Theories Of Law And Justice Flashcards
Distributive justice
It is concerned with the fair allocation of the benefits (e.g. Money,property, family life) and responsibilities (e.g. Taxes,civic duty)
Aristotle
Aristotle argued that a just state will distribute its wealth on the basis of merit,given to each according to his virtue and to his contribution to society this is a proportion:the worthiest rather than the neediest receive the greater share. To allocate resources on the basis of people’s needs would be unjust as it would reward the lazy at least as much as the hard working
Aristotle did worry that society in which there was a sharp division between rich and poor would not be “just” and therefore there would be a need to minimise the gap to some degree
CORRECTIVE JUSTICE -Is needed to ensure that individuals can keep their entitlement, it is applied where one person by his greed and self interest causes a loss to another person.
The role of the court is to ensure that the gains and losses of each party are equaled out so that the offender doesn’t get benefit from his wrong doing and that the victim doesn’t suffer loss . In this way balance- the middle way Aristotle so often sought-is achieved
Thomas Aquinas
In general terms, Aquinas argues that justice governs our relationships with other people: it is the constant willingness to deal with other people as they deserve. The end result of justice is the common good for the individual and for the community.
Aquinas also agreed with the idea of distributive justice and stated that this is governed by due proportion: people receive what they are due in accordance with their merit, rank and need.
Aquinas spoke of a commutative justice which concerns the exchange of goods or services between people this is governed by equality. The idea that there is a higher order of law and that if the laws of a society follow this order they will be just.Aquinas thought that the higher order came from god.
Utilitarianism
Jeremy Bentham, the originator of this school argued that the major purpose of the law was to achieve the greatest happiness for the greatest number
The most successful law in this sense would be one that in effect achieved the greatest all round good
This theory was good however it does have its criticisms. The greatest good might not always represent what is in everybody’s interest and it ignores he interest of the individual which would be sacrificed for the benefit of the majority
John Stuart mill
John also developed this theme (utilitarianism). He linked utilitarianism to justice
Justice includes respect for people,for property and for rights aswell as a need for good faith and impartiality
All of these are consistent with the principle of utility since their application brings the greatest happiness greatest number
It could also be argued that punishing Wrong doers also brings happiness to the greatest number
However mill argued that punishment in itself an evil as it involves inflicting harm or pain and can only been justified where it brings a greater benefit such as public order
Mill believed that the state should not interfere with people’s freedoms unless harm could be caused to others
Economic theories of law and justice
Measuring happiness in terms of material wealth
Capitalist theories can be contrasted with socialist theories and governments that tend towards will either introduce laws which protect respectively either view point
A government supporting capitalism will tend to interfere with individual rights in a minimal way and be very protective of property rights
In contrast a socialist government will tend to be interventionist (employment protection and consumer rights are an example of this)
Economic theories of law
Karl Marx
Socialism
Socialism is genuinely hostile to property rights where they come at the expense of social justice
Marx argued that capitalism is an unjust philosophy because it protects individual with wealth at the expense of the social needs of many and that therefore in any capitalist society all law is essentially unjust since is represents the means by which one class (bourgeoise-rich/ruling) oppresses the class or classes below (proletariat-working class)
Marxist views of justice therefore are based on the redistribution of wealth. A just outcome possibly for the many but tough luck on those from whom the wealth is distributed on those from who the wealth is distributed
Economic theories
Rawls
Socialism
No one knows his place in society or what stage of society he would be born into
Robert Nozick
Capitalism
Nozick defined a society as where the state has the least possible power to interfere with the rights of the individual
his theory is based not just on the ownership of property but also on the manner in which it has been gained
In this way Nozick would suggest that if the property gained fairly then the state should have no right to interfere
He there argued that the redistribution of wealth is unjust because it interferes with basic individual rights
Nozick’s rule is fundamentally different to Rawls who argues that inequalities may exist only where they benefit the most disadvantaged members of societies
Nozick places no such limits upon private owner ship: property justly acquired may not be appropriated simply as a form of redistribution of wealth,to reduce innequality
He wrote: “ no one has a right to something who’s realisation requires certain uses of things and activities that other people have rights and entitlements over, therefore those in possession of property have an inalienable right to keeping it, a no competition authority can justly deprive them of their property no matter how just their cause may appear”
