I feel rather like the Auto-icon, a relic of the past wheeled out to observe your proceedings impassively or cryptically. In 1983 I felt that I was the only person in the world who had read all of the Rationale of Judicial Evidence – except perhaps Jimmy Burns who seemed to have read everything by Bentham. I had also read An Introductory View, Scotch Reform, and Dumont’s Traité des preuves judiciaires in both French and English. I had looked at several hundred unpublished Bentham manuscripts on adjective law and had tried to transcribe some. Surely I was unique. But there was not at the time funding for an edition of the Rationale for the Collected Works, let alone the ocean of manuscripts relating to evidence and procedure (adjective law), judicial organisation, Scotch Reform and several minor works which were all intimately related to each other.
In 1980–81 Claire Gobbi and I prepared a report for the Bentham Committee on Bentham’s writings on evidence and cognate works.2 Claire did a detailed survey on Scotch Reform and we did a more cursory survey of the published writings and unpublished manuscripts on evidence, procedure and judicial organisation (EPJ), and some borderline cognate works, including Court of Lords’ Delegates, Lord Brougham Displayed, Truth versus Ashhurst and Justice and Codification Petitions. We concluded that the total material on EPJ is directly related to 17 published works of varying length and 13,326 manuscript pages.3 We also concluded that all these works were so closely interrelated that ‘it would be artificial (and risky from a scholarly point of view) to try to treat them as discrete units’. Furthermore, we estimated that the combined works in this general area would fill between four and seven volumes of the Collected Works, quite apart from the J. S. Mill edition of the Rationale of Judicial Evidence. While the unity of this vast collection was recognised, it was decided that it would not be feasible to obtain funding for a single major project, and work on this area was adjourned sine die.
My interest in Bentham on evidence was part of a broader project to rethink the subject of evidence in law in a broader framework than had been traditional. I abandoned my plan to help with editing the Rationale of Judicial Evidence and instead published a short exploratory book called Theories of Evidence: Bentham and Wigmore, which included a detailed précis of the Rationale.4 As a result I have not reread the Rationale or any other of Bentham’s works in the area for about 35 years, except An Introductory View, which is probably still the best starting-point for studying Bentham on evidence. It is short, relatively readable, used less editorial licence than Dumont’s Traité, and contains some material not in the Rationale, including Bentham’s critique of Gilbert (see below).
To illustrate how alone I felt, let me begin with an anecdote. When I started to take an interest in Bentham on evidence in the 1970s, I thought that it would be nice to own a copy of the original J. S. Mill edition of 1827. In about 1980 I called in at Wildy’s, the famous law bookshop in Lincoln’s Inn Passage, and enquired if a copy had ever come their way. The manager looked puzzled and then said, ‘Wait a minute’, and went to consult a box of dog-eared old-style index cards. He came back smiling. They did have a search out for it. However, there was one person ahead of me in the queue. Uninhibited by data protection, I gained access to the card. It read ‘R. Cross’, with a London address, that is, before Rupert Cross was elected a Fellow of Magdalen College, Oxford, in 1948. Cross became the leading evidence scholar of his generation in England. So far as I know he never owned a copy of the Rationale and never even cited it. For his generation Bentham on evidence was an almost complete blank.
I stopped working on Bentham on evidence nearly 35 years ago. I have not read any of these works in toto since – although I have occasionally dipped into them, using the indexes of Mill’s edition of the Rationale and the useful one in the Bowring edition. Instead of discussing the details of that monstrous work I shall try to set it in a broader context and suggest some questions that scholars brave enough to dive into this ocean of thought may need to investigate.
1. What Is a Theory of Evidence?
All of you have drawn inferences from evidence in the last 24 hours. The news media have also been full of items involving evidence – fake news, poisoning in Salisbury, chemical weapons in Syria, weapons of mass destruction, dope testing of athletes, and investigations and speculations about Donald Trump have all featured in the media recently. Police investigations, scenes of crime officers, forensic anthropologists and unsolved mysteries of many kinds are staples in popular culture. Sherlock Holmes is the patron saint of Evidencers. After September 11 2001, one of the most iconic events of recent times, the whole American intelligence system was shaken up, because Donald Rumsfeld, George Tenet and Robert Gates decided that ‘American intelligence agencies did not possess the analytic depth or the right methods of analysis accurately to assess possible threats’.5 In short, the FBI and the CIA had not been taking analysis of evidence seriously enough.6 The Director of the FBI at the time was Robert Mueller.
‘The field of evidence is no other than the field of knowledge’,7 wrote Bentham, and based his approach on the ordinary common-sense inferential reasoning accessible to nearly all citizens, indeed humans. Moreover, all of us nearly all of the time (except in law and evidence-based medicine) live in a world of free proof, that is, free from rules of admissibility or weight or quantum or priority. Only in law and some rigid bureaucratic regimes are there formal binding rules of evidence. They are diminishing in extent and, as we shall see, lawyers, especially evidence scholars, greatly exaggerate their importance.8 Nearly all of you assume something like Bentham’s theory of evidence, that is, that there are no formal binding rules of evidence.
What is a theory of evidence? And what kind of theory was Bentham’s? I suggest that theories of evidence come in various shapes and sizes. First, we need to distinguish between a theory of evidence in law and evidence as a potential multi-disciplinary field. The latter idea has been promoted by Professor David Schum, a psychologist and statistician, who has also taken a special interest in law, historiography, probability theory and intelligence analysis.9 Schum’s ambitious attempts to create a distinct field or domain led first to a modest project in the Netherlands in 199410 and then to a major programme at UCL which, despite being wound up in 2011 with an edited volume called Evidence, Inference and Enquiry, is still unfinished business.11 The concern there was to explore the commonalities and differences, epistemological, logical, institutional and technical, about the concepts, frameworks, theories and technologies (as in forensic science) found in thinking about, reasoning and using evidence in disciplines ranging from archaeology and astronomy through probability theory and proof of the existence of God right up to zoology and zymurgy. Every empirically oriented discipline and occupation is concerned with evidence.
Bentham is clearly relevant to this ambitious multi-disciplinary UCL project, but his main writings on the subject were directly related to law. Should we think of his theory as a theory of the law of evidence or, more broadly, of evidence in law? Or is it wider than that? There have been quite a few attempts to construct such theories in England (especially during the nineteenth century), in Continental Europe (especially France and Scandinavia), and above all in the United States. These have had varied objectives.12 Most of them were concerned to construct a coherent account, both analytical and normative, of the law of evidence in municipal, i.e. domestic, law. Let me mention just four. James Fitzjames Stephen (1829–94) tried to subsume all of the seemingly disparate rules of the common law of evidence under the principle of relevancy.13 Exclude all irrelevant evidence, admit the best evidence. Sir Frederick Pollock and others called this a ‘splendid mistake’. James Bradley Thayer (1831–1902) superseded Stephen, who was treated as being correct in identifying relevance as a key concept, but having erred in trying to subsume the law of evidence under a principle of relevance: this is because the rules were exceptions to the principle of free proof. Thayer, writing at the end of nineteenth century, maintained that the common law of evidence was based on two principles:
(1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy of law excludes it.14
In other words, exclude all irrelevant evidence and admit all relevant evidence unless there is a clear ground of policy of law which excludes it.15 In this view the bulk of the law of evidence consisted of a disparate series of exceptions to a principle of free proof; these exceptions are based on different grounds of policy, such as national security, preservation of family relations, lawyer–client relations, unreliability (e.g. hearsay) and what in Anglo-American law today is expressed in terms of excluding any evidence whose prejudicial effect outweighs its probative value.16
Thayer is important for three reasons. First, his theory is generally accepted as the one that best explains the common law of evidence even today; it is the basis of the Federal Rules of Evidence and many recent attempts at codification; and nearly all the controversial topics such as hearsay and improperly obtained evidence can be treated as internal debates within Thayer’s theory.17 The second reason is that although Thayer favoured the retention of a few exclusionary rules, he is an intellectual descendant of Bentham (mediated by nineteenth-century writers) and a bridge between today’s common law of evidence and, it could be argued, modern Continental systems.18 A third reason for Thayer’s importance is that he taught John Henry Wigmore, who for at least 40 years from 1900 dominated American evidence law through his great Treatise, which had no rivals until quite recently.19
Wigmore was a fairly loyal disciple of Thayer’s, but he glossed his ideas in two important ways that are relevant here. First, although, like Thayer, he wanted to retain a few exclusionary rules, he maintained that these were in fact far less important than was commonly believed by practitioners and evidence scholars; furthermore they had steadily diminished in importance and scope during the nineteenth century. But most scholars and discourse about evidence in law omitted the basic principle(s) to which the disparate rules were exceptions. If the law of evidence is a fragmented series of exceptions to a principle of free proof, surely one should first study that principle. Wigmore put it this way: the study of evidence in law consists of two parts: the law of evidence, which he misleadingly called ‘the Trial Rules’, and ‘the Principles of Judicial Proof as found in Logic, Psychology and General Experience’.20 The principles are anterior to and more important than the trial rules and have been neglected by lawyers. Apart from his lengthy attack on the technical system of procedure, most of Bentham’s Rationale is concerned with these principles. Until the 1970s Bentham and Wigmore were the only scholars who had paid sustained attention to these principles in law, though there was scattered interest elsewhere in logic, probability theory, forensic science, psychology and historiography.21
Wigmore’s second deviation from, or maybe just a gloss on, Thayer arose in the context of constructing a code of evidence for the American Law Institute.22 Wigmore recommended that the rules should be ‘directory not mandatory’;23 that is, they should not be binding on bench and bar. This is very close to Bentham’s ‘cautionary instructions’: the law of evidence should consist of non-binding guidelines rather than peremptory rules. However, Wigmore, who was quite conservative, advised that the code should contain precepts that followed closely the existing law, and his draft occupied 550 pages. But that again is not very different from Bentham, who discusses most of the concerns of the law of evidence while considering what guidance should be given to judges.24
Two of Wigmore’s contemporaries, Edmund Morgan and Charles E. Clark, went even closer to a Benthamite approach in urging that most of the existing rules should be abolished and much more should be left to judicial discretion.25 In England we are not far from that position today in civil evidence; most teaching of the law of evidence focusses on criminal evidence, which survives in truncated form, as if evidence scholars were saying: ‘What can we teach if there are no rules? If there are no rules there is nothing to learn.’ My answer is: there is a great deal.26
There is room for further research as to how close Morgan, Clark and, from an earlier generation, Charles F. Chamberlayne were to being Benthamite in their approach to judicial evidence.27 But it should be noted that while Wigmore’s great treatise on the ‘Trial Rules’ was a best-seller, Chamberlayne’s treatise foundered at the first edition. Wigmore’s Principles probably only reached a third edition because the publishers needed to keep their most successful author happy. It is as if practitioners were saying, where there are no rules, there is nothing to look up.
Before moving on to Bentham’s theory of evidence and what I have called his ‘antinomian thesis’, let me intrude another personal anecdote. In 1972 I heard Rupert Cross (now Sir) – the same person who had not obtained the Rationale (at least from Wildy’s) – say in a debate on criminal evidence, ‘I am working for the day when my subject is abolished.’28 Although this sounded Benthamite in spirit, my reaction was not ‘He is following Bentham’; rather it was political, a right-wing attack on some important and worthwhile rules, for I thought, and still think, that some safeguards for accused persons are worth preserving.
More important jurisprudentially, Cross’s statement just did not make sense. For how could anyone abolish the subject of evidence in law? For inferential reasoning from evidence pervades decision-making in litigation and all other legal contexts as it does in other spheres of life. One could not abolish the field of evidence in law or in everyday life any more than one could abolish the rules of logic.
For me the big question has been: what would one study if there were no rules? Wigmore and Bentham provided a starting-point. Wigmore said, ‘The Principles of Proof’; Bentham said: ‘abolish all formal rules addressed to the will but pay attention to instructions addressed to the understanding’. Their answers went a long way to answering my question, except in one major respect: they focused on judicial decision-making. In my view that is much too narrow: adopting a total-process model of litigation and like processes, I have argued that basing decisions concerning questions of fact on inferential reasoning from evidence was an aspect of the agencyof many kinds of actors with different roles in changing contexts; for the subject of evidence in law extends far beyond adjudication to include such matters as fact investigation, decisions to make a claim or to prosecute, plea bargaining and settlement out of court and on through post-trial decisions, for example by parole boards and probation officers. In this perspective adjudicative fact-determination by judges or juries is wholly exceptional, especially in a system which relies heavily on guilty pleas and on lay people – magistrates and jurors – to make final determinations. Many decisions relating to evidence are taken in the shadow of the law.
What kind of theory was Bentham’s? First, it is just part of a general theory of procedure and adjudication which in turn belongs to a comprehensive political and legal philosophy. I think that Halévy got this right: Bentham’s main period of work on evidence, roughly 1802 to 1813, coincided with changes in his political views and preceded Constitutional Code.29 Evidence is part of adjective law, which is concerned, along with judicial organisation, in implementing the pannomion, which in turn is a means of implementing his democratic theory based on utility. They are all of a piece.
Thus Bentham’s theory of evidence (or evidence and proof) in law is primarily a design theory for a system of adjective law, the main role of which is to implement substantive law assumed to be consonant with utility. The direct end of procedure is rectitude of decision, that is, correct application of law deemed to be good to true facts by means of reasoning based on relevant evidence. The indirect end of procedure is avoidance of preponderant vexation, expense and delay also judged by utility. Thus evidence is the means to arrive at truth in adjudication, and Bentham firmly stated that no artificial binding rules could promote rectitude of decision. There should be no formal rules of evidence, although I am not confident that Bentham was serious about this in respect of procedure.
A typical passage comes in discussion of the estimation of the probative force of circumstantial evidence:
On this as on every other part of the field of evidence, rules capable of rendering right decisions secure, are what the nature of things denies. To the establishment of rules by which misdecision is rendered more probable than it would otherwise be, the nature of man is prone. To put the legislator and the judge upon their guard against such rashness, is all that the industry of the free inquirer can do in favour of the ends of justice.30
In short, peremptory rules of evidence are inevitably going to be over-inclusive or under-inclusive.31
Bentham’s espousal of the natural system and his attack on all formal rules of evidence seemed extreme to lawyers in his time and still seems so to most lawyers today. But let us pause a moment: how far is legal decision-making based on rules of evidence today?
In modern law it is generally accepted that relevance is a matter of logic, not law. As Thayer put it, ‘The law has no mandamus to the logical faculty’.32 Yet, as Bentham saw clearly, the most important means of exclusion is on grounds of irrelevance, but that is not a ‘rule’.
Secondly, with only very minor exceptions, we have no rules of weight or probative force. That too is a matter of logic and general experience. Wigmore went so far as to say that talk of rules of weight or credibility is akin to ‘moral treason on our system’.33
Similarly there are almost no rules of quantum, i.e. specifications of the amount of evidence that is necessary for a decision of guilt or liability. That gets rid of the old numerical system that specified the number of witnesses or the amount of evidence. Rules requiring corroboration have atrophied and have barely survived except in rare cases of treason, perjury and procuration of girls for prostitution.34
Especially interesting in the digital era is Bentham’s attack on priority rules and the incapacity of classes of witnesses. Sir Jeffrey Gilbert’s The Law of Evidence (written in the 1720s, published 1754) gave Bentham a clear target to attack. Gilbert had organised his account of the law of evidence around a scale of rules of weight linked to ‘the best evidence rule’ (now known as an evidentiary ‘ghost’).35
Today there are almost no priority rules, no rules of weight or probative force, and hardly any rules about capacity of witnesses or corroboration. By 1900 nearly all of Bentham’s main targets had disappeared from English law, but not because of his direct ‘influence’. There is no doubt that nearly all changes in the law of evidence since Bentham’s day have moved in the direction that he charted, but in a piecemeal and slow fashion that he would have deplored. There are remarkable affinities in trends towards simplification, flexibility and greater judicial discretion.
Christopher Allen in The Law of Evidence in Victorian England (1997) has convincingly punctured many exaggerated claims about Bentham’s immense influence, especially in relation to evidence. His story shows that, for the most part, proposed changes had to win the support of the legal profession and that by no means all of the proponents of change were Benthamites; moreover, those who used Bentham’s arguments rarely attributed the ideas to him. Rather, the uneven processes of change were due to ‘a variety of social, political, and intellectual pressures’ during the Victorian era.36
Bentham’s ideas may have seemed radical, his attacks on the legal profession may not have forwarded his case and his influence on law reform may have not been as direct as has often been stated, but there is no doubt that the mainstream set of working assumptions in law today, in most kinds of decision-making and in everyday life, are dominant, despite post-modernist, relativist and other sceptical tendencies. Seek empirical truth by informal inferential reasoning based on evidence in the presence of the parties.
There is one exception that we need to keep an eye on. The more doctrinaire versions of evidence-based medicine (EBM) are established on something akin to the priority rules set out in Gilbert’s The Law of Evidence (1754), which Bentham destroyed over two centuries ago in An Introductory View (ed. James Mill, 1810). When I recently visited a doctor, he brought up on screen an algorithm which set out priority rules for ranking classes of evidence, with randomised, repeated, controlled clinical trials at the top, and expert opinion near the bottom. Luckily, he was also interested in what I thought. In its purer forms EBM allowed no room for intuition, judgement based on experience, let alone ‘a patient’s idiosyncratic preferences’.37 Within EBM there has been a softening of dogma, but beware: computer programmers and Big Data want priority rules and are gaining influence. Are protocols and algorithms in the context of bureaucracy and modern technology not creeping in the direction of Gilbert’s priority rules? Come back JB.