Evidence and Legal Theory1
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01652.x |
| Author | William Twining |
| Published date | 01 May 1984 |
| Date | 01 May 1984 |
THE
MODERN LAW REVIEW
Volume
47
May
1984
No.
3
EVIDENCE AND LEGAL THEORY’
AN
inaugural lecture, like an after dinner speech, is the price that
one pays for one’s seat.
This
is my third.
As
Lady Bracknell might
have said: one may be regarded as a misfortune; to be involved in
two looks like carelessness; to undertake a third smacks of maso-
chism. On this occasion,
I
shall follow precedent in attempting three
things. First,
I
shall pay tribute to my predecessors and especially to
Professor Lord Lloyd of Hampstead; secondly,
I
shall restate my
perspective on the subject that
I
am to profess; and, thirdly,
I
shall
illustrate this general view by considering its application to a par-
ticular subject-the study of evidence with special reference to the
ways in which rethinking a field within a broadened conception
of
academic law involves a number of different kinds of theoretical
tasks.
To
many
of
us, there can be little doubt that Jeremy Bentham is
England’s greatest jurist. He was never an incumbent of the Chair
of Jurisprudence at London; he had, and still has, a seat
of
his own
to which he is unprecedentedly attached; yet he remains the single
most important figure in jurisprudence in this college, in this country
and in many other parts of the world. The survival
of
Bentham is a
An abbreviated version of an inaugural lecture, delivered at University College,
London on June
2, 1983.
The intention
of
this article’is
to
restate and develop in general
terms a number of themes that have been explored at greater length in a series of papers
over the last
10
years. The view of legal theory and its place in the discipline of law is
advanced in
(1)
“Some Jobs for Jurisprudence”
(1974)
British Journal
of
Law and Society
149
and
(2)
“Academic Law and Legal Philosophy: the significance of Herbert Hart”
(1979)
95
L.Q.R.
557
and
(3)
“The Great Juristic Bazaar”
(1978)
J.S.P.T.L.(N.S.)
185.
A
programmatic statement of the need for re-thinking the field of evidence is set out in
(4)
“Good-bye to Lewis Eliot”
(1980)
J.S.P.T.L.(N.S.)
9;
the intellectual history
of
Anglo-
American evidence theorising and scholarship is explored in detail in
(5)
“The Rationalist
Tradition of Evidence Scholarship” in Louis Waller and Enid Campbell (eds.),
Well
and
Truly Tried
(1982), p.211;
(6)
“Bentham on Evidence” (forthcoming),
(7)
“Wigmore on
Proof” (forthcoming) and
(8)
“Some Scepticism about some Scepticisms” (forthcoming);
the educational implications are examined in
(9)
“Taking Facts Seriously’’ in
N.
Gold (ed.),
Essays on Legal Education
(1982), p.51;
and particular applications
of
this perspective are
developed in
(10)
“Identification and misidentification: Redefining the Problem” in Sally
Lloyd-Bostock and Brian Clifford (eds.),
Evaluating Witness Evidence
(1983),
p.255;
(11)
Analysir
of
Evidence
(with Terence Anderson, teaching materials, forthcoming);
(12)
“Anatomy
of
a Cause Celebre: the evidence in Bywaters and Thompson” (Earl Grey
Memorial Lecture, Newcastle
(1982)).
and
(13)
“Debating Probabilities”
(1980) 2
Liverpool
Law Review
51.
I
am particularly indebted to the Social Science Research Council for a
personal research grant which provided the opportunity
to
work
on theoretical aspects of
evidence and proof full-time during
1980-81.
For
ease of reference these works will be
cited hereafter in the following form:
op.
cit.
n.1,
No.
3
at
187.
261
262
THE MODERN
LAW
REVIEW
[Vol.
47
paradox: others have survived in spirit, but not in substance;
Bentham has insisted on remaining with us in substance; we still
wrestle with his ideas in a somewhat disjointed fashion; but his
spirit-if such a dubious fictitious entity is allowed-is at once elusive
and a source of quite striking ambivalences. Most Shakespeare
scholars are Shakespeare-lovers; most Marx scholars are either
Marxians or committed Marxists, but few if any Benthamists are
categorical Benthamites.
If
Bentham is the true father of English Jurisprudence, he has
bequeathed to his heirs a psychological legacy of respect, awe,
distaste and reaction that leaves even Oedipus in the shade. Much
of the history of English Jurisprudence could be written in terms of
an almost continuous love-hate, accept-reject, neglect-revive
relationship with its dominant father-figure. A shared ambition of
many members of this college is to exorcise the ghost, by trying to
see through to completion the preparation of Bentham’s
Collected
Works
before the end of this century; December,
1999
is our current
deadline. This essentially benevolent dragon needs to be brought
out of his cave once and for all. The Bentham Project has made
significant progress in recent years, thanks to the efforts of Professor
Hart, Professor Burns, Dr. Dinwiddy and others. The main problem
now is to raise sufficient funds and to recruit suitable editors to finish
the job.
It
was, of course, one of Bentham’s disciples, John Austin, who
was the first incumbent of this Chair. A recent book has shown that
even he was almost as ambivalent towards his mentor as were John
Stuart Mill and other successors.
No
one did more than Austin to
establish jurisprudence as a serious academic enterprise; his version
of analytical jurisprudence-in a somewhat truncated form-became
one mark of academic respectability for law as a discipline worthy
of a place in a university. Yet, perhaps his most significant contri-
bution has been as a figure against whom to react. It was of
Austinian, rather than Benthamite, jurisprudence that Dicey
remarked that it “is a word which stinks in the nostrils of the
practising barrister.” It was Austin who provided the main target
of
attack for the re-launching of jurisprudence by Professor Herbert
Hart in the
1950s,
after the subject had been in the doldrums for
many years. And Austin provided for many of my generation a
symbol
of
a narrow approach
to
law from which
we
have been trying
to break away. It is refreshing to find Professor Morison of Sydney,
in the book to which I referred, defending Austin against both
Bentham and Hart and rejecting the widely accepted symbol as a
caricature.
Austin had a number of distinguished successors in this Chair,
although the rate of turnover was at times rather rapid. Sheldon
Amos, Sir Frederick Pollock, Glanville Williams and Lord Lloyd
represent a formidable tradition. Of these Dennis Lloyd has been
distinguished for his versatility: a substantial scholar and jurist; a
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