I assess a justification for the granting of transitional amnesties conditional, at the minimum, upon full disclosure of wrongdoing by perpetrators. According to this rationale, such amnesties are morally legitimate because they foster restorative justice. I distinguish between two conceptions of restorative justice that 1 call the punishment-deprioritizing and punishment-prescribing conceptions. 1 argue that while conditional amnesties granted to perpetrators of minor offences conditional upon full disclosure, verbal apology and reparations could promote restorative justice well enough to justify them in the eyes of adherents of the punishment-deprioritizing conception, conditional amnesties in favour of perpetrators of serious human rights abuses, because they are unlikely ever to be conditional upon perpetrators' carrying out burdensome reparations, are likely to promote restorative justice on the punishment-deprioritizing conception only to a limited extent and not enough to justify them from the standpoint of adherents to this conception. Conditional amnesties, 1 contend, cannot ever promote restorative justice on the punishment-prescribing conception because it holds that punishment is indispensable for the achievement of the aims of restorative justice and amnesties exempt perpetrators from criminal punishment.

I assess the force of a justification for post-conflict amnesties that is aimed at overcoming the most common objection to their conferral: that they entail retributive injustice. According to this justification, retributivists ought to consider amnesties to be justified because they are analogous to plea bargains, and because retributivists need not consider plea bargains to be unacceptable. I argue with reference to the 2001 Timor-Leste immunity scheme that amnesties conditional upon perpetrators’ not only admitting guilt and confessing but also making reparations may count as plea bargains. I show that plea bargains providing sentence discounts in return for guilty pleas, allowing offenders who accept these bargains to be punished in the absence of trials, and plea bargains offering leniency in punishment in exchange for offenders pleading guilty and providing testimony or other incriminating evidence against superiors or accomplices, may be consonant with versions of retributivism that allow less than the full measure of an offender’s deserved punishment to be exacted where necessary to maximise or expand deserved punishment overall. I argue that amnesties that are also plea bargains may be considered justified by plea bargain-defending retributivists. So too may amnesties conferred in exchange for perpetrators’ admitting guilt and providing incriminating testimony or other evidence against their superiors and accomplices, some of which count as plea bargains, since they too could in some cases maximise or expand deserved punishment.

The aim of this paper is to assess an objection to amnesties conferred in transitional justice contexts: that they violate the rule of law. The paper begins by setting out the objection and presenting three possible replies to it. Each is argued to be unsatisfactory. The central contention of the paper, namely that the success of the objection depends on amnesties’ terms and the reasons for which they are introduced, as well as on what conception of the rule of law is operative, is then presented. The argument that amnesties violate the rule of law on account of public international law, or national constitutions containing bills of rights, prohibiting their use without exception is then rebutted. Few amnesties violate the rule of law for this reason. Finally, the paper addresses a further rule of law-based objection to amnesties that is related to, yet distinct from, the objection that amnesties violate the rule of law. According to this second rule of law-based objection, amnesties prevent, or at least hinder, the restoration of the rule of law in post-conflict societies. This objection is countered by demonstrating that amnesties do not always promote the rule of law less effectively than trials and punishment and may even, in some cases, be essential for the restoration of the rule of law.

My purpose in this paper is to enquire into whether law can forgive. This line of inquiry must be distinguished from other possible avenues of investigation into the relation between law and forgiveness. I will not be concerned with whether legal-governmental institutions and officials can foster forgiveness between individuals, including parties to legal disputes or other processes. Manifestly, legal institutions and officials can promote forgiveness between individuals by, for example, encouraging or even requiring criminal offenders to apologise to their victims, or by providing designated ‘forgiveness rooms’ in court buildings with a view to encouraging criminal wrongdoers to apologise and their victims to forgive. Nor am I interested in enquiring into whether legal-governmental officials can forgive others in their personal, as opposed to their official, capacity. Legal-governmental officials are in their personal capacity as able as anyone else to forgive, interpersonally, those who have wronged them. My aim is instead to determine whether forgiveness can be enacted by legal-governmental institutions or legal-governmental officials acting in their official capacity and within the bounds of their authority. The claim that law can forgive is asserted in a recent book by Martha Minow, who mentions a number of practices as examples of law’s forgiveness, including discharges in bankruptcy, remission of federal tuition debt, cancellation of one country’s debt by another, executive pardons and amnesties. The claims that law can forgive, and that the practices Minow mentions qualify as forgiveness, are interesting not only for what they purport to reveal about the law, but also because they are at variance with, and pose a challenge to, standard accounts of forgiveness. These accounts in effect exclude the possibility that law can forgive and disallow the practices Minow furnishes as examples of forgiveness from counting as forgiveness. Forgiveness is standardly defined as essentially interpersonal, in the sense that it is extended by one person to another, and as involving the forgiver’s overcoming of negative attitudes or emotions (or, on some accounts, a commitment to endeavouring to undergo a change of heart) elicited by a wrong committed by the person forgiven. However, the practices Minow offers as instances of law’s forgiveness are not interpersonal, since it is the state and not a person that is the forgiver, even though legal-governmental officials may be acting on the state’s behalf. Nor need any of these practices involve a change of heart (or an undertaking to trying to undergo one). Nor do they presuppose any wrongdoing.

The aim of this textbook, whose intended readership is under-graduate law students and their instructors, is to provide an introduction to jurisprudence that situates it in an African, and especially South African, context. (References in what follows are to this book unless otherwise indicated.) The approach adopted by the authors is aimed at remedying what they perceive as two serious defects in the (South) African jurisprudence curriculum arising from its excessive focus on theories developed in Europe and the United States. The first is that these theories assume a European or United States context, typically leaving unspecified their implications for other, often very different, contexts, including those of African countries. The authors recognize that if the fundamental questions of jurisprudence are to have relevance for African students, and if the answers to these questions provided by proponents of the various jurisprudential approaches developed in Europe and the United States are to hold interest for them, their bearing on the African context must be shown. Much of the book is given over to just such a demonstration. Second, the authors argue persuasively that the exclusive or near-exclusive focus on “Global North” jurisprudence in many (South) African jurisprudence courses unacceptably excludes or marginalizes the contribution of African philosophers to jurisprudential debates. To rectify this problem, the authors have devoted considerable space to the presentation and discussion of African perspectives.It is, then, the authors’ ambition to show why jurisprudential theories matter to Africans and to present and assess the jurisprudential views and outlooks of African philosophers, in part by placing them in conversation with those of European and United States theorists with a view to showing “that ideas which have been salient in African traditions offer plausible alternatives” (12), that provides the rationale, as earlier it provided the spur, for the present book. It is also what distinguishes it from other available jurisprudence textbooks. Jurisprudence in an African Context is not, it is true, the first South African jurisprudence textbook to incorporate African philosophy or to show the relevance of jurisprudence for South African law. David Johnson, Steve Pete and Max du Plessis’s Jurisprudence: A South African Perspective (2001) and Christopher Roederer and Darrel Moellendorf’s Jurisprudence (2004) to a certain extent do so too. But because a far greater proportion of the present book, compared to these other books, is devoted to contextualizing jurisprudence developed in Europe or North America and to presenting African outlooks—discussed in detail are arguments advanced by Akinola Akintayo, Peter Bodunrin, D. T. Chibvongodze, Kwame Gyekye, William Idowu, Vincent Maphai, John Mbiti, Joel Modiri, Lungisile Ntesebeza and Mogobe Ramose, as well as by the authors—it achieves the aim of decolonizing the jurisprudential canon to a greater extent than its precursors.Further distinguishing this book from previous jurisprudence textbooks is that each chapter includes extracts from primary sources, followed by questions, allowing students not merely to engage with the views of several preeminent jurisprudential figures, but to do so in the latter’s own words. To the extent that African jurisprudence students have not been required to read, and have in consequence not read, jurisprudential texts (aside from textbooks) in the original as a result of their perceived difficulty (xi), English being for many African students their second language, the introduction of extracts from these texts gives this book an advantage over other jurisprudence textbooks. Much of the personality of writers and at least some of the meaning they are attempting to convey are lost in paraphrase, and so too, as a result, is a good deal of the excitement jurisprudence has the potential to elicit in students. True, requiring undergraduate students to negotiate what are sometimes technical and otherwise difficult texts is to present them with a challenge. But the task is here made manageable by the inclusion in each chapter of discussion of the content of these extracts.Although this book diverges significantly from previous jurisprudence textbooks in its aims, its structure follows convention inasmuch as the first half covers the nature of law and its relationship to morality while the second half deals with theories of justice and related topics in political philosophy. (Also following convention is the inclusion of questions at the end of each chapter relating to the material covered in it. Those presented here are almost always well designed invitations to further reflection on important topics.) The writing is divided equally among the three authors. The introduction and conclusion (chapters 1 and 11 respectively) are coauthored by all three, with each responsible for three of the remaining nine chapters.Chapter 2 deals with legal positivism, which Dr. Oyowe contrasts with an ubuntu-based African theory of law. Instructively explored are the questions of whether or not, from the standpoint of various versions of positivism, traditional African societies had law and whether or not customary law has the status of law. Despite being generally well executed, there are a couple of regrettable omissions. A question that appears at the end of chapter 3, but which it would have been more appropriate to include at the end of this chapter, is whether or not the system of rules governing the university, for transgression of which sanctions are sometimes imposed by disciplinary tribunals, amounts to a legal system. (The status of university rules is likely to be of special interest to students because it relates to their immediate context and because the rules governing students’ conduct in a university may have a significant impact on them; in Fuller’s view they “may often cut more deeply into the life of a man than any court judgment ever likely to be rendered against him” [1969: 129].) Dr. Oyowe mentions that from the standpoint of Hart’s conception of law traditional African kinship societies do not appear to have a legal system, which Hart defines as a union of primary and secondary rules, because they lack secondary rules, and that this assessment could be challenged by disputing the claim that law is in essence a union of primary and secondary rules on the ground that it fails to distinguish law “from other social institutions that are also a union of primary and secondary rules, but not law” such as the rules of a university (42). Dr. Oyowe appears to assume, as does Professor Metz in chapter 3, that a university’s system of rules does not amount to a legal system. But as Fuller observes, once reference to the authority of the state is removed from the definition of law, we may be more favourably disposed towards thinking that it does. Fuller sees “not the slightest difficulty in calling [the rules governing the conduct of students in a university] a system of law” (1969: 125).Second, it is a pity that this chapter does not incorporate a discussion of the implications of legal positivism for apartheid, albeit that the topic is touched on by Professor Metz in his treatment of natural law theory in chapter 3. A number of legal commentators writing during apartheid argued that the prevailing acceptance of legal positivism had helped to facilitate (or at least, had failed to hinder) the apartheid legal system by insisting on the separation of law and morality and that even seriously unjust law has the status of valid law. (John Dugard, in the extract appearing in chapter 3, holds that legal positivism is not to blame, with the qualification that Austin’s version, which defines law as the command of a sovereign backed by a sanction, “provided a justification for parliamentary absolutism” [51]. By contrast, other commentators considered the prevailing acceptance of legal positivism to have contributed to the establishment of the apartheid legal system, much as Gustav Radbruch had claimed that the widespread acceptance of positivism in pre-Nazi Germany “made smoother the route to dictatorship” in Fuller’s words [1958: 657].) This topic gives rise to several important questions that could usefully be put to students. Does an acceptance of legal positivism, with its insistence on the separation of law and morality, present less of an obstacle to totalitarianism than an acceptance of natural law theory? Does all valid law, including severely unjust law, generate an obligation on judges to apply it or on citizens to obey it? If so, is the obligation merely legal or also moral?Chapter 3 covers natural law and its implications for the apartheid legal system. Professor Metz’s discussion of the claim that apartheid law was too wicked to be a valid legal system will nicely bring home to students the political significance of this doctrine. Fuller’s procedural natural law account and objections to it are discussed in some detail and applied to the case of the apartheid legal system. Professor Metz notes, for example, that a legal system could comply with Fuller’s procedural criteria despite being wicked, from which it follows that Fuller’s account, cannot ground the claim that the apartheid legal system lacked legal validity. Also discussed is substantive natural law theory, including St. Augustine’s maxim “an unjust law is no law at all,” which Professor Metz shows to be coherent if properly interpreted, and from which, as he indicates, it follows that apartheid laws, because seriously immoral, lacked the status of law. Professor Metz’s contrasting of Western versions of natural law with Nigerian philosopher William Idowu’s African strain of natural law theory, which views law as tending toward the realization of harmony, cohesion and reconciliation, is illuminating.There are two difficulties with this chapter, however. First, the discussion of substantive natural law theories is very brief compared to the attention it usually receives in jurisprudence textbooks. Neither Aquinas’s account nor John Finnis’s important restatement of natural law is deemed to merit significant critical consideration, nor is the work of any substantive natural law theorist excerpted. A second, less serious, concern is terminological. Professor Metz’s use of “naturalism” as a synonym for natural law theory throughout this chapter risks muddying the definitional waters because, although he explains what he means by naturalism, it is often, maybe even typically, used in legal philosophy to refer to something different (Leiter and Etchemendy 2017). Ontological substantive naturalists hold that nothing supernatural or spiritual exists beyond the natural world, something that many classical natural law theorists have denied. Methodological naturalists hold that philosophical theorizing should be consistent with empirical inquiry in the sciences, a view that, as Brian Leiter has urged in his book Naturalizing Jurisprudence (2007), is closer to Legal Realism than natural law theory, the former aiming to provide a descriptive and explanatory account of adjudication by investigating through empirical inquiry the range of factors that are causally responsible for judicial decisions.In chapter 4, which deals with legal interpretation and adjudication, Professor Bilchitz competently sets out the views of Hart, Fuller, and Dworkin, demonstrating their implications for South African law with reference to the 1995 Constitutional Court decision, S v Mhlungu, which was concerned with how a provision in the interim (1993) Constitution, Section 241(8), which on a literal construction seemed to mandate a substantively unjust outcome, should be interpreted. The case is well chosen because it shows the practical import of Hart and Fuller’s approaches as they are reflected in the minority judgment of Justice Kentridge and the majority judgment of Justice Mahomed respectively. (Although Professor Bilchitz does not mention it, the other judgments in this case are also worth looking at for the jurisprudential commitments they embody. Justice Sachs’s reasoning in his partly concurring judgment, for example, reflects a natural law approach that differs appreciably from Justice Mahomed’s.) Disappointingly, the extracts included in this chapter from the nonjudicial writings of former South African Constitutional Court Justices Langa and Moseneke on the topics of ‘transformative constitutionalism’ and ‘transformative adjudication’ respectively lack sufficient jurisprudential sophistication and import to merit inclusion.Chapter 5 focuses on whether or not legal interpretation is subjective. Professor Metz distinguishes between extreme subjectivism, according to which “there are simply no facts ‘out there’ on which judges could and should try to base their decisions about what is reasonable,” here exemplified by legal realism and postmodernism, and moderate subjectivism, which takes it that “there are moral and other facts ‘out there’ but judges are too influenced by other factors for these facts to influence decisions very much” (100), of which critical legal studies, critical race theory and feminist legal theory are discussed as examples. These topics are generally adeptly handled, although Professor Metz’s treatment of (American) legal realism is too cursory to provide students with an adequate understanding of this view and is inaccurate in part. For example, having stated, roughly correctly, that rather than “supposing that. . . law consists of what a general rule adopted by the legislature entails for a particular case before a judge, realists propose looking at how members of [the] judiciary in fact make decisions and relate to others in society,” he submits that legal realism “downplays the respects in which legal decisions are viewed as rational or formal, and instead highlights their unpredictable, emotional or haphazard nature, roughly in terms of how judges affect society” (100). But the core of the realist approach could be presented more precisely by explaining that realism is a descriptive theory of adjudication that is concerned with what judges actually do when they decide cases; that realism holds that (appellate) judges hardly ever make decisions on the basis of legal doctrine (precedent, statutes, and other legal authorities) and that nonlegal (or extra-legal) considerations, including judges’ ideological commitments, conceptions of justice and other legally extraneous characteristics of judges and litigants, determine the judicial decisions they reach; that according to realism, judges generally start with their view of what would constitute a fair outcome, which is informed by these extra-legal considerations, and then look to legal materials to provide after-the-fact justifications for what they have already decided, which are typically available to justify a wide range of outcomes; and that realists do not claim that law is generally indeterminate—there are many “easy cases,” as realists like Karl Llewellyn recognized, in which the law is all on one side, that often do not land up in court and almost never in an appeal court—but that it is indeterminate in a relatively small number of “hard” appellate cases. Furthermore it is a serious mistake to say, as Professor Metz does, that realists consider judicial decisions “unpredictable.” As Fred Schauer states,Finally, there is little recognition in Professor Metz’s discussion of the fact that because the claims of realism are empirical, whether realism is correct or not will depend on what empirical evidence is adduced in support of and against its hypothesis about what judicial decision-making involves.Chapter 6, on distributive justice, is one of the best in the book. Thoroughly described in a discussion that incorporates extracts from the work of Dr. Oyowe and the Ghanaian philosopher Kwame Gyekye, in addition to Mill and Rawls, are various theories of justice, including Mill’s version of utilitarianism, Rawls’s “Justice as Fairness” and African theories of justice. Professor Bilchitz’s treatment of the question of whether African conceptions of distributive justice are identical with socialism is particularly stimulating. By contrast, chapter seven, which deals with the justice-related duties of non-state actors, including corporations, ranging over such topics as whether individuals have moral duties to give to charity and to contribute to alleviating global poverty and whether corporations have positive obligations to realize fundamental rights, should, I think, have been omitted, not because Dr. Oyowe does a bad job of discussing these matters—far from it—but because these topics are not of greater importance in the African context than in the European or United States context and because it would have made space for discussion of topics that have been excluded yet have a greater claim to inclusion in a jurisprudence textbook (about which I will have more to say towards the end of this review).Chapter 8 addresses the question of who has moral rights, and specifically whether or not foreigners and animals do, with reference to the views of Kant, Singer, Sen, and Nussbaum, and the African perspectives of former South African president Thabo Mbeki and the philosopher M. B. Ramose. Though the discussion is generally cogent, there are some omissions and errors. Professor Bilchitz disputes Kant’s claim that only rational agents can be rights-holders by adverting to the cases of infants and the severely mentally disabled. Although these individuals are not rational agents, according to “our moral intuitions,” they are, Professor Bilchitz says, “vulnerable individuals” who “are deserving of respectful treatment in their own right” (195). From this, and from the fact that the South African constitution attributes rights to these individuals, he thinks it follows that the capacity for rational agency is not necessary for being a rights-holder. But it does not follow from there being a widespread intuition that infants and the severely mentally disabled, despite not qualifying as rational agents, should be treated respectfully, that they are rights-holders. James Griffin and Carl Wellman, for example, have argued that infants do not possess rights, but that others nonetheless have moral duties towards them. Not all moral duties are correlative to rights. And the fact that the South African constitution ascribes rights to infants and the severely mentally impaired only shows that these individuals possess legal rights, not that they have moral rights. Professor Bilchitz could usefully have distinguished between two rival theories of what it is to have a right, the Will (or Choice) Theory and the Interest Theory. On the former theory it makes sense to ascribe rights only to individuals capable of exercising choice among options, so that to have a right is to be empowered to demand that that the duty correlative to the right be fulfilled or, alternatively, to waive the right, whereas on the latter theory, it does not matter whether rights-holders are competent to choose whether to enforce or waive their rights, so long as they have certain basic interests that warrant protection.Professor Bilchitz includes in this chapter a section on Peter Singer’s sentience-based argument against the mistreatment of nonhuman animals, but fails to explain sufficiently clearly that Singer’s opposition to “speciesism” is not based on rights, but on the idea that it is morally indefensible to take the interests of sentient nonhuman animals less seriously than the interests of humans. Professor Bilchitz does say that “Singer is a utilitarian and therefore concerned with achieving the best overall happiness for all concerned. It is, though, also possible to create a non-utilitarian theory which accepts sentience as a ground of value too” (200) and he cites Tom Regan’s The Case for Animal Rights (1983) as an example. But to explain that Singer is a utilitarian is not to indicate that he eschews talk of moral rights and, moreover, Regan’s criterion for a being’s having inherent value and the moral rights that accompany it, its being the “subject-of-a-life,” is psychologically richer than sentience, requiring a degree of cognitive sophistication that not all sentient beings possess. An experiencing subject of a life has desires and preferences, beliefs and emotions, a memory of the past and an anticipation of the future, including their own. This is not true of all sentient beings, some of whom, therefore, are not subjects of a life. Humans are not subjects-of-a-life during their infancy, and fish may not be for the duration of their lives.Finally, and more importantly, the discussion in this chapter of who or what has rights should have been shortened to make space for a more detailed treatment of the issue of what rights rights-bearers have. A more sustained discussion of the philosophical foundations of socio-economic rights, a topic of particular interest for South Africans given their inclusion in the South African Constitution and the extent of the poverty that exists in (South) Africa, would have been welcome, especially since Professor Bilchitz is an authority on the subject.Chapter 9 is concerned with the rectification of past injustices and focuses in particular on the policies and practices of preferential hiring and affirmative action, land restitution and expropriation and restorative justice in Rwanda. Most jurisprudence textbooks do not include a chapter on the rectification of past injustices, but its inclusion in this one seems justified on the ground that the topics addressed have a level of importance and urgency in (South) Africa, given its relatively recent history of colonialism and violent conflict, that they do not tend to possess in Europe or North America. Dr. Oyowe’s discussion of culpability and compensation is good and students are likely to find his treatment of ubuntu’s bearing on the question of land distribution of considerable interest. The inclusion of an examination of restorative justice in Rwanda in this chapter, however, despite its relating to past injustices, seems incongruous, since restorative justice, when subsumed under the rubric of transitional justice, is an alternative to the punishment of perpetrators of serious human rights violations. The discussion of restorative justice thus seems more closely connected to “whether and how much the state should punish offenders” (221), the theme of chapter 10.In chapter 10, Professor Metz discusses consequentialist and retributive rationales for criminal punishment, contrasting both with an African view based on the principle of ubuntu, which prioritizes reconciliation between offenders, victims and members of the public more generally. Also addressed are justifications for a particular type of punishment, the death penalty. Perhaps because his discussion of consequentialist justifications for punishment focuses on Jeremy Bentham’s utilitarian theory of punishment, Professor Metz restricts his consideration of consequentialist justifications to the deterrence-, reform- and incapacitation-based rationales. In so doing, he fails to mention an important justification with a distinguished history—the denunciatory theory of punishment, proponents of which include James Fitzjames Stephen. According to this theory, punishments have the morally valuable purpose of expressing attitudes of hostility, hatred, and revulsion felt by law-abiding people toward criminal conduct. Punishments tend, supporters of this rationale contend, to inform and buttress the public’s adverse attitudes towards serious moral wrongdoing. In so doing, they perform an educative and consolidatory function. Punishment is also claimed to fortify a community’s sense of identity in opposition to criminal wrongdoing that challenges its basic values. Proponents of this justification argue that punishment may in addition have the salutary effect of satisfying and defusing vengeful impulses elicited by criminal wrongdoing, thereby averting resort to private acts of retaliation. Like the deterrence-oriented rationale, the denunciatory theory is consequentialist in orientation. That is, both rationales justify punishment with reference to its efficacy in reducing crime. But the deterrence-oriented justification holds that punishment achieves this objective by instilling fear of the consequences of criminal wrongdoing, whereas the denunciatory justification holds that punishment does so by effectively eliciting, strengthening and directing the moral convictions of members of the public. Professor Metz’s neglect of this important rationale for punishment means that he is not in a position to consider the powerful case for capital punishment which some of its proponents have put forward. This includes the claim that the death penalty is the only type of punishment severe enough to express the hostility and revulsion of members of the public for the worst wrongdoing, to shore up the identity of the community in opposition to such crimes and to quell the urge for vengeance and retaliation that may be experienced by law-abiding members of the community in their aftermath. None of this is to argue that denunciatory theory succeeds in justifying either punishment in general or the death penalty specifically but only to suggest that it merits discussion alongside the justifications Professor Metz mentions.The objection to capital punishment on which Professor Metz concentrates is that it is inconsistent with the value of ubuntu, which is referred to in the postamble of the interim constitution. This objection is expressed in different ways in extracts from three of the judgments making up the South African Constitutional Court Makwanyane judgment, which declared the death penalty unconstitutional. Ubuntu is understood by Justices Langa, Madala and Mokgoro as being associated with the upholding of the individual’s dignity. Professor Metz outlines two possible ways in which defenders of capital punishment could respond to the Court’s charge that capital punishment is inherently degrading: that, on the contrary, its employment shows respect for the worst offenders by holding them accountable as responsible moral agents; and that although it is to some extent degrading, this reason against its use is outweighed by countervailing reasons to impose it.However, the focus on the ubuntu-based objection to capital punishment as it is articulated by the three constitutional court judges in question is problematic. They do not identify a characteristic of the death penalty in virtue of which it is degrading (that is, in violation of offenders’ right to dignity). Degrading punishments are those that have a shaming or humiliating character or that treat offenders as if they occupied a lower rank or possessed a lower status than they do. Degrading punishments convey the message that offenders subjected to them do not merit respectful treatment. “Shaming punishments” that publicly expose wrongdoers to the public ridicule may be unacceptably degrading because of their humiliating character. Corporal punishment of criminals that inflicts severe pain is unacceptably degrading both because, by undermining offenders’ ability to retain self-control and self-possession, it is humiliating, and because it overwhelms the reflective, deliberative agency of offenders, reducing them to terrified, screaming animals. But the death penalty is not inherently unacceptably degrading in any of these ways. The only argument the Constitutional Court judges offer in support of the claim that the death penalty is inherently degrading comes from Justice Mokgoro, who writes that we should “recognize the right to the protection of human dignity as a right concomitant to life itself” and that “life and dignity are like two sides of the same coin” (265). But it is hard to see why this should be true or how it supplies an objection to the death penalty.Furthermore, a number of other things Justice Mokgoro says against the death penalty in the extract from her judgment are straight-forwardly false. Consider her averment that the death penalty constitutes “the ultimate cruelty with which any living creature could be treated” (266). A cruel punishment, I take it, is one that inflicts pain or suffering that is both severe and unjustified. Yet capital punishment need not be cruel, since it need not inflict severe pain (unless, perhaps, an extended period on death row that necessarily visits severe psychological anguish on offenders subjected to it is invariably an element of the death penalty). Professor Metz seems to accept something like Justice Mokgoro’s conception of cruelty when he says that it seems cruel for an innocent person who shoots an aggressor intent on taking her (the innocent’s) life where this is necessary to save her own life (267). But it does not seem inherently cruel, since, first, no severe pain need be inflicted (perhaps the aggressor is killed instantly or goes into shock that has an extreme analgesic effect) and second, it may not be morally impermissible to visit whatever pain or suffering the aggressor experiences as a result of being shot. A further fallacy in Justice Mokgoro’s judgment is her claim that if the state “sanctions by law punishment for killing by killing it sanctions vengeance by law.” Not so: capital punishment could be imposed for consequentialist or retributive reasons that have little to do with retaliation or a desire for vengeance. An additional objection Justice Mokgoro raises against capital punishment is that “the death penalty violates the essential content of the right to life” (267). But this will not do as an argument against the death penalty. As Professor Metz indicates, we consider it morally permissible for an innocent to kill an aggressor in self-defence where this is necessary to save her own life and not a violation of the aggressor’s right to life. The same holds true, in some cases, for the killing by agents of the state of aggressors who are posing a threat to the lives of innocents. So, even if murderers do not forfeit their right to life by taking the life of another, as some philosophers believe, Justice Mokgoro needs, as Professor Metz recognizes, to show why the right to life is violated in the case of capital punishment but not in the other cases just mentioned. Given how under-whelming the extracts from the three Constitutional Court judgments are when viewed as objections to capital punishment, the aims of this chapter would be better served had Professor Metz included excerpts from the work of African philosophers in their stead or, if none were available, had he simply set out the strongest objections to capital punishment, including ubuntu-based objections, as he sees them.How does this book fare by comparison with its competitors? Jurisprudence in an African Context, as I have mentioned, goes appreciably further than its competitors in explaining the implications of jurisprudence developed in Europe and the United States for Africans, especially South Africans, and in representing the views of Africans on jurisprudential topics. The discussion of the topics covered is generally lucid and interesting. Furthermore, the treatment of topics which have often not previously found their way into jurisprudence textbooks, but which will hold particular interest for South African students, such as affirmative action and land restitution and expropriation, must be accounted a strength of the book. Finally, the inclusion of those extracts that merit inclusion (as not all extracts included do) gives it an appreciable advantage over most other jurisprudence textbooks.Aspects of it nonetheless detract from its overall appeal. Certain jurisprudential topics of appreciable significance in the African context have been left out. For example, given the value placed on shared identity and communal relationships in African philosophical views, including the important account of ubuntu developed elsewhere by Professor Metz, among others, the failure to include a chapter on conservative versions of legal moralism and individual liberty, that is, on whether the state is morally permitted or even required to criminalize and punish acts, including deviations from conventional sexual morality that do no harm to third parties, on the ground that they are intrinsically immoral, the subject-matter of the Hart-Devlin debate, is unfortunate. A further weakness is the terseness of the discussion of certain topics meriting more sustained treatment, such as substantive natural law theory and legal realism, to which considerable space, often a separate chapter, is devoted in many other textbooks and which are far from irrelevant in the African context. As well, there is little discussion of the contributions of such pivotal figures as Aquinas, Finnis or Raz to legal philosophy or of objections to their accounts. A defender of the approach followed in Jurisprudence in an African Context might reply that it is inevitable that discussion of some of the topics dealt with in European and North American jurisprudence textbooks published by Oxford University Press, such as J. W. Harris’s Legal Philosophies (1997) and Denise Meyerson’s Jurisprudence (2011), which do not share the authors’ contextualizing aims, will have had to be omitted. But, as I remarked above, chapter 7 could safely have been omitted to permit more discussion of topics closer to the core of jurisprudential concern and, furthermore, the book could have been made slightly longer. Finally, a number of extracts from texts written by Africans who are not philosophers, including most of those written by former constitutional court judges, lack sufficient philosophical sophistication to warrant inclusion.On balance, I think the strengths of this book outweigh its short-comings and that African, particularly South African, lecturers should have recourse to it in the teaching of jurisprudence. A jurisprudence textbook that puts African legal and political philosophy on an equal footing with theories developed in European and United States and which provides an account of the implications of such theories for African contexts is overdue. This book achieves these aims impressively. Nonetheless, it should be used in conjunction with other sources that supplement its omissions and shortfalls.

Journal of Social PhilosophyVolume 51, Issue 2 p. 283-302 Original Article Ignorance-Based Justifications for Amnesty Patrick Lenta, orcid.org/0000-0003-4061-4376 Search for more papers by this author Patrick Lenta, orcid.org/0000-0003-4061-4376 Search for more papers by this author First published: 07 September 2019 https://doi.org/10.1111/josp.12301Citations: 1Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinked InRedditWechat Citing Literature Volume51, Issue2Summer 2020Pages 283-302 RelatedInformation

Most philosophers who have expressed a view about whether forgiveness is compatible with forgivers’ continuing to punish, or support the punishment of, people who have wronged them hold that forgiveness is compatible with punishing or favouring punishment of wrongdoers. I argue that whether forgiveness entails forbearing punishment depends on which of two senses of forgiveness is operative. On the first, sentiment-based sense of forgiveness as consisting essentially in a change of heart on the part of a victim, a victim can, I submit, forgive while continuing to punish or to support the punishment of a person who has wronged her. On the second sense of forgiveness as consisting in debt remission whether or not accompanied by a change of heart, the state’s remission of the entirety of criminal offenders’ punishment qualifies as forgiveness and, moreover, the state could not forgive offenders in this sense while continuing to punish them.

We present an argument in support of the legal prohibition of infant male circumcision (IMC) in developed Western countries. We submit that all IMC, irrespective of whether the motivation behind it be secular or religious, violates children’s rights to self-determination (autonomy) and bodily integrity and is therefore morally illegitimate. And while IMC’s being morally wrong does not entail that it ought to be criminalised, we contend that it should be legally proscribed so as to protect children against harm and to uphold their rights. We consider and reject an argument that an exemption from the legal ban should be granted to religious parents who perceive themselves to be under a moral obligation to subject their male infants to IMC. We argue that since IMC sets back children’s basic interests and violates their rights, there is no room, and no case, for the conferring of a religious exemption.

Many people have the intuition that the failure to impose punishment on perpetrators of such serious human rights violations as murder, torture and rape that occurred in the course of violent conflict preceding a society's transition from authoritarianism to democracy amounts to an injustice. This intuition is to an appreciable extent accounted for by the retributivist outlook of a high proportion of those who share it. Colleen Murphy, however, though she accepts that retributivism may justify punishment of offenders in stable democracies, claims in her recent book on transitional justice that retributivism is inapplicable in the circumstances of transitional justice. I argue that the four arguments she provides in support of this claim are unsuccessful and that retributivism, assuming it to be a tenable rationale for punishment, justifies the subjection of perpetrators of at least some serious human rights abuses to sanctions in at least some transitional societies.

I assess the justification for the granting of amnesty (the exempting of classes of offenders from criminal liability) in the circumstances of 'transitional justice' advanced by certain of its supporters according to which this device is morally legitimate because it amounts to an act of mercy. I consider several prominent definitions of 'mercy' with a view to determining whether amnesty counts as mercy under each and what follows for its moral status. I argue that amnesty cannot count as mercy under any definition in accordance with which an act or practice's amounting to mercy lends it justificatory support, while its qualifying as mercy under certain morally neutral definitions provides no basis for considering it justified.

AbstractThis paper addresses the relationship between amnesty granted to perpetrators of serious human rights abuses and retributivism. It rebuts arguments advanced by Dan Markel and Lucy Allais in support of their claim that the granting of conditional amnesty—amnesty in exchange for perpetrators’ confessing to, and disclosing the details of, their wrongdoing—by the South African Truth and Reconciliation Commission (TRC) was consistent with retributivism. Markel contends that conditional amnesty was perfectly in line with recipients’ desert, while Allais submits that the TRC secured as much retribution as was possible in the circumstances of South Africa’s democratic transition. The argument of the paper is that while retributivists have good reasons to view conditional amnesty as justified, the reasons provided by Markel and Allais are not among them.

The aim of this article is to determine whether fixed courses of judicial corporal punishment (JCP) and non-abusive corporal punishment of children (CPC) amount to torture. I assess the reasons that have been offered for distinguishing fixed courses of JCP from torture and argue that none is successful. I argue that non-consensual JCP that inflicts severe pain is appropriately classifiable as torture, but that JCP that inflicts mild pain and entirely consensual JCP are not torturous. I consider whether any of the reasons offered for distinguishing JCP from torture can distinguish non-abusive CPC from torture given certain important differences between CPC and JCP. I submit that none of these reasons is successful. I consider other possible reasons for distinguishing non-abusive CPC that inflicts severe pain from torture and argue that none is successful. I conclude that fixed courses of non-consensual JCP which inflict severe pain and non-abusive CPC that inflicts severe pain are correctly classifiable as torture.

AbstractCertain philosophers have argued in favour of recognising a (moral and legal) right to freedom of conscience that includes a defeasible right of individuals to live in accordance with their perceived moral duties. This right requires the government to exempt people from general laws or regulations that prevent them from acting consistently with their perceived moral duties. The importance of protecting individuals’ integrity is sometimes invoked in favour of accommodating conscience. I argue that personal integrity is valuable since autonomy, identity (selfhood) and self‐respect are all dependent on the preservation of personal integrity. I respond to two objections, one pressed by Andrew Koppelman and the other by Richard Arneson, to the claim that personal integrity is valuable, and to a further argument by Arneson to the effect that it is unfair to others claiming accommodations to exempt those with conscience‐based claims.