STANDARDS OF PROOF
AbstractWhile the necessity for proof beyond a reasonable doubt may have been inarticulately accepted by the courts as early as the thirteenth century, the two distinct expressions or formulas “beyond all reasonable doubt” and “by a preponderance of probability” emerged at the end of the eighteenth century when the former was applied in capital cases to counteract the rigours of the penal code. G.H.L. Fridman argues that the courts’ use of this phraseology in divorce law is archaic and results in linguistic and theoretical difficulties, particularly at a time when new divorce jurisdiction has become of great importance. The real problem for the courts is not so much the discovery of language capable of describing with exactitude the principles upon which they act, but rather the appreciation of the dangers of seeking too hard for a fuller and more precise explanation. These impediments could be resolved by restating the law in terms that would obviate the need for long, complicated and bewildering attempts at explaining rationally what is really an intuitive process; namely, coming to a conclusion about facts in dispute in a legal case.
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