David Sierra Sorockinas

This paper aims to analyze a type of epistemic injustice in the field of criminal procedural law. The central research question is: can reverse onus in criminal trial lead to epistemic injustice? To address this question, the text will be divided into three parts. First, we examine the concept of epistemic injustice and its various modalities. Second, we present the conditions under criminal trials in an epistemic setting. We characterize the criminal trial in an epistemological key. Finally, in third place, we present why a change in the institutional design (the burden of proof) leads to epistemic injustice.

What do we mean by “disagreements between legal theorists”? A simple answer: disagreements among legal theorists occur when two (or more) agents have rival theories to explain a matter within the same field ‒ in the specific case, the study of law. The argumentative strategy I use in this research consists in adopting a broader perspective in order to remove the specialisation bias with which many legal theorists seek to avoid the difficulty of demarcating their own activity. If we consider that the study of law is a heuristic activity, like many others, we have to assume that it shares family resemblances with others. In my thesis, I assume that knowledge depends on a given conceptual scheme, resulting from a specific use of language. In other words, the agents interact among themselves in a certain language game, thereby generating an intersubjective environment. Thus, the main issue that arises is how wide and intense the degree of intersubjectivity is in a certain field. These theoristic disagreements, in order not to be trivial, must belong to the same heuristic field. This condition implies that the problem does not lie in the disagreements that may exist between legal practitioners, since their purpose is not the construction of knowledge, but the operation of a normative system. The relationship I establish between incommensurability and disagreements among legal theorists is justified, since I start from the consideration of the study of law as a heuristic field. However, by introducing the analogy of translation as a solution for multiple meanings, I elaborate a comprehensive conceptual scheme in which I depend on a general theory about disagreement. In this explanation, the conceptual schemes used by theorists are no longer only static frameworks but also influence the interaction among the agents in the heuristic field. When the used schemes are different, the form of interaction is the translation. The activity of translating has its own characteristics and limits; it is not a mechanical exercise, even though it also has its rules. The product of that activity is translation, which entails epistemic losses and gains. In order to notice the interaction in the debate between legal theorists, I propose to look for tools that open up new vistas and choose to create an optimal scenario for translation.