On the Absence of Evidence

Abstract

In this paper, I intend to show that the absence of evidence about a claim is not inferentially inert in legal argumentation. Arguing from ignorance is usually taken to be a fallacy, but it can yield two sorts of justified conclusions in a trial: epistemic ones concerning what is plausibly true, and normative ones concerning what should be taken as true. In the former, the absence of evidence generates an argument from ignorance justified by non-deductive standards. In the latter, the absence of evidence triggers a normative presumption. I also show that in both we should not conflate the absence of evidence with the negative evidence provided by some test or research. Arguments from ignorance depend on the absence of certain evidentiary items, not on the evidence of an absence, even though also the lack of evidence is sometimes probative.