Evidence of Drift

Author: Mirjan R. Damaska
Publisher:
Publish Date: 2003-09-01
Features: In recent years, the reform of the evidence system and the improvement of evidence legislation have become quite prominent issues in China's judicial reform and legal research. Evidence law has seemingly emerged as a "field of prominence." Perhaps due to the insufficient local resources in this field, many research outcomes are either directly or indirectly derived from the borrowing of foreign theories of evidence law and judicial practices. Moreover, this borrowing is beneficial not only to our past and present but also to our future. As the ancients said, "The stone of another mountain can be used to polish jade." This saying is very true. However, when we borrow the "stone of another mountain," we must first compare. We should compare the "stone of China" with the "stone of foreign countries," and also compare these foreign "stones" with each other. As the saying goes, "Comparison enables discrimination, discrimination reveals superiority or inferiority, recognizing superiority or inferiority leads to wise selection, and wise selection brings practical results." The Shifting Law of Evidence is a comparative evidence law work that can broaden our perspective in this regard. In the study of evidence law, comparative research is of great significance because it not only meets our needs to learn and draw on foreign evidence legislation and judicial experiences but also satisfies our need to explore the universal laws of evidence system development. When conducting comparative research, some scholars prefer the "method of seeking similarities," while others favor the "method of seeking differences." However, in my opinion, neither should be neglected. On one hand, by comparing the evidence legal systems of countries around the world, identifying their similarities, and analyzing the reasons behind them, we can better grasp the common patterns of evidence law. Since evidence systems formed under different legal traditions have "unconsciously adopted the same strategies" to solve certain problems, this often indicates that these strategies conform to universal objective laws or align with the direction of objective. On the other hand, by comparing the evidence legal systems of countries around the world, identifying their differences, and examining their respective effects, we can study the advantages and disadvantages of different methods, enabling us to make choices and introduce them accordingly. In the context of judicial reform, examining the differences between different evidence systems may have greater practical value. Indeed, different countries have different legal traditions and judicial environments, so a practice that is effective in one country may not yield the same results in others. However, understanding the different approaches of various countries can help us break free from our long-established thinking patterns, consider issues from a different perspective or position, and thus find better solutions. In this regard, The Shifting Law of Evidence can certainly provide us with some valuable insights. How exactly does evidence law shift? I believe that whether you are engaged in the study of evidence law or in judicial practice, after reading this book, you will find your own answers to this question. Of course, your views may not all be the same.