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Tijdschrift Netherlands Journal of Legal Philosophy x Jaar 2013 x
Artikel

Access_open The Meaning of the Presumption of Innocence for Pre-trial Detention

An Empirical Approach

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden pre-trial detention practice, presumption of guilt, incapacitation, presumption of innocence
Auteurs Lonneke Stevens
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    The presumption of innocence (PoI) is considered to be an important principle for regulating pre-trial detention. The idea is that pre-trial detention should be a last resort. However, pre-trial detention practice demonstrates that pre-trial detention does not function on the basis of a presumption of innocence but rather from a presumption of guilt and dangerousness. It must be concluded that, with regard to pre-trial detention, the PoI has a rather limited normative effect.


Lonneke Stevens
Lonneke Stevens is Associate Professor of Criminal Law and Criminal Procedure at VU University Amsterdam.
Artikel

Access_open Retributivist Arguments against Presuming Innocence

Answering to Duff

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden broad presumption of innocence, retributivism, punishment of innocents, vicarious liability of car owners, drink-driving tests of non-suspects
Auteurs Alwin A. van Dijk
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    Factors justifying not presuming innocence are generally incorporated into the Presumption of Innocence (PoI). A confusing discourse has resulted: numerous guilt-presuming acts are deemed consistent with the PoI. I argue for an unusually broad PoI: any act that might convey to a reasonable actor that he is not presumed innocent of a punishable offence constitutes a PoI interference. Thus, academic debate need only be about the question what PoI interferences are justifiable or unjustifiable. This question must be answered using pro- and anti-PoI values. I analyse three PoI interferences in relation to Duff’s retributivist punishment theory: presumptions of guilt, vicarious liability of car owners and coercing non-suspects into proving their sobriety. Retributivists tend to castigate such procedures based on their (supposed) consequentialist rationale. I argue, however, that they might also be justified on retributivist grounds. The retributivist anti-PoI duty to punish the guilty may be the worst enemy of innocents.


Alwin A. van Dijk
Alwin A. van Dijk is Assistant Professor of Criminal Law at the University of Groningen.
Artikel

Access_open Presumption of Innocence Versus a Principle of Fairness

A Response to Duff

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 3 2013
Trefwoorden rules, principles, fairness, PoI
Auteurs Magnus Ulväng
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    In my response to Duff I focus mainly on the following two issues. Firstly, I examine what kind of a norm the presumption of innocence (PoI) really is and how it ontologically differs from other types of rules, principles, rationales, etc. My tentative conclusion is that a PoI does not suffice the requirement of being a dogmatic rule and, thus, has less weight than what Duff perhaps assumes.
    Secondly, I examine what role the concept of innocence plays in the debate on fundamental (moral and legal) principles and the underlying rationales of a criminal law system. Although I am sympathetic to much of what Duff purports in his plea for civic trust and a parsimonious use of criminal law, I am reluctant to believe that it is really a broader version of a PoI that warrants the kind of morally decent criminal law system that he suggests normatively ought to be. In my view, most of what Duff wants to ascribe to the PoI can be derived from a principle of fairness which, in my view, is already embedded in the fundamentals of criminal law doctrine.


Magnus Ulväng
Magnus Ulväng is Professor of Criminal Law at Uppsala University.
Artikel

Access_open Absolute Positivism

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2013
Trefwoorden jurisprudence, legal positivism, Hans Kelsen, pure theory of law
Auteurs Christoph Kletzer
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    The paper argues that we miss the point and strength of Kelsen’s Pure Theory of Law if we take it to drive a middle way between reductionism and moralism. Rather conversely, the Pure Theory is a radical theory. It tries to overcome the opposition between reductionism and moralism by making clear that both opponents rest on the same ill-conceived convictions about legal validity. Both take it that the law cannot be normative by itself. In contrast, the Pure Theory tries to find a new approach to the understanding of law that takes seriously the constitutive functions of law. It tries to understand the validity of law as resting in law itself. As such it is an attempt to find a philosophically satisfactory formulation of what can be called absolute positivism.


Christoph Kletzer
Christoph Kletzer is a Senior Lecturer at the Dickson Poon School of Law at King’s College in London.

Carel Smith
Carel Smith is Associate Professor of Legal Philosophy at Leiden University.
Artikel

Access_open Juridical Acts and the Gap between Is and Ought

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 1 2013
Trefwoorden naturalistic fallacy, duty, obligation, is/ought, contract, promise
Auteurs Jaap Hage
SamenvattingAuteursinformatie

    This article addresses the possibility of deriving ought from is. To that purpose it casts doubt on the very distinction between is and ought; distinguishes between duties, obligations, being obligated and owing to do something; revitalises Searle’s famous derivation of ought from is by replacing promises with contracts; and discusses some of the traditional objections against this derivation. The conclusions are that it is not problematic at all to ‘derive’ the existence of obligations from solely is-premises, and that it is not very problematic to ‘derive’ an ought from the existence of an obligation. The quotes around ‘derive’ signal that the nature of derivation also plays a role in this discussion.


Jaap Hage
Jaap Hage holds the chair for Jurisprudence at Maastricht University.
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