The Law of Evidence and the Rule of Law: Is Judicial Discretion Consistent with the Rule of Law?
NZ Law Stu Jl 8 (2006)
29 Pages Posted: 30 Jul 2013 Last revised: 31 Jul 2013
Date Written: January 1, 2006
Within the law of evidence, there is considerable scope for judicial discretion. This makes evidence law a useful lens through which to examine rules and standards and consider their respective rule of law implications. This paper discusses four evidence law case-studies. These are examined with particular reference to predictability, a very important rule of law value, but the paper also considers other equally important rule of law values such as procedural due process and fairness.
The paper notes that evidence law is procedural, as opposed to substantive, in nature. This and other characteristics of evidence law might suggest at first glance that this area of law is a special case with respect to rule of law values. However, the paper argues that on closer consideration it is clear that while evidence law is an especially striking case from a rule of law perspective, it is not an exceptional or special case. Evidence law may highlight certain rule of law issues rather dramatically, but these same issues also arise in other areas of law.
The paper concludes that the rule of law can indeed accommodate standards and discretion. The rule of law, so defined, is a complex concept; but it is preferable to a narrow “rules only” definition in both theoretical and pragmatic terms.
Keywords: evidence, rule of law, jurisprudence, criminal law, discretion, judges
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