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Legal Philosophy and the Provable in English Courts
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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.
Historically, the Anglo-American rationalist tradition of evidence scholarship is traceable to rhetoric – the theory and practice of persuasion – which, according to prosographical sources2, was initiated in the fifth century BC. Views differed as to who the founder of rhetoric was. The view that Empedocles was the founder has been ascribed to Aristotle while Cicero in De oratore3 regarded Corax and Tisias as the inventors and founders of the art. Who the real founder was need not detain us here. What is important is the legal importance of rhetoric: the fact that both civil and criminal trials in English courts are dominated by it.
As for classification, technical handbooks on rhetoric are divided into three main genres: (i) forensic (i.e. speeches of defence or accusation before law courts); (ii) deliberative (political advice to legislative or executive body); and (iii) demonstrative or epideictic (speeches in praise or blame)4. Of these three genres, forensic rhetoric is the most important to the English adversarial system of justice even though the deliberative and epideictic genres are often pressed into service.
Solomon E. Salako - Personal Name
1st Edtion
978-87-7681-685-8
NONE
Legal Philosophy and the Provable in English Courts
Management
English
Bookboon.com
2010
USA
1-113
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