Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

Roberts, Paul

Abstract

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 (and some legal scholars) routinely treat the presumption of innocence as (in some sense) epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and institutional reasons why legal scholars and practitioners (and possibly others) 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 and literature, the article aims to show why criminal lawyers 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.

Citation

Roberts, P. (2021). Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration. Synthese, 198(9), 8901-8932. https://doi.org/10.1007/s11229-020-02606-2

• Journal Article Type: Article
• Acceptance Date: Feb 24, 2020
• Online Publication Date: Apr 1, 2020
• Publication Date: 2021-09
• Deposit Date: Mar 16, 2020
• Publicly Available Date: Apr 2, 2021
• Journal: Synthese
• Print ISSN: 0039-7857
• Electronic ISSN: 1573-0964
• Publisher: Springer Verlag
• Peer Reviewed: Peer Reviewed
• Volume: 198
• Issue: 9
• Pages: 8901-8932
• DOI: https://doi.org/10.1007/s11229-020-02606-2
• Keywords: Presumption of Innocence, Jurisprudential Method, Interdisciplinary Theorising, Criminal Procedure, Legal Presumptions
• Public URL: https://nottingham-repository.worktribe.com/output/4153448
• Publisher URL: https://link.springer.com/article/10.1007/s11229-020-02606-2