The Sovereign's Presumption of Authority (also known as the Presumption of Innocence)

Abstract

In this paper, I argue that the presumption of innocence is best understood as a presumption that the sovereign enjoys unchallenged political authority. I take up three different rationales for the presumption of innocence already offered by constitutional courts and, in the academic literature, by writers including Duff, Nance, Ho, Lee and Kitai. These rationales tend to explain the presumption from the standpoint of the law’s subjects as individuals. Without disagreeing with them in their own terms, I argue that each becomes more compelling once viewed from the standpoint of the sovereign. I argue that the presumption of innocence serves to institutionalise the normality of obedience to the law and the integrity of the office of the sovereign, and that, in so doing, the presumption of innocence constitutes a form of political authority, and a generic characteristic of different types of sovereignty.