Tuesday, September 21, 2010

Atheism and the burden of proof

There's often a big controversy over whether atheists or theists have the burden of proof. I think the big mistake that both atheists and theists make lies in the article: it is a category error to think of THE burden of proof, as if there were only one burden that must be borne by one side or the other. In any argument, burdens of proof shift back and forth, which is why not only prosecutors but also defense attorneys introduce evidence into a trial. Theists can easily place various burdens of proof on atheists; happily we can just as easily meet those burdens.

One of the reasons atheists often state their position as "lack of a belief in any god" is not to escape THE burden of proof, but rather to correctly place the initial burden of proof on the theist.

Most of the basic theistic apologetic arguments — especially the first cause and design families of argument — do in fact place a burden of proof back on the atheist. The world — and especially the terrestrial biosphere — really is complex, that complexity really does calls for an explanation, and we know that prosaic intelligent activity (i.e. human endeavor) really does produce astonishing complexity. The design argument ultimately fails, but it successfully places a burden of proof on an atheist.

It is important to acknowledge that the design argument really does place a burden of proof on an atheist: it's a burden that an atheist can cheerfully bear, because it can and has been met. We must make a positive argument to respond to the argument from design, and we can make a positive argument.

There are three families of positive argument: Hume makes the first two with reasonably good rigor: First, the world (and especially the terrestrial biosphere) exhibits features radically and deeply inconsistent with intelligent design; we must posit an "intelligent" designer of either astonishing incompetence or mysterious abilities (a mystery is of course the very antithesis of an explanation). Second, the complexity of an intelligent designer calls out for just as much explanation as the complexity of the world, an argument that Richard Dawkins summarizes in The God Delusion. The third family is of course the scientific theory of evolution, which explains the complexity of the terrestrial biosphere; indeed it explains not only the appearance of "design" but also the appearance of "incompetent" design.

They may be very weak serves, but it's important to emphasize that the standard apologetic arguments really do serve a burden of proof to the atheist's court. The standard atheist philosophical training consists of learning to anticipate and return these serves. We do not escape our own burdens of proof, we meet them. It is the theist who is unable to meet his own burdens.


  1. "Burden of proof" is a procedural device in law that is necessitated by the fact that juries cannot return a verdict of "Don't know." It is sort of like the "tie goes to the runner" rule we used as kids playing baseball. The only reason it is there is because only two mutually exclusive outcomes are possible and we need a way to resolve the cases that are evenly balanced. In an academic discussion, however, it is perfectly legitimate to say the evidence is insufficient to determine the question or that reasonable arguments can be advanced on both sides.

    "Burden of proof" assertions between atheists and theists often boil down to "I can offer no positive proof for my position, but I am going to declare myself the winner anyway since you cannot offer any for yours either."

  2. "Burden of proof" is a procedural device in law that is necessitated by the fact that juries cannot return a verdict of "Don't know."

    There's much more to the concept of burden of proof; even the requirements of the prosecution go beyond the simplistic concept of "innocent until proven guilty."

    Note especially the concept of an affirmative defense, where the defense acquires a burden of proof.

  3. Also note that the verdict of "not proven" is available in Scottish Law, but this verdict does not not alter the more complex issues of burdens of proof, especially on the prosecution.

  4. In the United States, "not guilty" is really just "not proven" rather than "innocent." That is why O.J. could be sued by his wife's family even though he had been acquitted in the criminal case.

    When you say that the burden of proof is on the prosecution, what that really means is that a tie goes to the defendant whether that tie is the result of equal evidence or no evidence. That doesn't take into account the standard of proof, i.e., beyond a reasonable doubt, but even throwing that in the mix, burden of proof just determines what the finder of fact should decide if he is unsure. Burden of proof is irrelevant when the evidence in convincing one way or the other.

    I still don't see why the concept of burden of proof should apply when "agnostic" is an acceptable option.

  5. Vinny, are you equally agnostic about other deities?

  6. Boz: Normally I require commenters to "address the Chair" (i.e. me). But I'll let your question stand; I'm curious to hear Vinny's answer.

  7. Due to a recent encounter with a Mr. Jim Beam and several ice cubes, I shall have to defer my response until the morrow.

  8. I have noticed “Burden of Proof” can be utilized differently by various fields of study. I hesitated to comment about what it means in the legal profession, as we do not hold any copyright to the definition. A philosopher or scientist or lay person could mean something else, and I am in no position to dictate what it MUST be.

    And lawyers speak on the burden in terms people understand causing further possible confusion.

    In the legal field, the party making the claim has the Burden of Proof. Always. In a criminal matter, it is the prosecutor who has the burden to prove 1) a crime was committed and 2) by the defendant. (As you correctly point out, the Burden is not the same as the Standard of proof—i.e. “beyond a reasonable doubt” in a criminal matter.) In a civil monetary matter, it is the Plaintiff who has the burden to prove 1) the defendant is liable and 2) the plaintiff was damaged. [I hope the reader understands I am making this extremely simplistic.]

    A Burden rarely shifts, but only in specific situations; generally, it is safe to say it never shifts.

    For example, the prosecutor always has the burden, however—if the Defendant claims “alibi” then the Defendant has the burden of proving that defense—in that one instance, the burden on that sole issue has shifted. The Prosecutor is not charged with proving the Defendant does not have an alibi—i.e. does not have to prove a negative.

    Note, however, the Prosecutor still has the burden to prove the crime was committed and the Defendant committed the crime. The defense (and the same as “Affirmative Defenses”) never, ever have to be proven until the prosecutor [or plaintiff] has first proven their case.*

    *Of course there are always exceptions. For example, if there was a Statute of Limitations problem, because it is such a complete defense, and it would be infuriating to go through an entire trial only to throw out the case after all that work; Defendants bring that by motion prior to any proof. Most clients would not be happy to receive a $60,000 bill for a trial that could be avoided by a $1,000 motion.

    Because the prosecutor or plaintiff has the proof, the defendant would not have to present any evidence. Not make an opening statement, closing argument or even question a witness. And the prosecutor could still lose by not sustaining their Burden of proof. I often say, in opening statements in criminal matters to press this point, “The defendant and I could sit here and play cards, or read books throughout this trial. Never ask a question; never make a sound. And you can still find that the prosecutor has failed to present sufficient evidence to prove beyond a reasonable doubt that my client committed this crime. They must prove their case!”

    We do, though, as defense counsel, have the right to present relevant evidence—evidence that makes a fact that is of consequence to the action more probable or less probable than it would be without the evidence.

    So while the prosecutor is presenting her evidence, supporting facts toward the proposition of my client’s guilt, I present evidence to make those facts less probable. I do not have the technical legal burden to do so to prevail, but I do have a moral, ethical obligation to my client (not to mention a standard of care to avoid malpractice) to present such evidence.

    It can appear, as both sides tussle, the Burden is shifting back and forth, but it really isn’t. As a pragmatic matter, if you have a particularly damning piece of evidence, you are not going to withhold it simply because the other side has the burden.

    As you pointed out, if you can respond to an argument regarding intelligent design—do so! In a court case, you may not have to do so under the Burden, yet realistically you would anyway.

    Frankly, your point still sustains, and I didn’t respond initially because it nitpicks the minor, narrow legal use of the Burden, while what I took as your over-all position remains robust.

  9. Dagood, you make an important point and draw an important distinction, which I address in this post.

  10. Your nitpicks are more illuminating than most people's full-throated denial.


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