Human rights lawyers are a funny breed. It an area of law which is deeply — almost inextricably — linked with morality. Despite pretensions towards positivism and objectivity, most of the time it’s posturing. There’s an extent to which human rights lawyers self-select. People who think that the area of law is utter hogwash vacate the field, meaning our leading human rights lawyers are absolutely convinced that human rights are a real thing. Our leading phrenologists are similarly convinced that phrenology is a science.
Sledges about the nature of human rights being little more than pixie dust and unicorn spit aside, the style of reasoning needed to be a human rights lawyer also tends to make you a little bit one-eyed about rationality. This is what we see in George Williams’ recent article about the right to the presumption of innocence.
The case is boring. A sportsball celebrity was accused of gendered violence and lots of people believed them. Williams thinks this is a bad thing that impacted on the celebrity’s rights. The celebrity found it difficult to deal with the allegations and that people were jumping on a ‘bandwagon’ to condemn him.
Pull the other one.
We should distinguish two aspects to this issue. The first is how we as a society respond to allegations of gendered violence. The second is how we as a society respond through the legal system to allegations of gendered violence. These two responses need not be the same. My neighbour runs over my cat. I suspect him of doing it deliberately but there is insufficient evidence for me to bring a case. I respond to him by passively aggressively putting up a billboard with a picture of me looking over his fence.
And so on and so forth.
I don’t need to avail myself of legal remedies because I have a bunch of lawful social remedies to hand.
George Williams wants to unite these two when it comes to allegations. The legal system afforded him the presumption of innocence. Should the general public be bound by similar obligations?
The gendered nature of domestic violence should make us think critically about gnomic maxims about rights of the accused. How do these slogans work in practice? In the vast majority of cases, it’s going to be the man who is accused of the crime. So this is a rule that almost exclusively privileges men. In a legal system that inherently privileges masculinity. In a society that still treats women as inferior.
The only way to agree with Williams’ argument is to ignore the lived experience of the rule. You have to look vaguely into the middle distance and say, ‘Yes, but what about the Golden Thread of Criminal Law?’
No ‘human right’ argument should be presumed to exist in a vacuum. They have to be balanced against other considerations. The presumption of innocence should be balanced against the consideration that it is going to make it (impossibly) difficult for vulnerable accusers to seek justice against their assailants.
And lawyers should be careful about using legal principles as normative social values. The average person on the street does not have a legal education. Arguing that the person on the street should conform to legal modes of thinking is backwards: legal modes of thinking should take its cues from social norms.