The Presumption of Innocence as a Counterfactual Principle

18 Pages Posted: 4 Mar 2016

See all articles by Ferry de Jong

Ferry de Jong

Utrecht University School of Law

Leonie van Lent

Utrecht University - School of Law

Date Written: January 30, 2016

Abstract

This article’s primary aim is to highlight the essentially critical potential of the presumption of innocence, as well as the need for this critical potential to be duly recognized. It is argued that the essential meaning of the presumption of innocence is best understood when approached from what is referred to as its counterfactual status. As a first step, the different values and functions that are attributed to the presumption of innocence in contemporary legal literature are discussed, in order to provide an outline of the central ideas it contains or is supposed to contain. Subsequently, the concept of ‘counterfactuality’ is introduced and it is argued that a counterfactual perspective can further clarify the nature of the presumption of innocence. Next, a number of fundamental shifts in society and criminal justice are discussed that affect the presumption of innocence and that lend a large measure of urgency to disclosing its essence and critical potential. The conclusion argues that today’s threats to the presumption of innocence are of a fundamental nature, and that attempts to preserve the principle’s efficacy should focus on the value attached to its counterfactual and critical nature.

Keywords: presumption of innocence, counterfactuality, defence rights, criminal justice

Suggested Citation

de Jong, Ferry and van Lent, Leonie, The Presumption of Innocence as a Counterfactual Principle (January 30, 2016). Utrecht Law Review, Vol. 12, No. 1, p. 32-49, January 2016, Available at SSRN: https://ssrn.com/abstract=2736321

Ferry de Jong (Contact Author)

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

HOME PAGE: http://www.uu.nl/staff/fdejong1

Leonie Van Lent

Utrecht University - School of Law ( email )

3508 TC Utrecht
Utrecht
Netherlands

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