THE ORIGINS AND CONCEPT  OF JUSTICE

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How much are they worth?. NurseElectricianElementary school teacherSanitation workerPolice officerCorrectional officerProbation officerSoftware engineerForensic Science TechLawyerSecretaryJudge. 58K39K42K24K45K34K41K ( high by my knowledge)67K46K78K29K144K. What Is Justice and How Is It Related to Law?.

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THE ORIGINS AND CONCEPT OF JUSTICE

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1. THE ORIGINS AND CONCEPT OF JUSTICE AJ 482/582

2. How much are they worth? Nurse Electrician Elementary school teacher Sanitation worker Police officer Correctional officer Probation officer Software engineer Forensic Science Tech Lawyer Secretary Judge 58K 39K 42K 24K 45K 34K 41K ( high by my knowledge) 67K 46K 78K 29K 144K

3. What Is Justice and How Is It Related to Law? JUSTICE Is not merely doing “good” Is not merely meeting needs “Differs from benevolence, generosity, gratitude, friendship, and compassion" Mediates between self-interest and generosity Results from a rational acceptance of the idea that human relations must be fair “Does not dictate a perfect world, but one in which people live up to agreements and are treated fairly”

4. Defining Justice (I) Galston defines justice as: More than voluntary agreement, but less than perfect community. Intelligent self-regard, modified by the requirements of rational consistency. According to Galston, justice: Allows us to retain our separate existences and our self-regard. Does not ask us to share the pleasures, pains, or sentiments of others.

5. Defining Justice (II) Plato believed justice was achieved by maintaining the social status quo. He classed it as one of the four civic virtues (along with wisdom, temperance, and courage.) Aristotle believed justice was the basis of law, defining it as the unwritten customs of a people that distinguish between what is and is not honorable.

6. Aristotle’s Thoughts on Justice Rectificatory (Commutative) Justice Called for in business where unfair advantage or undeserved harm has occurred. Demands remedies or compensations to the injured party. Distributive Justice Concerns what measurement should be used to allocate society's resources. Proportional equality: unequal people (e.g. slaves, women) get unequal shares.

7. Major Components of Justice Recognized Today Distributive Justice Division of goods and burdens among members of a society. Corrective Justice Determination and methods of punishment. Punishment should fit crime (concept of just deserts). Commutative Justice Applies in transactions where one person is treated unfairly. Resolution often based on concepts such as rights/interests.

8. Hurricane Katrina Was justice done to the victims of Katrina? Who should decide how/when/what gets rebuilt? Were the responses of the following just/ethical? FEMA State Level responses Local level responses

9. Major Themes of Justice 1. Fairness 2. Equality 3. Impartiality

10. Distributive Justice Justice involves rightful possession of Economic goods (income or property) Opportunities for development (education or citizenship) Recognition (honor or status) Since some possessions are scarce, justice requires that goods be distributed using standards of entitlement such as need and desert.

11. Possible Standards for Distributive Justice Need Merit Performance Ability Rank Station Worth Work Agreements Requirements of the common good Valuation of services Legal entitlement

12. Theories of Distribution (I) Egalitarian Theories Based on the premise of equality or equal shares for all. A gasoline tax of $.10 per gallon on everyone who purchases gasoline is an example. Marxist Theories Place need above entitlement. A gasoline tax that varies according to an individual’s income is an example.

13. Theories of Distribution (II) Libertarian Theories Merit, entitlement, and productivity have more weight than needs or equal shares. Government should not interfere in society or economy; individuals are responsible for own welfare. Repealing a gasoline tax altogether is an example.

14. Theories of Distribution (III) Utilitarian Theories Attempt to maximize benefits for society by balancing entitlement and needs. Distribution based on the most popular approach to spending. Allowing people to vote on how much they want to pay for gasoline tax is an example.

15. Rawl’s Theory of Justice Any inequalities in a society should benefit the least advantaged. All have an equal right to basic shared liberties. Social and economic inequalities should be arranged to be to everyone's advantage. Decisions about distribution should be made without regard to one’s status (the veil of ignorance) because justice and fairness are in everyone's rational self-interest.

16. Criticisms of Rawls The veil of ignorance cannot counteract human selfishness and self-interest. Preferring the least well-off is bad for a society; leads to lack of incentive, decline of standards. Rawls’s approach to distribution ignores desert and merit.

17. Corrective Justice Substantive Justice Based on the concept of just deserts Involves the determination of a “fair” punishment Procedural Justice Based on the concept of law and rules Involves steps taken to determine guilt as well as punishment

18. Rank in order of seriousness Sexual assault (with force) Death caused by drunk driving Embezzlement of 15K Tax evasion of 15K Shoplifting 15K Robbery 15K Assault ( w/ broken bones) Sexual molestation ( no penetration) Toxic waste dumping Murder ( during barroom brawl) Drug possession ( marijuana) Perjury Murder in heat of passion Solicitation of murder

19. Retributive Justice Based on the concept of balance Perpetrator must suffer pain or loss proportional to the victim’s (An eye for an eye; a tooth for a tooth) Lex talionis: a vengeance-oriented form of retributive justice concerned with equal retaliation Difficult to agree upon a fair degree of punishment in situations that involve mitigating factors, and partial responsibility Difficult to measure incarceration (most typical modern punishment) against suffering or loss

20. Mercy An offender who truly deserves punishment, but is forgiven, has received mercy. Mercy Is separate from justice Tempers or “seasons” justice Is not an automatic right or matter of desert Derives its value from compassion Requires a generally retributive outlook on punishment and responsibility

21. Utilitarian Justice Under a utilitarian system of justice, Deterrence is the primary determinant of justice. Punishment is meant to deter offenders from future crime. Punishment is prescribed on the basis of perceived deterrence. Treatment is acceptable because it supports deterrence.

22. Procedural Justice Justice is the concept of fairness. Law is a system of rules. Procedural justice consists of laws and procedures meant to safeguard against error in the application of justice. Due process exemplifies procedural justice.

23. Procedural Protections in the U.S. Notice of charges Neutral hearing body (jury) Right of cross-examination Right to present evidence Representation by counsel Statement of findings Appeal of verdict

24. Due Process vs. Utilitarian Justice after 9/11 Attitude before 9/11 Criminal behavior can be controlled, and the public kept safe, by a criminal justice system with procedural safeguards. Attitude after 9/11 There is greater risk of terrorist attacks if terrorists can be freed on procedural “technicalities.” How do these new realities impact our definition of justice? What new ethical questions do they raise?

25. Law is used to control or change behavior. TWO THEORIES OF LAW Natural law: Laws inherent in the natural world that can be discovered by reason. Positive law: Laws written and enforced by society. TWO TYPES OF LAW Criminal law is punitive. Civil law is reparative.

26. Paradigms of Law Consensus paradigm Society is a community of like-minded individuals who agree on goals important for ultimate survival. Conflict paradigm Society contains competing and conflicting interests. Governance is based on power; if some win, others lose, and those who hold power promote self-interest. Pluralist paradigm Society contains competing interests, but more than two basic interest groups exist; the power balance may shift as part of the dynamics of societal change.

27. The Consensus Paradigm (II)

28. The Conflict Paradigm (I) Law is used by dominant groups to maintain the status quo. Criminal definitions are relative. Those who control major social institutions determine how crime is defined. The definition of crime is fundamentally a tool of power.

29. The Conflict Paradigm (II)

30. The Pluralist Paradigm Law is influenced by interest groups whose power levels rise and fall. Laws are written by the group that is most powerful at any particular time. The definition of crime may change, depending on which interest groups have the power to define criminal behavior. Law reflects what is currently perceived to be in the best interests of the most powerful groups.

31. Justifications for Law The major justification for criminal law is the prevention of harm. Social contract theory holds that people sacrifice certain freedoms in exchange for the protection of society. How much freedom should be sacrificed? Most would agree that people should not be subjected to undue harm. Some laws do not involve direct harm to others, but to oneself.

32. Legal Paternalism The state tries to prevent people from harming themselves. Examples: Seat belt laws Motorcycle helmet laws Speed limits Drug and alcohol laws Smoking bans Laws against certain types of sexual behavior Ethics of care: OK—behavior is “good” for the subject even though he or she may not agree. Utilitarianism: OK—such laws reflect a “public good.” Ethical formalism: NOT OK—violates the concept of treating all with regard.

33. Paternalism with Restrictions?

34. Legal Moralism The state often makes laws based on moral standards, even though there is no consensus within society about these moral standards. Some behaviors are defined as “wrong” and are prohibited, although those involved in them are consenting. Legal moralism may change through time. The U.S. Supreme Court upheld Georgia’s right to declare sodomy illegal in 1986. In 2003, the same court declared Texas’s law against same-sex sodomy unconstitutional.

35. Example: Pornography

36. Example: Hate Crime

37. Limited Legal Moralism? Legal moralism might be restricted to banning behavior that is universally accepted as “wrong”. Problem: Almost any behavior is acceptable to some people.

38. Punishing the Mentally Ill Arguments against punishing the mentally ill: The mentally ill can't help themselves. Retributive justice is not served, because the insane don’t understand why they are suffering. Deterrence does not occur, because others do not identify with the acts of the insane. The mentally ill cannot spiritually prepare for death, so it is cruel to execute them. Humanitarian reasons require mercy. What do you think of these arguments?

39. Reason and Responsibility McNaughten Rule—Legal test of insanity; accused must be unaware of his or her actions, or that they were wrong. Diminished capacity—Understanding that the person was less than fully rational at the time of the act, accepted as a mitigating factor in some states. The basic ethical question remains: Should an irrational person be punished the same as a rational one? Recently, the Supreme Court ruled that it was unconstitutional to execute the mentally retardrd.

40. Punishing Juveniles Children are not held to the same standards of culpability as adults. A highly publicized rise in violent crimes committed by juveniles has resulted in laws that make juveniles subject to adult penalties. School “zero tolerance” policies have sometimes resulted in absurd outcomes. In 2005, the Supreme Court held that execution for a crime committed before age eighteen was unconstitutional.

41. Punishing White-Collar Criminals It is often more difficult to prosecute powerful people for “white-collar” crimes than it is to prosecute poorer people for “street” crimes. High-level executives may be convicted of theft, grand larceny, insider trading, perjury, and obstruction of justice. However, they may also be acquitted, or the indictments or convictions against them may be withdrawn.

42. Immoral Laws and the Moral Person Some laws might be considered immoral. During World War II, persons of Japanese descent were forcibly interned in prison camps in the U.S. Under most ethical systems (excluding utilitarianism), this qualifies as immoral.

43. Is one obliged to obey laws that he or she deems immoral? Consensus View YES Socrates refused to flee Athens even though he held the moral position. Even if we disagree, we have a duty to obey the law. Conflict / Pluralist View NO Henry David Thoreau and Martin Luther King, Jr., believed civil disobedience could be moral. If a law is essentially immoral, we have a duty to disobey it.

44. Who is the Victim? Originally, all law addressed the relationship between individuals. During the common law period, criminal law was redefined to address acts against society as represented by its rulers. Today, criminal law addresses wrongs against society and civil law addresses wrongs against individuals. One act may be treated as both a violation of criminal law and a cause for civil action.

45. Victimology Minority groups and the poor are much more likely to be victimized than the middle class. The media is often responsible for creating a false perception of crime. There is disproportionate emphasis on violence relative to other types of victimization. Most crime victims suffer relatively small losses, but also receive virtually no help from the system.

46. Victims’ Rights Being present at trial Being notified of any hearing dates and plea-bargain arrangements Submitting a victim-impact statement to be considered during the sentencing decision Being treated courteously and compassionately by all law enforcement and justice system personnel Compensation for financial losses may also be available through some programs

47. Emphasizes compensation over retribution. Returns focus to rights and needs of victim. Requires restoration of victims, offenders, and communities injured by crime. Integrates victims, offenders, and communities more fully into the justice process. Leaves government responsible for order, but makes community responsible for peace. Restorative Justice

48. Involve partnership between community and justice system to control crime. Are informal and invite participation from community members. Aim to repair harm done to a community member by another member and maintain healthy overall relations in community. Derive their authority from customs and traditions accepted by all members. Community Justice Models

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