基本説明
This book is a collection of materials concerned not only with the law of evidence, but also with the logical and rhetorical aspects of proof; scientific aspects of the subject, etc.
Full Description
Evidence, Proof, and Facts is a source book designed to bring together some of the most important primary and secondary materials which underlie the 'New Evidence Scholarship'. While the law of evidence has traditionally dominated jurisprudential treatment of the subject, evidence is in truth a multi-disciplinary subject, comprising fundamental issues in the fields of logic, probability theory, epistemology, and psychology.
Among the issues dealt with are: the rationalist epistemology of the use of evidence as a tool for the reconstruction of disputed past events; alternative epistemologies of evidence; the meaning of evidence, relevance, probative value, and weight. The editor also explores the issues of: logic and rhetoric in the context of judicial proof; the place of different kinds of probability theory in legal proof; whether legal proof is inherently mathematical or non-mathematical; the meaning of the legal standards of proof; and the role of causation in legal proof.
The editor has assembled a collection of jurisprudential material including Thayer and Wigmore, and philosophical material ranging from Aristotle and Plato to Locke, Hume, Bentham, and Mill. The mathematics includes Bayes' Rule, reproduced in its entirety. Among the contemporary writers represented from the New Evidence Scholarship school are Keynes, Schum, Twining, Eggleston, and Cohen. The materials are prefaced with an introductory essay by Professor Murphy which offers an overview of some of the key issues.
Contents
Preface ; Table of Works Represented, with Abbreviations Used ; Evidence, Proof, and Facts: Introductory Essay ; 1. The Concept of Evidence and the Law of Evidence ; SECTION 1: WHAT IS EVIDENCE? ; Bentham, Rationale ; Schum, Foundations ; SECTION 2: DEVELOPMENT OF THE LAW OF EVIDENCE ; Thayer, Preliminary Treatise ; Holdsworth, History ; Twining, Rethinking Evidence ; SECTION 3: ARE EXCLUSIONARY RULES OF EVIDENCE NEEDED? ; Bentham, Rationale ; Stephen, Report ; SECTION 4: THE PHILOSOPHY UNDERLYING THE LAW OF EVIDENCE: OPTIMISTIC RATIONALISM ; Twining, Theories ; 2. Logic and Rhetoric ; SECTION 1: LOGIC, DEDUCTIVE REASONING, AND THE SYLLOGISM ; Aristotle, Topics ; Aristotle, Prior Analytics ; Mill, System ; SECTION 2: REJECTION OF THE SYLLOGISM AS A SCIENTIFIC METHOD ; Bacon, Novum Organum ; Hume, Enquiry ; Schum, Foundations ; SECTION 3: LOGIC, INDUCTIVE REASONING, AND INFERENCES FROM EVIDENCE ; Schmidt, The Influence of the Legal Paradigm on the Development of Logic ; Mill, System ; SECTION 4: LOGICAL FALLACIES ; Mill, System ; SECTION 5: DIALECTIC AND RHETORIC ; Aristotle, The Art of Rhetoric ; Plato, Gorgias ; Plato, Phaedrus ; 3. Judicial Reasoning About Facts ; SECTION 1: RELEVANCE ; Stephen, Digest ; US Federal Rule of Evidence 401 ; Bentham, Rationale ; Schum, Foundations ; Keynes, Treatise ; SECTION 2: DIRECT AND CIRCUMSTANTIAL EVIDENCE ; Bentham, Rationale ; SECTION 3: THE PROCESS OF JUDICIAL REASONING ; Thayer, Preliminary Treatise ; Wigmore, Science ; SECTION 4: PROBATIVE VALUE AND WEIGHT ; Bentham, Rationale ; Keynes, Treatise ; SECTION 5: GENERALIZATIONS ; Hume, Enquiry ; Bentham, Rationale ; Mill, System ; 4. Causation ; SECTION 1: PHILOSOPHICAL BASIS FOR THEORY OF CAUSE AND EFFECT ; Aristotle, Physics ; Locke, Essay ; Hume, Treatise ; Hume, Enquiry ; Mill, System ; SECTION 2: CAUSE AND EFFECT AS BASIS FOR INFERENCE FROM EVIDENCE ; Hart and Honore, Causation ; Schum, Foundations ; SECTION 3: LEGAL APPLICATIONS OF CAUSATION ; Hart and Honore, Causation ; 5. The Standard of Proof ; SECTION 1: RELATIONSHIP OF INDUCTIVE REASONING TO STANDARDS OF PROOF ; Cohen, The Probable and the Provable ; SECTION 2: PROOF BY A PREPONDERANCE OF THE EVIDENCE ; Rhesa Shipping Co SA v. Edmunds (The Popi M) ; T.N.T. Management Pty. Ltd. v. Brooks ; Cohen, The Probable and the Provable ; SECTION 3: PROOF BEYOND REASONABLE DOUBT ; Shapiro, Beyond Reasonable Doubt ; Cohen, The Probable and the Provable ; SECTION 4: DECISION THEORY IN RELATION TO STANDARDS OF PROOF ; Kaplan, Decision Theory and the Factfinding Process ; Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process ; 6. Theories of Probability ; SECTION 1: PROBABILITY THEORIES GENERALLY ; Locke, Essay ; Hume, Treatise ; Bentham, Rationale ; Keynes, Treatise ; SECTION 2: PROBABILITY APPLIED TO HUMAN CONDUCT AND CREDIBILITY ; Keynes, Treatise ; Eggleston, Evidence, Proof, and Probability ; SECTION 3: THE PRINCIPLE OF INDIFFERENCE ; Cohen, Introduction ; 7. Probability: Issues of Mathematics ; SECTION 1: MATHEMATICAL PROBABILITY CALCULUS ; Mill, System ; Schum, Foundations ; Cohen, Introduction ; SECTION 2: REVISION OF PROBABILITY ESTIMATES IN LIGHT OF NEW EVIDENCE: BAYES' RULE ; Schum, Foundations ; Bayes, Essay ; SECTION 3: MATHEMATICS IN THE COURTROOM ; People v. Collins ; R v. Adams (No. 2) ; 8. Probability: Mathematical and Non-Mathematical Models ; SECTION 1: MON-MATHEMATICAL PROBABILITY MODELS ; Mill, System ; Keynes, Treatise ; Cohen, Introduction ; Cohen, The Probable and the Provable ; SECTION 2: PASCAL OR BACON? THE GREAT DEBATE ; Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process ; Kaye, The Laws of Probability and the Laws of the Land ; 9. Alternative Epistemologies of Evidence ; SECTION 1: CHANCE AND ACAUSAL CONNECTIONS ; Aristotle, Physics ; Mill, System ; SECTION 2: THE OLDER MODES OF PROOF ; Holdsworth, History ; Hammurabi, Code ; Manu, Laws ; Supakar, The Law of Evidence in Ancient India ; SECTION 3: A WOMAN'S PERSPECTIVE ; Harmon, Etchings on Glass ; APPENDIX 1: INFERENCE NETWORKS AND THE CHARTING OF EVIDENCE ; Wigmore, The Problem of Proof ; APPENDIX 2: SOME COMMONLY USED HYPOTHETICALS ; Index
