The troublesome issue of pardon for crimes connected with the Vietnam War raises some of the most complex and difficult questions in the philosophy of law. What are the purposes of criminal punishment? Under what conditions is violation of obligations imposed by law morally justified? When, and on what conditions, is it proper to excuse those who have violated the law for conscientious reasons? How much should decisions whether to pardon turn on what offenders "deserve" and how much should they turn on what will be socially acceptable and promote future social harmony? How far should the desirability of dispositions carefully tailored to individual circumstances give way to the desirability of lines of exclusion and inclusion that are clear and easily administrable?
Any program on amnesty must explicitly or implicitly reflect concrete answers to those questions. This essay is an attempt to work out sensible answers to specific problems about amnesty in light of what seem to me to be sensible answers to these broader questions. The essay is an exercise in applied jurisprudence rather than speculative jurisprudence; it does not defend positions on these broader questions against possible attack; rather it starts with views I take to be fairly widely shared and develops their implications for different classes of offenders for whom pardons have been urged. In developing these implications, I assert a number of propositions about complicated facts and resolutions of conflicts in value. Thoughtful readers, even those who accept my positions on broader theoretical issues, may well disagree with some of my judgments on these narrower matters, and that may affect their conclusions about the proper scope of amnesty. I doubt, in fact, if any reader will endorse all of my judgments; but I hope by highlighting what considerations are important both to promote a more general understanding of the extraordinary complexity of relevant issues and to contribute to a resolution of outstanding practical questions about amnesty.
Ethics and Political Philosophy | Law | Military, War, and Peace
Vietnam Amnesty – Problems of Justice and Line-Drawing,
Ga. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4062