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The Cohenian paradox is one of the main themes of judicial probability theory and one of the core topics discussed by the new evidence scholarship. To resolve this paradox, evidence scholars nowadays have proposed various solutions, including legal probabilism, judicial Bayesian decision theory and relative plausibility theory. These three solutions can be classified into two approaches, i.e. the probabilism and the explanationism. Among them, the former includes legal probabilism and judicial Bayesian decision theory, and the latter includes the relative plausibility theory. However, the two approaches have recently begun to converge and become more understandable to each other. For example, Welch (2020, Int. J. Evid. Proof, 24, 351–373) has recently defended and improved the relative plausibility theory by substantially improving it with the help of Bayesian decision theory. In this paper, by contrast, we attempt to defend the probabilistic approach—legal probabilism and Bayesian decision theory on the basis of relative plausibility theory.

This research examines the impact of Chinese cultural values on the application of law on contractual damages. Following an experimental design, 43 in-depth interviews were conducted with Chinese judges in 13 cities and provinces across China. The data reveal two patterns. First, the judges took the cultural values into account when determining the amount of damages. Second, the consideration of cultural value factors reduced the judges’ consideration of legal factors. The local cultural values did not change the Chinese judges’ understanding of law. Instead, the judges compromised the legal requirements and cultural desires by using the discretion offered to them or by recommending mediation. The consideration of cultural values is not only the result of judges’ personal preferences, but also of judges seeking social approval. The motivation of Chinese judges to obtain social approval may be enhanced by the assessment criteria and the institutional constraints of Chinese courts.