Applying Pettit's Republican Liberty to Criminal Justice and Judicial Decision-Making: The Need For Other Values Including Desert and a Suggestion that they be Understood Consequentially

Abstract

<p>In the United States some esteemed constitutional scholars, including Frank Michelman and Cass Sunstein, have argued that republican political theory should inform legal reasoning. They have relied upon historians who have suggested that republican thought had been influential in America in the eighteenth century, when America obtained its independence and adopted its constitution. This resurgence of interest in republican theory, together with the question of whether Australia should become a republic, has sparked interest here in the relationship between republican theory and Australian law. This relationship can be considered in terms of the following two issues. First, does the limited authority of judges and other agents of our political system, such as politicians, bureaucrats and police officers, constrain them from applying republican theory to their work? It might be argued that judges, for instance, can only rely upon moral theories which hold a sufficient place within the country's legal and political history. There is controversy over whether republican political theory meets this criterion. The second issue is whether republican theory should guide agents who are not constrained from using it. This depends upon whether republican theory is attractive.</p>