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Helmholz, R., Sellar, W. (Eds.) (2009). The Law of Presumptions: Essays in Comparative Legal History. Duncker & Humblot.
Helmholz, Richard H. and Sellar, W. David H.. The Law of Presumptions: Essays in Comparative Legal History. Duncker & Humblot, 2009. Book.
Helmholz, R, Sellar, W (eds.) (2009): The Law of Presumptions: Essays in Comparative Legal History, Duncker & Humblot, [online]


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


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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