The Presumption of Innocence as a Counterfactual Principle

Abstract

This article’s primary aim is to highlight the essentially critical potential of the presumption of innocence, as well as the need for this critical potential to be duly recognized. It is argued that the essential meaning of the presumption of innocence is best understood when approached from what is referred to as its counterfactual status. As a first step, the different values and functions that are attributed to the presumption of innocence in contemporary legal literature are discussed, in order to provide an outline of the central ideas it contains or is supposed to contain. Subsequently, the concept of ‘counterfactuality’ is introduced and it is argued that a counterfactual perspective can further clarify the nature of the presumption of innocence. Next, a number of fundamental shifts in society and criminal justice are discussed that affect the presumption of innocence and that lend a large measure of urgency to disclosing its essence and critical potential. The conclusion argues that today’s threats to the presumption of innocence are of a fundamental nature, and that attempts to preserve the principle’s efficacy should focus on the value attached to its counterfactual and critical nature.