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Missing: Historical origin

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Notably missing from this article are the historical origins of the double jeopardy defense. It's touched upon in the UK section, but one would have to know to go there to find it, and I don't even know (what I came to the article to find out) whether the concept originated in English Common Law or if it has prior origins (or origins in other places). If someone more knowledgeable than I could write a historical origins section, it would be a definite improvement on the article. --Schoolmann (talk) 12:11, 19 April 2018 (UTC)[reply]

Is double jeopardy a demur?

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I feel that double jeopardy is the best example of a defendants demurrer. — Preceding unsigned comment added by 2600:6C51:7001:200:9151:271F:43C6:78FB (talk) 14:12, 29 August 2019 (UTC)[reply]

Lead needs to follow article - peremptory plea

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As I said in my reversion, the lead needs to follow the article. User:Redrose64 reverted me [1]. The problem is as I already pointed out in my edit summary when I first made the edit, is the lead said one thing:

A variation in civil law countries is the peremptory plea, which may take the specific forms of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted').

Meanwhile the body says (i.e. both the older version preferred by Redrose64 and my changed version say this)

In common law countries, a defendant may enter a peremptory plea of autrefois acquit ('previously acquitted') or autrefois convict ('previously convicted'), with the same effect.

To me, it makes no sense for the lead to say the former and the body to say the latter as Redrose64 prefers hence why I reverted while opening this discussion rather than just following BRD.

As for choosing which is correct, well while the term peremptory plea isn't used elsewhere, the examples of autrefois acquit/convict are given for both India and England and Wales. Both of these are well recognised as being common law legal systems, indeed as our article common law says, England is generally considered to be where common law originated.

Also, while I'm aware other Wikipedia articles are not reliable sources, the peremptory plea article says

In common law systems, the peremptory pleas (pleas in bar) are defensive pleas that set out special reasons for which a trial cannot proceed; they serve to bar the case entirely. Pleas in bar may be used in civil or criminal cases; they address the substantial merits of the case.

and again while short largely talks about the situation in parts of the UK. (To be clear, it doesn't talk about civil law countries at all, it talks about peremptory pleas in relation to civil cases although this appears to still be in common law countries albeit not clearly specified other than in the lead and these are also a different form of peremptory plea.) As I also mentioned in my edit summary, this might also partly explain why the plea is a mixture of French and English (which our article mentions); as this seems something more likely to happen in an English speaking countries than a French one. (Yes this isn't a great argument but it's simple and fitted in the lead.)

Maybe the body of our article and the lead and body of the peremptory plea article are completely wrong and there's no such thing as a peremptory plea in England and Wales or any other common law countries and it's actually something in civil law countries, even though if you do a quick Google search (as I did before my first edit), most sources seem to be from England and Wales and similar. My knowledge of legal systems is very limited so maybe I'm missing or misunderstood something etc. However since the lead should follow or at least be consistent with the body, I would suggest if an editor wants to keep the lead saying the civil law thing, they need to change the body so it doesn't completely contradict the lead. Ideally they should fix the peremptory plea article too so it isn't completely wrong.

I'd further note that by my read "these doctrines" seems to refer to the entirety of the notion of double jeopardy rather than simply peremptory pleas. And whether double jeopardy arose from Roman law doesn't seem to be sufficient to tell us whether or not peremptory pleas are in civil law countries or common law countries. Indeed even if "these doctrines" referred only to the peremptory pleas, the same would apply.

While Roman law is generally considered to have significantly less influence on the law in common law countries than civil law countries, as our article on both Roman law and common law both indicate, it did have some influence and one of these could have been either the entire notion of double jeopardy or specifically of peremptory pleas. (I find this doubtful for personal reasons especially that I suspect it's too simplistic to suggest it entirely arose in Roman law and never existed before then, but that's OR.)

Further if we actually look at the source, on page 695-696, what I see is It rested on the simpler notion, common to most systems of law, non bis in idem — an issue once decided must not be raised again. There's a footnote I'm not going to bother to quote. From what I understand, the section is mostly dealing with contractual disputes although it's a bit arcane for me and I only read it briefly.

AFAICT, the book which is about ancient Roman law doesn't talk about peremptory pleas in modern legal systems at all, assuming I can trust the OCR and archive.org's search system the only mention of peremptory is Further, the peremptory form does not indicate any direct coercive process of the Practor. and no mention of autrefois or jeopardy.

While it supports the existence of non bis in idem in Roman law, I'm unconvinced it supports the notion that either peremptory pleas or double jeopardy arose from non bis in idem in Roman law. However it also doesn't oppose it and since it's taking so much effort just to try to ensure internal consistency in this very simple thing, I'm not going to bother to try and argue about whether the source should stay or the non bis in idem.

But I do stick by my main point. Our article needs to be consistency, and when the body says and gives examples of peremptory pleas only in common law, we should stay that in the lead rather than the complete opposite.

Nil Einne (talk) 16:10, 7 May 2022 (UTC)[reply]

I admit, I didn't bother to read Law French until now. Since I have it actually makes my French point in a better way. I won't deny that the article is a bit confusing as for example in the body before the peremptory plea bit it also talks about common law countries and England and Wales. However based on the evidence I've seen, it's not really wrong per se, just poorly worded and written. (Maybe "some common law" would help, however some always sounds weasel wordish to me so I'm reluctant to add it.) Certain forms of peremptory pleas are one way that double jeopardy is prevented in some common law systems. There are other ways in other common law systems. On the flipside, all evidence I've seen suggests to me that however double jeopardy is dealt with in civil law systems, it's probably not by something generally called peremptory pleas and particularly not by pleading autrefois acquit/convict. Given my lack of knowledge of such matters, difficult finding sources etc, it's not my desire to deal with such issues, however I'd prefer an article which is poorly written and a bit confusing, but not wrong to one which is wrong. Hence why I'd like my change to stick, or a better version which doesn't make the unsupported and contradictory civil law claim. Nil Einne (talk) 16:35, 7 May 2022 (UTC)[reply]
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