2 - The common law tradition

Summary

Introduction: free proof and the common law

One of the enduring myths in discourse about the law of evidence is that it is a peculiar characteristic of the common law and that there is no such thing as a ‘law of evidence’ in continental Europe. The technical rules of evidence that are a product of the common law system are contrasted with the principle of ‘free proof’ that dominates continental processes of proof. Although we shall see that it is important to understand that there are fundamental differences in the way in which evidence is regulated between the two traditions, it is misleading to characterise the two systems in this manner. For one thing, there is often a lack of clarity about what is meant by ‘free proof’ and depending on each layer of meaning it is by no means always self-evident that common law systems are necessarily less ‘free’ than continental processes.

At one level the term may simply mean an absence of rules of evidence altogether. As we saw in the last chapter, any adjudicative system must have some rules of evidence and proof for determining when facts are considered to be proved and how they are to be proved. When the task of obtaining and adducing evidence is put in the hands of the parties, there is inevitably a need for more rules to regulate the handling of evidence than when a system puts the task of evidence management in the hands of a court. Even Bentham, who argued for a natural as opposed to a technical system of adjudication, accepted that there was a need for adjudicators to exclude evidence where it was irrelevant or superfluous or its production would involve preponderant vexation, expense or delay in the individual case.