The presumption of innocence has often been understood as a doctrine that can be explained primarily by instrumental concerns relating to accurate fact-finding in the criminal trial and that has few if any implications outside the trial itself. In this paper, I argue, in contrast, that in a liberal legal order everyone has a right to be presumed innocent simply in virtue of being a person. Every person has a right not to be subjected to criminal punishment unless and until (...) he or she has done something that is criminally wrong. Since disagreements about allegations of criminal wrongdoing are inevitable, the liberal legal order requires a process for determining whether wrongdoing has occurred. In order to preserve the right not to be punished without wrongdoing, the accused person must be presumed innocent throughout this process. The presumption of innocence is therefore as much a basic human right as, for example, the right to bodily integrity or the right to freedom of expression. Specifications of and limitations on the right should therefore be justified not primarily in terms of their instrumental effectiveness in fact-finding or crime control but in terms of the role of the criminal process in a liberal legal order. I consider some implications of this view of the presumption of innocence for the pre-trial process and for substantive criminal law. I argue that the presumption of innocence, understood as a basic human right, should condition the entire pre-trial process; it has, however, minimal implications for the definition of offences. (shrink)

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range (...) of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in and conduct that might well be criminalized. A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights. (shrink)

There are, broadly speaking, two ways to think about rationality, as defined in the following passage: ‘Reason’ for a long time meant the activity of understanding and assimilating the eternal ideas which were to function as goals for men. Today, on the contrary, it is not only the business but the essential work of reason to find means for the goals one adopts at any given time. To use what Horkheimer called objective reason, and what others have called expressive or (...) non–instrumental reason, is to reflect on one's goals, to attempt to determine what preferences one ought to hold. On the other hand, to use what Horkheimer called subjective reason is to ‘be concerned with means and ends, with the adequacy of procedures for purposes more or less taken for granted’, that is, to be instrumentally rational. This contrast between non-instrumental and instrumental reason is at the heart of many contemporary social and philosophical disputes. 1. (shrink)

The increase in incarceration of offenders in the United States over the last 40 years has created a system of mass incarceration or mass punishment. While consequentialist theories of punishment may generate considerable doubts about the value of this system, it seems that retributive theories of punishment lack the resources to criticize mass punishment. Because of their focus on individual desert, it seems that they can say nothing about punishment in the aggregate. Nevertheless, there are good reasons for a certain (...) kind of retributivism to question the justice of mass punishment. When retributive punishment is considered as one of the functions of a state whose task is to create and maintain a system of equal freedom for all, then punishment must be justified not only at the individual level but also at the level of the system of punishment as a whole. If the criminal justice system inflicts excessive amounts of punishment in the aggregate, it becomes unjust, not because individual offenders are treated unjustly, but because a policy of relentless prosecution and punishment is not appropriate for a free society. (shrink)

ABSTRACTPeople have procedural rights because states are under a duty of political morality to provide them with fair procedures for settling disputes about the application of the laws. This obligation flows from the state's duty to treat each person as a free and equal member of the legal order. Yet adherence to procedural rights can impede accuracy in fact-finding, which in turn can result in poor protection for substantive rights. So the state also has a duty to provide a reasonable (...) degree of accuracy in fact-finding. The legal order should therefore strive to improve the accuracy of fact-finding, within the constraints imposed by procedural rights people have. Nevertheless, the duty to provide reasonably accurate procedures is subordinate to the duty to provide procedural rights because the settlement of disputes among free persons must be conducted in a manner that respects their status as free persons. (shrink)

Kant’s essay ‘On a Supposed Right to Lie from Philanthropy’ claims that everyone has an unconditional duty of right not to lie under any circumstances. This claim creates a conflict within the doctrine of right because Kant also claims that each of us is under an unconditional duty of right to obey the positive law in force in the civil condition in all circumstances. In Kant’s specific example, truthfulness would violate the positive law because it would make the speaker an (...) accomplice to a crime. Since both duties flow from the requirement that we not act inconsistently with the possibility of rightful relations among humans, a juridical solution to the conflict must be possible. That solution is to recognize that lying in appropriate circumstances is akin to the use of force in self-defence or defence of a third party. (shrink)

Most people think of law as an instrument that can help us achieve human purposes that can themselves be adequately specified without reference to law or legal ideas. But a number of scholars, asso...

Some version of the will theory and the interest theory of rights attempt to provide a precise and normatively neutral definition of a right that would be useful in substantive normative debates and that corresponds reasonably well with usage in our political and legal culture. But there is an irresolvable tension in this project. Consistent application of a definition of a right cannot plausible track ordinary usage without invoking underlying normative propositions about the justifications for granting rights. Thus, definitional approaches (...) to rights are too demanding to serve either the descriptive purpose of providing a neutral vocabulary or the normative purpose of usefully discussing the rights we ought to have. For descriptive purposes, it would be better to retreat, if necessary, to the Hohfeldian idea that a right is nothing more than the correlate of a duty; for normative purposes, it would be better to address directly the political justification for characterizing a particular legal as creating a right. (shrink)

In “Principle, Policy, Procedure,” Ronald Dworkin poses the following conundrum: In every substantive legal dispute, one party has, as a matter of political morality, a right to win. Yet in procedural law, it looks as though courts routinely strike a utilitarian balance between the benefits and the costs of accurate fact-finding. If so, the court as a forum of principle is threatened by the utilitarian justification of its procedures; moreover, procedural entitlements do not create rights in Dworkin’s sense. Dworkin’s solution (...) is to apply the principle of equal concern and respect so that procedural rules fairly distribute the risk of the “moral harm” of incorrect outcomes. But this solution has a consequentialist spirit that may not succeed in dispelling the conundrum. Some procedural rules are better understood as requiring people to be treated in certain ways directly as a matter of principle, rather than indirectly as calibrating moral harm. (shrink)

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but the body – the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be (...) justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault.But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms. (shrink)

Kuhn and Moresi have proposed a useful taxonomy for classifying prisoners' dilemmas. This comment is concerned with K&M's observation that legal penalties for defection can transform PDs into cooperative games, and their argument that the role of the law may vary depending on how the PD is classified by their taxonomy. The purpose of this note is to support K&M's analysis by demonstrating that the law of damages, as understood by economic analysis, already performs the function that K&M assign to (...) legal penalties for defection. (shrink)

IntroductionAll states routinely inflict punishment, often quite harsh punishment, for criminal offences committed by persons who are subject to their laws; but it is remarkably difficult to provide a satisfactory normative justification for this practice.This paper is a review essay of Tadros . References to the book will be by way of parentheses in the text. Non-consequentialist accounts, such as retributivism, can readily explain why some kinds of wrongs are punishable, but find it difficult to accommodate the intuition that deterrence (...) can justify punishment. Consequentialist theories can easily explain why harmful conduct is punishable, but struggle to account for the intuition that only the factually guilty should be punished or for the criminal jurist’s obsession with questions of fault and responsibility. Theories that combine elements of retributivism and consequentialism are therefore quite attractive. In The Ends of Harm, Victor Tadros offers such a hybrid account. Acco .. (shrink)