The Law of Presumptions: Essays in Comparative Legal History
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The Law of Presumptions: Essays in Comparative Legal History
Editors: Helmholz, Richard H. | Sellar, W. David H.
Comparative Studies in Continental and Anglo-American Legal History, Vol. 27
(2009)
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Abstract
The law of presumptions has never been popular among commentators. It has attracted few scholars, and most of the few who have ventured into the subject have come away as critics rather than admirers. Certainly, there are plausible reasons for this bad reputation. Presumptions are evidently inferior to more direct forms of proof; indeed they may not be forms of proof at all. They raise difficulties of definition and classification. Some presumptions also seem quite artificial, hard to defend as reliable indicators of the truth.Despite their poor reputation, they have long been accepted and applied in practice. Legal presumptions play a part in virtually all Western legal systems. It is hard to image a workable law of proof without them, and their acceptance has been a fact of life for many centuries. Even in England, where the use of juries in the common law might seem to have excluded any need for legal presumptions, they took hold from an early date. They thus seem to be a natural candidate for comparative historical treatment. The essays in this volume seek to address this gap in scholarship.The essays do not set out directly to rehabilitate the law of presumptions. They seek rather to explore the process by which presumptions worked their way into Western law and to examine the links that have existed between legal systems. The essays embrace not only English common law and Continental systems, but also ›mixed systems‹ like the law of Scotland and of Southern Africa. By examining the subject from an historical point of view, they seek to help explain the acceptance and persistence of a law of presumptions in Western law.
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Preface | 5 | ||
| Table of Contents | 7 | ||
| R. H. Helmholz and W. David H. Sellar: Presumptions in Comparative Legal History | 9 | ||
| I. The Reputation of the Law of Presumptions | 9 | ||
| II. Common Features of the Law of Presumptions | 10 | ||
| 1. The Patchwork Character of the Sources | 11 | ||
| 2. The Difficulties of Definition | 11 | ||
| 3. The Secondary Status of Presumptions | 13 | ||
| III. Acceptance of Legal Presumptions | 14 | ||
| IV. Conclusions | 17 | ||
| Part One: Continental Traditions | 19 | ||
| Adolfo Giuliani: Civilian Treatises on Presumptions, 1580–1620 | 21 | ||
| I. Introduction | 21 | ||
| II. Separation of Fact and Law | 25 | ||
| The Old Rhetorical Heritage | 26 | ||
| Autonomy of the Issue of Fact | 28 | ||
| The Relevance of Judicial Discretion in the Question of Fact | 33 | ||
| III. Principles of Reasoning | 37 | ||
| Rhetorical Sources | 38 | ||
| Artificial Proofs | 39 | ||
| Artificial Reason | 40 | ||
| Inference from Signs | 42 | ||
| Rhetorical Influences on Presumptions | 44 | ||
| IV. Presumption and Will | 51 | ||
| Interiorisation of Obligation | 52 | ||
| The Novissimi Hispani | 54 | ||
| The Need for Presumptions | 57 | ||
| From Presumption to Interpretation | 62 | ||
| V. Conclusion | 66 | ||
| Bibliography of CitedWorks | 67 | ||
| Knut Wolfgang Nörr: On the Early History of prima facie Evidencein German Law | 73 | ||
| I. A Case of 1875 | 73 | ||
| II. Three Courts of the 19th Century | 74 | ||
| III. Collisions at Sea | 75 | ||
| IV. The Meaning of praesump | 77 | ||
| V. On the Systematic History of praesumptio | 78 | ||
| VI. Transitions | 79 | ||
| VII. From the Practice of the Reichsgericht | 80 | ||
| VIII. A New Concept Established | 83 | ||
| C. H.Van Rhee: Presumptions in Dutch Private Law (19th and 20th Centuries) within a European Context | 85 | ||
| I. Introduction | 85 | ||
| II. What Is a Presumption in Dutch Law? | 86 | ||
| III. Which Types of Presumptions Can Be Distinguished in Dutch Law? | 95 | ||
| IV. Conclusion | 101 | ||
| Francesco Migliorinor: The Night Bird of Minerva – On to Truth and Evidencein the Turning Point of Modernity | 103 | ||
| I. Introduction | 103 | ||
| II. The Seal of the Secret | 105 | ||
| III. En âme et conscience | 107 | ||
| IV. A Madness without Method | 109 | ||
| Select Bibliography | 113 | ||
| Part Two: English Traditions | 115 | ||
| David J. Seipp: Presumptions in Early English Common Law | 117 | ||
| I. Presumptions in the Bracton Treatise | 117 | ||
| 1. Negative Usage | 118 | ||
| 2. The stabitur Maxim | 118 | ||
| 3. Legitimacy and Paternity | 118 | ||
| 4. Liberty | 119 | ||
| 5. Validity | 120 | ||
| 6. Other Presumptions | 120 | ||
| 7. Strength of Presumptions | 121 | ||
| 8. Circumstantial Evidence | 122 | ||
| 9. Conclusion: Presumptions and Jury Verdicts | 122 | ||
| II. Presumptions in the Year Books | 123 | ||
| 1. The Word “Presumption” | 123 | ||
| 2. “Until the Contrary Be Shown” (and a Presumption of Life) | 125 | ||
| 3. What the Law Understood | 126 | ||
| 4. Common Understandings (and a Presumption of Liberty) | 127 | ||
| 5. Presumptions of Legitimacy and Paternity | 127 | ||
| 6. Something Like a Presumption of Innocence (and Sufficient Cause for Arrest) | 129 | ||
| 7. Wife Amenable to Her Husband | 132 | ||
| 8. Conclusion: Presumptions without Rules of Evidence | 132 | ||
| Appendix of Year Book Citations | 133 | ||
| R. H. Helmholz: The Law of Presumptions and the English Ecclesiastical Courts | 137 | ||
| I. Introduction | 137 | ||
| II. The Medieval Canon Law | 138 | ||
| III. Practice and the English Ecclesiastical Courts | 141 | ||
| 1. The Middle Ages | 141 | ||
| a) University Training | 141 | ||
| b) Instance Causes | 142 | ||
| c) Ex officio Causes | 144 | ||
| 2. The Sixteenth and Seventeenth Centuries | 146 | ||
| a) University Education | 146 | ||
| b) Instance Causes | 148 | ||
| c) Ex officio Causes | 149 | ||
| IV. Conclusion | 150 | ||
| Barbara Shapiro: Presumptions and Circumstantial Evidence in the Anglo-American Legal Tradition 1500–1900 | 153 | ||
| I. Introduction | 153 | ||
| II. Classical Rhetoric | 154 | ||
| III. Canon and Roman Law | 155 | ||
| IV. England and the Anglo-American Law of Evidence | 158 | ||
| 1. Arrest | 159 | ||
| 2. Justices of the Peace, Pretrial Examination and “Circumstances” | 161 | ||
| 3. Circumstances, Presumption and the Trial Jury | 162 | ||
| V. The Eighteenth Century | 170 | ||
| VI. Conclusion | 186 | ||
| T. P. Gallanis: Death by Disaster: Anglo-American Presumptions, 1766–2006 | 189 | ||
| I. English Cases | 189 | ||
| II. English Statutes | 191 | ||
| III. American Law before 1940 | 193 | ||
| IV. The Uniform Simultaneous Death Acts | 196 | ||
| V. Conclusion | 198 | ||
| Part Three: Mixed Systems | 201 | ||
| W. David H. Sellar: Presumptions in Scots Law | 203 | ||
| I. Introduction | 203 | ||
| II. The Institutional Writers | 204 | ||
| III. Textbook Writers | 212 | ||
| IV. Conclusions | 219 | ||
| V. Further Avenues? | 221 | ||
| Jacques Du Plessis: Presumptions in South African Law: An Historical Perspective | 227 | ||
| I. Introduction | 227 | ||
| II. Civilian Foundations: Procedure and Presumption in Roman-Dutch Law | 228 | ||
| III. Common Law Influences: Presumptions and the Reception of the English Law of Procedure and Evidence | 235 | ||
| Common Law Influences and the Rules on the Contents of Presumptions and the Implications of Conflicting Presumptions | 236 | ||
| Common Law Influences on the Classification of Presumptions | 240 | ||
| Common Law Influences on the Effect of Presumptions: Burdens of Proof and Burdens of Rebuttal | 243 | ||
| IV. Developing the Content of Presumptions by Re-examining their Foundations: the Case of Undue Influence | 247 | ||
| V. Conclusions | 251 | ||
| List of Contributors | 253 |