Putting the ‘presumption’ back in the ‘presumption of innocence’

Abstract

This article tackles the question: can the Presumption of Innocence (PoI) be a presumption? Whereas many criminal law theorists rejection such a notion, I draw inspiration from argumentation theorists and philosophers—in particular, Petar Bodlović and Edna Ullmann-Margalit—and argue in favour of it; indeed, argumentation theory often holds the PoI out as a paradigmatic presumption. My argument proceeds in three sections. I first show that criminal law theorists writing on the PoI have understood presumptions as evidentiary devices in the form of a modus ponens. On that understanding, the PoI cannot be a presumption. Attention is then drawn to the field of argumentation theory, which teaches us that there are other types of presumptions that are non-evidentiary, not in the form of a modus ponens, require a tentative commitment to q, and require an agent to proceed (act) as if q; viz practical presumptions. The PoI can be understood as such. Finally, it is argued that the PoI, insofar as it requires a tentative commitment to q (here, ‘the defendant is innocent’), can be thought of as a propositional imagining of q (ie, an agent presuming innocence is to propositionally imagine the defendant's innocence).