Exam 3

Question 1

Mill
Theory of injustice:
What about an action makes it unjust?

Answer 1

• unwarranted deprivation
• oathbreaking
• baseless inequality
• undeserved treatment

Question 2

Mill
What is a bad action morally?

Answer 2

it is a bad action morally if the acts violate the rights of a definite person

Question 3

Mill
perfect duties v imperfect

Answer 3

perfect: justice is perfect duty, you are always obligated to do it

imperfect: someone sneezing: you are not always obligated to do it

Question 4

Mill
why should anyone have rights?

Answer 4

• otherwise people wouldn’t be secure from harm
• justice: depriving someone of something
• mills thinks justice and rights (claims) are intertwined
• justice is a perfect duty

Question 5

Mills argument
rule consequentialism

Answer 5

• rule consequentialism guides ethical behavior by promoting rules that when followed by everyone result in the most favorable consequences
• disagreements can be settled if RC is true

Question 6

Mills argument continued

Answer 6

Most good: least amount of effort

Final goods: happiness

Extrinsict goods: goods you do to get something

Final goods: justice is a final good, - not a matter of convenience

Question 7

Why did Mill write Justice?

Answer 7

• he wanted to intertwine utilitarianism and justice
• we have rights because of utilitarianism
• thirst for justice: security

Question 8

Rawls
injustice

Answer 8

injustice is tolerable to Rawls only when it is necessary to avoid an even greater injustice

Question 9

Rawls
what makes a basic structure of society just?

Answer 9

• it is one where rational people in the original position would agree to be governed by

Question 10

Rawls
what is the original position?

Answer 10

• everyone is equal in status
• everyone is mutually disinterested
• everyone is behind the veil of ignorance

Question 11

Rawls
what would people in the original position agree to?

Answer 11

(P1) each person has an equal right to the most extensive scheme of basic liberties compatible with the same scheme for all

(P2) social and economic inequalities are
a. to everyone advantage
b. attached to positions open to all

Question 12

Rawls
(P1)

Answer 12

• departures from p1 (same extensive scheme of basic liberties for all) cannot be justified by greater advantages in (p2)

Question 13

Rawls
(P2)

Answer 13

Three interpretations of P2

1. Libertarian:
   - positions are open to anyone willing and able to compete for them
   - Rawls thinks some. people have more access to money and resources by pure accident and doesn’t want arbitrary things like this to decide who get’s a position
   - Rawls rejects Libertarian interpretation
2. Liberal:
   - those with similar degrees of talent and drive have similar chances of success
   - Rawls rejects this a well, doesn’t want accidents of nature
3. Democratic:
   - differences in chances of success are to the benefit of the worst off
   - difference principle
   - Rawls agrees :D - only inequalities that benefit the worse off are permitted

Question 14

Nozick
transfers

Answer 14

Nozick wants people to transfer goods the way they want assuming they are just and got them legitimately

Question 15

Nozick
theory of entitlement

Answer 15

1. aquisition: holdings that were previously unheld such as natural resources and unowned land
2. transfer: holdings that were previously held
   - distribution is just if acquired justly and transferred justly and legitimately
3. rectification: if something happens unjustly rectification is corrective

Rawls says those that are worst off: distribute goods to those people

Question 16

Mills, Rawls, Nozick: POV of classical liberalism

Answer 16

They all share the claim that the government is not permitted to interfere in the lives of citizens except in certain limited circumstances

Mill = Harm principle
Nozick = injustice in transfer of goods/contract
Rawls = disadvantaged people

Question 17

Sandhel:
why is the government not permitted to interfere?

Answer 17

1. Mill says to promote general welfare
   Sandhel says no: do we really know this will promote general welfare empirically?
2. Rawls says it ensures fairness to individual persons
   Sandhel says no: we are not separate entities, we are attached to communities
3. Sandhels solution is communitarianism:

Question 18

Tussman and Tenbroek
When is discrimination unjust?

Answer 18

1. discrimination on the basis of classification
2. discrimination for the purpose of aim

is the classification reasonable given the aim? if no then discrimination is not just

Question 19

Tussman and Tenbroek
over and underinclusive

Answer 19

sometimes cases can be overinclusive or underinclusive

overinclusive: Classification is greater than the aim
- aim of catching commies
- end up over classifying people

underinclusive: aim is greater then classification
- food stamps
- some people get them but we don’t classify enough

Is the classification reasonable given the aim? If it is NOT, then unjust discrimination

Question 20

Fiss:

Is the principle of equality invoked by the Equal protection clause sensitive only to classification, aim, and the fit between them?

Answer 20

Fiss says NO.

• it is sensitive also to unequal negative impact on specially disadvantaged groups
• disadvantaged: politically weak, socioeconomically subordinate, lacking representation

Question 21

Fiss

Answer 21

• nonoriginalist
• we can interpret the equal protection clause how we read it now, not the time when it was originally written

Fiss on groups:
- groups have a distinct existence independent from its members
- groups are transhistorical, new members come, new members leave

Question 22

Punishment:

How is legal punishment - the imposition of penalties on those who violate the law - justified?

Answer 22

consequentialist and retributivist

Question 23

Rawls

Punishment

Answer 23

HOW IS LEGAL PUNISHMENT JUSTIFIED

1. the likely consequences of imposing the relevant penalty are beneficial to society as a whole (consequences)
2. the severity of the punishment is proportionate to the severity of the violation (retributivst)

Question 24

Rawls
best of both worlds

Answer 24

an ACT of legal punishment is justified to the extent that the severity of penalty is proportional to the severity of violation

He believes the PRACTICE of legal punishment is justified to the extent that the likely consequences of imposing the relevant penalty are beneficial to the society as a whole

ACTS: retributivist: judge
PRACTICE: consequentialism: legislator

Question 25

Punishment Davis

Answer 25

1. The severity of the punishment must be proportional to the gravity of the offense (violation of criminal law) 2. The gravity of the offense must be a function of fault in the offender and harm caused to the victim - Davis wants to show this principle is wrong

Question 26

Punishment Davis Solution

Answer 26

Unfair advantage principal: Davis proportions punishment to the unfair advantage the criminal takes by committing the crime When someone does not forbear from doing something and breaks a law until he is punished he will have gotten away with something and had an advantage everyone else does not - greater advantage = greater punishment

Question 27

Davis's problems with harm

Answer 27

1. Not all criminal offenses cause actual harm, when “harm” means injury or damage or infringement of a right (Ex: no rights violated in Blackmail) 2. the difference in penalty between vehicular homicide and involuntary manslaughter despite being the same car are not proportionate to the rules put in place for punishment

Question 28

Davis Punishment Solution explained

Answer 28

an act of punishment is justified to the extent that it takes back and advantage that the offender gets by avoiding certain burden of foreberance (not doing something the system imposes on everyone equally)

Question 29

Which theory of punishment would Bork most likely endorse/ endure

Question 30

How does Rawls' utilitarianism and retributivism relate to Harts external and internal views?

Answer 30

Internal: appraising or evaluating behavior on the basis of a rule from a participants perspective external: describing or predicting behavior from an observers perspective, as in someone not in that legal system asking if we accept a law as valid is role of internal recognition, but if we’re asking if a system/law has validity that is external

Question 31

Is there anything about legal positivism — as defended by figures such as Hart — that would support one side or the other of the debate between Bork and Dworkin about how judges should interpret legal texts? If so, why? If not, why not?

Answer 31

Positivism is the view that we should NOT include considerations of morality when determining if a law is valid positivism would support Bork's view, Bork and positivists agree that there should be no considerations of morality when determining if a law is valid or not positivism would disagree with Dworkin: dworkin believes the way to determine the best interpretation of the text/law is through the judges morality, if positivism doesn't include considerations of morality this would go against Dworkin's view

Question 32

Based on his theory of justice, it seems clear that Rawls would defend a robust right to freedom of speech. How would his defense differ, if at all, from Mill's, Scanlon's, and Schauer's?

Answer 32

Mill thinks that if we could prevent harm by limiting freedom of speech we should do that Scanlon: likes freedom of speech, it helps create public discourse, and is needed for societies pursuit of the truth however Scanlon thinks restrictions are justified if expression poses a serious threat to others Rawls's view is most different to Mill and Scanlon, Rawls emphasizes the importance of people in the original position accepting a system to govern them, - equal rights to the greatest extent of liberties they can have, Mill and Scanlon seemed to be more focused on the government's justification for interference