ck Lai Ho

The Legitimacy of Medieval Proof

It is tempting to criticize the trial by ordeal, wager of law and judicial combat for their apparent irrationality and cruelty. But these institutions cannot be dismissed simply as the appalling products of ignorant, superstitious and brutal societies. It is now recognized that these modes of proof reflected the circumstances faced by early medieval communities, they were valuable as socio-political tools, and, their rationality as fact-finding or epistemic devices has been defended on naturalistic grounds. While studies on these fronts are valuable, we cannot get a full grasp of the modes of proof unless we seek to understand them from within, through the eyes of the believing participants. We can see what medieval Western Europeans saw, however mistakenly, as worthy and good in those practices, especially of the trial by ordeal, only if we adopt their religious outlook. The animating aim was not justice in the formal positive sense; facts were not found to which the law was precisely and rigorously applied. Adjudication was approached holistically. Central to the process was the seeking of divine justice, through faith and the grace of God, and within which mercy and truth had their intrinsic places. Intertwined with this spiritual aspect was an ethical concern, as displayed in the discernible effort to formulate fair procedure. The medieval modes of proof had, in the eyes of the faithful, profound spiritual meaning, and one can detect in the effort to achieve procedural fairness some elements of humanity.

Legal Professional Privilege and the Integrity of Legal Representation

Legal professional privilege (henceforth “privilege”) is a multi-faceted concept. It includes, amongst its dimensions, a duty1 (of the lawyer not to disclose professional communications with his client2), a power (of the client to stop the lawyer from making such disclosure), and a right (of the client not to disclose the same); the duty and right are manifested in a corresponding immunity from legal compulsion.3 These various terms and their relationships are analytically challenging.4 But I want only to suggest that the privilege can be viewed from many different and related angles. My aim, in this paper, is to elucidate the point of the privilege by approaching it from one particular aspect: the lawyer’s exemption from compulsory disclosure. The privilege was recognised in equity well before it became established at common law.5 A major (and, as I will argue, misguided) development occurred in the 1833 case of Legal Ethics, Volume 9, No. 2

What Does a Verdict Do? A Speech Act Analysis of Giving a Verdict

To give a legal verdict is to perform a speech act that carries many illocutionary forces. A verdict declares the institutional fact of (non-)guilt or (non-)liability; it asserts, on one interpretation, propositions of facts underlying or constitutive of the alleged guilt or liability, and, on a different interpretation, propositions about the legal proof of those facts; it ascribes legal character to the facts as found; it expresses a psychological state in relation to its propositional content, and, in some cases, with greater or lesser force, a negative attitude to the defendants past conduct. A verdict can be evaluated on many different dimensions corresponding to the things that it does. As a declaration, it can be judged valid or not; as an assertion, it is true or false; and as an ascription, it is assessable in terms of right and wrong. So far as a verdict expresses belief, we demand that it be sincere and so far as it expresses condemnation, we require that the moral criticism be deserved. The aim of this essay is to provide a set of terminological apparatus with which analyses of the trial process may be conducted with greater clarity, and a framework within which to locate existing discussion of issues arising from such analyses.

Re-Imagining the Criminal Standard of Proof: Lessons from the ‘Ethics of Belief’

On a standard view, the criminal standard of ‘proof beyond reasonable doubt’ is a statement of probabilities, the pre-set benchmark of evidential support that must be crossed before a contested hypothesis of guilt can be accepted as true. Where to set that benchmark calls into play the calculation of social costs and benefits. This article proposes an agent-centred interpretation, one that involves viewing trial deliberation as a mental activity and the acquisition of an ethical vocabulary with which to express standards of excellence for the conduct of that activity. Our moral exemplar would, in her deliberation on the criminal verdict, exhibit relevant virtuous traits, and be guided by practical wisdom in the contextual operation of those traits. In judging the application of the standard of proof, there is a sense in which we should ultimately be making an ethical judgment of the person who applies it.

Some Reflections on “Property” and “Title” in the Sale of Goods Act

The Sale of Goods Act 1979 (“the Act”) uses two terms, “property” and “title”, which one would normally associate with ownership. Of “title”, there is no definition in the Act; of “property”, there is one. But the definition, as we shall see, does not carry us very far. There has been much debate on the meaning of the two terms. The approach advocated by Battersby and Preston in a deservedly well-known article appears to have gained considerable acceptance.5 This paper hopes to present, as a theoretical possibility, an alternative interpretation of the uses and meanings of those concepts and of their relationship. It would be useful to begin with a brief description of “ownership” since “property” and “title” are associated with it.

Justice in the Pursuit of Truth: A Moral Defence of the Similar Facts Rule

The law of evidence serves an important function in ensuring the legitimacy of trial deliberation. One way of discharging this function is through ‘regulation’, effected in the form of rules forbidding reliance on particular lines of evidential reasoning. An example of such a rule is that on similar facts. The rationale for regulation will be explored by engaging in two kinds of analysis. Traditionally, an ‘external’ approach is taken. There are, so it is hoped to show, deficiencies in this approach. A different method of analysis, one conducted from an ‘internal’ perspective, will be proposed to meet these deficiencies. In many cases, values other than truth have to be pursued, not simply as subsidiary considerations, but as values which are integral to the nature and purpose of fact-finding. A party has not merely a right that the substantive law be correctly applied to objectively true findings of fact, and a right to procedure that is rationally structured to determine the truth; he has, more broadly, a right to a just verdict, where justice must be understood to incorporate an ethical evaluation of the process (of evidential reasoning) which led to the outcome (in the form of conclusions of fact). Truth and justice, so it will be argued, are not opposing considerations; rather, principles of one kind reinforce demands of the other. This article seeks to instantiate these general themes in a discussion of the similar facts rule.