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PHL OF LAW > Exam 3 > Flashcards

Exam 3 Flashcards

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1
Q

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

A
  • unwarranted deprivation
  • oathbreaking
  • baseless inequality
  • undeserved treatment
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2
Q

Mill
What is a bad action morally?

A

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

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3
Q

Mill
perfect duties v imperfect

A

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

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

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4
Q

Mill
why should anyone have rights?

A
  • 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
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5
Q

Mills argument
rule consequentialism

A
  • 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
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6
Q

Mills argument continued

A

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

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7
Q

Why did Mill write Justice?

A
  • he wanted to intertwine utilitarianism and justice
  • we have rights because of utilitarianism
  • thirst for justice: security
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8
Q

Rawls
injustice

A

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

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9
Q

Rawls
what makes a basic structure of society just?

A
  • it is one where rational people in the original position would agree to be governed by
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10
Q

Rawls
what is the original position?

A
  • everyone is equal in status
  • everyone is mutually disinterested
  • everyone is behind the veil of ignorance
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11
Q

Rawls
what would people in the original position agree to?

A

(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

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12
Q

Rawls
(P1)

A
  • departures from p1 (same extensive scheme of basic liberties for all) cannot be justified by greater advantages in (p2)
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13
Q

Rawls
(P2)

A

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
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14
Q

Nozick
transfers

A

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

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15
Q

Nozick
theory of entitlement

A
  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

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16
Q

Mills, Rawls, Nozick: POV of classical liberalism

A

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

17
Q

Sandhel:
why is the government not permitted to interfere?

A
  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:
18
Q

Tussman and Tenbroek
When is discrimination unjust?

A
  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

19
Q

Tussman and Tenbroek
over and underinclusive

A

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

20
Q

Fiss:

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

A

Fiss says NO.

  • it is sensitive also to unequal negative impact on specially disadvantaged groups
  • disadvantaged: politically weak, socioeconomically subordinate, lacking representation
21
Q

Fiss

A
  • 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

22
Q

Punishment:

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

A

consequentialist and retributivist

23
Q

Rawls

Punishment

A

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)
24
Q

Rawls
best of both worlds

A

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

25
Q

Punishment
Davis

A
  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
26
Q

Punishment
Davis
Solution

A

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
27
Q

Davis’s problems with harm

A
  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
28
Q

Davis
Punishment
Solution explained

A

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)

29
Q

Which theory of punishment would Bork most likely endorse/ endure

A
30
Q

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

A

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

31
Q

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?

A

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

32
Q

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?

A

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

33
Q
A

PHL OF LAW (4 decks)

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