On probatory ostension and inference

Evidential legal reasoning : crossing civil law and common law traditions, 2022

This contribution discusses two theses on juridical evidence: the ostension thesis and the inference thesis. According to the first, the process of juridical proof typically requires some ostensive act. In this sense the evidence consists in some element susceptible of being shown, or exhibited, or indicated to someone in a given context. According to the second thesis, the process of juridical proof requires necessarily some inference. In this process juridical evidence becomes the content of one or more inferences performed by the parties or by the fact-finders (judges or jurors). It can be the content of a premise which, together with other premises, leads to a conclusion about the disputed facts; or the content of a conclusion the premises lead to.
The two theses concern the process of juridical proof, but also the evidence involved in the process, for some characters of the process affect its content. Evidence is ostensively shown and inferentially processed.