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August 21, 2009

Kaveny joins the Dershowitz / Scalia debate

My colleague Cathy Kaveny has posted some thoughts in response to the Dershowitz piece we've been discussing.  And, she proposes that Dershowitz's debate challenge be expanded to cover a particular text, St. Thomas Aquinas on the duties of a judge with respect to a condemned prisoner he knows to be innocent: Summa Theologica, II-II, q 64 art. 6, rep. ob. 3:

If the judge knows that man who has been convicted by false witnesses, is innocent he must, like Daniel, examine the witnesses with great care, so as to find a motive for acquitting the innocent: but if he cannot do this he should remit him for judgment by a higher tribunal. If even this is impossible, he does not sin if he pronounce sentence in accordance with the evidence, for it is not he that puts the innocent man to death, but they who stated him to be guilty. He that carries out the sentence of the judge who has condemned an innocent man, if the sentence contains an inexcusable error, he should not obey, else there would be an excuse for the executions of the martyrs: if however it contain no manifest injustice, he does not has no right to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.

Posted by Rick Garnett on August 21, 2009 at 08:46 AM | Permalink

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