ABSTRACT
Before this essay was presented at the ECTIL conference in Vienna in 2008, it was commonly assumed by those familiar with trial procedures in both common law and civil law jurisdictions that there was a radical difference between the standards of persuasion employed in each type of jurisdiction. While common law jurisdictions clearly distinguished between the ‘beyond a reasonable doubt’ belief standard in criminal law and the ‘preponderance of the evidence’ and ‘balance of probability’ standards in civil law, both of which were commonly interpreted as merely requiring a 50+% statistical probability, it was commonly assumed that civil law jurisdictions employed the same ‘virtual certainty’ belief standard in criminal law and civil law. This essay questioned the actual existence of such a radical difference, arguing that in practice the standard in civil cases was also lower than the standard in criminal cases in civil law jurisdictions, although usually not as low as in common law jurisdictions, and that the standard of persuasion in civil cases in common law jurisdictions as well as civil law jurisdictions requires the formation of a minimal justified belief, based on evidence specific to the particular case that sufficiently instantiates the proffered causal explanation of the event or state of affairs at issue, rather than a mere statistical probability.
Wright, Richard W, Proving Facts: Belief vs Probability (April 1, 2008), European Tort Law 2008 (H Koziol and BC Steininger, eds, Springer 2009), pp 79-105.
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