Document Type
Article
Publication Date
1996
Abstract
Capital punishment presents a "hard" case for adjudication. It provokes sharp conflict between competing constitutional interpretations and invariably raises questions of judicial bias. This is particularly true in the new Republic of South Africa, where the framers of the interim constitution deliberately were silent regarding the legality of the death penalty. The tension is of equivalent force in the United States, where recent expressions of core constitutional rights have raised potentially irreconcilable conflicts in the application of capital punishment.
Two recent death penalty decisions – the South African Constitutional Court opinions in State v. Makwanyane and the United States Supreme Court opinions in Callins v. Collins – reflect the critical role of interpretive choice in capital adjudication. They demonstrate that the ultimate legal decision regarding capital punishment invariably is resolved by a normative choice among competing values, and that the competing normative choices equally support liberal constitutional aspirations.
A comparison of these two decisions offers, through the lens of the South African court, a visionary model of judicial decisionmaking – a model of "mature adjudication." It is mature because it incorporates liberal aspirations within the larger context of an open and transparent discussion about values. It is also mature in its attentiveness to, and respect for, the experiences and opinions of judicial colleagues in the international community.
This Comment explores the contributions of the Makwanyane and Callins decisions to our evolving concept of adjudication. Part I explores the interpretive choices made by the two courts. Part II discusses the particular vision of "mature adjudication" offered by the South African court, and Part III comments upon the South African court's use of comparative law.
Disciplines
Comparative and Foreign Law | Criminal Law | Criminal Procedure | Law | Law Enforcement and Corrections
Recommended Citation
Bernard Harcourt,
Mature Adjudication: Interpretive Choice in Recent Death Penalty Cases,
9
Harv. Hum. Rts. J.
255
(1996).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/546
Included in
Comparative and Foreign Law Commons, Criminal Law Commons, Criminal Procedure Commons, Law Enforcement and Corrections Commons
Comments
Please note that the copyright in the Human Rights Journal is held by the President and Fellows of Harvard College, and that the copyright in the article is held by the author.