The Role of Rules in the Law of Evidence

Abstract

The theoretical side of the law of evidence has long been dominated, at least since Jeremy Bentham, by debates between the so-called free proof tradition, on the one hand, and the predominance of rules if evidence, on the other. Bentham and the widespread approach in the civil law world are hostile to the rule-based approach that dominates the common law world’s approach to evidence. Indeed, even such prominent common law evidence theorists as James Bradley Thayer and John Henry Wigmore saw the appeal of the free proof tradition, while attributing the use if rules of evidence in common law jurisdictions largely to the institution of the jury. This chapter in the forthcoming Philosophical Foundations of Evidence Law describes these debates, and offers a robust defense, against Bentham and his followers, of a rule-based approach to evidence. That defense, not limited to the importance of rules for the guidance and constraint of juries, is based partly on the value of rules as guarding against common psychological decision-making weaknesses present for judges as well as for jurors. But the defense also connects a rule-based approach to evidence with the approach of the legal system generally. If the legal system often has good reasons for using legal rules rather than instructions to its decision-makers to simply make the best all-things-considered decision for the matter at hand, then a rule-based approach to evidence can be seen as consistent with the approach of law generally, and the free proof tradition as the odd anomaly.