Jefferis to present at inaugural Philosophy and Legal Theory Collaborative Workshop

23 May 2024    

Danielle Jefferis headshot

Professor Danielle Jefferis will present her paper, The Nomos of Force, at the inaugural Philosophy and Legal Theory Collaborative Workshop hosted by the University of Colorado Boulder Department of Philosophy. Workshop presentations will address philosophy of law and individual legal questions from all philosophical traditions as well as political philosophy, political theory, moral philosophy, social epistemology, social ontology, moral psychology, philosophy of action and decision theory on topics relevant to law or socio-legal topics.

The abstract for The Nomos of Force, is below.

The American Constitution purports to proscribe certain acts of state violence against individuals, including those who are incarcerated. The degree to which the law limits official acts of force, however, bears on the status of the target of the force. A free person stopped by a law enforcement officer on the street, for example, bears a Fourth Amendment right to be free from “objectively unreasonable” force. A person who is charged with a crime and detained before trial has a similar right, albeit under the Due Process Clause, to be free from objectively unreasonable force. A person who has been convicted of and sentenced for a criminal offense, on the other hand, has a right under the Eighth Amendment to be free only of official force applied “maliciously and sadistically for the very purpose of causing harm.” The latter protection is hardly any protection at all, as I have demonstrated in other recent empirical work. In that recent work I explore what I call “the prison penalty” — a distinct handicap on sentenced prisoners’ individual right to be free from corporal state violence due solely to their status as a sentenced prisoner. This Article draws upon the theories of Robert M. Cover, Ronald Dworkin, and other critical legal scholars, to examine the philosophical underpinnings of the force doctrine and to place the excessive force doctrine within the nomos of constitutional force — i.e., the normative world in which some state actors’ violence is constitutional and others’ is not. Under the current constitutional regime, the American legal system condones progressively brutal violence on the part of state officials. This Article thus critically examines the individual-rights based model of regulating incarceration, which has implications for punishment systems around the world, as well as citizens’ understandings of the purpose and role of constitutional law as a force of restraint (or lack thereof) on state-inflicted violence.