ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

72 DIFFERENCE DISAGREEMENT
AND THE PROBLEM OF
LEGITIMACY IN CRIMINAL LAW
Through the criminal justice system, the state wields
an enormous amount of power to interfere with people’s
lives with force and to stigmatize individuals
with its stamp of blameworthiness. In order for the
state to maintain its exclusive status as the holder
of this power, it has to be legitimated. This perennial
problem of political legitimacy of criminal law is especially
salient when one considers the phenomenon
of persistent disagreement in a world of cultural and
moral pluralism. This panel examines the question
of difference, disagreement and legitimacy in criminal
law by considering: 1) the strategy of legitimation
through democratic control over prosecutors and
judges (as well as the limits of alternatives to such
a strategy); 2) defensibility of state suppression of
certain modes of criticism of judicial authority; 3) the
proof beyond a reasonable doubt requirement and
what it does or does not imply about the significance
of disagreement amongst jurors in criminal trials; 4)
pitfalls of overemphasizing transnational consensus
when evaluating the validity of a state power to convict
and punish; and 5) the status of non-citizens as subjects
of the criminal law and members of the political
community.
Participants
Name of Chair
Room
Vincent Chiao
Antje du Bois-Pedain
Youngjae Lee
Natasa Mavronicola
Emmanuel Melissaris
Youngjae Lee
UL6 2249a
Vincent Chiao: Disagreeing about Punishment
One way of thinking about political legitimacy
is in terms of control: ensuring that the subjects of
coercive state power have an appropriate degree of
control over how that power is exercised. Another
way of thinking about political legitimacy is in terms
of disagreement: how social cooperation is possible
under conditions of persistent and reasonable disagreement.
Many American criminal justice institutions
are designed to promote political legitimacy
in the first sense, by ensuring popular control over
crime and punishment, notably in the form of electoral
control over prosecutors and judges. In this paper, I
consider avenues for making criminal justice institutions
responsive to disagreement that go beyond
forms of electoral control, and the degree to which
such avenues are consistent with the political ideal
of anti-deference.
Antje du Bois-Pedain: In Criminal Disagreement
with the Court: Suppressing Criticism of Trial
practices and Outcomes through the Criminal Law
Different jurisdictions have laws, which limit the
open expression of criticism of judicial behavior and
disagreement with a trial outcome by observers and
affected parties. English law of contempt of court
will stamp on those who criticize a judge’s conduct
in the courtroom. German law criminalizes anyone
who claims in respect of an acquitted person “But
he did it!” This paper engages with the justifications
offered by legal systems for what are arguably direct
and indirect ways of suppressing criticism of the court,
arguing that laws that shield public officials, including
judicial officers, from public exposure of potential
failings in the administration of justice undermine the
democratic legitimacy of the courts.
Youngjae Lee: Reasonable Doubt and
Disagreement
The right to trial by jury and the proof beyond a
reasonable doubt requirement are two of the most
fundamental commitments of American criminal law.
This Paper addresses how the two are related and
whether disagreement among jurors implies anything
about whether the beyond a reasonable doubt
standard has been satisfied. In other words, does
the requirement of the proof beyond a reasonable
doubt standard also require jury unanimity in criminal
cases? In recent years, there has been an explosion
of interest among philosophers about the epistemological
significance of disagreement. Drawing on this
literature, this Article considers the “equal weight
view” and its implications for the unanimity rule. The
equal weight view says that, roughly speaking, when
people disagree on a topic, each view should be given
equal weight. This Article concludes that the equal
weight view implies that the unanimity rule is required
as a way of enforcing the beyond a reasonable doubt
requirement.
Natasa Mavronicola: Human Dignity and
Conditional (In)Humanity in Penal Contexts and
on Europe’s Borders
In this paper, I focus the right to human dignity,
enshrined prominently in Article 3 of the European
Convention on Human Rights, with particular attention
on its prohibition on inhumanity at Europe’s borders. I
zoom in on the challenges raised by two aspects of
European Court of Human Rights (ECtHR) doctrine:
consensus-dependent (in)humanity and relative (in)
humanity, and the way they come into sharp focus in
the context of the proposed extradition of (suspected)
criminal offenders. I critique problematic paths for the
ECtHR and other norm-appliers in this context, but
also take the opportunity to reflect on how contemplating
(in)humanity and othering in these contexts
epitomizes some of the perennial challenges faced by
human rights. This leads me to suggest that striking too
Concurring panels 113