Justice & Injustice - Lec 5

Question 1

2 views of justice in Australia (Carpenter & Ball, Justice in Society, 2nd ed.)

Answer 1

1. Optimistic view
2. Critical view

Question 2

Optimistic view

Answer 2

Freedom and equality are necessary to have a just society.
- our laws support equal opportunity (removal of legal barriers).
- Laws punish discrimination (the provides full participation in all areas of society); eg. Federal legislation concerning racial discrimination and equal opportunities.
- Fair processes; eg, an impartial justice system; transparent employment processes, etc.

Question 3

Critical view

Answer 3

Focuses on the opression and inequality that exists despite laws supporting equal opportunity (and punishing discrimination).
Differences in educational achievement between groups.
- Politics that creates barriers to full participation.
- Victimisation of people on the margins.
- Inherent biases within systems.

Question 4

3 assumptions about justice (shared by both views)

Answer 4

1. Justice and injustice are easily identifiable.
   a. CJS - punishment fits the crime.
   b. Equal opportunity - positive law and removal of barriers.
   c. Welfare laws.
2. All people have an inherent worth and should be respected.
   a. Neither side would say that people are not worthy of respect; but differ regarding things like deserved punishment for wrong doing.
3. For society to be just, people need to be treated equally (and seen to be).
   a. They disagree on what counts as being treated equally (ie. Process v results).

Question 5

Why justice matters

Answer 5

Justice as an ideal and value - an ‘incomplete and continually failing enterprise’, but important and worth striving for (justice in society).

Are we there yet? No, it’s a work in progress.

Not a linear progress from injustice to justice – history is more complex than that.

Question 6

Liberalism & the law

Answer 6

Liberals agree on the need for law to preserve the liberty of the individual from encroachments by others (but often disagree over whether the biggest threat to individual liberty comes from the state or from private individuals/entities).
Liberals also often disagree about the best method of protecting individual liberty in the law.

Question 7

Liberty

Answer 7

‘… people owe no obligations unless they have freely entered into agreements with each other.’
This could be achieved by law through democratic processes.

Question 8

Negative liberty

Answer 8

Freedom as absence of external constaint

Question 9

Liberty and protection of morals

Answer 9

individual freedom can only be limited where one’s actions cause harm to others (called the ‘harm principle’), and therefore, that state should not interfere with individuals’ moral choices, and certainly should not criminalise such choices.

E.g. past criminalisation of homosexual activities. State should not criminalise a moral choice.

Question 10

Individualism

Answer 10

(Atomism)
Society as comprised merely of individual human being who can fully choose their roles, activities, etc. In life – relate to idea of free will.

Question 11

Positive liberty and republicanism

Answer 11

a response to the ‘communitarian’ challenge to liberalism.

This rejects extreme individualism and negative liberty; gives greater role to state interventions in peoples’ lives, and to their cultural ‘embeddedness’ (not abstract individuals)

Autonomy rather than freedom is the emphasis.

Question 12

Equality in liberalism

Answer 12

formal equality or equality before the law.

Treating people the same (prohibiting discrimination on arbitrary categories)
Possibly equality of opportunity

Question 13

Justice

Answer 13

fairness or due process, equality of treatment and respect for individual rights.

Question 14

Rights

Answer 14

Priority of the ‘right’ over the ‘good’; states must act to realise rights.

Question 15

Utilitarianism

Answer 15

rather than rights, the greatest ‘happiness’ of the greatest number should be basis for state action.

Question 16

Priority of welfare of polity

Answer 16

tyranny of the majority (minority are perpetually excluded)?

Question 17

Equality and criminal justice - Anatole France, Le Lys Rouge (1894)

Answer 17

‘In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.’

Question 18

Models of equality

Answer 18

Formal equality
Substantive equality

Question 19

Formal equality

Answer 19

Equal treatment before the law, procedural equality and some versions of equality of opportunity.

Equality in the ‘forms’ of law and procedure.

Fair processes; parties can present their cases prior to independent determination.

Everyone has the opportunity of being heard accord to law, before decisions are made about them.

Equality of opportunity – removal of legal and social barriers to participation – education, economy, sports, arts, sciences, etc.

Especially from a young age – investing in the development of young people.

Question 20

Substantive Equality

Answer 20

equality of outcome/result (these can be controversial; denies merit)

Quotas
Affirmative action
Argument that there are so barrier and forms of unconscious bias and historic disadvantage, only equality targets can achieve long-term equality.
Often needs significant state intervention.

Question 21

Models of equality - Aristotelian idea

Answer 21

Aristotelian idea of equality is to treat like cases alike and different cases differently.

Equality is not achieved by simply treating everyone the same.
Requires decision-makers to consider differences in people.

Question 22

Egalitarianism

Answer 22

A belief that:

Everyone is formally equal
Everyone is respected
Everyone should be treated the same by social institutions
Assumes equal opportunity and equal treatment (removal of legal and social barriers)
Not concerned with equality of outcomes

Question 23

Egalitarianism & inequality

Answer 23

Egalitarianism accepts some inequality between individuals
Eg, inequality in achievement, talent, wealth, social merit
This inequality is just, given that there is a basic minimum standard to which everyone is entitled
- Anything above this, is acceptable inequality
This minimum standard is provided through we

Question 24

A version of egalitarianism

Answer 24

Inequality exists as a normal part of society

People should not be disadvantaged (by family bankruptcy), or advantaged (by inheritance); ie, no automatic advantages or disadvantages

Future prospects should rely solely on one’s efforts and abilities – but what counts as an ability?

Some abilities are highly valued, some less valued

Eg, differences in salaries (and sponsorships) between men and women in professional sport – but efforts and abilities may be the same or similar.

Question 25

Robert Nozick - Equality in liberalism

Answer 25

Formal equality all citizens are equally eligible for all positions in accordance with their abilities, simply by virtue of the fact that they possess citizenship within a particular nation; impartiality, and consistency are key factors.

But his examples presume a level of material security that his theory does not promise (the 1970s ‘Wilt Chamberlain’ example). Might every person attending a basketball game were asked to put an additional 25c into a box to go to Wilt Chamberlain, in addition to the ticket? Most people would do this just to see Wilt play. Relatively small sum voluntarily given. But is it unfair to all other pro basketball players? The choice to give this extra money presumes a level of material security.

Question 26

John Rawls - Equality in liberalism

Answer 26

Inequality inevitably exists in society, and therefore, people should not be advantaged or disadvantaged through ‘accident of birth’. Instead, prospects should rest on effort and abilities.

His theory includes the ‘difference principle’ that differential treatment is justified where it is to the benefit of the worst off – but is this enough to redress differences in distribution of life chances?

Redistribution to enable all members of society to participate equally

Question 27

If a society is egalitarian, why is there inequality?

Answer 27

Assumes everyone can succeed

Accepts that people can start from different levels, as long as there has been some redress to those who are worse off

Those who don’t have only themselves to blame

Success and failure are individualised

As a result, inequality is seen as justified (because of personal choice), or at least inevitable.

Question 28

Meritocracy

Answer 28

Success and failure are premised on individual achievement (merits) – rather than inherited status

Those who have talent and who work hard will be rewarded

Those who do not get rewards, must accept their inequality because they had the same opportunities.

Question 29

Is Australia egalitarian? Meritocratic?

Answer 29

Do we all have the same opportunities? Is it all about individual effort?

We can see differences in opportunity between rural and city populations;

eg, university attendance

We use ideas of sameness to create policies (such as education), but ‘natural differences’ to justify inequalities that result

Eg, education standards; different levels of funding, different student bodies; non-English speaking students

Failure is therefore individualised rather than socialised

But has COVID challenged the narrative of individual responsibility to some extent

We have seen how reliant we are on others for certain things during a lockdown (that we cannot choose).

Question 30

Examples of why the ‘dole bludger’ narrative cannot be sustained

Answer 30

Idea of ‘under-employment’ – those who are in work, but are working fewer hours than they would like – challenges the idea of a lack of effort as a cause of poverty

See also, there are currently 13 unemployed people for every job vacancy)

Exclusion of unpaid care work in the home, mostly done by women, from the idea of ‘contribution’ to society much of the time

Effects of historical racism on present-day Indigenous Australians or members of CALD (culturally and linguistically diverse) communities

Elimination of formal barriers to participation in society; there remains avariety of biases and practical barriers

Question 31

Assumptions underlying idea that accessing welfare = moral failure

Answer 31

The rich are useful; the poor are not

If status, prestige, and wealth is a direct result of one’s abilities, then failure is a lack of these attributes

‘the poor are sinful and corrupt and owe their poverty to their stupidity’

We might ask ourselves how the pandemic has challenged some of these assumptions …

If we think about essential workers in society; health workers, cleaners, delivery drivers, etc.

Some have low-paid work in insecure employment; challenges the idea that the rich are useful, and the poor are not.

Question 32

Political theory assumes people are both..

Answer 32

Rational and moral
Rational: we have free will and can choose between ‘good’ which leads to social order, or ‘bad’ for which we are punished.
Moral: learned from socialisation in society, accepting social rules and expectations.

Question 33

Race

Answer 33

‘Race’ as a concept was not commonly used until 18th century

Reinforced by misapplications of Darwin’s theory of evolution (‘social Darwinism’), leading to eugenics – theories of racial superiority

Ideas of eugenics underlay the White Australia policy and efforts to fragment Aboriginal Australians including through child removal

What counts as a ‘race’ is fluid, historically and socially contingent

Example: different approach to racial classifications in Brazil, compared to Apartheid-era South Africa.

Race is a social/political concept, not a scientific one – minimal genetic difference between groups differentiated by race, and difference within groups can be equally significant.

Culture is different altogether

‘Race is not a biological category that is politically charged. It is a political category that has been disguised as a biological one.’ (Dorothy Roberts, quoted on p. 49, Justice in society).

Question 34

Sexuality, gender identity, and legal interventions

Answer 34

Criminalisation of sexuality – still common in many countries, often using laws inherited from British colonial regimes, or on religious grounds

While female same-sex relations have not often been officially criminalised as male, in some countries, sexual assault to ‘cure’ women of being lesbian is common.

Criminalisation of gender identity has emerged as an issue recently, where offences have been created to prohibit use of gender-based facilities (such as toilets) that are different to one’s gender designation at birth.

Yet some societies formally or informally recognise more than one gender or allow people to move between genders.

Medical intervention in intersex children without their consent is based on the idea that it is best for a person to be either male or female