Justin Collings
- Published in print:
- 2021
- Published Online:
- February 2021
- ISBN:
- 9780198858850
- eISBN:
- 9780191890963
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198858850.003.0006
- Subject:
- Law, Constitutional and Administrative Law, Philosophy of Law
This chapter explores how the Constitutional Court of South Africa invoked the memory of apartheid during its first decade of operation. It shows how the Court did so frequently and aggressively—at ...
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This chapter explores how the Constitutional Court of South Africa invoked the memory of apartheid during its first decade of operation. It shows how the Court did so frequently and aggressively—at least in some contexts. Whereas the Court discussed apartheid eloquently and at length when it was sweeping away residual apartheid laws or otherwise advancing positions (such as abolishing the death penalty) that the ruling ANC government was likely to support, the justices were much more reticent when it came to invoking apartheid to confront the government itself. And in the context of enforcing positive constitutional rights, the Court was more likely to invoke apartheid memory to underscore the magnitude of the government’s task than to chide the government for failing to discharge it.Less
This chapter explores how the Constitutional Court of South Africa invoked the memory of apartheid during its first decade of operation. It shows how the Court did so frequently and aggressively—at least in some contexts. Whereas the Court discussed apartheid eloquently and at length when it was sweeping away residual apartheid laws or otherwise advancing positions (such as abolishing the death penalty) that the ruling ANC government was likely to support, the justices were much more reticent when it came to invoking apartheid to confront the government itself. And in the context of enforcing positive constitutional rights, the Court was more likely to invoke apartheid memory to underscore the magnitude of the government’s task than to chide the government for failing to discharge it.
Jeff Mcmahan
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780226529387
- eISBN:
- 9780226529554
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226529554.003.0010
- Subject:
- Law, Human Rights and Immigration
This chapter considers whether moral philosophers should accept as part of their moral methodology the study hypothetical cases, such as ticking bomb scenarios, in thinking about torture. In response ...
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This chapter considers whether moral philosophers should accept as part of their moral methodology the study hypothetical cases, such as ticking bomb scenarios, in thinking about torture. In response to the criticism of such scenarios by Albie Sachs, this chapter argues that such cases are useful for thinking about the ethics of torture if their function is properly understood. Such thought experiments are quite typical of moral philosophy in general, and do not necessarily generate objections. Moreover, those who engage in evil actions render themselves liable to torture as a means of prevention or self-defense. Hence this chapter rejects any absolute moral prohibition on torture. Nonetheless, there are pragmatic, consequentialist considerations that can justify an absolute legal prohibition on torture. Such a legal rule would help prevent mistakes and help prevent the torture of the innocent and others not liable to attack on just war theory. An absolute legal prohibition on torture is justified because on balance no more flexible stricture on its use is likely to be as productive of good outcomes.Less
This chapter considers whether moral philosophers should accept as part of their moral methodology the study hypothetical cases, such as ticking bomb scenarios, in thinking about torture. In response to the criticism of such scenarios by Albie Sachs, this chapter argues that such cases are useful for thinking about the ethics of torture if their function is properly understood. Such thought experiments are quite typical of moral philosophy in general, and do not necessarily generate objections. Moreover, those who engage in evil actions render themselves liable to torture as a means of prevention or self-defense. Hence this chapter rejects any absolute moral prohibition on torture. Nonetheless, there are pragmatic, consequentialist considerations that can justify an absolute legal prohibition on torture. Such a legal rule would help prevent mistakes and help prevent the torture of the innocent and others not liable to attack on just war theory. An absolute legal prohibition on torture is justified because on balance no more flexible stricture on its use is likely to be as productive of good outcomes.
Carrol Clarkson
- Published in print:
- 2013
- Published Online:
- May 2014
- ISBN:
- 9780823254156
- eISBN:
- 9780823260898
- Item type:
- chapter
- Publisher:
- Fordham University Press
- DOI:
- 10.5422/fordham/9780823254156.003.0009
- Subject:
- Literature, Criticism/Theory
A discussion of the ways in which we draw the lines that stratify and set the limits that define an emergent democracy is enriched when aesthetic considerations are brought to bear on a conversation ...
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A discussion of the ways in which we draw the lines that stratify and set the limits that define an emergent democracy is enriched when aesthetic considerations are brought to bear on a conversation that would more readily be associated with legal or political philosophy. In the meaningful projection of a more just future, how do we imagine, make sense of, and perhaps redraw these lines?Less
A discussion of the ways in which we draw the lines that stratify and set the limits that define an emergent democracy is enriched when aesthetic considerations are brought to bear on a conversation that would more readily be associated with legal or political philosophy. In the meaningful projection of a more just future, how do we imagine, make sense of, and perhaps redraw these lines?
