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© 2019, Springer Nature B.V. 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.
© 2019, Springer Nature B.V. 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.
This 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 (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.
Lenta, P 2013, 'In Defen Ce of the Right of Religious Associations to Discriminate: A Reply to Bilchitz and De Freitas', South African Journal on Human Rights, vol. 29, pp. 429-447.View/Download from: UTS OPUS
Lenta, P 2010, 'Law, subject de/formation and resistance in bloke Modisane's blame me on history', Current Writing: Text and Reception in Southern Africa, vol. 22, pp. 101-118.
Lenta, P 2010, 'Introduction: Law and South African Literature', Current Writing: Text and Reception in Southern Africa, vol. 22, pp. 1-18.
Lenta, P 2010, 'Discipline in" Disgrace"', Mosaic: a Journal for the Interdisciplinary Study of Literature, pp. 1-16.
Lenta, P 2009, ''Everyday Abnormality': Crime and In/security in Ivan Vladislavić's Portrait with Keys', The Journal of Commonwealth Literature, vol. 44, pp. 117-133.
Lenta, P 2009, 'Taking diversity seriously: Religious associations and work-related discrimination', South African Law Journal, vol. 126, pp. 827-860.
Lenta, P 2009, 'What Conditional Amnesty Is Not', Theoria, vol. 56, pp. 44-64.
Lenta, P 2009, 'Review of Du Bois, Francois and Antje du Bois-Pedain (eds.) Justice and Reconciliation in Post-Apartheid South Africa (Cambridge: Cambridge University Press, 2008)', South African Journal of Philosophy, vol. 28, pp. 259-260.
Lenta, P 2009, 'The Constitution in the Classroom: Law and Education in South Africa 1994-2008, Stu Woolman and Brahm Fleisch: book review', South African Law Journal, vol. 126, pp. 615-617.
Lenta, P 2009, 'Justice and Reconciliation in Post-Apartheid South Africa, Francois Du Bois and Antje du Bois-Pedain (Eds.): book review', South African Journal of Philosophy= Suid-Afrikaanse Tydskrif vir Wysbegeerte, vol. 28, pp. 259-260.
Lenta, P 2008, 'Cultural and religious accommodations to school uniform regulations: case comments', Constitutional Court Review, vol. 1, pp. 259-293.
Lenta, P & Farland, D 2008, 'Desert, justice and capital punishment', Criminal Law and Philosophy, vol. 2, pp. 273-290.
Lenta, P 2008, 'Iron law and colonial desire: legality and criminality in Paton's Too Late the Phalarope', JLS/TLW, vol. 24, pp. 68-85.
Lenta, P 2007, 'Muslim Headscarves in the Workplace and in Schools', South African Law Journal, vol. 124, pp. 296-319.
Lenta, P 2007, 'The literary judge', Stellenbosch Law Review= Stellenbosch Regstydskrif, vol. 18, pp. 313-330.
Lenta, P 2007, 'Deterrence and capital punishment', SA Publiekreg= SA Public Law, vol. 22, pp. 385-404.
Lenta, P 2006, 'Judicial deference and rights', JS Afr. L., pp. 456-456.
Lenta, P 2006, 'Waiting for the Barbarians after September 11', Journal of Postcolonial Writing, vol. 42, pp. 71-83.
Lenta, P 2006, 'The purposes of torture', South African journal of philosophy, vol. 25, pp. 48-61.
Lenta, P & Beck, S 2006, 'A sporting dilemma and its jurisprudence', Journal of the Philosophy of Sport, vol. 33, pp. 125-143.
Lenta, P 2006, 'Book Review'.
Lenta, P 2005, 'Constitutional interpretation and the rule of law', Stellenbosch Law Review= Stellenbosch Regstydskrif, vol. 16, pp. 272-297.
Lenta, P 2005, 'AZAPO, the TRC and restorative justice: a retrospect', SA Publiekreg= SA Public Law, vol. 20, pp. 335-364.
Lenta, P 2005, 'Religious liberty and cultural accommodation', S. African LJ, vol. 122, pp. 352-352.
Lenta, P 2004, 'The Tikoloshe and the Reasonable Man: Transgressing South African Legal Fictions', Law & Literature, vol. 16, pp. 353-379.
Lenta, P 2004, 'Judicial Restraint and Overreach', South African Journal on Human Rights, vol. 20, pp. 544-576.
Lenta, P 2004, 'A neat trick if you can do it: legal interpretation as literary reading', S. African LJ, vol. 121, pp. 216-216.
Lenta, P 2004, 'Democracy, rights disagreements and judicial review', South African Journal on Human Rights, vol. 20, pp. 1-31.
Lenta, P 2003, 'Do lawyers need philosophy?', South African journal of philosophy, vol. 22, pp. 82-97.
Lenta, P 2003, 'The changing face of the law: Ubuntu, religion and the politics of postcolonial legality', Explorations in Contemporary Continental Philosophy of Religion. Amsterdam: Editions Rodopi BV.
Lenta, P 2003, 'Do lawyers need philosophy?', South African Journal of Philosophy, vol. 22, no. 1, pp. 81-96.
Neo-pragmatists Richard Rorty and Stanley Fish have recently argued that philosophy has no consequences for legal practice (except, in the case of Fish, in so far as it carries rhetorical force). They have asserted not only that philosophy cannot provide absolute metaphysical foundations for legal practice, but also that philosophy cannot be used to criticise law. This essay examines Fish and Rorty's reasons for denying the practical force of philosophy. Although I agree with Rorty and Fish's non-foundationalism, I argue that in practice lawyers employ discursive categories and concepts that can be described as philosophical. I suggest also that philosophy has a critical function and that the characterisation of philosophy offered by these theorists amounts to a conservative assertion of the formal completeness and substantive justice of existing liberal legal systems. Against Fish and Rorty, I argue and selectively demonstrate that lawyers can usefully draw upon 'public ironists' such as Nietzsche, Foucault and Derrida to criticise and improve upon extant legal practices.
Lenta, P 2002, 'Looking sideways: constitutional interpretation, ethics and theory', Stellenbosch L. Rev., vol. 13, pp. 3-3.
Lenta, P 2002, 'Is There a Class in This Text-Law and Literature in Legal Education', S. African LJ, vol. 119, pp. 841-841.
Lenta, P 2002, 'Law and Literature: A Gene Resi (gh) ted', JS Afr. L., pp. 419-419.
Lenta, P 2001, 'Executing the death sentence: Law and justice in Alan Paton's cry, the beloved country and nadine gordimer's the house gun', Current Writing: Text and Reception in Southern Africa, vol. 13, pp. 49-69.
Lenta, P 2001, 'Just gaming? The case for postmodernism in South African legal theory', South African Journal on Human Rights, vol. 17, pp. 173-209.
Lenta, P 2000, 'Transitional justice and the Truth and Reconciliation Commission', Theoria, vol. 47, pp. 52-73.
Lenta, P 2006, 'The purposes of torture', South African Journal of Philosophy, pp. 46-60.
In this essay, I take seriously Jeremy Bentham's caution against treating torture as though it were a single phenomenon, susceptible to moral justification or condemnation independently of the purposes for which it is used. My aim is to identify the types of torture that occur nowadays. I discuss a number of forms of violence that have recently been identified as types of torture, including interrogational, terroristic, dehumanising and sadistic torture, as well as torture as a form of punishment. To this list of types I add a further, often overlooked, type: 'spectacular' torture as described by Michel Foucault. Rather than obsolete, as Foucault's Disciple and Punish might suggest, I argue that there is no reason why a form of spectacular torture could not take place today. I consider the possibility that the torture that has taken place at Guantanamo Bay is of this kind.
Lenta, P 2014, 'The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa's Basic Law, by Stu Woolman', HeinOnline.
Lenta, P 2004, 'History and Illusion in Politics', JSTOR.
Lenta, P 2003, 'Justice without foundations', Berghahn Journals.
Lenta, P 2002, 'Stupidity', JSTOR.
Lenta, P 2001, 'Heidegger and Derrida on Philosophy and Metaphor: Imperfect Thought', JSTOR.