David Underhill – 29 Nov to 03 Dec 04 (Week 15) – Justice

Monday: 363-384

The Idea of Justice (Lucas) (363)

• Aristotle: “Justice is a matter of treating equals with equality”
• Two distinct concepts (Aristotle)
• 1) Distributive Justice – Appropriate distribution of society’s benefits and burdens
• 2) Retributive Justice – Equal administration of the law
• Glaucon said justice was society’s elite using their power to control society (still believed by moral realists)
• We can object to the justice administered by stratified ancient societies because the criteria that determines how the benefits and burdens were split up were irrelevant in determining what a person deserved
• Leaders who are appear inconsistent or like they play favorites causes discontent within a unit – important to military leaders

Justice as Fairness (Rawls) (369)

• Problems of justice – liberty, equality, and social differences in society
• There are many overly simple formulas: Egalitarianism (equal share) and systems based on effort, merit (meritocracy), ability and need (communism), and equal opportunity and success (laissez-faire capitalism)
• Difficult to generalize these theories which work beyond a legal system
• Often cause discontent and feelings that society is unjust
• The form of capitalism above is not the form the US uses; businesses have some restraints in the US
• Above form subject to corruption by special interests
• Why is someone praised highly “on the basis of exercising talents … endowed at birth”
• Frustrates those who working harder but have less natural ability
• Third part of Kant’s Categorical Imperative – problem: lawmakers biased to the needs of themselves and their communities
• Original Position – an ideal moral kingdom in which each lawmaker has no knowledge about his community or own situation
• Would lead to a society that was fair
• A powerful thought experiment which can be used to evaluate our laws
• Promotes two principles: liberty and equality
• Equality has two parts: public office is open to all and those best endowed and lucky will win leading to differences in social and economic status; not unjust because this inequality “could be shown to work to the benefit of even the least advantaged”
• Reflective Equilibrium
• Those in the original position
• Not all inequalities are unjust (like social and economic status; see above)
• Difference Principle – discrimination on the basis of race (etc) is unjust because the office is not open to all and the least advantaged is not benefited

Wednesday: 385-394

Crime and Punishment (Duff) (385)

1: Punishment, the State and the Criminal Law

• Punishment – burden placed on an offender by an authority
• Not all breaches require punishment
• Types of Punishment
• Censure – express disapproval
• Hard Treatment – loss of liberties, money, etc. (criminal punishments)

2: Consequentialism and Retributivism

• Consequentialism – justify punishment because it helps out the whole (crime-prevention)
• Justified if benefits outweigh costs
• Prevention through deterrence, incapacitation, and reform
• Objections
• Does not respect people as responsible
• “Treats all [citizens] like dogs” because it coerces people
• Retributivism – only the guilty should be punished and only in proportion to their crime
• Negative interpretation – the innocent may not be punished and the guilty may not be excessively punished
• Requires punishment to be deserved and beneficial
• Positive interpretation – the guilty must be punished as they deserve
• Should be punished so they feel guilt; does not matter if the punishment achieves good outcomes
• Criminals gain an unfair advantage so punishment takes this advantage away
• Objection: distorts crime (Ex: a rapist is not really taking advantage of those who obey the laws)

3: Punishment and Communication

• People are imperfect; not everyone is motivated by the law – incentives are needed for a working system
• Punishment’s primary purpose should be censure
• Hard-treatment punishments are justifiable as deterrents

4: Penal Theory and Sentencing

• Principle of Proportionality – punishment’s severity should be proportional to the crime’s seriousness
• Helps determine relative severity
• Does not help determine an absolute standard, however
• Courts need discretion in order to use punishment to further reformative aims
• Discretion could undermine proportionality

“Billy Budd” (Melville) (389)

• Portrays a British naval ship in 1797 after recent mutinies on other ships
• Billy is highly regarded on the ship
• His superior resents Billy’s popularity and accuses him of plotting mutiny
• Billy hits the superior, killing him
• The crew sympathizes with Billy
• The captain holds a military tribunal and finds Billy guilty
• Says striking a superior officer is against the rules and that hanging is the punishment despite the situation
• Captain viewed two ways
• Unwilling to interpret the rules differently or show compassion for Billy’s actions
• Moral hero for carrying out duty despite obvious sympathies for Billy
• Loosely based on actual occurrence in US history
• Son of Sec War was a mid and tried to mutiny
• Was hung at sea
• Infuriated the Sec War – did not think the proceedings were just
• Led to the founding of USNA to improve the quality of naval officers

Friday: CSME: 167-176

Walking a Fine Line (Varley and Roberts) (167)

• Up until the end of the 1960s, firefighting was male-only
• With affirmative action and lawsuits regarding equal opportunity, fire departments had to allow female applicants
• There was heated debates over whether females should be held to a different standard and how it would affect the units
• Eventually, a reasonable test uniformly applied to men and women was devised and put to use
• Also, veterans had to begin testing so that a standard was enforced uniformly across the board