So there's been a storm of controversyacross the world about anti-terror legislation, and many critics have said that the accused are presumed guilty until proven innocent. Tis got me thinking: what would have to hapen for this to be the norm in international (and presumably European) law? How would this become mainstream and not somthing only practiced by sinister regimes and dictators?
Guilty until proven innocent
- Thread starter Saepe Fidelis
- Start date
Hapsburg
Banned
IIRC, this is and has been the SOP for Chinese law. Not just modern, CCP-ruled China; but, like, ancient China too. Then again, Chinese Legalism is known to be a really brutal philosophy.
But, in Western society, I don't see it happening. It's so fundamentally contrary to the very basis of Western civilisation. Yes, "terrorism" is scary thing, but Western governments are probably not going to be wont to throw away one of its founding legal principles to combat it.
But, in Western society, I don't see it happening. It's so fundamentally contrary to the very basis of Western civilisation. Yes, "terrorism" is scary thing, but Western governments are probably not going to be wont to throw away one of its founding legal principles to combat it.
The Code civil (Napoleonic Code) in practice gave more power to the prosecution and tended to assume the accused was guilty until proven innocent. Many legal systems in 19th-century Europe were similar in their unsympathetic attitude towards the accused; they tended towards conviction and reaction. So until fairly recently it wasn't "fundamentally contrary" to the West.
While this rule often was not applied in practice before the French revolution,
the idea that this should be how jurisdiction works is far older.
Basically, it is one of the aspects where Pagan Roman and Christian ideas agree.
the idea that this should be how jurisdiction works is far older.
Basically, it is one of the aspects where Pagan Roman and Christian ideas agree.
As a principle, this requires some pretty fundamental shakeup in the way people think. Bernardus Gui developed something rather close to it - the idea that all sinners are guilts, and therefore should be treated as though there was certain guilt to find, despite the fact that they might be innocent of this particular crime. But when you think it through, the whole thing becomes philosophically unsatisfactory. I could see it realised in practice - it is, in many places, and lots of people still viscerally believe that 'he wouldn't be in the dock if he really was innocent'- but it wouldn't really work in any society that valued intellectual consistency.
Of course one that doesn't - I think a court system run along the lines of the inquisition might do it.
Of course one that doesn't - I think a court system run along the lines of the inquisition might do it.
DAMIENEVIL
Banned
While the law might believe in a innocent till proven guilty the Police certainly do not.
I may support you in this discussion, but it's kind of off topic. I'm really more interested in what AH scenarios would result in this legal change.
This plays into another fundamental question:
Guilt from an action or guilt from life conduct - may a court judge over either one?
And I agree with your statements to a high degree if we precisize church inquisition by "inquisition" term. The Spanish (royal) inquisition, brutal as it was, was an early exercise of the consistency you emphasize.
Faeelin
Banned
How would such a legal system develop?
It seems to me that would just encourage criminality, since everyone will be guilty anyway.... I don't know how you get this sort of development from Anglo-American law (and IMO anyone whose legal system derives from Rome).