A Philosophy of Evidence Law: Justice in the Search for Truth by Ho Hock Lai

AuthorWilliam E. O'Brian
Publication Date01 Jan 2009
purpose of claiming statutory rights (provided that the qualifying period has
been satis¢ed). But in truth the courts are often caught between a rock and a hard
place. In trying with the best of motives to rescue temporary agency workers
from their plight of being excluded from employment law almost entirely, the
courts have resorted to ¢ctions such as the implied contract of employment ^
and subsequently received their just reward: incoherence in the law followed by
ignominious retreat to orthodoxy. The author captures well the twists and turns
of the case-law inthis ¢eld as well as its contribution to the sti£ing of thel imited
legislative measures aimed at assisting marginal workers.
Although this bookdoes not advance much by way of original theses regard-
ing this legal material, which in fairness has already been much assessed by legal
scholars, the excellentdiscussion of the details of thelegal materials in thecontext
of the professed policy objectives of the government is a welcome and valuable
contribution to the literature. The work is admirably clear and concisely
expressed, whilst at the same time referring to all the relevant technicalities in
the law and the critical commentary. The volume certainly maintains the high
standards of the series.
Hugh Collins
Ho Hock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth,
Oxford: Oxford University Press, 300 pp, hb d50.00.
Hos new book is thethird major book in recent yearsto examine the philosophi-
cal foundations of the law of evidence (the other two being Alex Stein’s Founda-
tionsofEvidenceLaw(OUP, 2005) and Larry Laudan’sTruth, Error and Criminal Law
(CUP, 2006)). Ho’s book is a welcome addition to the literature, as it elucidates
and defends a markedly di¡erent perspective on the area, that of the internal
standpoint of the trier of fact. From this perspective, he concludes that a much
greaterportion of the lawof evidence is justi¢ed thando most writers who exam-
ine the same issues.
Ho contrasts his internal perspective with the more typical stance used to
examine the law of evidence ^ that of the system engineer. Under the latter
approach, the trial is viewed as designed primarily to determine the truth, and
the lawof evidence shouldtherefore be aimedat maximising its ability to achieve
that overriding aim. Although acknowledging that there are some rules of evi-
dence (especially rules regarding privileges and improperly-obtained evidence)
that are designed to serve di¡erent social goals, the approach of the system engi-
neer to the core rules of evidence considersthem as largely justi¢ed or not only to
the extent that they serve that aim. Most writers in this tradition (Stein is a nota-
ble exception) end up concluding that most rules of evidence are unjusti¢ed and
should be abandoned in favour of something approaching a principle of free
proof, which considers all relevant evidence with a possible exception for evi-
dence the costs of which exceed the bene¢ts.
Law Department,London School of Economics
r2009 The Authors. Journal Compilationr20 09 The Modern LawReview Limited.
(2009) 72(1) 130^155

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT