Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
291–298
DOI: 10.1111/j.1748-121X.2006.00018.x
Book reviews
International Dimensions in Family Law, by john murphy.
Manchester: Manchester University Press, viii + 312 + (index) 3pp. (GBP 60.00, Euro
90.00 hardback). ISBN 0-7190-6842-8.
© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars. Published by Blackwell Publishing,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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Alex Stein’s Foundations of Evidence is ‘not a doctrinal treatise about evidence laws
in general’, but an attempt to use ‘epistemology, probability, economics and political
morality’ to build a theory about the proper role and form of evidence law on
6. Citing E.M. Clive ‘The New Hague Convention on Children’ (1998) 3 Juridical Review
169, 176.
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to justify the case for the legal regulation of fact-finding. Thus, in his commendably
accessible discussion of traditional probability paradoxes, Stein convincingly estab-
lishes that proof should not be based solely on naked statistical information, and that
probability estimates do not just depend on a calculation of the chances that the
probability estimates express, but also on the depth of their evidential bases. Moreover,
because of the frequent unavailability of evidence necessary to know whether the
generalisation relied on is sufficiently analogous to the facts in question, and because
one can never know how such missing evidence might affect the generalisation’s
applicability, he argues that reliance on the generalisation can always lead to errors.
On the other hand, excluding evidence which is related to such generalisations may
equally lead to errors if the generalisation in question is in fact applicable. Here, a
decision will have to be made as to which side ought to be exposed to the risk of error.
Because such decisions will affect parties’ ability to vindicate their substantive
rights and hence involve an exercise of state power, Stein goes on to argue that they
must be based on political morality rather than epistemology. Accordingly he pro-
poses a ‘principle of maximal utilisation’, which requires all relevant facts to be
considered and any evidence adduced against an opponent to ‘be susceptible to
adverse utilization by that litigant’, and precludes a finding against a litigant when
its supporting evidence ‘is not susceptible to maximal individualised testing’ such as
through cross examination. (p. 72). In fact, as Stein argues and later chapters dem-
onstrate, this principle is not far removed from current practice.
By contrast, his third theses – the call for legal rules to govern the allocation of
the risk of error – runs counter to the current trend towards the abolition of evidential
rules or their replacement with judicial discretion. Such rules, Stein argues, should
either determine the probability threshold for making factual findings by determining
burdens and standards of proof, and establishing evidential presumptions, or control
the weight of the evidential base upon which fact-finders make their probability
estimates. Rules of weight, in turn, comprise four types: those excluding evidence
where the risk of error from certain types of evidence is too high (exclusionary rules)
or while not unacceptably high is still riskier than other available enquiries (rules of
pre-emption, such as the best evidence rule); those requiring additional supporting
evidence because of certain risks (corroboration rules); and those regulating the trade-
off between reducing the risk of error and reducing the cost of reducing such risks
(efficiency rules).
Drawing on economic analysis of law, Stein devotes a chapter to these efficiency
rules, before exploring in the last two chapters how the remaining rules should be
instantiated in criminal and civil trials. In relation to criminal trials, Stein introduces
an additional principle governing the allocation of the risk of error: ‘the equal best’
principle, which holds that the legal system ‘may justifiably convict a person only if
it did its best in protecting that person from the risk of erroneous conviction and if it
does not provide better protection to other individuals’ (p. 175). However, apart from
this and a convincing defence of the right to silence, which was in fact made more
fully when discussing efficiency rules, there is little to justify the separate treatment
of the same rules in separate chapters. Consequently there is much repetition between
the two chapters (sometimes verbatim), as well as repetition in both of the earlier
discussions. Avoiding this would not only have made the book more readable, but
also given Stein space to explore other relevant issues only touched upon or totally
ignored.
While his failure to satisfactorily justify reliance on liberal versions of economic,
political and moral theory is perhaps understandable given their current hegemonic
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As a final criticism of his argument, one can question whether the choice in
evidence law is really between categorical rules or unfettered discretion. While the
case for the legal regulation of evidence is persuasive – though not solely for the
reasons and in the areas Stein discusses – he could have explored the possibility of
leaving the allocation of error or risk and matters of efficiency to the discretion of
judges, but subjecting its exercise to a variety of relevant considerations which address
the problems raised by empirical research into fact-finding as well as those which
motivate Stein’s maximal individualization and ‘equal best’ principles.
Nevertheless, notwithstanding these criticisms, Foundations of Evidence Law is a
welcome addition to evidence scholarship. It represents an important first attempt to
base evidence doctrine on something more than armchair psychology, to provide a
justification for and conceptual unity to what has hitherto been regarded as an
incoherent patchwork of historical hangovers from outdated assumptions about fact-
finding, and to make clear the value of probability theory. As such, it deserves to be
read and engaged with by all evidence scholars, whether interested in evidence law
alone or more widely in the processes of proof.
donald nicolson
© 2006 The Author. Journal Compilation © 2006 The Society of Legal Scholars