Abstract
“Fact”, “evidence” and “proof” are core concepts shared by evidence law and history. Analysis of such concepts shows that there are many similarities between the two disciplines in concept and methodology. The reason for the main differences lies in the institutional nature of legal issues. For example, the to-be-proven facts must be consistent with the constitutive requirements; the collection, review and judgment of evidence should be subject to legal norms and space-time scenarios; the judge must give a clear judgment according to the conclusion based on preponderance of evidence; and sometimes the truth-seeking goal will be overridden by other legal values. On the contrary, there are many ideas in history that are without institutional constraints and worth learning by law, such as attaching importance to the story of facts, the material of evidence, and the imagination of cognitive subjects.
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Notes
- 1.
For example, Jeremy Bentham, John Henry Wigmore (Rescher and Joynt 1959, 561).
- 2.
Though according to the requirements of history, the value of justice seems to be the pursuit of historians as well, this kind of justice must be based on a record of truth. For example, Shen Xu’s Shuo Wen Jie Zi (≪说文解字≫, literally: ‘Explaining Graphs and Analyzing Characters’), an early-2nd-century Chinese dictionary from the Han Dynasty, said that “史, 记事者也。从又持中。中, 正也”, which means, the task of ancient historians is to record all sorts of things objectively with the numerous materials in hand. Actually, justice in history is truth, which is very different from that in law.
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Shu, G., Song, X. (2021). Facts, Evidence and Proof: The Core Concepts of Law and History. In: Zhang, B., Man, T.Y., Lin, J. (eds) A Dialogue Between Law and History. Springer, Singapore. https://doi.org/10.1007/978-981-15-9685-8_4
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