TWO METHODS OF PROOF IN CRIMINAL PROCEDURE
| Date | 01 September 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01772.x |
| Published date | 01 September 1988 |
| Author | J. D. Jackson |
THE
MODERN LAW REVIEW
Volume
51
September
1988
No.
5
TWO METHODS
OF
PROOF IN CRIMINAL
PROCEDURE
MUCH
of the literature on comparative criminal procedure has
been devoted to considering the relative merits of adversary and
non-adversary procedures. Even critics who have questioned the
fruitfulness of this approach because of the differing values that are
embedded in different systems of procedure, have considered it
useful to ask whether one type of procedure is more committed to
truth than another. Damaska, for example, has concluded that
European criminal procedure is more committed to truth than
Anglo-American criminal procedure, although he has been anxious
to point out that this is no argument for the adoption of such a
procedure, if it is thought that Anglo-American procedure is better
able to safeguard other values that are considered important.’
Throughout the tendency has been to emphasise the differences in
the methods of proof adopted in the civil law and common law
traditions. In this paper it will be argued that despite the variations
in procedure, both adversary and non-adversary systems are rooted
in a particular epistemological tradition which embraces a single
method of proof-the classic scientific method-that can be traced
back to the sixteenth and seventeenth centuries. In its place
another method of proof will be posited which it will be claimed is
more in tune with modern conceptions of truth-finding.
THE
CLASSIC
SCIENTIFIC
METHOD
OF
PROOF
It is commonly claimed that almost everything that distinguishes
the modern world from earlier centuries is attributable to science
This has been the subject
of
great controversy at least since the nineteenth century, see
H. H. Jescheck, “Principles
of
German Criminal Procedure in Comparison with American
Law” (1970) 56 Va.L.R. 139; M. J. Damaska, “Evidentiary Barriers to Conviction and Two
Models
of
Criminal Procedure: A Comparative Study” (1973) 121 U.Pa.L.R. 507 at pp.525-
526. Interest in the U.K. has been kept within bounds by academic writers who have
advocated caution in making comparisons. See,
e.g.
L.
H.
Leigh, “Liberty and Efficiency
in the Criminal Proces-The Significance
of
Models” (1977) 26 I.C.L.Q. 516; L. H. Leigh
and
J.
E. Hall Williams,
The Management
of
the Prosecution Process in Denmark,
Sweden
and
the Netherlands
(1981), pp.6-7. But concern about a number
of
questionable convictions
in the U.K. has prompted interest in aspects
of
European criminal procedure, see M. Young
and P. Hill,
Rough
Justice
(1983), pp.162-176; L. Kennedy, “A French Lesson
for
Lawyers,”
The Observer,
March
5,
1985; T. Sargant and P. Hill,
Criminal Trial.-fhe Search for Truth
(1986).
‘
Ibid.,
p.588. See also M. J. Damaska,
The
Faces
of
Justice
and
State Authoriry
(1986),
pp.122-123.
549
550
THE MODERN LAW REVIEW
[Vol.
51
which achieved its most spectacular triumphs in the sixteenth and
seventeenth centuries with the emergence of the theories of
Copernicus, Kepler, Galileo and Newton about the nature of the
physical world.3 The Copernican revolution in the sixteenth century
which reduced the earth to a mere part in the universe, a planet in
an immense space, not only conflicted, in Kuhn’s language, with
the previous paradigms of philosophy, science and religion by
challenging the authority of Aristotle and S~ripture.~ It also
challenged the very idea of resting knowledge about the world on
authority whether it be of the Church, the early scholastic writers,
the Bible, or the writers of classical antiquity by showing that
individuals could make their own inquiries about the nature of the
world.5 The method
of
proof adopted by scholastic philosophy was
to take a general proposition from some authoritative text and
construct an account of the world by deducing what it must be like
on the unquestionable assumption that the general proposition was
absolutely correct. The new theories of Copernicus, Kepler, Galileo
arid Newton, however, suggested that individuals could make their
own inquiries about the nature
of
the world and this view came to
be reflected in the writings of philosophers as diverse as Descartes,
Spinoza, Leibniz, Bacon and Locke. Whatever their differences
these philosophers all came to agree that knowledge may be gained
by anyone working on his own, rather than by appeal to
authoritative propositions, a principle that has been called the
principle of universal cognitive competence
.6
But as the foundations
of
knowledge were no longer to be built
on the authority of scholastic learning, a question remained about
where the new foundations of knowledge were to be found.
Following the methods of scientists like Gilbert and Harvey, it
seemed that one could base knowledge on direct observation of
natural phenomena. Francis Bacon was one of the first philosophers
to give concrete expressions to this idea. -He maintained a rigid
distinction between theology and God’s nature which could only be
known through revelation of His word and natural science which
was allocated a particular territory of its own and which could be
known by ~bservation.~ In place of the deductive method of
scholastic learning he devised a new empirical, inductive method of
backing up general propositions from observed data and moving
from these to broader generalisations which were to be checked at
every stage by reference to the results of experiment. Observation
and memory then supplied the basic data for reasoning, and it was
only possible to go beyond this basic data by relying on general
B. Russell,
History
of
Western Philosophy
(1946), Chap. 6.
T.
S.
Kuhn,
The Srruchue ofscientific Revolutions
(2nd ed., 1970).
L.
J.
Cohen, “Freedom
of
Proof”
in
Facts
in
Law
(ed.
W.
Twining, 1983) pp.l, 10.
Ibid.
’
F.
Bacon,
“The
Advancement
of
Learning” and “Novum Organum” in
The Works
of
Francis Bacon
(eds.
J.
Spedding,
R.
Ellis and
D.
W.
Heath, 1879). See
G.
Novack,
Empiricism and its Foundatbns
(1968), pp.17-19.
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