The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination

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University of Toronto Law Journal. Volume 61, Number 4 (2011), p. 579-616.


Canada; constitutional law; criminal law; Discretion; Exception; Legal Theory; Nullification


Modern constitutional theory abhors the exception. In much contemporary constitutional thought the exercise of state power unbounded by or contrary to the law is nothing other than the failure of justice in the constitutional order. Yet it has not always been so. For a substantial period of common law legal history the exercise of judgment despite the law was viewed as essential to seeing that justice was done. After excavating the role of the positive exception in the genealogy of our constitutional imagination, this paper argues that attention to the imaginative architecture of our criminal justice system discloses the continued presence of the concept of the positive conscience-based exception as a dimension of modern constitutionalism. This paper looks at three features of the Canadian criminal justice system – jury nullification, the royal prerogative of mercy, and prosecutorial discretion – as abiding expressions of the idea that law and reason alone are insufficient to give full expression to our sense of state justice. The persistence of these sites for conscience-based decisions unbounded by the law ought to trouble prevailing theories modern constitutionalism based on the preeminence of reason-driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, I suggest that the conscientious decision made against or in spite of the law remains an important component of the way in which we imagine criminal justice in the Canadian constitutional order. In the course of making this argument, this paper also advances the view that the criminal law is something of a crucible for constitutional theory. A constitutional theory that does not achieve “fit” with the practices of criminal law has missed something important about our legal and political culture. Accordingly, this paper is also an exercise in disciplining constitutional theory with careful attention to the workings of the criminal justice system.