The Law of Evidence in Victorian England (review)

The Law of Evidence in Victorian England, by Christopher Allen; pp. xvi + 205. Cambridge and New York: Cambridge University Press, 1997, £37.50, $64.95.

The Victorians were obsessed with law and legality. This was equally the case at home, overseas, and in the rebellious former colonies of North America. They understood their own "becoming" in terms of the progress of law from the darkness of Stuart despotism to their own attained enlightenment. Law, they believed, was the bedrock on which their tremendous achievements in economy, culture, politics, and war rested. It marked their distinctiveness from lesser peoples such as the French, Irish, and "natives" and provided a unique moral justification for empire.

Despite this, the legal cultures of the English remain very nearly terra incognita to Victorianists. Christopher Allen's The Law of Evidence in Victorian Englandis thus a welcome contribution. This work is no legalistic rehashing of dead legal doctrine. The author makes good use of his subject to open vistas on places all students of the Victorian era need to go. The story of The Law of Evidence in Victorian England, we are told, requires us to consider law and culture simultaneously, for evidence law was shaped by a number of pressures, including the power of the legal profession, the declining vitality of religion, and a growing cultural predisposition in favour of "rule-based certainty" over "flexibility and discretion" (186). These are large themes and none is fully developed. All are mustered to refute the views of scholars (Stephen Landsman and H. L. A. Hart, amongst others) whom Allen holds responsible for constructing a conventional historiography which, he says, reduces the development of nineteenth-century evidence law to the influence of Jeremy Bentham "and the legislation that his writings inspired" (7).

Allen's main focus is on rules which excluded the introduction of certain types of evidence for policy reasons unrelated to the merits of individual cases. Such rules have the effect of preventing judges and juries from hearing relevant evidence that might be necessary to finding the truth. Normally motivated by concerns about morality or system integrity, rules excluding illegally obtained evidence provide the most compelling contemporary example. A number of nineteenth-century exclusions are explored in chapters about incompetency arising from "Defect of Religious Principle," "Infamy and Interest," and the "Incompetency of the Accused." The final substantive chapter discusses treatise writers, law reporters, and judges. Enormous background knowledge is brought to bear and clearly presented. The result is a very nice piece of scholarship.

That said, the work suffers from three related defects. First, far too much effort is spent mauling a straw man. There may be less to the "conventional" wisdom regarding Bentham's purported influence than Allen makes out. I remain unconvinced that the authors he accuses of grievous sins of historical interpretation are in fact guilty as charged. The "Great Man of History" fallacy is widely recognised as such. Few credible scholars seek to explain countless changes in complex fields over an entire century by reference to the influence of a single person. At least, none assert such things with full literal intent--rhetorical flourish is another matter. To assert that "it all flowed from Bentham," or to offer some such statement as a figure of speech, does not amount to a gross sin of either conceptualisation or communication. Some poetic licence must be allowed. Moreover, Allen's rather literal construction of previous scholarship insufficiently distinguishes three or four meanings of "Bentham's influence." Bentham, the man, should not be confused with his scholarship or with the essence of his arguments. These, in turn, are distinct from the positions, ideas, and influence of "Benthamites." More broadly again, none of these is identical to the course and logic of utilitarianism. Though each forms part of "Bentham's influence," loosely speaking, analyses which fail to sufficiently distinguish between them cannot be persuasive.

Moreover, the book's single-mindedness obscures wider and more...