This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel (...) bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

The central intuition that guides the argument of this book is that both the technical and reductionist methodology associated with utilitarianism do not do ...

Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles New Haven: Yale University Press, 1997, xi + 272 pp.

In the 225 years since the United States Constitution was first drafted, no single book has addressed the key questions of what constitutions are designed to do, how they are structured, and why they matter. In From Words to Worlds, constitutional scholar Beau Breslin corrects this glaring oversight, singling out the essential functions that a modern, written constitution must incorporate in order to serve as a nation's fundamental law. Breslin lays out and explains the basic functions of a modern constitution (...) -- including creating a new citizenry, structuring the institutions of government, regulating conflict between layers and branches of government, and limiting the power of the sovereign. He also moves into the esoteric, discussing the theoretical concepts behind the fundamentals of written constitutions and examining in-depth some of the most important constitutional charters from around the world. In assaying how states put the structural ideas into practice, Breslin asks probing questions about why -- and if -- constitutions matter. His answer is a resounding yes. Solidly argued and engagingly written, this comparative study in constitutional thought demonstrates clearly the key components that a state's foundational document must address. In doing so, Breslin draws a critically important distinction between constitutional texts and constitutional practice. (shrink)

This essay proposes a theory of excuse that, without blending it into exculpation, avoids the condonation of crime. The question it takes up is: given that neither compulsion by circumstances nor by human threats removes the legal reason for punishing, how can its exonerating force be rendered compatible with the state’s general duty to punish the guilty? The chapter criticizes various proposals for reconciling excuse with the duty to punish the guilty, including the moral involuntariness theory, the concession to frailty (...) theory, and the conformity to moral expectation theory. It then proposes a solution: moral blamelessness exonerates because it simulates the conditions for legal exculpation. Just as the exculpated actor acknowledges the legal norm of mutual respect for agents, so does the excused actor acknowledge the public reason of the self-sufficient political community of which the legal norm is a part. The author argues that this theory would excuse the altruistic no less than the self-preferring murderer. (shrink)

This book aims to distil the essentials of liberal constitutionalism from the jurisprudence and practice of contemporary liberal-democratic states. Most constitutional theorists have despaired of a liberal consensus on the fundamental goals of constitutional order. Instead they have contented themselves either with agreement on lower-level principles on which those who disagree on fundamentals may coincidentally converge, or, alternatively with a process for translating fundamental disgreement into acceptable laws. Alan Brudner suggests a conception of fundamental justice that liberals of competing philosophic (...) schools may accept as fulfilling their own basic commitments. He argues that the model liberal-democratic constitution is best understood as a unity of three constitutional frameworks: libertarian, egalitarian, and communitarian. Each of these has a particular conception of public reason. Brudner criticizes each of these frameworks insofar as its organizing conception claims to be fundamental, and moves forward to suggest an Hegelian conception of public reason within which each framework is contained as a constituent element of a whole. When viewed in this light, the liberal constitution embodies a surprising synthesis. It reconciles a commitment to individual liberty and freedom of conscience with the perfectionist idea that the state ought to cultivate a type of personality whose fundamental ends are the goods essential to dignity. Such a reconciliation, the author suggests, may attract competing liberalisms to a consensus on an inclusive conception of public reason under which political authority is validated for those who share a confidence in the individual's inviolable worth. (shrink)

In this article I investigate the implications of antirealism, as characterized by Richard Rorty, for First Amendment jurisprudence under the United States Constitution. It is hoped that the implications, while played out in the context of a specific tradition, will have more universal application. In Section 1, Rorty’s ‘pragmatic antirealism’ is briefly outlined. In Section 2, some effects of the elimination of the concept of truth for First Amendment jurisprudence are investigated. Section 3 argues for the conclusion that given the (...) antirealist stance, the Supreme Court’s usage of the true/ false fact distinction is actually an uncritical allowance of viewpoint-based discrimination into speech protection that has potentially far-reaching and restrictive results for important speech. Finally, in Section 4 Rorty’s antirealism is combined with various traditional models of First Amendment analysis to see how it would function. The conclusions aimed at are twofold. First, that Rortian antirealism is compatible with the traditional models underlying First Amendment theory. Second, that a realization that truth is the result of, in Rorty’s words, ‘intra-mundane’ discourse leads to an argument for different and potentially stronger and more farreaching protections to speech. (shrink)

This paper focuses on John Witherspoon (1723-1794) and the religious background of the American conception of religious liberty and church-state separation, as found in the First Amendment. Witherspoon was strongly influenced by debates and conflicts concerning liberty of conscience and the independence of the congregations in his native Scotland; and he brought to his work, as President of the (Presbyterian) College of New Jersey, a moderate Calvinism challenging the conception of “true virtue” found in Jonathan Edwards. Witherspoon was teacher to (...) James Madison who would substantially write the First Amendment. Religious freedom, focused on freedom of conscience, and ‘Christian magnanimity’ stand in considerable tension with the prior orthodoxy of predetermination and the historical tradition of Calvinistic theocracy. Understanding Witherspoon, we better understand the reformation background of the American Enlightenment and how his conception of the freedom of conscience contributed to American conceptions of freedom generally. (shrink)

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts (...) of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse. (shrink)

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly (...) endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits. (shrink)

Provides an introduction to the development of originalist thought and showcases the great range of contemporary originalist constitutional scholarship.

The essays in this volume, which includes contributions from the flag bearers of several competing schools of constitutional interpretation, provides an ...

The conundrum of the unconstitutional constitution -- The quest for a compelling unity -- The permeability of constitutional borders -- The sounds of silence : militant and acquiescent constitutionalism -- "The first page of the constitution" : family, state, and identity.

Since constitutional arrangements are what make politics work, they are a central concern of political theory._This book, now completely updated, is the first comprehensive exploration of the political theory of constitutions. Jan-Erik Lane begins by examining the origins and history of constitutionalism and answers key questions such as: What is a constitution? Why are there constitutions? From where does constitutionalism originate? How is the constitutional state related to democracy and justice? Constitutions play a major role in domestic and international politics (...) in the early 21st century and an updated version of this classic textbook will introduce students to a number of different areas -- theoretical, empirical, and moral -- which will aid their understanding of this important topic. (shrink)

A critical overview of the way ubuntu has figured into Constitutional law in South Africa and the way that it should.

The essays in this volume--written by prominent philosophers, political scientists, and legal scholars--address these questions and explore related issues.

The constitutional subject : singular, plural or universal? -- The constitutional subject and the clash of self and other : on the uses of negation, metaphor, and metonymy -- Reinventing tradition through constitutional interpretation : the case of unenumerated rights in the United States -- Recasting and reorienting identity through constitution-making : the pivotal case of Spain's 1978 Constitution -- Constitutional models : shaping, nurturing, and guiding the constitutional subject -- Models of constitution making -- The constitutional subject and clashing (...) visions of citizenship : can we be beyond what we are not? -- Can the constitutional subject go global? imagining a convergence of the universal, the particular, and the singular. (shrink)

This book explores two basic questions regarding constitutional theory. First, in view of a commitment to democratic self-rule and widespread disagreement on questions of value, how is the creation of a legitimate constitutional regime possible? Second, what must be true about a constitution if the regime that it supports is to retain its claim to legitimacy? Howard Schweber shows that the answers to these questions appear in a theory of constitutional language that combines democratic theory with constitutional philosophy. The creation (...) of a legitimate constitutional regime depends on a shared commitment to a particular and specialized form of language. Out of this simple observation, Schweber develops arguments about the characteristics of constitutional language, the necessary differences between constitutional language and the language of ordinary law or morality, as well as the authority of officials such as judges to engage in constitutional review of laws. (shrink)

Logical paradoxes in the strict sense produce statements like those of the Liar ("This very statement is false") that are false if true, and true if false. They resist rational solution or at least divide logicians for centuries of apparently irreconcilable wrangling. What happens when similar paradoxes arise in law?

By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution (...) came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss (...) the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification. (shrink)

Alison L. LaCroix is Assistant Professor of Law at the University of Chicago Law School, where she specializes in legal history, federalism, constitutional law and questions of jurisdiction. She has written a fine, scholarly volume on the intellectual origins of American federalism. LaCroix holds the JD degree (Yale, 1999) and a Ph.D. in history (Harvard, 2007). According to the author, to fully understand the origins of American federalism, we must look beyond the Constitutional Convention of 1787 and range over the (...) colonial, revolutionary, and founding periods including developments in the early republic. LaCroix questions both the idea that American federalism originated, all at once, at the Constitutional Convention of 1787 and the idea that republican ideology (with its strong emphasis on legislative power) was the single dominant framework of eighteenth-century American political thought. Versions and elements of federalist or con-federative ideas were also long present and in a process of development. (shrink)

The purpose of this paper is to consider some aspects of the question of how difficult it should be to amend or change constitutional laws through formal amendment procedures. The point of departure of my discussion is an amendment procedure that has recently been suggested by the prominent legal and political philosopher Bruce Ackerman. He defends a three-step amendment procedure – where a re-elected president is authorised to propose amendments that must thereafter be approved first by a two-thirds majority of (...) the legislature, and then by a simple majority of the citizens at the next two presidential elections. I propose and defend an alternative amendment procedure that can be termed the four-step procedure. According to this procedure, the right to propose amendments is granted both to legislators and voters via citizen initiatives. Thereafter, the proposed amendments should be placed before the legislature, where they must be approved by a simple majority in two successive parliaments, and there must be an interval of no less than one year between the two votes. If passed by the legislative assembly, the amendment(s) should be approved by a simple majority of the electorate in a referendum. However, a submajority of the legislators (i.e. a one-third minority) should be empowered to require an additional referendum on the proposed amendment(s), and this final referendum should be held two years after the first popular vote. In order to assess the outlined amendment procedures, I primarily focus on the following factors or criteria of evaluation, which I group under three headings: (1) Central ideas and ideals in deliberative democratic theory and the fact of persistent disagreement in modern pluralist societies (this includes considerations of how well alternative amendment procedures deal with disagreement among citizens); (2) rule of law values, stability and flexibility; and (3) the value of checks and balances that can guard against the abuse of power (or more precisely, whether the amendment procedures under consideration provide adequate checks and balances between courts, political actors and citizens). (shrink)

Abstract: The symmetry argument is an objection to the 'deprivation approach'– the account of badness favored by nearly all philosophers who take death to be bad for the one who dies. Frederik Kaufman's recent response to the symmetry argument is a development of Thomas Nagel's suggestion that we could not have come into existence substantially earlier than we in fact did. In this paper, I aim to show that Kaufman's suggestion fails. I also consider several possible modifications of his theory, (...) and argue that they are unsuccessful as well. (shrink)

I address Frank Michelman’s recent attempts to dispel the notion that there are deep tensions between a liberal approach to constitution making and a resolute commitment to fighting poverty, i.e., to holding what he calls ‘social liberalism’. He focuses on the prima facie tension between anti-poverty struggle on the part of government and the existence of a property clause in a constitution, a tension that several commentators in South Africa have contended requires removing that clause from its Constitution. In reply, (...) Michelman argues that in the final analysis there need be no principled conflict between the two, which implies that amending the South African Constitution is unnecessary and perhaps even unwise. I provide reason to think that Michelman’s attempted resolution is incomplete, and suggest plausible ways to understand the legal function of a property clause in a liberal constitutional order beyond those Michelman addresses that can also help to resolve the apparent tension between it and a concerted effort to reduce poverty. (shrink)

This is Re'em Segev's contribution to the symposium on Douglas Husak's book "Overcriminalization.".

The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.

By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution (...) came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

Through an analysis of the US Supreme Court's case Heller this paper argues that legal process can be pragmatically reconceptualized so as to create information necessary to decide complex social issues. This is in contrast to other more standard conceptions of law as more emphasizing what information ought to be excluded.

Alison L. LaCroix is Assistant Professor of Law at the University of Chicago Law School, where she specializes in legal history, federalism, constitutional law and questions of jurisdiction. She has written a fine, scholarly volume on the intellectual origins of American federalism. LaCroix holds the JD degree (Yale, 1999) and a Ph.D. in history (Harvard, 2007). According to the author, to fully understand the origins of American federalism, we must look beyond the Constitutional Convention of 1787 and range over the (...) colonial, revolutionary, and founding periods including developments in the early republic. LaCroix questions both the idea that American federalism originated, all at once, at the Constitutional Convention of 1787 and the idea that republican ideology (with its strong emphasis on legislative power) was the single dominant framework of eighteenth-century American political thought. Versions and elements of federalist or con-federative ideas were also long present and in a process of development. (shrink)

This is my review of D.W. Howe's 2007 book, What Hath God Wrought, Transformation of America 1815-1848. The book is a volume in the new Oxford History of the U.S.(O.U.P. 2007)--exploring the transformation of the early American republic through the period of domination of the Jacksonian Democrats. This is also the period of the New England Renaissance and the early work of R.W. Emerson. Howe devotes a good deal of attention to Emerson and his influence and thereby provides needed historical (...) context for the understanding of American thought. (shrink)

This is a expository and critical review of Arthur Schlesinger, Jr. 's last book, War and the American Presidency. The book collects and focuses recent writings of Arthur Schlesinger on the themes of its title. In its short Foreword and seven concise essays, the book aims to explore, in some contrast with the genre of “instant history,” the relationship between President George W. Bush’s Iraq adventure and the national past. This aim and the present work are deserving of wide attention, (...) both because of the contemporary need to deal with the extended war in Iraq and because Americans, in particular, need to attend to their own history, if we are to avoid past mistakes and make the best use of our ongoing political traditions and institutions. In order to know better where we might go in the future, we need an adequate picture of where we have been in the past. Schlesinger invites us to debate the war, the Presidency, and their relation to the American past. (shrink)

I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon newly according legal rights to animals. Compensatory injustice would likely result from (...) such a reading, at least in a South African context, in that the law would not only suppress facets of culture that many Africans deem important to their self-conception, but also require spending scarce resources on animals that could have gone toward saving African lives and livelihoods. If the state must choose between acting for the sake of the urgent interests of animals and those of humans, humans must take priority, even assuming that animals have a worth that morally forbids harming them in our private lives. (shrink)

One of the central normative questions regards a decision between conflicting moral values. A decision of this nature is often required in disciplines such as philosophy, economics and law. According to common terminology, a decision between conflicting values reflects a balance of values, considerations or interests. Several types of questions arise in this context. One category includes substantive questions: which values exist, which considerations should be derived from these values, what is the degree of importance of these considerations, and which (...) principles should be established for deciding between conflicting considerations? Another category includes institutional questions: which individual or body should decide normative questions, and should the normative nature of the decision be manifest or concealed? This paper is an abstract of a book that considers general aspects concerning these questions. (shrink)

Criticism of court decisions is a favored American pastime. Typically, such criticisms are grounded in extra-legal criteria such as common sense (or lack of it) and morality (or immorality). Thus Tennessee Valley Authority v. Hill (1978) in which the Supreme Court halted the construction of the nearly completed Tellico Dam because it endangered the habitat of the snail darter, an action forbidden by the Endangered Species Act, was said to confound common sense; and many have called immoral Roe v. Wade (...) (1973) which said the right to abortion, at least through the first trimester, was constitutionally guaranteed. 1 However, even if such criticisms are justified, they do not address the legal issue, which is whether the court got the law wrong. (shrink)

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...) basic rights of citizens. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss (...) the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification. (shrink)

This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are costly (...) and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gain or lose when we propose jury reforms. (shrink)