Rethinking Evidence: Exploratory Essays

by William Twining

• ISBN13: 9780521675376
• ISBN10: 0521675375
• Edition: 2nd
• Format: Paperback
• Copyright: 2006-07-10
• Publisher: Cambridge University Press

Summary

The Law of Evidence has traditionally been perceived as a dry, highly technical, and mysterious subject. This book argues that problems of evidence in law are closely related to the handling of evidence in other kinds of practical decision-making and other academic disciplines, that it is closely related to common sense and that it is an interesting, lively and accessible subject. These essays develop a readable, coherent historical and theoretical perspective about problems of proof, evidence, and inferential reasoning in law. Although each essay is self-standing, they are woven together to present a sustained argument for a broad inter-disciplinary approach to evidence in litigation, in which the rules of evidence play a subordinate, though significant, role. This revised and enlarged edition includes a revised introduction, the best-known essays in the first edition, and new chapters on narrative and argumentation, teaching evidence, and evidence as a multi-disciplinary subject.

Table of Contents

Preface	xiii
Acknowledgements	xvi
List of abbreviations	xvii
Table of cases	xix
1 Introduction: the story of a project	1	(13)
2 Taking facts seriously	14	(21)
3 The Rationalist Tradition of evidence scholarship	35	(64)
Anglo—American evidence scholarship: an historical review	36	(39)
The Rationalist Tradition	75	(5)
The Rationalist Tradition: a postscript	80	(19)
4 Some scepticism about some scepticisms	99	(66)
Introduction	99	(4)
Exposition	103	(31)
Some strategies of scepticism	134	(31)
5 Identification and misidentification in legal processes: redefining the problem	165	(27)
Two perspectives on law and legal processes	166	(9)
Two models of misidentification	175	(5)
Redefining the problem of (mis)identification	180	(12)
6 What is the law of evidence?	192	(45)
Introduction	192	(2)
Context	194	(8)
The Thayerite view of 'the Law of Evidence'	202	(8)
Gruyère cheese and the Cheshire cat: the argument of exaggerated importance	210	(16)
Conclusion	226	(11)
7 Rethinking Evidence	237	(34)
Introduction	237	(1)
Theorizing about IL	238	(3)
Taking stock	241	(3)
'The New Evidence Scholarship' and the need for a mapping theory	244	(4)
Constructing a mapping theory: choice of an organizing concept	248	(6)
Some implications and applications	254	(3)
Broad perspectives and particular studies: the problem of the division of labour	257	(4)
Inter-disciplinary warnings	261	(1)
Realism revisited	262	(9)
8 Legal reasoning and argumentation	271	(9)
Reasoning in adjudication	271	(1)
A rationalist model of reasoning in adjudication	272	(5)
Law and fact	277	(1)
Argumentation	278	(1)
Conclusion	278	(2)
9 Stories and argument	280	(6)
10 Lawyers' stories	286	(46)
Introduction	286	(10)
Arguments about questions of law: stating the facts	296	(10)
Disputed questions of fact: holism and atomism in arguments about evidence	306	(5)
Making sense of the case-as-a-whole: law, fact, value and outcome	311	(7)
Jurisprudence and narratology	318	(14)
11 Narrative and generalizations in argumentation about questions of fact	332	(12)
Generalizations: necessary but dangerous	334	(2)
Stories: necessary but dangerous	336	(1)
The relationship between stories and generalizations	337	(1)
X = X = X	338	(6)
12 Reconstructing the truth about Edith Thompson the Shakespearean and the jurist	344	(53)
with RENÉ WEIS
Introduction: two stories	344	(2)
Part 1. Anatomy of a cause célèbre	346	(21)
Part 2. Edith Thompson: fresh evidence and new perspectives	367	(10)
Part 3. The biographer's response to a Wigmorean analysis of R v Bywaters and Thompson	377	(5)
Conclusion	382	(2)
Appendix 1. Indictments	384	(1)
Appendix 2. Exhibit 17	385	(1)
Appendix 3. Exhibit 60	386	(2)
Appendix 4. R v Bywaters and Thompson: strategic arguments	388	(2)
Appendix 5. Reconstruction of arguments about the knife	390	(7)
13 The Ratio Decidendi of the Parable of the Prodigal Son	397	(20)
Cases and parables as texts	399	(3)
The ratio of a case and 'the point' of a parable	402	(2)
Interpretation, standpoint, the power of the particular, and conditions of doubt	404	(4)
The ratio decidendi of the parable	408	(2)
Lessons	410	(1)
Appendix. St Luke, chapter 15	411	(6)
14 Taking facts seriously – again	417	(19)
Introduction	417	(1)
The subject of evidence deserves a more central place in the discipline of law	418	(2)
Teaching evidence at first degree level: a suggested framework	420	(8)
Evidence as an emerging multi-disciplinary field: some implications	428	(8)
15 Evidence as a multi-disciplinary subject	436	(21)
Different conceptions of evidence	438	(3)
A substance-blind approach to inferential reasoning	441	(2)
Inference, culture, common sense, and narrative	443	(3)
Limitations of law	446	(2)
An integrated 'science of evidence'?	448	(9)
Bibliography	457	(36)
Index	493