Helen Edwards's List: IS research

Analytical and empirical studies of the process of legal proof have sought to explain the process through various aspects of probability theories. These probability-based explanations have neglected the extent to which explanatory considerations themselves explain juridical proof. Similar to many scientific inferences, juridical inferences turn on how well the evidence would explain certain conclusions. This inferential process, well known in the philosophy of science, is referred to as abduction or “inference to the best explanation.” In this essay, we provide a detailed account of the process in general; an explanation-based account of juridical proof in particular; a comparison with probability approaches; and the theoretical and practical consequences of the debate.

Abduction 
   
  

Abduction (“retroduction”, for Aristotle (cf. Peirce, 1995)) has multiple definitions. In short, it is a creative process (Bourgine, 1989) which consists of finding a plausible hypothesis to fit a given “strange” phenomenon. Indeed, to quote von Foerster (1974), there is no information, or anomalies in our environment. Hence, if a given phenomenon looks strange, this only means that the theoretical framework used to interpret this phenomenon must be revisited!The revisiting cognitive process is labeled abduction, and its aim is to “normalize” anomalies.

  

The abduction pattern refers to the fairly common experience of observing an unexpected, anomalous and strategic datum, which becomes the occasion for developing a new theory or for extending an existing one.

  

The datum is, first of all, unexpected. It is for instance the case when a research directed towards the test of one hypothesis yields a fortuitous by-product, an unexpected observation which bears upon theories not in question when the research began.

  

Second, the observation is anomalous, surprising, seemingly inconsistent either with the prevailing theory or with other established facts. In either case, the inconsistency provokes curiosity; it stimulates the investigator to make sense of the datum, to fit it into a broader frame of knowledge.

  

Third, in noting that the unexpected fact must be strategic, i.e. that it must permit implications bearing on generalized theory, we are of course referring rather to what the observer brings to the datum, than to the datum itself. Here it obviously requires a theoretically sensitized observer to detect the universal in the particular.

  

According to Piaget and Garcia (1983) there is a functional continuity between every day cognitive elaboration and scientific ones, given that we rely on our expertise to deal with the circumstances under hand, both in everyday life and in scientific research. Cognitive everyday interpretation somehow recalls reasoning, featuring highly scientific domains. Indeed, both are dealing with the production and testing (falsifying) of hypothesis and theories, both resort to abduction, the process aiming to suggest a hypothesis able to explain a given unexpected phenomenon. According to Peirce (1995), such hypotheses or theories are “new suggestions, even if all their elements were already in mind, since we never dream to put these elements together”. In such a framework, interpreting everyday unexpected sentences, or thinking of new laws to handle unexpected behaviors, is something like suggesting scientific theories. It leads – as in theories – to the emergence of something new, i.e. some relevant hypotheses on what is at hand within given circumstances.

  

The abductive framework emphasizing pragmatic hypotheses (that is, hypotheses capable of verification or justification) fitting circumstances is a main creative cognitive process, as will be illustrated hereafter by Language Interpretation and Judicial examples.