Feb 4, 2015
N Guilty Men: A History of the Presumption of Innocence
Dale tells the history of the legal presumption of innocence, and connects the “just world” fallacy and the legal status of women and minorities.
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?
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—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 in fair and fit consequences. Rejecting this fallacy takes real intellectual effort.
Many people do not appreciate, for example, that the conversation between Abraham and God in Genesis 18:23-32 concerning the fate of Sodom and Gomorrah could only have arisen in a society where behind every accusation was a presumption of guilt: “And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.”
If the world of Ancient Israel is now decried as unrepresentative of Western Civilisation, then the world of Classical Athens, presumably, is not (democracy, theatre, philosophy, etc). Yet Socrates’ Apologia reads oddly because Athens, too, was a presumption of guilt society: “Men of Athens, do not interrupt, but hear me; there was an agreement between us that you should hear me out. And I think that what I am going to say will do you good: for I have something more to say, at which you may be inclined to cry out; but I beg that you will not do this.”
Over time, Greek society’s understanding of legal presumptions began to shift, but even at best—to lawyers—they’re more confusing than clear. Aristotle wrote things like this: “it is a serious matter to decide that a slave is free, yet it is much more serious to convict a freeman of being a slave.” Grapple, grapple, but not quite right.
The presumption of innocence arose in only two civilisations, Rome and England, and despite attempts to prove that the latter legal system was influenced by the former, the concept evolved independently. 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” 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.
It is perhaps worth noting that Ulpian, the Prefect of the Praetorian Guard, was later fragged by his own men, in part because he tried to stop them using torture.
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. It recognises, too, that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve. This explains why N tends to float up and down throughout English and Roman history. 10 is the most common figure, but the Romans sometimes expressed themselves, like Trajan, in terms of a 1-for-1 trade. English jurist Matthew Hale spoke of 5-for-1, and in a 1951 judgment—R v Patel  All E.R. 29—the Court of Criminal Appeal noted the difficulty of “trying to steer between the Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one.”
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 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 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 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 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.
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.