The Burden of Proof: The Risk of Losing When a Fact Remains Unproven

Abstract

This volume asks, when the evidence falls short of a conclusion, whose claim is barred and why. The degree of proof and the burden of proof are different questions. A state in which the court has been unable to establish a fact cannot be converted directly into the establishment of the contrary fact. The path to relief opens where the question of whether the requisite facts have been proven is correctly linked to the person who bears the risk of their remaining unclear, and closes where a key requisite fact ultimately remains unproven and the claimant in question bears the risk of its remaining unclear. The six sections address, in turn, the level of remaining doubt, who bears the uncertainty, uncertainty of law and uncertainty of fact, facts that require no proof, the control of free evaluation of evidence, and failure of proof and the contrary fact. The strongest counterargument is as follows. Where the party holding the materials remains silent, the ordinary burden of proof entrenches substantive inequality. Networks linking assertions and evidence, and probability scoring, are not addressed in this volume.