The influence of Bentham's work "The reasonability of forensic evidence" on the formation of the modern process of proof

Abstract

In the field of law, evidence does not always need to reveal objective truth or relate to any reality. On the other hand, no matter what the system of evidence is, it must be established in accordance with predetermined conditions, and only by observing those conditions does the evidence derive its force. With the transition from this system of regulated evidence to a system of freedom of evidence, truth no longer excludes evidence. On the contrary, proof becomes a way of establishing the truth. The judge, who has become the central actor in the evaluation of the evidence, must rely solely on his discretion. The work Bentham published towards the end of his life, in 1827, The Reasoning of Legal Evidence, which the author wrote on the question of proof in law, having specific properties not equivalent to those found in mathematics or physics; sciences that allow Bentham to find terms of comparison to explain the functioning of language in jurisprudence. Acquaintance with evidence involves drawing conclusions, that is, drawing conclusions from one or more available evidence. Inferences are central to the reasoning people make with evidence, whether in a judicial setting - which will occupy our reflections in this text - or in any other evidentiary context. By virtue of their statutory powers, judges have to decide whether there is sufficient evidence in favor of this or that fact and consider it proven. In addition, they impose the conclusion of their evidentiary considerations: just as judges establish, according to Kelsen, the authentic interpretation of norms for a specific case, they impose their decision on the existence of a proven fact. But in no way does this mean that judges engage in mental operations of a different nature than those carried out by the parties, their lawyers or any other person – including researchers – having access to the proceedings. In a court hearing, several pieces of evidence can contribute to proving the same proposition of fact. Such a situation, which is very common, adds to the complexity of the analysis of inferences in evidentiary considerations. The latter are then evaluated not only with reference to individual evidence, but also in relation to other evidence.