Law and legally secured rights, while they have come to be powerful means of articulating and accomplishing the demands of justice, also exist in tension with other ways of conceiving of justice. By means of discussion of phenomena such as culture, community, religion, forgiveness, apology, and the exception to the law, this panel will address the tensions between different conceptions of justice, and the significance and inadequacy of law and rights as mechanisms of justice.
Benjamin Berger’s discussion of “Rights, Conscience, and the Project of Justice” focused on conscience as awareness of the gap between what the law seems to prescribe, on one hand, and the demands of justice, on the other. Berger began by looking at recent historical work on the legal notions of the presumption of innocence and the concepts of reasonable doubt. These concepts were originally rooted in a theological background wherein the possibility of wrongful conviction placed a burden of guilt on the soul of the judge or juror, thus, the “safer path” school of theology recommended that if there were any doubt, one must not convict. However, a “refusal to convict” at all (based on fear for one’s soul) became widespread, so theology shifted to the concept of “reasonable doubt” as an antidote. Contemporary jury nullification, for Berger, is the modern descendant, a marker of conscience, a duty that goes beyond what the law requires. In a similar way, rights are also a marker for conscience, a marker for the duty to individuals that should be inviolable. The discussion which followed also focused on the seeming demand for determinacy in law and the indeterminacy of justice beyond it.
Shannon Hoff’s paper on “Rights and Worlds” might be described as a phenomenological analysis and critique of the modern conception of rights. For Hoff, modernity gives the individual singular importance, and this is the root of much of contemporary rights talk and the ordering of modern institutions. However, this emphasis on the singular individual is problematic because it ignores the essential constitution of the individual by the various contexts in which the individual is found -- the cultural and social domains in which individuals are constituted. For Hoff, these realms are not a consequence of individual rights, but the condition for them. Thus, to deal with rights without addressing these realms, as it seems “modernity” tends to do, is ultimately problematic.
In the discussion of the implications of Hoff’s paper, she argued that it is the state’s responsibility to maintain those realms which make rights-bearing individuals possible. It was also suggested that Hoff’s account of modernity might be one-sided, as even in individualistic liberal theory, the law does recognize institutions.
Alice MacLachlan’s paper “Can Liberals Forgive?” attempted to respond to philosophical objections to the notion of political forgiveness within liberalism. Philosophers have made two sorts of objections: conceptual objections that argue that collective forgiveness makes no sense, and moral objections that political forgiveness undermines liberal notions of individual autonomy. MacLachlan attempted to answer these objections by suggesting that there are good reasons to allow for political forgiveness (and apology), such as to support reconciliation between groups, to promote awareness and shift attitudes about a social injustice, and in general to encourage truth-telling and justice where they might be swept under the rug. One might need to allow for “imperfect” forgiveness, but such deeds might also be compatible with the dissent that theorists such as Hannah Arendt saw as essential to politics. Discussion of MacLachlan’s paper focused on how forgiveness is a problem for liberal political theory because such theory tends to focus on ideal societies, rather than concrete ones with actual histories of collective wrongdoing. Moreover, it was pointed out that one has to be sensitive to who is making the call to forgiveness—it must be an appropriate agent.