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The Probable and The Provable$
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L. Jonathan Cohen

Print publication date: 1977

Print ISBN-13: 9780198244127

Published to Oxford Scholarship Online: October 2011

DOI: 10.1093/acprof:oso/9780198244127.001.0001

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The Difficulty about Conjunction

The Difficulty about Conjunction

(p.58) 5 The Difficulty about Conjunction
The Probable and The Provable

L. Jonathan Cohen

Oxford University Press

In most civil cases, the plaintiff's contention consists of several component elements. So the multiplication law for the mathematical probability of a conjunction entails that, if the contention as a whole is to be established on the balance of mathematical probability, there must either be very few separate components in the case or most of them must be established at a very high level of probability. Since this constraint on the complexity of civil cases is unknown to the law, the mathematicist analysis is in grave difficulties here. To point out that such component elements in a complex case are rarely independent of one another is no help. Therefore, a mathematicist might claim that the balance of probability is not to be understood as the balance between the probability of the plaintiff's contention and that of its negation, but as the balance between the probability of the plaintiff's contention and that of some contrary contention by the defendant. However, this would misplace the burden of proof. To regard the balance of probability as the difference between prior and posterior probabilities is open to other objections. To claim that the plaintiff's contention as a whole is not to have its probability evaluated at all is like closing one's eyes to facts one does not like.

Keywords:   mathematical probability, conjunction, plaintiff, mathematicist analysis, proof, multiplication law

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