Common Sense, Criminal Justice and Accountability. Blinking into the Black Box

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Abstract

The present article focuses on the problem of accountability in criminal adjudication. First, I discuss the seemingly compelling reasons for giving an account of one’s decision and show how this requirement can be easily tackled through legal realism. Justifying a criminal verdict will not automatically lead to more accurate (truth-conducive) decisions. Second, I illuminate the epistemological framework underlying the criminal process, i.e. the Common Sense philosophy. I suggest that common sense cannot deliver what it promises: valid inferential relations between the evidence and the verdict, let alone a stable structure of justification. Utilizing inner sensations (e.g. “feeling sure” or “beyond reasonable doubt”), understandable only by the person feeling them, is an open invitation to self-deception, for it lacks criteria of correctness. Third, I bring the private-language-argument into play and show that the idea of an inner sensation as a standard of proof in criminal adjudication is incoherent, indeed unintelligible. Finally, I make the case for a new turn to epistemology, which can provide us with a new, sustainable framework, i.e. a structure of justification, which can be applied, communicated and scrutinized. Such a turn will not interfere with the validity of the currently valid system of criminal adjudication. Giving reasons for decisions is one thing; having reasons for a decision is quite another.
Original languageEnglish
Volume2018
No.7
Specialist publicationThe Art of Crime
Publication statusPublished - 30 Nov 2018

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