Discretion and domination in criminal procedure

Vincent Chiao
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Vincent Chiao: University of Toronto, Canada

Politics, Philosophy & Economics, 2016, vol. 15, issue 1, 92-110

Abstract: Philip Pettit’s conception of freedom as nondomination is modally robust in that it requires not simply reducing the probability of uncontrolled interference by others but entirely eliminating that possibility. In this article, I consider whether freedom as nondomination provides an attractive analysis of official discretion, particularly in the context of the criminal law, an area of recurring interest for Pettit. I argue that not only does the modally robust character of freedom as nondomination have some rather unattractive implications in the criminal law, but that it sits poorly with Pettit’s more general ambitions to provide a consequentialist framework for the evaluation of social institutions. Drawing on recent work by Niko Kolodny, I develop an ‘anti-deference’ interpretation of nondomination and contrast it to Pettit’s modally robust conception.

Keywords: republicanism; Pettit; freedom; nondomination; criminal law; criminal procedure; discretion (search for similar items in EconPapers)
Date: 2016
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Persistent link: https://EconPapers.repec.org/RePEc:sae:pophec:v:15:y:2016:i:1:p:92-110

DOI: 10.1177/1470594X15599104

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