Appraising legal value : concepts and issues
Creators: name: Heywood, Heather Mary
Publisher: name: University of British Columbia
Year: 2010

description: Historically, legal records were the main focus of archival preservation, and archives served primarily as arsenals of law—instruments for control and management of the State. Today, archives have many different values and uses, and legal value is only one criterion considered during the archival appraisal process. It is an important criterion, though, since archivists have an obligation to preserve not only those documents needed to understand society and its culture, but also those required to protect the rights and interests of society, its institutions, its citizens, and its heirs. Unfortunately, little has been written in the archival literature about what constitutes documentary legal value nor how this value can be recognized and evaluated. This thesis draws on literature from archival science, sociology, records management, diplomatics, law, and jurisprudence in order to define legal value and to identify its components. Since the study focuses on North American archives, the legal literature consulted pertains to the English legal system and its particular manifestations in the United States and Canada. To begin with, the thesis examines the document-event relationship and the relationship of this unit to a society's juridical system. This analysis illustrates the functions that documents play in society, and aims to provide an understanding of the capacity of documents to protect society and to serve as legal evidence. It is then proposed that the presence of a relationship between a document and a juridical event (one in which the society's legal system has an interest) be considered the first component of legal value. Perhaps the most important and most useful of the documents having relevance to events with legal significance is the class identified in this thesis as "legal records," consisting of those documents that execute or constitute written evidence of acts and events which directly affect legal rights and duties. Exploring the first component further, the thesis makes a distinction between actual and potential legal value based on whether the relationship of the document to a juridical event is direct or indirect, and whether the event currently has juridical relevance. Determining the strength of potential legal value involves consideration of the second and third components of legal value, which are related to the use of documents as legal evidence. These two components are admissibility and weight (in the sense of a document's effectiveness as a representation of facts). External factors, such as retention regulations, may play a role in determining this aspect of legal value, and some of these factors are discussed. More often though, the archivist will need to search for indications of reliability and completeness in the documentary formation process and in the elements of form intrinsic to a type of document. The thesis identifies many of the internal factors that contribute to legal value and proposes some criteria and a methodology for appraisal of legal value. Appraisal of legal value is not a mysterious process. With the exception of some diplomatic analysis, much of the information and analysis needed to determine legal value is fundamental to any appraisal process. In a society governed by law in all its aspects, determining legal value is a central part of any archival appraisal.