Justice in epistemic gaps: The ‘proof paradox’ revisited

Abstract

This paper defends the heretical view that sometimes we ought to assign legal liability based on statistical evidence alone. Recent literature focuses on potential unfairness to the defending party if we rely on bare statistics. Here, I show that capitulating in response to ‘epistemic gaps’—cases where there is a group of potential harmers but an absence of individuating evidence—can amount to a serious injustice against the party who has been harmed. Drawing on prominent civil law litigation involving pharmaceutical and industrial negligence, the overall aim is to illustrate moral pitfalls stemming from the popular idea that it is never appropriate to rely on bare statistics when settling a legal dispute.