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Evidence, proof and justice - Legal philosophy and the provable in English courts

Evidence, proof and justice - Legal philosophy and the provable in English courts

A lot has happened in the last decade on rationalising the congeries of rules of evidence applied in English courts. Scientific evidence is gradually replacing evidence based on the principle of orality or spontaneity. And yet, judges are not scientifically trained. There is a convergence of the English adversarial system, especially in criminal proceedings, with the Continental inquisitorial system; and, what is more, the proliferation of statutes on the law of evidence and the wide discretionary powers vested in judges to admit all types of evidence raise serious issues of justice and ‘open impartiality’ as distinct from ‘close impartiality’.

It is the object of this book to use legal philosophy to analyse the transformation of the rules of evidence in English courts with a view to teasing out the benefits and portents of the transformation and proffering suggestions for reform.

I seize this opportunity to thank Ms Karin Hamilton Jakobsen and the editorial staff of Ventus Publishing, Denmark, for their cooperation. Many thanks to Ms Sue Wiseman for using her immense word-processing skills to type the manuscript within a short space of time.

The intellectual history of the law of evidence, according to Professor W. Twining, “reaches back to classical rhetoric and has fascinating ramifications for the philosophy of knowledge, debates about proof of the existence of God, the emergence of theories of probability and the development of modern psychology, forensic science and several other fields”.1 This reflection on the entelechy or constituent atoms of the law of evidence – i.e. rhetoric, legal philosophy, epistemology, religion, mathematics, psychology and legal ideology – must be appraised in any critical study of the adversarial system of justice in English courts. Such an appraisal must not only evaluate how the “oughts” of today have been conditioned in the past but also highlight the gap between the law in books and the living law, the role of legal ideology in the transformation of the English law of evidence and discuss the theories of adjudication.

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