The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed, historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due process, as developed throughout English and US. Colonial history leading up to (...) the formation of the US. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred. (shrink)

Common lawyers are accustomed to the presumption of innocence being described as a “golden thread” running “[t]hroughout the web” of the criminal law: “that it is the duty of the prosecution to prove the prisoner’s guilt” (Woolmington v DPP [1935] AC 462 per Viscount Sankey LC at 481). But although the language of “golden thread” is memorable and oft-quoted, the presumption of innocence must mean more than this: it is not simply a restatement of the burden of (...) proof in a criminal trial.Once this simple point is recognised, a whole host of more complex questions arise. For example: what, precisely, is the scope of the principle? Is this a matter on which consensus is possible or desirable? What role does the presumption have to play in pre-trial proceedings, in decisions by prosecutors? Does the presumption have consequences for the substantive criminal law, or can legislators blunt its impact by defining criminal offences so as to deprive the presumption of its bite? Can legislators tr. (shrink)

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the POI (...) from a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness. (shrink)

Let us consider Flew’s main contention, that the onus of proof lies on the theist. The “proof” which is required of the theist involves showing that his concept of God is such that the existence of God is theoretically possible and providing sufficient reasons, though not necessarily a demonstration, to warrant believing that God exists. The “onus” which is on the theist does not preclude the possibility of a theistic proof. It is similar to the “onus” which is on the (...) prosecutor in an English court: it is up to the prosecutor to prove guilt, but such proof is possible. And just as the prosecutor does not have to drop his personal conviction—if he has one—that the defendant is guilty, the theist does not have to drop his own theistic belief. What Flew is asking the theist to do is to accept a procedure. Like the affirmative side in a debate, the theist is asked to concede that if he has not provided grounds for what he affirms, he has lost the debate— whether or not the opposition says anything. If a theist moves, “Resolved that this house affirms the existence of God”, the presumption in the debate is atheistic; the theist has to prove his claim or lose the debate. He is like a prosecutor in a court where the procedural rule is that innocence is presumed; the prosecutor must prove guilt or lose his case. Flew holds that the presumption of atheism is a better procedure than the presumption of theism, where the atheist would affirm, “Resolved that this house affirms the non-existence of God”, and the atheist would have to prove his claim or lose the argument. (shrink)

The criminal defendant is presumed innocent and his guilt must be proved beyond reasonable doubt for conviction. On some issues, however, the defendant must prove his innocence on the balance of probabilities to avoid conviction. Commentators have despaired of reconciling reverse burdens with the presumption in a principled way. Andrew Stumer has made a fresh attempt; however, his solution is overly rigid and rule bound. The presumption is engaged in a dynamic enterprise—minimizing the expected cost of error, (...) mistaken acquittals as well as wrongful convictions. Stumer’s fixed criminal standard and stringent restrictions on reverse burdens work against this goal. A more flexible approach is required, reflecting the calculus of error management. Where the cost or probability of wrongful conviction is relatively low, and the cost or probability of mistaken acquittal relatively high, it may be necessary to lower the standard of proof, or even to reverse the burden of proof. To inhibit these strategies is to increase the expected cost of error at trial. (shrink)

In this essay, I suggest that the criminal trial is not only about the guilt or innocence of the defendant, but also about the character and growth of the jurors and the communities they represent. In earlier work, I have considered the potential impact of law and politics on the character of citizens, and thus on the capacity of citizens to thrive—to live full and rich human lives. Regarding the jury, I have argued that aspects of criminal trial procedure (...) work to fix in jurors a sense of agency in and responsibility for verdicts of conviction. Here, I draw on those ideas with respect to the presumption of innocence. I suggest that the presumption of innocence works not primarily as legal rule, but rather as a moral framing device—a sort of moral discomfort device—encouraging jurors to feel and bear the weight of what they do. I offer an account of character development in which virtues are conceived of not merely as modes of conduct developed through habituation and practice, but also as capacities and ways of being developed in part through understanding and experience. The criminal trial, framed by the presumption of innocence, can be an experience through which jurors and their communities, by learning what it means and feels like to carry a certain sort of moral weight, may engender a certain set of moral strengths—strengths valuable to them not just as jurors, but also as citizens, and as human beings. (shrink)

People v. Strauss-Kahn is an ideal lens through which to examine the operation of a criminal justice system that privileges the presumption of guilt, or, to use the words of the US Supreme Court in the 2012 decisions Lafler v. Cooper and Missouri v. Frye, has become “a system of pleas, not a system of trials.” It is both an excellent example of a transparent and objective invocation of the criminal sanction, and a sharp counterpoint to the vast (...) majority of cases where law enforcement conclusions are privileged and rarely second-guessed. As analyses of wrongful convictions have sadly but inevitably demonstrated, the screening methods of police and prosecutors are fallible. Moreover, the prevalence of “tunnel vision” once the decision to charge has been made means that few cases experience the kind of post-indictment investigation and reevaluation seen in the prosecution of Dominique Strauss-Kahn. Stage by stage, the Strauss-Kahn case illustrates how to counterbalance the presumption of guilt and give expression to the presumption of innocence in the pretrial period through vigilantly-invoked and enforced due process protections. Drawing from this examination, the paper will then explore how to approach this model process in the more standard cases, which typically see a fraction of the judicial, law enforcement, and defense resources afforded Dominique Strauss-Kahn. The Strauss-Kahn prosecution offers several insights, three of which will be sketched at the paper’s conclusion: a requirement that prosecutorial decision-making be subject to a reasonable doubt standard; vigilant and early enforcement of the prosecutor’s obligation to disclose information that is favorable to the accused; and finally, a requirement that a prosecutor explain in writing any decision to dismiss the felony charges in indicted felony cases, so that the factual, legal and policy bases of these decisions (numbering almost one quarter of New York’s superior court felony cases annually) can be analyzed and publicized. (shrink)

Companions in guilt arguments are widespread in defenses of moral realism and criticisms of error theory. Recently, a number of philosophers have argued that the companions in guilt argument fails because it makes untenable assumptions about the existence of categorical epistemic reasons. In this article, I develop an alternative version of the companions in guilt argument that does not succumb to this criticism, as it begins with the claim that there is a presumptive case in favor of (...) attributing a belief in categorical norms of philosophical argumentation to proponents of the error theory. I then point to an instability in the error-theoretic position and explore the extent to which this instability poses a serious philosophical problem. While this argument has a narrower scope than the traditional companions in guilt arguments, I conclude that it nonetheless poses a significant challenge to any philosophical attempt to deny the categoricity of moral reasons. (shrink)

This article aims to rebut the claim about Dirty Hands in politics and reorient the issue. Allegedly, decent politicians must sometimes do what is right by means that are deeply wrong and they are morally tainted as a result. DH is here rejected as contradictory since there can be no dirtying or guilt given the presumption of ultimate rightness, and politics is demeaned by supposing otherwise. DH is not entailed by moral complexity or conflicting duties or circumstantial regret, (...) and does not hinge on utilitarianism versus deontology. A significant real-world case is explored where DH might seem manifest but is not. With DH dissolved, the refocussed and urgent question involves discerning apt personality-types for politics and its hard cases. The ideal: persons exceptional in being morally conscientious but more tough-minded than tender-hearted. (shrink)

Discussion in this paper focuses on how strongly we should prefer non-punishment of persons guilty of serious crimes to punishment of persons innocent of them. William Blackstone's version of that preference, expressed as a ten to one ratio, is first shown to be untenable on standard accounts of legal punishment's justifying aims. Somewhat weaker versions of that ratio also appear suspect. More to the point, Blackstone's adage obscures the crucial way in which there are risks to be assessed in setting (...) up a criminal justice system - the risk that it will not be eff ective enough at apprehending and punishing serious off enders, as well as the risk that it will expose innocent persons to harsh punishment. I urge a balancing of such risks, and argue that the salient features of many contemporary criminal justice systems can be plausibly interpreted as attempting to achieve and maintain such a balance. We do not grant criminal defendants a presumption of innocence that the state must overcome with proof of guilt beyond a reasonable doubt in order to institutionally express a strong degree of preference for non-punishment of the guilty to punishment of the innocent. Instead, we do so in order to ensure that institutions of legal punishment have suffi cient scope while preserving their ability to accurately sort the guilty from the innocent. (shrink)

Exploring Augustine's Confessions as far more than autobiography, more than an elaboration and admission of guilt, more so than a chronicle and more precisely as the very act of coming into the truth in his heart, in front of God, in his confession, and in his public writings. His Confessions charts his becoming a witness to his self-witnessing, as his matter of testimony. Confession becomes an onto-existential practice. But, what is the mode or nature of the type of confession (...) at work when confession becomes ontological? Using Heidegger, the paper hinges on two poetic instances, one in Confessions, one in Being and Time, to develop an idea of ontology as testimony when being is a diligent witness to Being. It is confession as an admission of guilt insofar as being seeks absolution of its presumptions of being as a genus, as indefinable, and as the most self-evident concept, and being then acknowledges the question of Being. This acknowledgement of the obligation of the question is, then, a confession as a public declaration of faith, of the openness to question. The ontological project, for Heidegger, is then confession and testimony perhaps more fundamentally than Augustine’s Confessions, whose autobiographical detail and positing of the self as a relation to God must carefully elaborate itself so as not to be guilty of the offense of metaphysics. (shrink)

In “The Presumption in Favor of Requirement Conflicts” Julie McDonald has offered some serious and challenging criticisms of the recent literature centered around the moral dilemmas debate. If McDonald is correct, the philosophers who have contributed to this debate share some questionable presuppositions about the role and significance of an adequate moral theory. It is beyond dispute that the moral dilemmas debate has elevated the importance of requirement conflicts above other types of conflicts. McDonald argues that this is a (...) needlessly restrictive way to approach the issue. She maintains that the potential for unavoidable moral residue in the form of guilt, as well as the chance of moral unresolvability, are the two central concerns which motivate the issue. These concerns then figure into her diagnosis of the implicit background assumptions that explain the rationality of the debate. In what follows I shall consider whether or not the participants to this debate are forced to accept these assumptions. (shrink)

Recently (2010–2011) new criminal legislation to combat illegal income and corruption was passed and publicly discussed in Lithuania. Within the list of the new legal measures, special attention should be paid to criminalisation of illicit enrichment, establishment of a model of extended property confiscation, reinforcement of responsibility for corruption-related offenses, a provision that not only property but also personal benefits may constitute a bribe. It can be seen from the explanatory letters attached to the draft laws and the political debate (...) that the new regulation is expected to achieve decisive breakthrough in the fight against corruption and illegal income. However, without any doubt as to the necessity to fight against those social evils, the author presents critical evaluation of the reform by applying the test of principles of criminal law, legal language and practical effectiveness. By making critical conclusions that the new criminal legislation deliberately lightens the prosecution’s goal of incrimination and the burden of proof, the author warns about the purposive instrumental nature of the new laws, which are balancing on the threshold of legitimacy. In the article the author reveals crucial shortcomings of the new legislation: in some aspects it lacks legal certainty, in other aspects it ignores the principles of guilt, presumption of innocence and proportionality as well as the conception of criminal law as a last resort (ultima ratio). As a result, the new legal means against illegal income and corruption leave space for applying inadequate repression beyond their intended purpose, in addition, they criminalise human conduct that is insufficiently dangerous and create preconditions for senseless criminal prosecutions and violation of human rights. (shrink)

In criminal trials, evidence often involves a degree of uncertainty and decision-making includes moving from the initial presumption of innocence to inference about guilt based on that evidence. The jurors’ ability to combine evidence and make accurate intuitive probabilistic judgments underpins this process. Previous research has shown that errors in probabilistic reasoning can be explained by a misalignment of the evidence presented with the intuitive causal models that people construct. This has been explored in abstract and context-free situations. (...) However, less is known about how people interpret evidence in context-rich situations such as legal cases. The present study examined participants’ intuitive probabilistic reasoning in legal contexts and assessed how people’s causal models underlie the process of belief updating in the light of new evidence. The study assessed whether participants update beliefs in line with Bayesian norms and if errors in belief updating can be explained by the causal structures underpinning the evidence integration process. The study was based on a recent case in England where a couple was accused of intentionally harming their baby but was eventually exonerated because the child’s symptoms were found to be caused by a rare blood disorder. Participants were presented with a range of evidence, one piece at a time, including physical evidence and reports from experts. Participants made probability judgments about the abuse and disorder as causes of the child’s symptoms. Subjective probability judgments were compared against Bayesian norms. The causal models constructed by participants were also elicited. Results showed that overall participants revised their beliefs appropriately in the right direction based on evidence. However, this revision was done without exact Bayesian computation and errors were observed in estimating the weight of evidence. Errors in probabilistic judgments were partly accounted for, by differences in the causal models representing the evidence. Our findings suggest that understanding causal models that guide people’s judgments may help shed light on errors made in evidence integration and potentially identify ways to address accuracy in judgment. (shrink)

abstract During the current round of fighting in the Middle East, Israel has provoked considerable controversy as it turned to targeted killings or assassination to battle militants. While assassination has met with disfavour among traditional observers, commentators have, more recently, sought to justify targeted killings with an appeal to both self‐defence and law enforcement. While each paradigm allows the use of lethal force, they are fundamentally incompatible, the former stipulating moral innocence and the latter demanding the presumption of criminal (...) guilt. Putting aside the paradigm of law enforcement which demands due process and forbids extra‐judicial execution, the only possible avenue for justifying named killings lies in self‐defence. While named killings might be defensible on the grounds that there are no other ways to disable combatants when they fight without uniforms, the costs, including the cost of targeted killing emerging as an acceptable convention in its own right, should be sufficient to view the practice with a good deal of caution. (shrink)

The pre-trial detention of individuals charged with crimes is viewed by many legal scholars as problematic. Standard arguments against it are that it constitutes legal punishment of individuals not yet convicted of crimes, violates the presumption of innocence, and rests on dubious predictions of future crime. I defend modified and restrained forms of pre-trial detention. I argue that pre-trial detention could be made very different than imprisonment, should be governed by strict criteria, and is warranted, when the evidence of (...) danger is convincing. I contend that the presumption of innocence does not preclude us from doing many other things to criminal suspects and defendants that imply their guilt. Finally, I dispute arguments designed to show that pre-trial detention can be justified to prevent absconding or interferences with the course of justice, but not to prevent other, and sometimes much more serious, offenses. (shrink)

in Undetermined Presumption of Equality enjoins that individuals be treated equally in the absence of discriminating information. My objective in this paper is to make this principle more precise, viewing it as a norm of fairness, in order to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification might come from the expected outcomes of the procedures they regulate. This outcome-oriented approach to fairness is pursued in the paper. The (...) suggestion is that in the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness in the outcome. Another suggestion is that, under these circumstances, equal treatment also minimizes maximal possible unfairness, i.e., it is minimally unfair if ‘worst comes to worst’. Whether these suggestions are correct depends on the properties of the underlying unfairness measure. (shrink)

Within contemporary metaethics, it is widely held that there is a “presumption of realism” in moral thought and discourse. Anti-realist views, like error theory and expressivism, may have certain theoretical considerations speaking in their favor, but our pretheoretical stance with respect to morality clearly favors objectivist metaethical views. This article argues against this widely held view. It does so by drawing from recent discussions about so-called “subjective attitude verbs” in linguistics and philosophy of language. Unlike pretheoretically objective predicates (e.g., (...) “is made of wood”, “is 185 cm tall”), moral predicates embed felicitously under subjective attitude verbs like the English “find”. Moreover, it is argued that the widespread notion that moral discourse bears all the marks of fact-stating discourse is rooted in a blinkered focus on examples from English. Cross-linguistic considerations suggest that subjective attitude verbs are actually the default terms by which we ascribe moral views to people. Impressions to the contrary in English have to do with some unfortunate quirks of the term “think”. (shrink)

Leibniz held that even if we had no proof of the possibility premise of the ontological argument, a presumption would justify accepting it. He had an extensive theory of presumptions, as a part of practical philosophy, originating in his jurisprudence. He even proposed a formal proof that presumption favors possibility. This chapter examines ways of trying to overcome the difficulty that in the case of a necessary being, where possibility of existence and possibility of nonexistence exclude each other, (...) presumptions of possibility seem to cancel each other out, but concludes that prospects of escape from the problem are not promising. (shrink)

Presumption of Equality requires that individuals be treated equally in the absence of relevant information that would discriminate between them. Our objective is to make this principle more precise, if viewed as a principle of fairness, and to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification can be sought in the possible or expected outcomes of the procedures they regulate. This is the avenue pursued here. The suggestion is (...) that in the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness of the outcome. A related suggestion is that equal treatment under these circumstances also minimizes the maximal possible unfairness of the outcome. Whether these suggestions are correct or not depends on the properties of the underlying unfairness measure. The required properties are specified. The essay also considers the normative status of equal lotteries on unequal treatments. (shrink)

When we use a word, we face a crucial epistemic gap: we ground our move on the fact that our interlocutor knows the meaning of the word we used, and therefore he can interpret our dialogical intention. However, how is it possible to know the other’s mind? Hamblin explained this dialogical problem advancing the idea of dialectical meaning: on his view, the use of a word is based on a set of presumptions. Building on this approach, the use of a (...) word in a dialogue can be analyzed in terms of presumptive reasoning, while the manipulative strategies based on slanted or loaded terms or redefinitions can be conceived as forms of conflicts of presumptions. A presumptive approach to meaning can also ground different dialectical strategies to solve misunderstanding or definitional disagreements, or tactics to undermine the interlocutor’s arguments by advancing charges of equivocation. (shrink)

From the foreword by Steve Schlissel: "Rushdoony sounds the clarion call of liberty for all who remain oppressed by Christian leaders who wrongfully lord it over the souls of God's righteous ones... I pray that the entire book will not only instruct you in the method and content of a Biblical worldview, but actually bring you further into the glorious freedom of the children of God. Those who walk in wisdom's ways become immune to the politics of guilt and (...) pity." Man has trampled God's law under foot. In doing so, he has misused himself and trampled on the God-given rights of his fellowman. He is conscious of his guilt, and seeks self-justification through self-atonement. The author makes it perfectly clear that there is only one way of escape from present slough and despair. It is in turning in heartfelt repentance to God who has already provided atonement in the sacrifice of His Son. And true repentance includes a return to the doing of God's will as revealed in God's Word, the Bible. (shrink)

Many distributive egalitarians do not endorse strict equality of goods. Rather, they treat an equal division as having a special status such that departures from equality must be justified. They claim, then, that an equal division is “presumptively” just. Though the idea that equality is presumptively just and that departures from it may be just has intuitive appeal, making a case for this idea proves difficult. I argue, first, that extant “presumption arguments” are unsound. Second, I distill two general (...) philosophical morals: luck egalitarians have not adequately defended the presumption of equality and they face serious obstacles in doing so; Rawls has defended it, but only indirectly via the contract apparatus. This approach narrows the presumption’s appeal. Third, I consider and reject two alternative ways of understanding the presumption of equality that might avoid the problems revealed by my examination of extant views. The first appeals to the idea of value pluralism. The second treats the presumption as a view about the burden of proof. I conclude, ultimately, that it is misleading to think of distributive egalitarianism as typically having the form of a presumption argument. (shrink)

In this paper I present an argument for a procedural principle of distribution, which is often called the presumption of equality.

The idea of the article was suggested by Lotman’s theory about two basic mechanisms of social behaviour — fear and shame. The presented paper aims at highlighting two other mechanisms of such kind — guilt and repentance. The novella Isaac (1960–61) by Antanas Škėma, the Lithuanian writer in exile, is about a Lithuanian patriot who kills a Jew called Isaac during the years of German occupation. The author’s fundamental conception implies that the real perpetrator of crime is not a (...) separate individual but the crowd representing the values of the society. Škėma’s interpretation of history demystifies the moral system in the inter-war Lithuania and proves it to be a collection of futile signs that fail to prevent society from falling into mass psychosis and following primitive impulses. The other Lithuanian novel, Leonardas Gutauskas’ Šešėliai (Shadows) written in 2000, focuses on the tense relationships between Lithuanians and Russians, suggesting that there are several moral systems determining the concepts of guilt-repentance. The Christian agricultural society embodies the ethics of individual responsibility. The domination of the Russian ethic code is associated with the separation of Churches and the strengthening of the Orthodox Church. A moral system based on harmony and aiming to reconcile the guilty and the innocent comes across as a sought ideal. Both novels discussed exemplify different modes of a liberating society. The first one is an account of the society’s effort to become free of the guilt complex and rethink its history. The second one articulates theguilt of the Russian nation against Lithuanians and fights russophobia at the same time. (shrink)

Presumption of Equality requires that individuals be treated equally in the absence of relevant information that would discriminate between them. Our objective is to make this principle more precise, if viewed as a principle of fairness, and to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification can be sought in the possible or expected outcomes of the procedures they regulate. This is the avenue pursued here. The suggestion is (...) that in the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness of the outcome. A related suggestion is that equal treatment under these circumstances also minimizes the maximal possible unfairness of the outcome. Whether these suggestions are correct or not depends on the properties of the underlying unfairness measure. The required properties are specified. The essay also considers the normative status of equal lotteries on unequal treatments. (shrink)

This article is concerned with what constitutes interference with the presumption of innocence and what justifications there might be for such interference. It provides a defence of a theory of the presumption of innocence that suggests that the right is interfered with if the offence warrants conviction of defendants who are not the intended target of the offence. This thesis is defended against two alternative theories. It then considers what might justify interference with the presumption of innocence. (...) It explores the idea that interference is justified if it is necessary in a democratic society and considers the presumption in relation to the aims of the criminal trial. It is concluded that no good grounds have been provided for interference with the right, and that the right should be regarded as inviolable. (shrink)

At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the (...) criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered. (shrink)

in Undetermined Presumption of Equality enjoins that individuals be treated equally in the absence of discriminating information. My objective in this paper is to make this principle more precise, viewing it as a norm of fairness, in order to determine why and under what conditions it should be obeyed. Presumption norms are procedural constraints, but their justification might come from the expected outcomes of the procedures they regulate. This outcome-oriented approach to fairness is pursued in the paper. The (...) suggestion is that in the absence of information that would discriminate between the individuals, equal treatment minimizes the expected unfairness in the outcome. Another suggestion is that, under these circumstances, equal treatment also minimizes maximal possible unfairness, i.e., it is minimally unfair if ‘worst comes to worst’. Whether these suggestions are correct depends on the properties of the underlying unfairness measure. (shrink)

This chapter contains sections titled: Works cited Additional recommendations by editors.

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive (...) regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted. (shrink)

Several distinguished philosophers have argued that since the state of affairs where nothing exists is the simplest and least arbitrary of all cosmological possibilities, we have reason to be surprised that there is in fact a non-empty universe. We review this traditional argument, and defend it against two recent criticisms put forward by Peter van Inwagen and Derek Parfit. Finally, we argue that the traditional argument nevertheless needs reformulation, and that the cogency of the reformulated argument depends partly on whether (...) there are certain conceptual limitations to what a person can hypothetically doubt. (shrink)

I argue that a compelling way to articulate what is wrong with racial profiling in policing is to view racial profiling as a violation of the presumption of innocence. I discuss the communicative nature of the presumption of innocence as an expression of social trust and a protection against the social condemnation of being undeservingly investigated, prosecuted, and convicted for committing a crime. I argue that, given its communicative dimension, failures to extend the presumption of innocence are (...) an expression of disrespect. I take the New York Police Department’s stop-and-frisk policy as an example of racial profiling and argue that its use of race-based forms of suspicion as reasons for making stops is a violation of the presumption of innocence. I maintain that this systemic failure to extend the presumption of innocence to profiled groups reveals the essentially disrespectful nature of the NYPD policy. (shrink)

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions—in particular, the disciplinary assumptions—implicit in influential contributions to debates on (...) the presumption of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers routinely treat the presumption of innocence as epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts. (shrink)

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures (...) and the proper role of prosecutorial discretion. (shrink)

In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. (...) Prosecutors’ responsibilities to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed. (shrink)

At the beginning of Book X of his last work The Laws Plato turns his attention from violent and outrageous actions in general to the particular case of undisciplined and presumptuous behaviour in matters of religion: “We have already stated summarily what the punishment should be for temple-robbing, whether by open force or secretly. But the punishments for the various sorts of insolence in speech or action with regard to the gods, which a man can show in word or deed, (...) have to be proclaimed after we have provided an exordium. Let this be it: ‘No one believing, as the laws prescribe, in the existence of the gods has ever yet performed an impious action willingly, or uttered a lawless word. Anyone acting in such a way is in one of three conditions: either, first, he does not believe the proposition aforesaid; or, second, he believes that though the gods exist they have no concern about men; or, third, he believes that they can easily be won over by the bribery of prayer and sacrifice”. (shrink)

It is tempting to hold that guilt‐tripping is morally wrong, either because it is objectionably manipulative, or because it involves gratuitously aiming to make another person suffer, or both. In this article, I develop a picture of guilt according to which guilt is a type of pain that incorporates a commitment to its own justification on the basis of the subject's wrongdoing. This picture supports the hypothesis that feeling guilty is an especially efficient means for a wrongdoer (...) to come to more deeply understand why her behavior was wrong; it is precisely because guilt is painful and involves a self‐reflexive justificatory element that it is able to play this role. Such a picture, moreover, preserves the possibility that deliberately making others feel guilty needn't involve aiming gratuitously to harm them and needn't be objectionably manipulative. It follows that we should be surprisingly sanguine about the practice of inducing guilt in wrongdoers as a means of facilitating their moral edification. (shrink)

The idea of the article was suggested by Lotman’s theory about two basic mechanisms of social behaviour — fear and shame. The presented paper aims at highlighting two other mechanisms of such kind — guilt and repentance. The novella Isaac (1960–61) by Antanas Škėma, the Lithuanian writer in exile, is about a Lithuanian patriot who kills a Jew called Isaac during the years of German occupation. The author’s fundamental conception implies that the real perpetrator of crime is not a (...) separate individual but the crowd representing the values of the society. Škėma’s interpretation of history demystifies the moral system in the inter-war Lithuania and proves it to be a collection of futile signs that fail to prevent society from falling into mass psychosis and following primitive impulses. The other Lithuanian novel, Leonardas Gutauskas’ Šešėliai (Shadows) written in 2000, focuses on the tense relationships between Lithuanians and Russians, suggesting that there are several moral systems determining the concepts of guilt-repentance. The Christian agricultural society embodies the ethics of individual responsibility. The domination of the Russian ethic code is associated with the separation of Churches and the strengthening of the Orthodox Church. A moral system based on harmony and aiming to reconcile the guilty and the innocent comes across as a sought ideal. Both novels discussed exemplify different modes of a liberating society. The first one is an account of the society’s effort to become free of the guilt complex and rethink its history. The second one articulates theguilt of the Russian nation against Lithuanians and fights russophobia at the same time. (shrink)

At the beginning of Book X of his last work The Laws Plato turns his attention from violent and outrageous actions in general to the particular case of undisciplined and presumptuous behaviour in matters of religion: “We have already stated summarily what the punishment should be for temple-robbing, whether by open force or secretly. But the punishments for the various sorts of insolence in speech or action with regard to the gods, which a man can show in word or deed, (...) have to be proclaimed after we have provided an exordium. Let this be it: ‘No one believing, as the laws prescribe, in the existence of the gods has ever yet performed an impious action willingly, or uttered a lawless word. Anyone acting in such a way is in one of three conditions: either, first, he does not believe the proposition aforesaid; or, second, he believes that though the gods exist they have no concern about men; or, third, he believes that they can easily be won over by the bribery of prayer and sacrifice”. (shrink)

This paper first presents two prominent and antagonistic accounts of political freedom that identify the latter either with the expression of a collective, sovereign will, or with an open process of mutual recognition and consent-based association in action. In the paradigmatic formulations that Carl Schmitt and Hannah Arendt give of these two models of freedom, one can detect, however a common methodological assumption. In both cases political freedom is conceived as actualizing itself in some original or founding act or acts. (...) Challenging this assumption by means of a deconstructive perspective on the suppose origin of modern political freedom and democracy, the paper then goes on to formulate an alternative conception of political freedom in this way shows that democratic freedom, though it may already be in place, has constantly to actualize itself in a self-determining process. (shrink)

This paper first presents two prominent and antagonistic accounts of political freedom that identify the latter either with the expression of a collective, sovereign will, or with an open process of mutual recognition and consent-based association in action. In the paradigmatic formulations that Carl Schmitt and Hannah Arendt give of these two models of freedom, one can detect, however a common methodological assumption. In both cases political freedom is conceived as actualizing itself in some original or founding act or acts. (...) Challenging this assumption by means of a deconstructive perspective on the suppose origin of modern political freedom and democracy, the paper then goes on to formulate an alternative conception of political freedom in this way shows that democratic freedom, though it may already be in place, has constantly to actualize itself in a self-determining process. (shrink)

This study aims at discovering the essential constituents involved in the experiences of guilt and shame. Guilt concerns a subject’s action or omission of action and has a clear temporal unfolding entailing a moment in which the subject lives in a care-free way. Afterwards, this moment undergoes a reconstruction, in the moment of guilt, which constitutes the moment of negligence. The reconstruction is a comprehensive transformation of one’s attitude with respect to one’s ego; one’s action; the object (...) of guilt and the temporal-existential experience. The main constituents concerning shame are its anchorage in the situation to which it refers; its public side involving the experience of being perceptually objectified; the exclusion of social community; the bodily experience; the revelation of an undesired self; and the genesis of shame in terms of a history of frozen now-ness. The article ends with a comparison between guilt and shame. (shrink)

In several contexts Nietzsche claims that he wants to free humanity of the affect of guilt. He also argues that we are not ultimately responsible for who we are or what we do because libertarian free will is a false belief invented for the purpose of legitimizing judgments of guilt. Combining these related threads of argument, we arrive at what would seem to be an uncontroversial conclusion: Nietzsche does not think guilt is an apt response to wrongdoing, (...) and he therefore thinks we ought to dispense with the feeling of guilt altogether. I argue against this conclusion by offering a comparative analysis of two kinds of guilt Nietzsche discusses in his works, reactive guilt, which is a reaction to an act of wrongdoing, and proactive guilt, which is a drive or desire to make oneself feel guilty. Here I offer an account of Greek guilt as a species of reactive guilt, and I argue that Nietzsche only rejects proactive guilt, which is endemic to Judeo-Christianity. (shrink)