Justice, Law, and Punishment. Ethical theory and practice. What is justice?. Our word ‘justice’ is derived from the Latin iustitia – fairness, equity. This is a much disputed concept in modern ethical debate, allowing for a number of possible interpretations. Social justice.
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Justice, Law, and Punishment
Ethical theory and practice
Legal / constitutional justice
“There can be no end to the troubles of the state, or of humanity itself, until philosophers become kings in this world.”
Perhaps the most famous ethical objectivist is Immanuel Kant, with his deontological theory of the moral law. Kant thought that true maxims could be discerned through the application of the Categorical Imperative; if a principle could be universalised (applied to everyone), then it would pass the rational test. From the standpoint of justice, equity and fairness could be demanded as a part of the moral law. Moreover, societies should be organised around the idea of equal and inalienable rights; the moral law demands that these are bequeathed to everyone, since they are universally desirable.
“Justice denies that the loss of freedom for some is made right by a greater good shared by others.”
“No one knows his place in society … nor does anyone know his fortune in the distribution of natural assets.”
Although a strong ‘realist’ or ‘objective’ concept of justice has its obvious appeal, there are a number of problems which such an approach raises.
Firstly, it might be claimed that the ideal of true justice is too metaphysical. It is a nice abstract notion, beyond our normal experiences, but there are not any compelling grounds to suppose that justice is ‘real’. We could appeal to Nietzsche, who argued that Plato’s objectivist ethics are just a cynical ploy to restrict people’s freedom.
Secondly, objective justice might be dangerous; by giving absolute value to a certain order of society, it might encourage totalitarianism. Plato opposed democracy, because he favoured the rule of philosophical dictators. Kant’s objectivity could lead to a severe police state; as Peter Singer argues, Kant really encourages moral fanaticism.
“THE final cause, end, or design of men (who naturally love liberty, and dominion over others) in the introduction of that restraint upon themselves, in which we see them live in Commonwealths, is the foresight of their own preservation, and of a more contented life thereby.”
Again, imagine that you are on the island without any resources, status, or special protections. You and a group of strangers are trying to survive and create some sort of order in your lives.
One of the group members (Tom) seems to be a bit pessimistic about the chances of things going smoothly. It is only a matter of time, he argues, until people start fighting over food, and someone might even end up dead.
Tom’s friend (Charlie) is tall, strong, and well educated. He also has the only gun on the island. Tom tells us that we should be governed by an island council, and Charlie will be the chairman. That’s our only chance to survive, he says. So, it’s decision time, but what are you and the others to think? …
Weaknesses of relativist justice
Although Nozick’s resistance to an ideological and rigidly structured society may seem like a sensible precaution, it is questionable whether such liberalism is of practical benefit. Many societies which re-distribute wealth perform well in measures of quality of life and satisfaction. Also, Nozick has not really dealt with Rawls’ point that we are all the potential victims of misfortune; we should treat the protection of the poor as an objective good, because it could potentially benefit everyone.
Plato had already anticipated the arguments of figures like Hobbes, who claimed that justice lay in the hands of those wielding power. This ignores the real goods which Plato regarded as universal, ideas which were again emphasised by modern Platonists like Iris Murdoch. Surely there are some qualities which are favourable for all just individuals and societies: promoting knowledge and truth, beauty and art, and seeking the guidance of wisdom, rather than raw power.
Restoration / compensation
The philosopher Jeremy Bentham developed the slightly creepy idea of the ‘Panopticon’ – a perfect prison in which it was possible to spy on all the prisoners whenever desired. The invisible guards could never be detected and so the prisoners would assume that their actions were being observed. Although they would have no liberty, the possibility of persistent spying would prevent the prisoners from engaging in further unruly or criminal behaviour.
Retribution theory may be supported on objectivist grounds, since ‘real’ or universal standards of behaviour might need to be enforced with absolute consistency. This approach is found in C.S. Lewis’ natural law argument in favour of retribution.
However, retribution may also be supported on subjectivist grounds: the view that our personal feelings and perceptions are the basis of our values. James Rachels supports retribution in terms of subjectivity: we live in a society based upon personal and emotional reciprocity. Retribution also “fits naturally with many people’s feelings.”
Foucault explains punishment
In England, the Quakers have been key advocates of rehabilitation and restoration in punishment, on theological and objectivist grounds. Quakers argue for the equal, absolute, and God-given worth of each human individual. A famous supporter of prison reform within the Quaker movement was Elizabeth Fry. She claimed that it was important to approach prisoners with mercy rather than condemnation. Fry based her support for rehabilitation upon the theological principle that there is hope for everyone.
How do we implement theories of justice through the law?
The power of the state in Hobbes’ Leviathan
The authority of philosophers in Plato’s Republic
Law as counter-acting inequality (Rawls)
Law as protection
The authority of the Bible in its teaching on justice.
Devised by philosopher kings (Plato)
Law as protecting property rights (Nozick)
The authority of the state in administering punishment
What else might the examiner ask about?
As a deterrent
Be aware that the examiner could throw in some slightly tricky questions in terms of the following topics. You have plenty of information, but need to think carefully about how to apply it.
The state as having absolute power over human life (Hobbes)
Considered in light of biblical teaching
Critique from rehabilitation theory