THE ABIDING PRESENCE OF CONSCIENCE: CRIMINAL JUSTICE AGAINST THE LAW AND THE MODERN CONSTITUTIONAL IMAGINATION
Bibliographic record
Abstract
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. This article 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 article looks at 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 of modern constitutionalism based on the pre-eminence of a reason-driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, this article suggests 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.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.006 | 0.007 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.008 | 0.118 |
| Scholarly communication | 0.009 | 0.007 |
| Open science | 0.001 | 0.005 |
| Research integrity | 0.004 | 0.006 |
| Insufficient payload (model declined to judge) | 0.001 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".