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Foundations of Evidence Law (Hardcover, New)
Loot Price: R3,667
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Foundations of Evidence Law (Hardcover, New)
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This book examines systematically the underlying theory of evidence
in Anglo-American legal systems and identifies the defining
characteristics of adjudicative fact-finding. Stein develops a
detailed innovative theory which sets aside the traditional vision
of evidence law as facilitating the discovery of the truth.
Combining probability theory, epistemology, economic analysis, and
moral philosophy; he argues instead that the fundamental purpose of
evidence law is to apportion the risk of error in conditions of
uncertainty. Stein begins by identifying the domain of evidence
law.He then describes the basic traits of adjudicative fact-finding
and explores the epistemological foundations of the concept. This
discussion identifies the problem of probabilistic deduction that
accompanies generalizations to which fact-finders resort. This
problem engenders paradoxes which Stein proposes to resolve by
distinguishing between probability and weight. Stein advances the
principle of maximal individualization that does not allow
factfinders to make a finding against a person when the evidence
they use is not susceptible to individualized testing.He argues
that this principle has broad application, but may still be
overridden by social utility. This analysis identifies allocation
of the risk of error as requiring regulation by evidence law.
Advocating a principled allocation of the risk of error, Stein
denounces free proof for allowing individual judges to apportion
this risk as they deem fit.He criticizes the UK's recent shift to a
discretionary regime on similar grounds. Stein develops three
fundamental principles for allocating the risk of error: the
cost-efficiency principle which applies across the board; the
equality principle which applies in civil litigation; and the equal
best principle which applies in criminal trials. The
cost-efficiency principle demands that fact-finders minimize the
total cost of errors and error-avoidance.Under the equality
principle, fact-finding procedures and decisions must not produce
an unequal apportionment of the risk of error between the claimant
and the defendant. This risk should be apportioned equally between
the parties. The equal best principle sets forth two conditions for
justifiably convicting and punishing a defendant. The state must do
its best to protect the defendant from the risk of erroneous
conviction and must not provide better protection to other
individuals. Regulating both the admissibility of evidence and its
sufficiency, these principles explain and justify many existing
evidentiary rules. Alex Stein is Professor of Law at the Benjamin
N.Cardozo School of Law,New York.
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