot,
under appropriate circumstances, count as plausible ones.
20 Allen wrote: “This in turn means that legal proof is comparative: the question is the relative plausibility of the

parties’ cases; the question is not the cardinal probability, conceived as a relative frequency or a subjective belief
state, of a certain state of affairs. The criminal analogue is that the prosecution must demonstrate a plausible case
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formulating the criminal standard of proof. Unlike Thagard’s earlier principle, it

does not require recourse to an independent, free-standing notion of proof
BARD nor a calibration of the relative degrees of plausibility of rival hypotheses.
Instead, it is meant to replace or explicate precisely what BARD should be taken
to mean. The key question for us, however, is simply: What does this standard of
proof have to do with IBE?

Josephson’s is what we might call an inference-to-the-only-plausible-explanation

model. Here, we are not engaging in those activities close to the hearts of IBE
theorists. For instance, we are not asking ourselves whether the prosecutor’s
theory is the best explanation of the facts of the case. We are trying instead to
figure out whether it is the only reasonable explanation of those facts, which is
altogether a different thing. Whether the prosecutor’s story is better than its
known rivals that likewise explain the facts of the case –which is the principal
question addressed by the IBE model—is not front and center. It cannot even be
found at the periphery of Josephson’s analysis of the standard of proof.

It is crucial to recall that the original object of the IBE model was to give us
instruction about what to do when we have on the table rival, prima facie
plausible explanations of the same facts. Yet in this passage, Josephson is telling
us that a criminal conviction is warranted just in case there is only one plausible
explanation of the facts, the prosecution’s.21 Nor is there even a demand that the
prosecution’s version of events must satisfy the definition of a ‘best’ explanation.
It seems that, if the only hypothesis we can think of explains the events of the
trial in terms of the guilt of the accused --and if there is no plausible hypothesis
compatible with innocence-- then a conviction is called for (never mind whether
the guilt hypothesis explains different kinds of facts, exhibits high coherence with
background beliefs, is simple, and lacks all the other virtues associated with a
‘best’ explanation).

Tellingly, Josephson’s version of proof beyond a reasonable doubt rejects the

best explanation of the events if there is a less good one on the table, so long as
the latter exhibits minimal plausibility and has been propounded by the
defendant. It explicitly requires the rejection of the best explanation, provided

of guilt and that there is no plausible case of innocence.” Ronald J. Allen, Rationality, Algorithms and Juridical Proof:
A Preliminary Inquiry, 1 INT'L J. EVID. & PROOF 254 (1997).
21 Strictly, Josephson’s definition of BARD, if taken literally, does not require even that the prosecutor’s guilt

hypothesis be plausible, let alone that it be a ‘best hypothesis’; it only requires the absence of a plausible hypothesis
compatible with innocence. (“Guilt has been established beyond a reasonable doubt when there is no plausible
alternative explanation for the data that does not imply the guilt of the defendant.”) I trust that Josephson is
inadvertently misspeaking here since I cannot imagine that he intends to impose such weak constraints on the
prosecution.
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there is a less good but plausible rival that portrays defendant as innocent.
Ironically, such rejections of the clearly best explanation are precisely what the
model of IBE was designed to forestall. The whole point of the IBE project has
been to say that we are warranted in accepting as true the best explanation of a set
of facts. I repeat: whatever else it is going on here, this is not inference to the best
explanation.

But, a defender of IBE might reply, “We simply have to understand that the
apparently ‘best’ explanation is not necessarily the best in a criminal trial. What is
required for something to qualify as the ‘best’ explanation in a criminal trial is the
total absence of a plausible innocence hypothesis. That is simply what ‘best
explanation’ means in the context of the criminal law.” Never mind that this
suggestion breaks the key link in the IBE model between being the best
explanation and being probably true (for this version would have us rejecting
hypotheses that IBE would certify as true). Josephson’s strategy here, which is
common enough among advocates of IBE, is to argue that when the ‘best
explanation’ isn’t good enough for certain purposes, we simply redefine what it is
means to be the ‘best explanation’. But if that is the game we are playing, then
there is not one schema for inference to the best explanation, but indefinitely
many of them, each carrying its own characterization of when an explanation is
the ‘best’. On this view, IBE is not one rule of inference but a whole host of
them. It then follows that one and the same explanation may be the best in one
context and fail to be the best in another, even when those contexts are
characterized by precisely the same facts to be explained, the same background
knowledge, and the same alternative hypotheses under consideration. This
radical contextualization of the notion of the ‘best hypothesis’ makes one and the
same hypothesis credible in situationa and not worthy of belief in situationb, even
though the evidence and background beliefs in the two situations are
indistinguishable. But surely this won’t do. Given the same evidence and same
background beliefs, it cannot be reasonable to believe h1 is probably true and not
reasonable to believe h1 is probably true.

Such a contextualization of what counts as the ‘best’ explanation to the vagaries

of the different venues in which decisions are made robs the model of any
conceivable claim to generality. If the best explanation in a civil case is not the
best explanation in a criminal case, and if neither of those would necessarily
count as the best explanation in (say) historical or scientific inquiry, then IBE can
make no claim to be a mechanism for identifying reasonable or probable beliefs.
If ‘best’ is an accordion term whose meaning varies from one context to another,
one and the same proposition may be ‘best’ in one situation and ‘less-then-best’
in another. This would entail, for instance, that it was reasonable to believe in a
 12

civil trial that O. J. Simpson murdered his wife but unreasonable to belief it in a
criminal trial.

But, suggests a critic, isn’t that exactly what happened? No it isn’t, and the
question itself egregiously confuses credibility and proof. What IBE must do, if it
is a general theory for certifying beliefs as rational (and that is what it has always
proclaimed itself to be), is to assert that, given the same evidence and the same
rivals, a credible belief in one situation will be a credible belief in a different
situation. Why IBE will not work as a standard of proof is that it aims to be a
universal standard of credibility and not a context-specific measure of degree of
proof. IBE cannot function as a standard of proof precisely because proof
standards are local and context dependent. They have to do not with general
credibility but with the degree of probative force demanded in a specific
situation. IBE models strictly address the question: “What can I reasonably
believe?” As important as that question may be, it is virtually never the right
question to ask in a legal context. The relevant jurisprudential question is: “What
should I take as having been proved?” We all understand that standards of proof
are vehicles for the distribution of errors, informed by a determination of their
respective costs and benefits. Because those costs and benefits vary from one
context to another, using a model that simply parses propositions into the
rationally credible and the noncredible (and that is precisely what IBE purports
to do), irrespective of the costs of foreseeable errors, is like trying to hammer a
nail with a screwdriver. It is the wrong tool for the task.

I suggested we might call Josephson’s the inference-to-the-only-plausible-

explanation model but that description fits only if a conviction ensues. In the
case of an acquittal, Josephson’s might better be called the reject-the-best-
explanation model since he clearly (and perhaps correctly) believes that a
defendant may be acquitted even when his explanation of events is
unambiguously inferior to the explanation proffered by the prosecution.22

As we have seen, both Thagard and Josephson —faced with the harsh realities of
the criminal standard of proof— find themselves obliged to admit that it is often
proper to reject the best explanation of the facts at trial. This leaves no escape
from the conclusion that a model that aims to characterize when we should
accept an explanation in terms of its specifically explanatory virtues offers us
precious little instruction about the conditions that must be satisfied by the

22 Josephson might respond by arguing that IBE principles have to be used in assessing whether the defendant’s

story is plausible. But note that Josephson’s definition of BARD already specifies the conditions of minimal
plausibility without reference to any determination that defendant’s explanation must be the best.
 13

prosecutor in a criminal proceeding. In sum, the IBE schema fails to model the
key inference to guilt or innocence. It functions only when one introduces side
constraints that contradict the very detachment rule that IBE specifically
sanctions.

It is one thing to assert –as the IBE schema does—that satisfaction of the
explanatory virtues will give us explanations that are more probable than not. It is
quite another to affirm that satisfaction of a turbo-charged version of the
specifically explanatory virtues will yield explanations that are probable beyond a
reasonable doubt. While this latter thesis has sometimes been asserted, no one
has made the case that being an exemplary explanation takes us reliably into the
epistemic terrain of moral certainty. As a trial judge confronted with a putative
expert witness might say, we want to know something about the error rates of
this new-fangled standard of proof. Would its implementation convict more than
one-in-ten innocent defendants? Would it produce far more false acquittals than
false convictions? Reliable answers to such essential questions are wholly absent
from the literature on IBE; indeed, concern about whether IBE can capture our
shared intuitions about acceptable rates of error has barely surfaced among
proponents of IBE. Given the dearth of empirical information concerning the
relative frequency of errors associated with this standard, IBE must for now be
ranked among other forms of dubious armchair expertise, along with (say)
psychics and lie detectors for purposes of its utility for the criminal law.

Will IBE fare any better as an account of the civil standard of proof? It might
seem so, since the trier of fact in a civil trial is asked to determine which party’s
theory of the case is more probable or more convincing. That sounds rather like
“Who has the best (or at least the better) explanation?” But appearances can be
deceptive. Let us remind ourselves that the IBE rule does not automatically
warrant the detachment of the stronger of two rival hypotheses, which is what
we need if we are to capture the civil standard. To the contrary, IBE insists –and
rightly so for nonlegal decision making—that no hypothesis from the initial set
can be detached unless it exhibits traits over and above that of being a better
explanation than its known rivals. IBE specifies a minimum threshold to be
satisfied by any hypothesis legitimately detached as the ‘best explanation’. (That
is the whole point of condition (4) of the IBE schema.) As we have seen, an
IBE-sanctioned explanation must exhibit a high degree of coherence with
background beliefs, it must be internally consistent, it should explain different
kinds of facts, it must be simple, non ad hoc, and so on. When these latter virtues
are absent, IBE fails to sanction any inference. But civil trials are not like that.
The trier of fact cannot say, “although plaintiff’s case is stronger than
defendant’s, I will reach no verdict since neither party has a sufficiently good
 14

story to tell.” Under current rules, if the plaintiff has a better story than the
defendant, he must win the suit, even if his theory of the case fails to satisfy the
strictures required to qualify his theory as the best explanation.23 As things now
stand, IBE is simply too exacting a standard for a civil trial. At a minimum, to
apply the model to the civil law, we would have to jettison condition (4), but that
would scarcely do, since a model of inference to the best explanation that failed
to require that the detached explanation must satisfy the demand of being the
‘best’ is transparently oxymoronic.

The IBE modellers face other hurdles in attempting to grasp the logic of the law.
Without going into details, I will mention but two of them. In both the civil and
the criminal law, there is a (sometimes-shifting) burden of proof to be dealt with.
How, one has to wonder, can a model like IBE --that treats inquiry as party-
neutral-- serve to capture the idea that parties failing to discharge their burden of
proof will lose, regardless of whether they proffer the ‘best explanation’ of the
facts of the case? Then there are the various error-distributional principles that
drive the criminal law: a defendant is entitled to the benefit of the doubt (in
dubio pro reo) in a close case; a trial begins with a presumption of innocence that
must be defeated if a conviction is to be secured; exclusionary rules drastically
limit the range of relevant evidence that can be admitted at trial. None of these
practices seems to find any natural niche in the schema of an inference to the
best explanation.

Conclusion
We have seen situations: (a) where being the ‘best explanation’ simply isn’t good
enough to warrant detachment (the criminal law), (b) where insisting on the ‘best’
is too demanding (the civil law) and, ubiquitously, c) where the ‘best’ isn’t the
best possible but merely the best available. No one has yet shown how to derive
a BARD-like standard of proof from an inference schema such as that of best
explanation. This is because an hypothesis can be the best known explanation of
the facts –even after a conscientious search for alternatives-- without being
certifiable as true beyond a reasonable doubt. That is, it can be ‘probably true’
(which is the most that the IBE schema ever warrants one inferring) without it
being sufficiently credible to remove all reasonable doubt. Worse, the structure
of a criminal trial requires, under a variety of different circumstances, that
conclusions are drawn that run counter to the inference schema that is at the
core of IBE. If, for instance, the defendant can concoct even a mildly plausible

23 One could imagine a system for adjudicating civil trials in which the trier of fact would automatically find for

the defendant unless the plaintiff’s theory of the case was indeed the ‘best explanation’ in the IBE sense of that
term. But that would be a very different regimen from the practice currently prevailing in Anglo-Saxon civil law.
 15

exculpatory story about the events associated with the crime, he must be
acquitted, even if the prosecution’s theory of the case indisputably offers the best
explanation of the evidence presented at trial. IBE simply makes weaker
demands on what the state must prove than BARD does. This problem can be
circumvented only if we graft onto the IBE model various side constraints (for
instance, “a best explanation in a criminal trial occurs only when the defendant
has no plausible explanation”) that subvert its core intuition that the genuinely
best explanation is the true explanation.24

For quite different reasons, we have grounds for suspecting that IBE will fare no
better as a substitute for proof by the preponderance of the evidence than it does
for BARD, since a plaintiff can secure a favorable verdict in a civil case, even
when his hypothesis fails to be the ‘best’ explanation.

Nothing I have said here, I hasten to add, should be taken to deny that both
parties in a trial are trying to explain the facts of the case. Nothing argued here
denies that triers-of-fact generally assess holistic stories rather than the individual
elements of the crime. Nothing alleged here should be taken to imply that
subjective probabilities are a more promising way of understanding proof in the
law. All that is being asserted is that IBE is a model –good, bad or indifferent--
about what it is generally rational to believe, not a model of legal proof. Worse, it
is a model with a wholly unknown track record in terms of the frequency with
which its application produces and avoids error.

National Autonomous University of México

24In a different sense, the requirements of IBE are too strong to capture some of the circumstances in which a
conviction would be in order. For instance, if the defendant has no plausible story whatsoever, and the
prosecution’s story is quite plausible and well-supported by evidence at trial, then a conviction is arguably called
for, even if the hypothesis offered by the prosecution fails to exhibit some of those traits of best explanationhood
that familiar IBE models treat as prerequisites for a genuinely best explanation (for instance, high coherence with
background beliefs, ability to explain different kinds of facts, simplicity, and the absence of ad hoc elements).