Limiting the Reach of Amnesty for Political Crimes: Which Extra-Legal Burdens on the Guilty does National Reconciliation Permit?
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Constitutional Court Review 3:243-270 (2011)
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.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Thaddeus Metz (2015). A Theory of National Reconciliation: Some Insights From Africa. In Claudio Corradetti, Nir Eisikovits & Jack Rotondi (eds.), Theorizing Transitional Justice. Ashgate. 119-35.
Richard L. Lippke (2003). Desert, Harm Reduction, and Moral Education: The Case for a Tortfeasor Penalty. Res Publica 9 (2):127-147.
Wilhelm Johannes Verwoerd, Equity, Mercy, Forgiveness: Interpreting Amnesty Within the South African Truth and Reconciliation Commission.
Paul M. Hughes (2001). Moral Atrocity and Political Reconciliation. International Journal of Applied Philosophy 15 (1):123-133.
Saba Bahar (1996). Human Rights Are Women's Right: Amnesty International and the Family. Hypatia 11 (1):105 - 134.
N. G. L. Hammond (1948). The Amnesty of 403 B.C. Alfred P. Dorjahn: Political Forgiveness in Old Athens; The Amnesty of 403 B.C. (Northwestern University Studies in the Humanities, No. 13.) Pp. 56. Evanston, Illinois: Northwestern University Graduate School, 1946. Cloth, $1.50. [REVIEW] The Classical Review 62 (02):82-83.
Ori J. Herstein (2011). A Normative Theory of the Clean Hands Defense. Legal Theory 17 (3):171-208.
Kendy M. Hess (2011). Review of Colleen Murphy, A Moral Theory of Political Reconciliation. [REVIEW] Notre Dame Philosophical Reviews 2011 (4).
Colleen Murphy (2007). Political Reconciliation, the Rule of Law, and Genocide. The European Legacy 12 (7):853-865.
Corey Brettschneider (2007). The Rights of the Guilty. Political Theory 35 (2):175-199.
Colleen Murphy (2010). A Moral Theory of Political Reconciliation. Cambridge University Press.
Richard L. Lippke (2011). Punishing the Guilty, Not Punishing the Innocent. Journal of Moral Philosophy 7 (4):462-488.
Alan Brudner (2008). Excusing Necessity and Terror: What Criminal Law Can Teach Constitutional Law. [REVIEW] Criminal Law and Philosophy 3 (2):147-166.
Added to index2011-05-25
Total downloads18 ( #103,399 of 1,410,166 )
Recent downloads (6 months)2 ( #94,935 of 1,410,166 )
How can I increase my downloads?