Wednesday, December 16, 2009

Helmholz and Sellar on the Comparative History of Legal Presumptions

R. H. Helmholz and W. David H. Sellar have published their edited volume, The Law of Presumptions: Essays in Comparative Legal History, with Duncker & Humbolt. Here’s the publisher’s description:
The law of presumptions has never been popular among commentators. It has attracted few scholars, and most of the few who have ventured into the subject have come away as critics rather than admirers. Certainly, there are plausible reasons for this bad reputation. Presumptions are evidently inferior to more direct forms of proof; indeed they may not be forms of proof at all. They raise difficulties of definition and classification. Some presumptions also seem quite artificial, hard to defend as reliable indicators of the truth.

Despite their poor reputation, they have long been accepted and applied in practice. Legal presumptions play a part in virtually all Western legal systems. It is hard to image a workable law of proof without them, and their acceptance has been a fact of life for many centuries. Even in England, where the use of juries in the common law might seem to have excluded any need for legal presumptions, they took hold from an early date. They thus seem to be a natural candidate for comparative historical treatment. The essays in this volume seek to address this gap in scholarship.

The essays do not set out directly to rehabilitate the law of presumptions. They seek rather to explore the process by which presumptions worked their way into Western law and to examine the links that have existed between legal systems. The essays embrace not only English common law and Continental systems, but also 'mixed systems' like the law of Scotland and of Southern Africa. By examining the subject from an historical point of view, they seek to help explain the acceptance and persistence of a law of presumptions in Western law.
The contents are as follows:

R. H. Helmholz and W. D. H. Sellar, Presumptions in Comparative Legal History

Part One: Continental Traditions
A. Giuliani, Civilian Treatises on Presumptions, 1580-1620
K. W. Nörr, On the Early History of Prima Facie Evidence in German Law
C. H. van Rhee, Presumptions in Dutch Private Law (19th and 20th Centuries) within a European Context
F. Migliorino, The Night Bird of Minerva. On to Truth and Evidence in the Turning Point of Modernity

Part Two: English Traditions
D. J. Seipp, Presumptions in Early English Common Law
R. H. Helmholz, The Law of Presumptions and the English Ecclesiastical Courts
B. Shapiro, Presumptions and Circumstantial Evidence in the Anglo-American Legal Tradition, 1500-1900
T. P. Gallanis, Death by Disaster: Anglo-American Presumptions, 1766-2006

Part Three: Mixed Systems
W. D. H. Sellar, Presumptions in Scots Law
J. du Plessis, Presumptions in South African Law: An Historical Perspective

Hat tip: Comparative Law Blog

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