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Access_open There is Only One Presumption of Innocence

Journal Netherlands Journal of Legal Philosophy, Issue 3 2013
Keywords burden of proof, German law, procedural rights, pretrial detention
Authors Thomas Weigend
AbstractAuthor's information

    Antony Duff proposes a comprehensive concept of the presumption of innocence, covering the period before, during and after a criminal process, both in an official (state vs. individual) and a non-official, civic sense. By that broad usage, the concept of presumption of innocence is getting blurred and risks losing its contours. I therefore suggest to keep separate matters separate. The presumption of innocence in the narrow sense that I suggest applies only where there exists a suspicion that an individual has committed a criminal offence. The important function of the presumption of innocence in that situation is to prevent an over-extension of state power against the individual under suspicion before that suspicion has been confirmed to be true beyond a reasonable doubt. A general presumption that all people abide by the law at all times is neither warranted nor necessary. It is not warranted because experience tells us that many people break some laws sometimes. And it is not necessary because a system of civil liberties is sufficient to protect us against official or social overreach based on a suspicion that we may commit crimes.


Thomas Weigend
Thomas Weigend is Professor of Criminal Law at the University of Cologne.
Article

Access_open Legitimiteit, gemeenschap en rechtvaardigheid

Een kritiek op Dworkins verklaring voor legitimiteit

Journal Netherlands Journal of Legal Philosophy, Issue 1 2011
Keywords legitimacy, associative obligations, justice, community, Dworkin
Authors Thomas Decreus
AbstractAuthor's information

    In Law’s Empire Ronald Dworkin offers a specific answer to the age old question of political legitimacy. According to Dworkin, legitimacy originates in a ‘true community’ that is able to generate associative obligations among its members. In this article I illustrate how this answer contrasts with the moral and political principle of justice. The question remains how a conceptual link can be found between a community-based view on legitimacy and a more universal demand for justice. I try to answer this question by offering a close reading of Law’s Empire and other basic essays in Dworkin’s philosophy of law. In my attempt to solve this problem I propose an alternative view on community and legitimacy. In opposition to Dworkin I claim that legitimacy is prior to the community.


Thomas Decreus
Thomas Decreus is PhD student in political philosophy at the KULeuven Institute of Philosophy.
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