The law of presumptions essays in comparative legal history

If it be objected that I have exhibited in too great detail the views of the scholastic jurists from whom our prevalent classification of presumptions is taken, the answer is that it is only by such an exposition that the true character of the scholastic system can in this relation be known. Eminent English text writers, for instance, cite Menoch and Alciat as authority for the proposition that intent is a presumption of law; and, in fact, when we go back to the earlier English cases announcing this maxim, we find that its sole authorities are the scholastic commentators to whom I have just referred. We are led, therefore, to suppose (i) that maxims such as these have the authority of the Roman law, and (2) that they are part of a symmetrical system of jurisprudence based, as all practical jurisprudence must be, on the recognition of the coordinate power of the factors of law and of fact. But (1) the maxims in question, and the classification of presumptions to which they relate, are unknown to the Roman law, and are the creatures of the speculative scholasticism of the middle ages; and (2), what is more important, they are part of a false system which ignored reason as a coordinate factor in concrete adjudication, and which undertook to decide by a pre-announced rule of law every possible contingent question of fact. To these errors are attributable the multitudinous "presumptions of law" of the scholastic jurists; to page 28 this we owe those immense volumes of judicial casuistry which have done so much to mislead English writers on evidence.

The law of presumptions essays in comparative legal history

the law of presumptions essays in comparative legal history

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