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)

This paper presents an argument for the value of privacy that is based on a purely negative concept of freedom only. I show that privacy invasions may decrease a person’s negative freedom as well as a person’s knowledge about the negative freedom she possesses. I argue that not only invasions that lead to actual interference, but also invasions that lead to potential interference (many cases of identity theft) constitute actual harm to the invadee’s liberty interests, and I critically examine the (...) courts’ reliance on a principle of ‘no harm, no foul’ in recent data breach cases. Using a number of insights from the psychology of human belief, I also show that the liberal claim for protection of privacy is strengthened by the observation that often the privacy invader cannot be held responsible for the influence on the invadee’s negative freedom. (shrink)

Suppose that it can be right to grant amnesty from criminal and civil liability to those guilty of political crimes in exchange for full disclosure about them. There remains this important question to ask about the proper form that amnesty should take: Which additional burdens, if any, should the state lift from wrongdoers in the wake of according them freedom from judicial liability? I answer this question in the context of a recent South African Constitutional Court case that considered whether (...) an officer having been granted amnesty for apartheid-era killings should be held to mean that the police force may not discharge him on the ground of having been convicted of a serious offence. The Court ruled that, despite amnesty having been granted to the guilty officer, the police force was permitted to discharge him. I distinguish the major ethical reasons the Court gives for its conclusion, which ultimately appeal to the value of national reconciliation, and I argue not only that the reconciliation-based rationales rest on empirical contingencies for which there is little evidence, but also that their logic in fact provides some reason to reject the Court’s conclusion. Then, I sketch an attractive new theory of right action, grounded on salient sub-Saharan values often associated with talk of ‘ubuntu’, that I maintain provides a stronger, unitary foundation for the Court’s key pronouncements. I conclude by discussing some of the broader implications of the moral theory for related matters, such as the rights of victims in the processes leading up to presidential pardons of those who have committed atrocities and the duties of newspapers with regard to the reputations of the latter. (shrink)

Can the state, as opposed to its individual human members in their personal capacity, intelligibly seek to avoid blame for unjustified wrongdoing by invoking excuses (as opposed to justifications)? Insofar as it can, should such claims ever be given moral and legal recognition? While a number of theorists have denied it in passing, the question remains radically underexplored. -/- In this article (in its penultimate draft version), I seek to identify the main metaphysical and moral objections to state excuses, and (...) begin to investigate their strength. I work from the ecumenical assumption that general understandings of modern states as group moral agents proper or as mere fictional points of imputation for individual behaviour are both plausible, and that the question of state excuses should be asked in terms of both paradigms. Issues addressed include: the lack of state consciousness/affect, the nature and relevance of developmental and executive defects in group agents, the value of state interests and how interests relate to plausible claims of excuses, the shortfall of responsibility argument for group responsibility and its interface with state excuses, the symbolic and consequential (dis)value that state excuses may have, as well as concerns that states are entities that should live up to outstandingly high virtuous standards of impartiality and equanimity. -/- I conclude that even if the range of excuses available to states does not overlap neatly with excuses available to ordinary individuals, some excuses may still be morally available to states. More generally, I emphasize the need for a systematic discussion of group excuses writ large, and of their relationship with the wider question of when group entities may legitimately be singled out to bear adverse normative consequences for wrongdoing. (shrink)

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.