Showing papers in "Netherlands journal of legal philosophy in 2013"

The presumption of innocence

Abstract: The presumption of innocence (PoI) is considered to be a fundamental principle of criminal law. Over the past decades, however, the emphasis on the rights of suspects and defendants has given way to a more instrumental view of criminal law as a means to reduce risk and attain safety. One can think, for example, of recent Acts on Terrorism that do not require ‘suspicion’ but merely ‘indications’ of a terrorist crime, thereby lowering the level of suspicion required for investigative activities in the pre-trial phase; of plea-bargaining that has been introduced in various legal systems; of the verdict of the European Court of Human Rights (ECtHR) in Salabiaku v. France where the Court allows for presumptions of fact or of law to operate in the trial phase; of the possibility of review after wrongful acquittals and of convicts who face special measures after serving their sentence in the post-trial phase, to name just a few examples. Such an instrumental approach puts fundamental principles such as nulla poena, ne bis in idem, nemo tenetur, in dubio pro reo, nullum crimen sine culpa, as well as the PoI under pressure.

Who Must Presume Whom to be Innocent of What

Abstract: In the PoI’s most familiar context, the criminal trial, initial answers to these questions are easy. The official or body who is to reach the verdict (the judge(s), the jury) is to presume, of the defendant, that he is innocent of the offence for which he is being tried.4 The presumption protects the defendant against conviction and punishment for that crime unless it is defeated; what defeats it is proof of guilt to the requisite standard.

On Presuming Innocence

Abstract: Duff advances the idea of different presumptions of innocence (hereafter: PoI), instead of just one. I agree that this ‘relaxed approach’ is a fruitful one. From an analytical point of view it is an advantage that we do not have to start from the assumption that there is only one single presumption. Once one accepts the possibility that our system of criminal law is governed by different PoI, the question of whether ‘the presumption of innocence’ should be read narrowly or broadly, vanishes. This approach also removes the need, as Duff puts it, to argue that the different PoI ‘can be unified’ into a single presumption. Instead, alternative PoI may differ from each other in many respects. Even the rationale behind these presumptions, I would add, could be different.

There is Only One Presumption of Innocence

Abstract: Antony Duff, in his thoughtful and thought-provoking article, enriches traditional thinking about the presumption of innocence (PoI) by explaining that there is not just one presumption of innocence relating to the criminal process. Innocence, he claims, is presumed in different contexts with different meanings. This broad perspective, based on Duff’s general concept of civility and responsibility as the basis of law in modern society, opens up new dimensions to the presumption of innocence and leads to a nuanced analysis of problems that have vexed lawyers well beyond the common-law world, for example, the general legitimacy of pre-trial detention and the issue of the continuing exclusion of ‘ex-convicts’ from certain rights and privileges.

Juridical Acts and the Gap between Is and Ought

Abstract: Another function of the law – which, by the way, is to a large extent fulfilled by guiding behaviour is to facilitate the coordination of human behaviour. Human society is only possible if people know, at least to some extent, what to expect from each other, and the law helps in this connection by making human behaviour predictable. Law can only fulfil this function if most people can by and large know the contents of the law, and to this purpose the law must be a matter of fact, at least so it seems. In its function to make human behaviour predictable, the law seems to belong to the realm of is.

Presumption of Innocence Versus a Principle of Fairness

Abstract: Antony Duff has chosen to portray the presumption of innocence (PoI) as a broad and general rule or principle. In his paper, he gives this essentially procedural norm an extensive, explanatory and normative function far outside its usual scope, i.e., the trial. According to Duff, some sort of PoI is engaged at the pre-trial stage as well as in the later face when punishments are executed. The same is the case even after a convicted criminal has served his sentence, i.e., when he is restored to civic life.

Retributivist Arguments against Presuming Innocence

Abstract: Factors justifying not presuming innocence are generally incorporated into the Presumption of Innocence (PoI). A confusing discourse has resulted: numerous guilt-presuming acts are deemed consistent with the PoI. I argue for an unusually broad PoI: any act that might convey to a reasonable actor that he is not presumed innocent of a punishable offence constitutes a PoI interference. Thus, academic debate need only be about the question what PoI interferences are justifiable or unjustifiable. This question must be answered using pro- and anti-PoI values. I analyse three PoI interferences in relation to Duff’s retributivist punishment theory: presumptions of guilt, vicarious liability of car owners and coercing non-suspects into proving their sobriety. Retributivists tend to castigate such procedures based on their (supposed) consequentialist rationale. I argue, however, that they might also be justified on retributivist grounds. The retributivist anti-PoI duty to punish the guilty may be the worst enemy of innocents.

The Meaning of the Presumption of Innocence for pre-trial detention. An empirical approach

Abstract: What is the presumption of innocence (PoI)? In a nutshell, Anthony Duff’s thought provoking argument purports that there is not one but many (interconnected) PoI. One of those is an important principle for restricting pre-trial detention. Duff’s account of the meaning of the PoI is intellectually challenging and a pleasure to read. Duff takes a normative point of view – how should the PoI regulate pre-trial detention. He is not primarily concerned with how the PoI actually regulates pre-trial detention and how it is practiced. My contribution will particularly focus on the latter perspective. Accordingly, section 3 describes the results of my empirical research into the argumentation of Dutch judges (for what reasons do they order pre-trial detention?) and also outlines several other national practices. Hence, I will confront Duff’s normative PoI based pre-trial detention theory with pre-trial detention practice. But first, in section 2, in order to better understand Duff’s position, I will discuss the relation between the PoI and pre-trial detention as seen by Duff, other scholars, and the European Court of Human Rights (ECtHR). The central question to this contribution thus is: what can be seen of (Duff’s or other) PoI in pre-trial detention practice?

Recht als human condition

Abstract: In dit stuk gaat het om de wereld van het recht, zoals deze enerzijds door de juris‐ ten, anderzijds door de justitiabelen wordt ervaren. Betoogd wordt dat tussen die ervaringen een structurele, niet te vermijden spanning bestaat. De vraag is dan of dat ‘erg’ is, of in elk geval ‘betreurenswaardig’. Moeten wij (moet de gemeenschap) niet alles doen wat mogelijk is om die spanning te voorkomen en, waar zij toch optreedt, te verminderen? Bestaat niet het gevaar dat deze spanning, wanneer zij te groot wordt, leidt tot een ‘kloof’ tussen de burger en de maatschappij?

Kristen Rundle, Forms Liberate. Reclaiming the Jurisprudence of Lon Fuller

Abstract: Rundle heeft een mooi boek geschreven over wat zij de ‘jurisprudence’ van Fuller noemt. Dat was ook wel te verwachten voor wie al met haar werk bekend was. Zij schreef een mooie bespreking over David Frasers boek Law after Auschwitz, een boek dat mijns inziens te weinig aandacht heeft gekregen. Hierin betoogt Fraser dat er geen verband bestaat tussen recht en moraliteit en dat het ‘recht’ op geen enkele manier verschrikkelijke gebeurtenissen zoals die in Auschwitz plaatsvon‐ den, kan voorkomen. Sterker nog, hij betoogt dat het gehele proces dat daartoe leidde, door en door ‘juridisch’ van aard was. Tegen de cynische opvatting dat ‘recht’ (louter) een instrument is dat ons naar de hel kan leiden, verzet Rundle zich uitdrukkelijk in een fraai artikel in de University of Toronto Law Journal van 2009 met de veelzeggende titel: ‘The Impossibility of an Exterminatory Legality: Law and the Holocaust’.