Vincent Geeraets

Ideology, Doping and the Spirit of Sport

Abstract The current World Anti-doping Code can be characterised as a tough approach to doping. In this paper we investigate how the World Anti-Doping Agency (WADA) justifies this tough approach. To this end, WADA advances two justificatory arguments. It maintains, first, that protection of the spirit of sport warrants tough measures and, second, that athletes have voluntarily consented to the Code. We argue that in the way they are presented by WADA, neither of these arguments can withstand scrutiny. In the second part of the paper, we go on to show that these arguments are in fact ideological in nature. The specific aim of these arguments is not to be correct, but rather to distort social reality, because in this way they can be used to ward off any critical discussion of the Code. We conclude that WADA’s interest is to create a façade of justice, not in serving justice itself.

Two Mistakes about the Concept of Punishment

This article identifies two mistakes commonly made about the concept of punishment. First, confusion exists about when an analysis of punishment counts as retributive, and when as justificatorily neutral. In particular, a fair number of legal scholars claim to analyze punishment in a neutral way, but closer inspection shows that many of these definitions are not justificatorily neutral. Second, legal scholars tend to analyze the concept of punishment very restrictively, with a focus on the intention of the legislator. While there may be good reasons to restrict the scope of the concept of punishment in the legal arena, from a philosophical point of view, restrictive analysis is not fruitful. It is a bad starting point for critical evaluation, because it is perfectly possible for impositions generally experienced as punitive not to be classified as such. This is all the more troublesome given that these impositions often contain fewer safeguards than are offered in criminal law and that there is sometimes a taboo on the language game related to punishment. I argue that these problems can be overcome by embracing an inclusive, justificatorily neutral concept of punishment that takes the outward appearance of the harm inflicted as its starting point.

The presumption of innocence

The presumption of innocence (PoI) is considered to be a fundamental principle of criminal law. Over the past decades, however, the emphasis on the rights of suspects and defendants has given way to a more instrumental view of criminal law as a means to reduce risk and attain safety. One can think, for example, of recent Acts on Terrorism that do not require ‘suspicion’ but merely ‘indications’ of a terrorist crime, thereby lowering the level of suspicion required for investigative activities in the pre-trial phase; of plea-bargaining that has been introduced in various legal systems; of the verdict of the European Court of Human Rights (ECtHR) in Salabiaku v. France where the Court allows for presumptions of fact or of law to operate in the trial phase; of the possibility of review after wrongful acquittals and of convicts who face special measures after serving their sentence in the post-trial phase, to name just a few examples. Such an instrumental approach puts fundamental principles such as nulla poena, ne bis in idem, nemo tenetur, in dubio pro reo, nullum crimen sine culpa, as well as the PoI under pressure.