Law and justice

Concept of justice

Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion or equity.

According to most contemporary theories of justice, justice is overwhelmingly important - "Justice is the first virtue of social institutions, as truth is of systems of thought."

Each culture's ethics create values which influence the notion of justice. Although there are some justice principles that are the same in all or most of the cultures, these are insufficient to create a unitary justice apprehension.

The association of justice with fairness has been historically and culturally rare and is perhaps a modern innovation.

Equality

The terms “equality”, “equal” and “equally” signify a qualitative relationship.

Equality signifies correspondence between a group of different objects, persons, processes or circumstances that have the same qualities in at least one respect, but not all respects, i.e., regarding one specific feature, with differences in other features.

Equality and justice

Equality in its prescriptive usage has, of course, a close connection with morality and justice in general and distributive justice in particular.

From antiquity onward, equality has been considered a constitutive feature of justice.

Throughout history people and emancipatory movements used the language of justice to criticize certain inequalities.

Formal equality

When two persons have equal status in at least one normatively relevant respect, they must be treated equally with regard to this respect.

This is the principle that Aristotle formulated in reference to Plato: “treat like cases as like”.

Some authors see this formal principle of equality as a specific application of a rule of rationality: it is irrational, because inconsistent, to treat equal cases unequally without sufficient reasons.

But most authors instead stress that what is here at stake is a moral principle of justice.

Proportional equality

A form of treatment of others or distribution is proportional or relatively equal when it treats all relevant persons in relation to their due.

When factors speak for unequal treatment or distribution, because the persons are unequal in relevant respects, the treatment or distribution proportional to these factors is just.

Unequal claims to treatment or distribution must be considered proportionally - that is the prerequisite for persons being considered equally.

Theories of distributive justice

Theories of distributive justice need to answer: What goods and burdens are to be justly distributed? Which

social goods comprise the object of distributive justice? What are the spheres (of justice) into which these resources

have to be grouped? Who are the recipients of distribution? What are the commonly cited yet in reality unjustified

exceptions to equal distribution? Which inequalities are justified? Which approach, conception or theory of egalitarian

distributive justice is therefore the best?

What are the spheres (of justice)?

In order to reconstruct our understanding of contemporary liberal, democratic welfare states, four categories seem essential: 1. civil liberties, 2. opportunities for political participation, 3. social positions and opportunities, 4. economic rewards

Equality of outcome

Equality of condition (equality of results) It describes a state in which people have

approximately the same material wealth or in which the general economic conditions of their lives are similar.

Achieving equal results generally entails reducing or eliminating material inequalities between individuals or households in a society, and usually involves a transfer of income or wealth from wealthier to poorer individuals, or adopting other measures to promote equality of condition.

Criticism

Direct moral criticisms: that they unduly restrict freedom, that they do not give best effect to the moral equality

of persons, that they conflict with what people deserve, etc.

But the most common criticism is a welfare-based one related to the Pareto efficiency requirement: that everyone can be materially better off if incomes are not strictly equal

Equality of Opportunity

Equal opportunity is a stipulation that all people should be treated similarly, unhampered by artificial barriers or prejudices or preferences, except when particular distinctions can be explicitly justified.

The aim according to this often complex and contested concept is that important jobs should go to those “most qualified” – persons most likely to perform ably in a given task – and not go to persons for arbitrary or irrelevant reasons, such as circumstances of birth, upbringing, friendship ties to whoever is in power, religion, sex, ethnicity, race, caste, or involuntary personal attributes such as disability, age, gender, or sexual orientation.

Giving people what they deserve

Theories of distributive justice claim that everyone should get what they deserve. They disagree on the basis for deserving:

Meritocratic theories – goods (wealth and social status) should be distributed to match individual merit, which is usually understood as some combination of talent and hard work.

Needs-based theories – goods (especially food, shelter and medical care) should be distributed to meet individuals' basic needs for them. Marxism can be regarded as a needs-based theory - "according to his ability, to each according to his need".

Contribution-based theories – goods should be distributed to match an individual's contribution to the overall social good.

Fairness I.

In A Theory of Justice, John Rawls used a social contract argument to show that justice (especially distributive justice) is a form of fairness – an impartial distribution of goods.

Rawls asks us to imagine ourselves behind a veil of ignorance that denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves.

We don’t know who in particular we are, and therefore can’t influence the decision in our own favour.

Fairness II.

Rawls argues that each of us would reject the utilitarian theory of justice that we should maximize welfare because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Rawls's two principles of justice are: Each person is to have an equal right to the most

extensive total system of equal basic liberties compatible with a similar system of liberty for all.

Fairness III.

Social and economic inequalities are to be arranged so that they are bothto the greatest benefit of the least

advantaged, consistent with the just savings principle, and

attached to offices and positions open to all under conditions of fair equality of opportunity.

Theories of retributive justice

Theories of retributive justice are concerned with punishment for wrongdoing, and need to answer three questions: why punish? who should be punished? what punishment should they receive?

Utilitarianism I.

According to the utilitarian justice requires the maximization of the total or average welfare across all relevant individuals. Punishment is bad treatment of someone, and therefore can't be good in itself. But punishment might be a necessary sacrifice that maximizes the overall good in the long term, in three ways:

Deterrence - The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare.

Rehabilitation - Punishment might make bad people into better ones. So, utilitarianism could recommend punishment that changes someone such that they are less likely to cause bad things.

Utilitarianism II.

Security/Incapacitation - Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning them might maximize welfare by limiting their opportunities to cause harm and therefore the benefit lies within protecting society.

So, the reason for punishment is the maximization of welfare, and punishment should be of whatever form and severity which are needed to meet that goal.

This may sometimes justify punishing the innocent, or inflicting severe punishments, when that will have the best consequences overall (executing a few suspected shoplifters live on television would be an effective deterrent to shoplifting).

Retributivism I.

The retributivist will think the utilitarian's argument disastrously mistaken.

If someone does something wrong, we must respond to it, and to him or her, as an individual, not as a part of a calculation of overall welfare.

To do otherwise is to disrespect him as an individual human being. If the crime had victims, it is to disrespect them, too.

Wrongdoing must be balanced or made good in some way, and so the criminal deserves to be punished.

Retributivism emphasizes retribution – payback – rather than maximization of welfare.

Retributivism II.

Like the theory of distributive justice as giving everyone what they deserve, it links justice with desert.

It says that all guilty people, and only guilty people, deserve appropriate punishment.

This matches some strong intuitions about just punishment – that it should be proportional to the crime.

However, it is sometimes argued that retributivism is merely revenge in disguise. However, there are differences between retribution and revenge: the former is impartial and has a scale of appropriateness, whereas the latter is personal and potentially unlimited in scale.

Restorative (reparative) justice

Focuses on the needs of victims and offenders, instead of satisfying abstract legal principles or punishing the offender.

Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions - "to repair the harm they have done by apologizing, returning stolen money, or community service".

It is based on a theory of justice that considers crime and wrongdoing to be an offense against an individual or community rather than the state.

Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.

Justice and legal certainity

The legal certainty is “a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public”.

The principle of certainty also precludes retrospective changes in the law.

The law must be certain at the time when the subject has to act by reference to it.

Radbruch‘s formula I.

The conflict between justice and the certainity of the law should be solved in favour of the positive law, law enacted by proper authority and power, even in cases where it is injust in terms of content and purpose,

except for cases where the discrepancy between the positive law and justice reaches a level so unbearable that the statute has to make way for justice because it has to be considered "erroneous law".

Radbruch‘s formula II.

It is impossible to draw a sharper line of demarcation between cases of legal injustice and statutes that are applicable despite their erroneous content; however, another line of demarcation can be drawn with rigidity:

Where justice is not even strived for, where equality, which is the core of justice, is renounced in the process of legislation, there a statute is not just 'erroneous law', in fact is not of legal nature at all.

Because law (positive) cannot be defined otherwise as a rule that is precisely intended to serve justice.