In our excursions across the world of debate on theism we often here the battle cry, “But you have the burden of proof!” Apparently this odious burden weighs heavily on the combatants, and merely by designating a certain person as having this 800-pound gorilla causes the other to trip merrily through the tulips.
As if, after all the weapons of words have been slung back and forth, we will end up standing over the grave of the loser, dabbing at our tears, attempting to offer solace, “If only they didn’t have the burden of proof. They would still be with us today. Tragic and sad. Once diagnosed with ‘the burden of proof’ they were doomed. Doomed, I say!”
It is downright funny as to why this is so important, but to understand that, first we must discuss something that I find much more relevant and yet it is talked about far less—almost not at all. That is: the Standard of Proof.
Since I think in legalese, I will be using these terms as they are used in the legal field. It crosses over nicely to Internet debates and personal discussions, so there is little harm in doing so. The person with the Burden of Proof is the one that has to prove the claim, whatever that is. The Standard of Proof is the level by which they have to prove it.
In the legal system, both are set out very clearly. In a criminal matter, the prosecutor has the burden of proof. In a civil matter, the plaintiff (the person doing the suing) has the burden of proof. In a motion, the person who has filed the motion has the burden. In a probation violation hearing, the probation officer has the burden.
We never go into court wondering who it is, exactly, that has this burden of proof. I know, my opponent knows, the audience knows, the court reporter knows--everybody knows who it is that has the burden.
Depending on the situation, we have varying degrees of Standard of Proof. The least, and easiest Standard of Proof, is an iota of evidence. It is a Standard that if you can present any piece of admissible evidence, any testimony, any document, you will prevail.
Moving up in difficulty, the next Standard is “possible.” This is a Standard that presents a little more than just a bare minimum. But not much. The most common situation in which this is used is a Preliminary Examination in a criminal matter. This is a pre-trial hearing in which a Judge makes a determination whether the defendant should be tried on the charges by which they are accused. All the prosecutor has to show is that it is “possible” a crime was committed and it is “possible” that the Defendant committed it. Not surprisingly, due to the low standard, prosecutors rarely fail to meet this burden.
The first Standard of Proof with difficulty is preponderance of the evidence. More likely than not. In the weighing of the evidence, if one side demonstrated a point by 51% they would prevail. If either claim is equally possible—i.e. a 50/50 proposition, then the person with the Burden of Proof would fail. They did not preponderate. Their claim was not “more likely” it was “equally likely.”
This is the Standard of proof in a civil matter. If the plaintiff shows it is more likely, even if only the barest minimum more likely, that the defendant committed the act claimed, the plaintiff will prevail.
Moving up the scale, our next stop would be at “Clear and Convincing Evidence.” This is more than merely weighing, but rather evidence that substantially outweighs the opposing position. Finally, the highest standard is the famous “Beyond a Reasonable doubt.”
In our discussions, realistically the highest standard of proof we should be using is preponderance of the evidence. Often we use the term “more plausible” among the various claims. This is a sufficient replacement for the same standard. (And face it, if you CAN prove something by clear and convincing or beyond a reasonable doubt—good for you. At the least you would have satisfied the “more plausible” standard.)
The best example of how standard of proof can impact a claim is to compare the criminal and civil trial of O.J. Simpson. In both, the prosecutor/plaintiff had the burden to demonstrate that O.J. Simpson committed murder. However in the criminal matter, the jury decided (for its own particular reasons) that the prosecutor did not sustain the burden of proof—the high “beyond a reasonable doubt.” In the civil matter, however, another jury decided that the plaintiff DID sustain a lower burden of proof—preponderance of evidence.
Under the law, these results are not contradictory. The same evidence may be enough to make a claim “more likely than not” but that evidence does not reach the level of “beyond a reasonable doubt.”
All right—got the difference between the Standards of Proof? Probably at this point, the reader is puzzling, “While all this may be mildly interesting—what the devil does it have to do with the discussion on theism?”
Because I have been involved and watched hours and hours with pages and pages of debates happen in which each person is using a different standard of proof and neither realizes it. As long as they are using different standards they will never, never, NEVER reach any concession.
A good example of this is the tired debate on inerrancy. What is it that we often see? A person proposes a contradiction. Say the three (3) different accounts of Judas’ death. (I like to include Papias. If he is considered qualified enough to name Mark and Matthew, he ought to be in this dogfight.)
And what does the inerrantist do? Proposes a solution that, while technically possible, stretches one’s credibility. Then the person proposing the contradiction points out more details within the account that appear contradictory. The inerrantist proposes a solution that is logically possible.
Back and forth, each making essentially the same point over and over. Never moving. Why? Because they are using two completely different standards of proof!
The person proposing a contradiction is using the “more plausible” standard. Whereas the inerrantist is using the “any logical possibility” standard.
So the skeptic keeps talking in terms of how this claim is not plausible, or how this does not plausibly fall into line with the other account. And, frankly, is prevailing under their standard of proof. The inerrantist talks in what could possibly have happened, or how it is possible that Judas suffered three mortal injuries, none of which was fatal. And, frankly, the inerrantist is prevailing under THEIR standard of proof.
Each walks away, thinking, “Gee, I won, because the other person failed under my standard of proof,” neither realizing what a waste of time it was.
Imagine if, in the civil trial of O.J. Simpson, his lawyers mistakenly thought that the burden of proof was still “beyond a reasonable doubt.” The plaintiffs would have presented their case under the “preponderance of the evidence” standard, and would have felt they were winning. The Defendant would have been defending on the “beyond a reasonable doubt” standard and (since the Plaintiffs were only presenting “more likely” evidence) would equally think they were winning!
Another common example that we can observe this dance is on the Problem of Evil. The non-theist approaches it from the aspect that it is not very plausible to have an all-powerful God that desires to reduce suffering, in light of the world we live in. The Christian approaches it from the position that as long as it is logically possible, then that is sufficient:
Skeptic: Show how it is plausible that God would allow this suffering.
Christian: Show how it is logically impossible for God to allow suffering.
Skeptic: You did not prove it by my standard of proof.
Christian: You did not prove it by my standard of proof.
And the debate goes ‘round and ‘round…
If there is any consolation, with these two different standards, both can confidently walk away satisfied the other failed to sustain the required standard. Both will win. (‘Course if you are a pessimist you might also note they will both lose, too.)
My personal suggestion (which you are free to ignore) is prior to engaging in these debates; make certain both parties agree on the standard of proof. While it will take some effort, tussling back and forth, that time might be better spent. Of course, you can dive right in and start debating. But I am willing to bet real money the two of you will be using different standards and you are only doing it for your own edification.
Back to the Burden of Proof…
When I first began to actively engage in Internet debates on theism, I would see this claim “YOU have the burden of proof.” To be perfectly honest, this insistence on determining who has the burden seemed…well…silly to me. In my life, sometimes I do, sometimes I don’t. Often I prefer to have the burden for certain reasons that have nothing to do with what happens on-line.
I get that the person making the claim has the burden. I don’t mind the burden, even if I think the other person is really the one making a claim. I figure my position is strong enough; I’ll take the burden and run with it. If you have facts, reason and evidence on your side, the person that has this technical label of “burden” is meaningless. Most times one’s claim rises and falls on its own. Not on “the burden.”
Over and over I saw this back and forth from both sides on the burden of proof. Eventually it dawned on me—the reason that it is such a hotly debated topic is NOT because of the burden of proof—it is because of the standard of proof.
What I have often seen (and I apologize for the one-sidedness here, but it does seem to be prevalent on the theistic side of the fence) is that the Christian is demanding the claimant use the standard of “it is logically impossible.” An incredibly high standard! Higher than anything I have talked about yet.
What I see is that the Christian believes as long as they can propose a logical possibility as a defense, then the person making the claim, having the burden of proof, will fail. To show what that looks like:
Skeptic: This is a contradiction.
Christian: You are making a positive claim of “contradiction.”
Christian: Because you are making the claim, you have the burden of proof.
Christian: As long as I can provide any logical possibility, you will have failed your burden.
At this point the conversation degrades since neither realizes they are using a different standard of proof.
The reason this is humorous, is that the theist is also making a claim. They are making a claim that it is NOT a contradiction. If we used the same standard of proof on this claim, it, too, would fail. All we would have to prove is that it is logically possible to be a contradiction. If the poor Christian has the burden of proof, for the same reasons they claim the victory under the previous conversation, they would be handed a devastating defeat.
No wonder the “burden of proof” becomes such a contentious battle! If all one has to do to defeat a claim is provide “any logical possibility” I can hardly think of any claims within theism that would prevail. Even and especially the claim there is a God! All I would have to do is show it is logically (not necessarily physically) possible there is no God, and I win!
Under this ridiculous notion, the person with the burden will never win. Ever. If this is what we have been reduced to, I propose a much simpler solution—flip a coin.
Skeptic: Heads or Tails?
Skeptic: Tails, it is.
Christian: Fine. The topic is inerrancy. You have the burden. You lose.
Skeptic: Heads or Tails?
Skeptic: Heads. Topic: Evolution. Burden: You. Winner: Me.
Can we see how the standard, although rarely discussed, has been controlling this clash over burden?
Is this the only way Christianity can survive? Does it have to lower its own standard to the most minimal possible and raise mine to the stratosphere in order to prevail? Does it have to contest over burden of proof out of fear that if that dreaded label should land upon them, they will fail under their own standard? Is that how a person who claims to have absolute, divine Truth with a capital “T” acts?
Can’t we all do better?
Online Reading List
- An Outline of Intellectual Rubbish by Bertrand Russell (1943)
- Bible Teaching and Religious Practice by Mark Twain
- God is Imaginary
- Is there an Artificial God? by Douglas Adams (1998)
- Skeptics Annotated Bible
- The Age of Reason by Thomas Paine (1795)
- Which Way? by Robert Ingersoll (1884).
- Why I Am Not A Christian by Bertrand Russell (1927)