The volume “Theory of Legal Evidence - Evidence in Legal Theory” deals with
theoretical and philosophical problems of legal evidence. The concept of evidence is
expected to fill a number of distinct roles in science, philosophy, but also in legal
theory and law. Some of these roles are complementary, while others stand in tension
or have little in common. The title of this volume suggests two types of problems.
Let us begin with the first one—that of a theory of legal evidence. Imagine a
jurisprudence scholar who wants to find secure ways of navigating in the waves of
evidence scholarship. Other legal theorists may overwhelm her by referring to
diverse approaches to evidence and proof in legal systems of the contemporary
world. Some of those differences would stem from general differences between
common and civil law. E.g. parties play an active role in fact-finding in common law
countries, while in civil law countries, the judge plays the main investigatory role.
Describing the concept of legal evidence might therefore become something like
cleaning out the Augean stables, by trying to compare the taking of evidence in the
Anglo-American and continental systems, but without success. Professional lawyers
are bound to deal with evidence and proof, but they are certainly not bound to
theorize about it.