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Year 2013 x
Article

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.

    This paper explores the roles that the presumption of innocence (PoI) can play beyond the criminal trial, in other dealings that citizens may have with the criminal law and its officials. It grounds the PoI in a wider notion of the civic trust that citizens owe each other, and that the state owes its citizens: by attending to the roles that citizens may find themselves playing in relation to the criminal law (such roles as suspect, defendant, convicted offender and ‘ex-offender’), we can see both how a PoI protects us, beyond the confines of the trial, against various kinds of coercion, and how that PoI is modified or qualified as we acquire certain roles. To develop and illustrate this argument, I pay particular attention to the roles of defendant (both during the trial and while awaiting trial) and of ‘ex-offender,’ and to the duties that such roles bring with them.


Antony Duff
Antony Duff holds the Russell M and Elizabeth M Bennett Chair in the University of Minnesota Law School, and is a Professor Emeritus of the Department of Philosophy, University of Stirling.
Article

Access_open Private law and ethical life

Honneth on legal freedom and its pathologies

Journal Netherlands Journal of Legal Philosophy, Issue 2 2013
Keywords Honneth, Hegel, social freedom, legal freedom, law, pathologies
Authors Jan Ph. Broekhuizen
AbstractAuthor's information

    In Das Recht der Freiheit Axel Honneth develops his concept of social freedom. In this article I discuss Honneth’s project and critique one of its crucial aspects: Honneth’s views on the disruptive role of legal freedom in our society and its dependent relation to the sphere of social freedom. I argue that in his attempt in Das Recht der Freiheit to reactualize Hegel’s discourse on the realization of freedom for our time, Honneth risks mistranslating Hegel’s discourse of ‘right’ by denying the sphere of legal relations a constitutive role for true freedom, and that because of this Honneth’s own theory of social freedom suffers: it becomes less clear whether it can still offer helpful insights into the proper place of legal freedom in our society.


Jan Ph. Broekhuizen
Jan Broekhuizen is an attorney (advocaat) in Amsterdam and a deputy judge at the Court of Appeals in Den Bosch (the Netherlands). He holds degrees in both law and philosophy.
Article

Access_open Absolute Positivism

Journal Netherlands Journal of Legal Philosophy, Issue 2 2013
Keywords jurisprudence, legal positivism, Hans Kelsen, pure theory of law
Authors Christoph Kletzer
AbstractAuthor's information

    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.
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