In this paper, we continue our research on a hybrid narrative-argumentative approach to evidential reasoning in the law by showing the interaction between factual reasoning (providing a proof for ‘what happened’ in a case) and legal reasoning (making a decision based on the proof). First we extend the hybrid theory by making the connection with reasoning towards legal consequences. We then emphasise the role of legal stories (as opposed to the factual stories of the hybrid theory). Legal stories provide a coherent, holistic legal perspective on a case. They steer what needs to be proven but are also selected on the basis of what can be proven. We show how these legal stories can be used to model a shift of the legal perspective on a case, and we discuss how gaps in a legal story can be filled using a factual story (i.e. the process of reasoning with circumstantial evidence). Our model is illustrated by a discussion of the Dutch Wamel murder case.
This paper is another step in the important work that Bex and Verheij have been doing in exploring the relationship between - on the one hand - conventional probabilistic accounts of factual inference and - on the other hand - what they call story-based accounts. (In this paper they apparently emphasize the relationship between story-based accounts of proof and argumentation-based accounts, and they say they extend their "hybrid" theory to argument about law, or legal hypotheses.)
I think Bex and Verheij are right in assuming that probabilistic and story-based accounts of inference and proof are complementary rather than rival accounts.
I will be interested in part to find out whether Bex and Verheij distinguish carefully enough between (1) chronologies, (2) scenarios ("causal hypotheses"), and (3) narratives (which involve in part the use of devices that have the power to persuade by moving emotion, or sentiment, as well the power to move reason, or logic).
I will also want to know whether Bex and Verheij defend the proposition that story-based approaches to inferences about facts and inferences about legal rules are normatively defensible only if and only to the extent that such approaches advance the search for the "truth."
Student of the law of evidence, evidence, inference, and investigation. Sometimes writes books. Sometimes writes articles. Sometimes tinkers with computer programs to support the marshaling of evidence for legal activities such as trials and pretrial discovery and investigation. And sometimes takes photographs.