Justice & Injustice - Lec 5 Flashcards
2 views of justice in Australia (Carpenter & Ball, Justice in Society, 2nd ed.)
- Optimistic view
- Critical view
Optimistic view
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.
Critical view
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.
3 assumptions about justice (shared by both views)
- Justice and injustice are easily identifiable.
a. CJS - punishment fits the crime.
b. Equal opportunity - positive law and removal of barriers.
c. Welfare laws. - 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. - 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).
Why justice matters
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.
Liberalism & the law
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.
Liberty
‘… people owe no obligations unless they have freely entered into agreements with each other.’
This could be achieved by law through democratic processes.
Negative liberty
Freedom as absence of external constaint
Liberty and protection of morals
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.
Individualism
(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.
Positive liberty and republicanism
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.
Equality in liberalism
formal equality or equality before the law.
Treating people the same (prohibiting discrimination on arbitrary categories)
Possibly equality of opportunity
Justice
fairness or due process, equality of treatment and respect for individual rights.
Rights
Priority of the ‘right’ over the ‘good’; states must act to realise rights.
Utilitarianism
rather than rights, the greatest ‘happiness’ of the greatest number should be basis for state action.
Priority of welfare of polity
tyranny of the majority (minority are perpetually excluded)?
Equality and criminal justice - Anatole France, Le Lys Rouge (1894)
‘In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.’
Models of equality
Formal equality
Substantive equality
Formal equality
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.
Substantive Equality
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.
Models of equality - Aristotelian idea
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.
Egalitarianism
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
Egalitarianism & inequality
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
A version of egalitarianism
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.