This Essay addresses the most fundamental jurisprudential question underlying the institution of evidence law: it explores the justifications for subjecting legal fact‑finding to the regulation of evidence rules. This issue has been at the center of evidence law scholarship since the days of Bentham’s Rationale of Judicial Evidence, which advocated a naturalistic approach to legal fact‑finding and launched an attack against exclusionary rules. Bentham’s approach came to be known as “Free Proof” and its followers included well‑known evidence law scholars, such as Wigmore, Thayer and Cross. To this day, free proof remains both a normative ideal and a practical reality, enjoying support in both academic and judicial circles. American trial judges routinely deviate from rules of evidence, when they sit without a jury, and evidence doctrine is continuously gravitating away from rules of admissibility. Against the background of the gradual vanishing of the institution of evidence law from American courtrooms, this Essay will make the case for the regulation of legal fact‑finding and against free proof. In so doing it will also unravel the different theoretical perspectives through which the institution of evidence law is viewed and provide a mapping of current evidence law scholarship.
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