Epistemic and Moral Justification

This chapter continues the argument of why ideal levels of scientific accuracy should not be applied in torts and administrative law by focusing on two issues. Firstly, the standards of evidence ought to be appropriate to the institutional context. Secondly, justice requires that priority be given to avoiding false negatives and underregulation. One requires justification of the epistemic presupposition, the other, justification of the underlying moral view. The first issue states that the burden of proof that must be satisfied in order to make a particular institutional decision will depend at least in large part upon the kinds of mistakes one seeks to avoid. For example, criminal law stringently protects against convicting innocent people. To avoid this, the equivalent of false positives, the state must overcome a high burden of proof to establish its case. By contrast, in screening patients for life-threatening diseases we might seek very much to avoid missing someone who has the disease, to avoid false negatives. The second issue comes from the premise that in the common law of torts, distributive issues are not decided as a matter of consistent theory but are developed by means of case-by-case adjudication between two parties. Although judges try to produce consistent decisions over time, but they do not always succeed. If the law is not necessarily consistent, it is especially important to have a better view of more fundamental and consistent normative principles to guide epistemology.