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A law graduate of the University of Queensland, and a post-graduate from Oxford’s Brasenose College and the University of Edinburgh School of Law (and who in the mid-1990s may have plunged all-the-way with Icarus, but who’s since soared with winds beneath both wings) tells the history of the legal presumption of innocence, and connects the “just world” fallacy and the legal status of women and minorities.

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“What if I told you that the bulk of crime in Britain was committed by 100,000 known individuals with a list of previous convictions that makes them easy to trace? And what if I added that we could arrest the lot of them, lock them up without charge, and reduce the country’s crime rate almost to zero overnight? Tempted?

“I hope you’re not tempted, but it is true that we know who most of the future criminals are, where they live, what race and sex they are, and lots of other things about them. And it is also true that if we reverted to a world where guilt is presumed—just lock ‘em up, where there’s smoke there’s fire, of course they’ll do it again—we would indeed reduce our crime rate to trivial levels.

“I use the word ‘revert’ advisedly, because for most of human history, we human primates have believed that where there is smoke there is fire. When we have accused people of wrongdoing, we have considered our accusations true because the accused ‘have it coming to them’. The Roman jurist Ulpian [Gnaeus Domitius Annius Ulpianus; c. 170 – 223 CE]  –  the first lawyer to think deeply about the presumption of innocence  –  pointed out that the presumption of innocence represents a decisive rejection of the ‘just world’ fallacy that a person’s actions always result [ipso facto] in fair and fit consequences. Rejecting this fallacy takes real intellectual effort.

[Discussion of presumption of guilt / innocence in Hebrew, classical Greek and Hellenistic culture]

“The presumption of innocence arose in only two civilisations, Rome and England [note: not in Britain or Great Britain], and despite attempts to prove that the latter legal system was influenced by the former, the concept evolved independently [like the similarity shown by the marsupial mammals of Australia to the placental mammals elsewhere, or between Gaelic and Australian Football]. It is from Roman and English lawyers and politicians that one first sees ringing declarations like, ‘I would rather ten guilty persons should escape, than one innocent should suffer’, or ‘a person ought not to be condemned on suspicion; for it is preferable that the crime of a guilty man should go unpunished than an innocent man be condemned’. The first is from Cicero, the second is attributed to the Emperor Trajan, although it was likely written by a senior civil servant.

“In England, as early as the 9th century, we find King Alfred stating that ‘in cases of doubt one should rather save than condemn’, and in 1471, Chief Justice John Fortescue said, ‘indeed I would rather wish ten evil doers to escape death through pity, than one man to be unjustly condemned’.

“Why is the presumption of innocence so striking? Because people are uncomfortable believing that suffering is random, that sometimes bad things happen for no reason at all. Instead, we prefer to believe that people must have done something to deserve what they get, including being accused of a crime. ‘If bad things only happen to those who deserve them, and I’m a good person, then I can be sure that nothing bad will happen to me’, Ulpian notes at one point. Belief in the ‘just world’ [or in a ‘just’ identity group] can be thought of as a failure to apply the null hypothesis in the moral domain: rejecting the explanation of chance, we prefer to believe that everything that happens is deserved [or ‘everything happens for a reason’].

“So, when it comes to defining N  –  the number of guilty men we set free  –  among both Romans and English 10 is popular. That said, any criminal justice system unwilling to confine N would be one that had no system of punishment at all. If you’re willing to let an infinite number of guilty people go, there is no justice either. This recognises a tradeoff, a balancing act, and the impossibility of perfection [‘Do not let perfection be the enemy of the good’]. It recognises, too, that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve.  .  .  .

“When considering N, then, it is wise to keep this balancing act in mind, all the while remembering that law can be polluted by awful attitudes dragged across from other belief systems. One of the reasons rape is so fraught is not just because, as Ulpian observed, it involves the criminal expression of something that would otherwise be both a perfectly legal and enjoyable act.

“It is also fraught because the [Christian] civilisation that came after Ulpian’s decided that there was something inherently wrong with women: they entered the justice system  –  whether as victims or accused  –  disabled by something that was in them, and that they could not change. This would have flummoxed Ulpian, and reflects badly on we who came after. The doctrine of original sin is, after all, a particularly nasty manifestation of the ‘just world’ hypothesis.

“We must take care, then, not to make decisions in advance stipulating that people have something about them that disables them [or ennobles them] before they enter the justice system. At first, those entering the law courts with a presumption operating against their character were all women. All societies exhibit sexism to greater or lesser degrees. As we became [or were forced after 27 February 380 CE by law to become] monotheists, we added gays, Jews, and black people (in that order) to the ‘there’s something inherently funny about you’ list. We then spent the best part of [the last] 200 years removing all those people from the same list. This removal is not perfected, of course, although it is well progressed in the developed world. [Is ID-group politics and law now reversing the gains of those 200 years? Are we being gulled into rejecting Martin Luther King’s ‘I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character’?]

We do not live in a just world. We ought not ascribe characteristics to people before applying justice to them. And we should be proud of the fact that we have had the wit to choose  –  for the most part  –  a legal minority position that is striking in its generosity of spirit. I don’t think that choice was inevitable. We so easily could have gone the other way.”

Helen Dale, 4 February 2015

Leonard Colquhoun’s teaching of histories included these key periods in the development of our civilisation: fifth century BCE Athens, the Roman republic 133-30 BCE, the Renaissance and Reformation mid-1300s to mid-1600s, the post mid-1600s Scientific Revolution and the 18th century Enlightenment.