The right to property governs ownership and possession. Real estate, sometimes called “real estate,” refers to the ownership of land and related things. [215] Personal property refers to everything else; movable property, such as computers, cars, jewellery or intangible rights, such as shares and shares. A right in rem is a right to a particular property, as opposed to a right in personam, which compensates for a loss, but not a specific thing in return. Land law forms the basis of most types of property law and is the most complex. These include mortgages, leases, licenses, covenants, easements and legal systems for registering land. Regulations on the use of personal property are governed by intellectual property, corporate law, trusts and commercial law. An example of a fundamental case of most property rights is Armory v Delamirie [1722]. [216] The boy of a chimney sweep found a gem set with precious stones. He brought it to a goldsmith to have it evaluated. The apprentice goldsmith looked at him, sneakily removed the stones, told the boy that it was worth three half pence and that he would buy it. The boy said he would prefer the jewel, so the apprentice gave it to him, but without the stones. The boy sued the goldsmith for his apprentice`s attempt to deceive him.
Lord Chief Justice Pratt decided that, although it cannot be said that the boy owned the jewel, he should be considered the guardian of the discoverers until the original owner was found. In fact, both the apprentice and the boy were owners of the jewel (a technical concept, meaning proof that something could belong to someone), but the boy`s ownership interest was considered better because it could be shown that he was the first in time. Possession may represent nine-tenths of the law, but not all. Around 1900, Max Weber defined his “scientific” approach to law and identified the “legal rational form” as a kind of domination that was not due to personal authority but to the authority of abstract norms. [238] Formal legal rationality was his name for the key feature of a coherent and predictable law, which was a prerequisite for modern political developments and the modern bureaucratic state. Weber saw this law develop in parallel with the growth of capitalism. [235] Another prominent sociologist, Émile Durkheim, wrote in his classic the Division of Labour in Society that as society becomes more complex, civil law, which deals primarily with restitution and compensation, develops at the expense of criminal laws and criminal sanctions. [239] Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe and William Graham Sumner in the United States.[240][241] This idea of the weight of evidence has been applied by some jurists to assess the sufficiency of evidence to meet legal standards of proof. [25] In the simplest case, we can consider the weight of the legal determination of facts as the amount of evidence presented in court. Weight is distinguished from probability. The weight of evidence may be high and the mathematical probability low, as in the situation where the prosecution presents a large amount of evidence that tends to incriminate the accused but the defense has an unwavering alibi (Cohen 1986:641).
Conversely, the state of the evidence presented in a case could demonstrate a sufficient degree of probability – high enough to exceed the threshold of evidence assumed for the mathematical design of the standard of proof – and still not have sufficient weight. In the much-discussed paradox of the door crushing, the only evidence available shows that the accused was one of a thousand spectators at a rodeo show and that only four hundred and ninety-nine tickets were issued. The defendant is sued by the organizer of the show for a goal accident. The mathematical probability that the defendant was a door accidenter is 0.501, thus reaching the probabilistic threshold of civil liability. But according to the principle of negation of mathematical probability, there is a probability of 0.499 that the defendant paid for his admission. In these circumstances, it is intuitively unfair to hold him accountable (Cohen 1977:75). One possible explanation for not holding him accountable is that the evidence is too weak or underweight. The problem of the reference class is not limited to the probabilistic assessment of the probative value of individual evidence. This is a general difficulty in a mathematical approach to legal evidence. The same problem arises, in particular, in the case of a probabilistic interpretation of the standard of proof, where the court must determine, on the basis of all the evidence presented in the case, whether the standard is met. This topic is discussed in Section 3.2 below, but it is important to illustrate how the reference class problem can also occur in this context. This is because the plaintiff is suing Blue Bus Company for compensation for injuries sustained in an accident.
The plaintiff testifies, and the court believes, based on his testimony, that he was hit by a bus driven recklessly. Unfortunately, it was dark at the time and he can`t tell if the bus belonged to the Blue Bus Company. Let`s further assume that there is also evidence that the Blue Bus Company owns 75% of the buses in the city where the accident occurred, and the remaining 25% belong to the Red Bus Company. No other evidence is presented. Using the data as a basis to conclude that there is a probability of 0.75 that the bus involved in the accident belonged to the Blue Bus Company appears to be the reference class of “buses circulating in the city” compared to other possible reference classes such as “bus travelling on the road on which the accident occurred” or “bus”, operating at the time in question” (Allen and Pardo, 2007a: 109). Different reference classes can lead to very different probability ratios. It is crucial to know how the reference class is chosen, and it is ultimately a matter of reasoning and judgment. Any choice of reference class (with the exception of the class that shares each characteristic of the incident, i.e. the single incident itself) is in principle questionable.
Freedom of expression, freedom of association and many other individual rights allow people to gather, discuss, criticize and hold to account their governments, which form the basis of a deliberative democracy.