Introduction

When I took up Evidence, it was with the express intention of treating it as a case study of the problems of ‘contextualizing’ any established field of law. The central question was: What might be involved in studying evidence within a broadened conception of law as a discipline? One of the lessons of the history of the American Realist Movement was that those who had tried to develop broad, inter-disciplinary approaches to the study of law, including ‘the law-in-action’, had failed to construct coherent alternatives to the law-as-rules orthodoxy that they sought to replace. The toughness of that orthodoxy was in part due to the fact that it was compact, coherent and manageable. At least, it seemed to be so. Realists, such as Holmes, Cook, Llewellyn, and Frank, opened up a range of potentially fruitful lines of enquiry, but they failed to confront, let alone resolve, the Pandora's Box problem. Accordingly a major aim of the project was to tackle the problem of coherence as part of a realist or contextual approach by developing a framework for an inter-disciplinary perspective on Evidence, Proof and Fact-finding in Law. A second concern was to clarify what it means to claim to be ‘realistic’ in this context, a question which seemed especially pertinent to an enquiry into the determination and construction of ‘facts’.

I was fortunate both in my choice of subject and in my timing. For most of this century Evidence had the image among English lawyers of being a narrow, highly technical, often frustratingly unreal subject which was mainly the concern of judges and practising barristers.