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Justice: what is the right thing to do? Theories and Questions. PHILOSOPHY OF LAW 2012 - LUMSA. The runaway trolley. Case 1 : the single worker. The runaway trolley – case 1. Case 2: the heavy man. The runaway trolley (#2).

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Justice what is the right thing to do theories and questions

Justice:

what is the right thing to do?

Theories and Questions

PHILOSOPHY OF LAW 2012 - LUMSA


The runaway trolley

The runaway trolley


Case 1 the single worker

Case 1 : the single worker

The runaway trolley – case 1


Case 2 the heavy man

Case 2: the heavy man

The runaway trolley (#2)


The runaway trolley 3

Why does the principle that seem right in the first case (numbers count), seem wrong in the second?

Others reasons:

The fat man didn't choose to be involved, we can't use him against his will.

The railway workers willingly incur a risk

Our intention is different

The runaway trolley (#3)


The emergency room 3

Now you are a doctor…

6 patients come to you. 5 of them are severely injured, but 1 is at risk of his life.

In the time you care about the one, 5 others can die, but in the time you save the 5, the one would die.

The emergency room (#3)


The emergency room 31

Now you are a transplant surgeon. You have 5 patients each in need of an organ transplant in order to survive. You don’t have donors, but…

In the next room there is a healthy guy who came for a check up!

The emergency room (#3)


Conflicting principles

Some moral dilemmas arise from conflicting moral principles. Two kind of moral reasoning:

Consequentialist: locates the morality in the consequences of an act (what is happened, at the end of the day?).

Vs

Categorical: locates morality in certain duties and rights. It is wrong to do something (to kill an innocent person), even for a good reason.

Other moral dilemmas arise because of uncertainty: in real life we confront uncertain choices

Conflicting principles


Two different approaches to justice

Utilitarianism

The morality of an action depends on the consequences it brings about: the right thing to do is whatever produces the best state of affairs, all considered.

Objectivism (philosophy of virtue)

Consequences are not all we should care about: certain duties and rights should command our respect, for reasons independent of the social consequences.

Two different approaches to justice


Utilitarianism

Bentham:

We like pleasure and dislike pain

Maximizing utility is a principle for individuals and legislators

There is no possible ground for rejecting this argument

Utilitarianism


What did bentham mean with utility a balance between

What did Bentham mean with “utility”?

A balance between…

Utilitarianism

Pain

Suffering

Costs

Pleasures

Happiness

Benefits


The mignonette case

The Mignonette case

Utilitarianism


If you were the judges

The three man were picked up on the 24th day, and they returned to England.

Dudley and Stephen went to trial, Brooks turned state's witness.

They confessed, but they claimed to have done so out of necessity.

How would you rule?

(put aside the question of law, and concentrate on the moral dilemma)

If you were the judges...


Arguments and objections

Necessity vs. Calculation (cost – benefits)

But

Benefits really overweight the costs?

We can use a human being in this way?

And

What if Parker would consent to be eaten, in order to save his colleagues? What if they accepted the lottery?

Arguments and objections


Conflicting principles1

Some moral dilemmas arise from conflicting moral principles

We should save as many lives as possible

Vs

It is wrong to kill an innocent person, even for a good reason (categorical objection)

A fair procedure would be better, such as a lottery

(procedural objection)

Only the subjective consent would make the difference

(lack of agreement objection)

But…

Other moral dilemmas arise because of uncertainty: in real life we confront uncertain choices!

Conflicting principles


June 2005

June 2005

The Afghan Goatherds


What to do

The goatherds appeared to be unarmed civilians

but

Letting them go would run the risk that they would inform the Talibans of the presence of the US soldiers

To kill:

US soldiers have a right to do everything they can to save their lives

Not to kill:

It is wrong to execute unarmed man in cold blood.

What to do?


M luttrell s team

M. Luttrell's team

What is happened...


Moral criteria

Killing two Afghans would have saved the lives of 19 US soldiers

(X = trolley case1 or 2?)

It was a bad decision?

And if goatherds would have been tortured by Talibans to reveal US soldiers' location?

Moral criteria


Justice what is the right thing to do theories and questions

Utilitarianism fails to respect individual rights

It can consider it correct to violate fundamental norms of decency and respect.

Objection 1: individual rights


Case 1 throwing christians to lions

Case 1: throwing Christians to lions

Individual liberty vs Utilitarianism: three cases


Case 2 torture is torture consistent with individual rights can we justify torture for its own sake

Case 2: torture

Is torture consistent with individual rights?

Can we justify torture for its own sake?

Individual liberty vs Utilitarianism: three cases (#2)


The ticking bomb scenario

The ticking bomb scenario

Individual liberty vs Utilitarianism: three cases (#2)


Rejecting torture in the name of

Utility:

Information is unreliable

Fear of worse treatment for soldiers made prisoner

Principle:

Doesn't respect human rights

Dignity lies beyond practical results

But... numbers make the difference?

Rejecting torture in the name of...


Numbers make the difference

Would it be morally acceptable (in the name of utility, and of numbers) to torture his innocent daughter, if it was the only way to induce him to talk?

Numbers make the difference?


Are those conditions acceptable

Are those conditions acceptable?

Case 3: the city of happiness


Objection 2 preferences are all equal

U is based on measuring preferences, without judging them. For that reason, U claims to offer a science of morality:

Cost - Benefit analysis

But...

a) Can we translate complex social choices into monetary terms (it is possible to put a price tag on life)?

b) Can we reduce different preferences and pleasures to a single scale (it is possible to measure pleasures)?

Objection 2: Preferences are all equal?


An incredible analysis

An incredible analysis

a) Cigarettes and cancer


What is the real problem the disregard for human value or a bad calculation of costs

What is the real problem?

The disregard for human value...

or a bad calculation of costs?

Cigarettes and cancer


Ford pinto 1970

Ford Pinto (1970)

a) Cars and Explosions


Costs and benefits

Lives saved and injures prevented: 180 deaths and 180 burn injures (if no change)

Life's value = 200.000 $ x 180

+ Injury = 67.000 $ x 180

+ Number and value of burned Ford Pinto

= 49.5 $ million

Production costs

(adding a device to 12.5 million vehicles)

11 $ x 12.5 million

= $ 137.5 million

Costs and Benefits


How to calculate the value of human life

Highway Safety Administration

calculated the cost of traffic fatality, counting:

future productivity (earnings) losses +

medical costs +

funeral costs +

victim's pain and suffering =

$ 200,000 per fatality

Jury contested the price, not the principle. One should include also the loss of future happiness!

How to calculate the value of human life?


A better calculation

Environmental Protection Agency:

Costs-Benefit of pollution standards (how much we can pollute?)

$ 3.7 million per life saved due to a cleaner air, but...

$ 2.5 million for people older than seventy.

Saving an older person produces less utility

(a young person has more happiness to enjoy).

Critics: placing a value on human life is morally obtuse.

Defenders: many social choices are based on such calculation, even if we don't admit it.

A better calculation.


A better calculation speed limits

In Italy, the use of cars causes more than 4,000 deaths and 302,000 injured (2010) per year.

Speed (among other factors) influences this rate.

Should we reduce speed limits?

Cost-benefits of higher limits: T/N=C

Time saved ($20 per hour) if limit is 10 mph higher

Number of additional deaths

Acceptable cost of driving faster per fatality

($ 1.54 million per life)

A better calculation: speed limits


B pleasures

Bentham: pleasure is pleasure, we can't judge them, so we can measure them (if more people want rather watch cockfights than renaissance paintings, the State should subsidize animals arenas rather than museums).

“The quantity of pleasure being equal, pushpin is as good as poetry” (J. Bentham).

b) Pleasures


How compelling are these objections a revision of utilitarianism

J. S. Mill (1806-1873)

He tried to “humanize” Utilitarianism, by demonstrating that:

it respects individual rights;

it is possible to distinguish higher and lower pleasures.

How compelling are these objections? A revision of utilitarianism.


How compelling are these objections a revision of utilitarianism1

In the long run, respecting liberties will promote the welfare of society as a whole;

“Of two pleasures, if there be one to which all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, then that is the more desirable pleasure”.

How compelling are these objections? A revision of utilitarianism.


Mill s thesis on pleasures

Three pleasures:

Soccer, Shakespeare, Isola dei Famosi (Trash-Tv).

Which of those experiences you find more pleasurable?

Which you consider qualitatively higher?

So... higher pleasures are higher because we prefer them, or we prefer them because we recognize they are higher?

Mill's thesis on pleasures.


A stronger defense of rights libertarianism

Minimal State

1 - no paternalism. Laws can't protect individual from themselves

2 - no moral legislation. Laws can't promote a particular notion of virtue

3 - no redistribution of wealth

A stronger defense of rights:Libertarianism


Minimal state questions

Minimal State: questions…


Libertarianism wealth and taxes

Libertarianism: wealth and taxes


Libertarianism wealth and taxes1

Shall we redistribute wealth?

YES: if we take 1 million to Bill Gates, and distribute it to hundred needy recipient overall happiness would increase.

NO - 1: high tax rates (on richest people) reduce the incentives to work hard and produce, leading a decline in economy. The overall level of utility will go down.

NO - 2: taxing is unjust. Taking money from Bill Gates, even for a good reason, violates his fundamental rights to do with his money what he prefers.

Libertarianism: wealth and taxes


Free market philosophy

Free Market Philosophy

Libertarian principles are a challenge to our ideas of distributive justice and self ownership.

Minimal State - Distributive justice depends on two requirements:

  • Justice in initial holdings (resources you used to make money were legitimately yours)

  • Justice in transfers (free exchanges or voluntary gifts)

    Only demonstrating that present situation is due to past injustices, it is possible to remedy through taxes, reparations, affirmative actions, etc…


Samuel eto o

Samuel Eto’o

Eto’o's earnings in 2011: 20 millions USD. Is it just?

It is the consequence of a free market: people prefer see Eto’o playing than others.

Can we impose Eto’o – by taxing him – to support disadvantaged people? Doesn’t it violate his liberty, forcing to make a charitable contribution against his will?

Taxes are is on a par with forced labor?


Taxes and forced labor

Taxes and forced labor

Libertarians: if the State has the right to claim some portion of my earnings, it also has the right to claim some portion of my time.

TaxesForced labor Slavery

Do I own myself? Do I own my time? Do I own my earnings?


Five objections to redistribution

Five objections to redistribution

  • Taxation is not as bad as forced labor

  • The poor need the money more

  • Eto’o doesn’t play alone, so he owes a debt to those who contributed to his success

  • He consented, as a citizen of a democracy

  • He is lucky


Do we own ourselves

Do we own ourselves?

  • J. Locke: Freedom, equality, property rights (a), and government by consent (b) — each of these ideas figures prominently in contemporary political thought. And each idea was central to the political thought of John Locke


A unalienable rights

a) Unalienable rights

  • According to Locke, our natural rights are governed by the law of nature, known by reason, which says that we can neither give them up nor take them away from anyone else, because:

  • God is the real owner of any man and any thing;

  • The reason teaches all mankind that being all equal and independent, no one ought to harm another in his life, liberty or possession.

    • Certain rights are so essentially mine, that I can’t give them up, I can’t sell them, I can’t renounce to them.

    • Really to be free, means to recognize that there some rights that are unalienable.


But what about private property

But, what about private property?

  • Private property can arise even before there is any government, even in the state of nature.

  • “Every man has a property in his own person. This nobody has rights to but himself. The labor of his body, and the work of his hand, are properly his”.

  • “For this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others”


Locke and our problems

Locke and our problems…


B consensus and rights

b) Consensus and rights

  • If we all have unalienable rights to life, liberty, and property, how can a government enforce tax laws passed by the representatives of a mere majority?

  • Doesn’t that mean to take some people’s property without their consent?

  • Locke’s response is that we give our “tacit consent” to obey the tax laws passed by a majority when we choose to live in a society.

  • But… to what extent?


B consensus and rights1

b) Consensus and rights

  • Property is natural (in the sense we have some unalienable rights, and that the institution of property exists and shall be respected),

  • but

  • Property is also conventional (what counts as property, what is defined, that’s up to the government).


B consensus and rights2

b) Consensus and rights

  • Since people decided to leave the state of nature, in order to make their condition better, they agree to a limited government that protects their natural rights to life, liberty, and property.

  • People are free by nature, but “liberty” is not “license.” Rights to life, liberty, and property are unalienable; they cannot be given away.

  • A democratic government has the right to tax people, but it has to be with consent (not of each individual, of course, because they consented to government’s decisions when they decided to live in a community).


Consensus and rights

Consensus and rights

  • The consent is about to join government, and to be bound by the majority.

  • Government is limited (limited by the fact that we have some inalienable rights), but it does mean that it has to govern by generally applicable laws, and it can’t be arbitrary.

  • But, why is consent such a powerful instrument?


Fighting wars

Fighting wars

We need to find a way of recruiting soldiers:

Conscription: based on age, or on a lottery

Market: to increase pay and benefits

Outsourcing: to hire mercenaries

Hybrid system (Civil War System): Market + Conscription


First objection

First objection

Free market is not truly free for those without alternatives

We should know more about the background conditions: is there a reasonable degree of equality and opportunities?

If someone has no other good option, or it is the only way to get a college education, those who choose to enlist may be conscripted by economic necessity.

N.B.: this is not an objection to the vol. army as such, but only to this system when it operates in a society with considerable inequalities


Second objection

Second objection

The civic virtue: military service is not just another job

All citizens should serve their country (but one has also other possibilities: Caritas, MSF, Fire Dept.). It is a civic duty, so it can not be sold on the market.

An analogy: jury service (yes, no one dies, but it can be onerous if it conflicts with a good job or other commitments). Can we create a professional jury system?

Perhaps we think that the quality (if the jurors would come from disadvantaged backgrounds) would suffer...


Second objection 2

Second objection (#2)

Jurors don't simply vote: they deliberate with one another about the law. It is a form of civic education, an expression of democratic citizenship and societal belonging.

In the same way, turning military service into a commodity corrupts the civic ideals that should govern it.

We pay someone to fight and to die for us. Does it increase liberty, or undermines it?


Market and morals

Market and Morals

Our arguments and debates involve the role of markets: is it fair? Are there some goods that money can't buy?

Liberals: letting people engage in volountary exchanges respects their freedom (laws shall respect individual liberty)

Utilitarians: free market promotes the general welfare: if two people make a free deal, both gain. In general, a free market increases overall utility.


Market and morals1

Market and Morals

  • Contact InformationContact MichelleLocation: Sydney, NSW, Australia

  • More InformationMy partner and I have been together for 3 years. We found each other unexpectantly and fell in love. We are best friends and soul mates and would love nothing more than to have a child – a family – together.We have been trying to conceive for the last 2 years, but due to my age (I am 44 and my partner is 31), our chances of conceiving are not good. This is devastating for us.We have done the necessary tests and doctors have confirmed an egg donor is the only option.We are looking for your help. Please help us make our dreams come true. Thank you for considering our story, Michelle & Adam


Pregnancy for pay

Pregnancy for pay

The case of Baby M.

Focus on the moral aspects: should we morally enforce such a contract?

YES: a deal is a deal (parents get a genetically related child, the mother get up to 20.000 $).

Trial Court: She was fully informed, and they didn't pay for a baby: they had paid for the service of carrying out their child to term, not for a product.


The supreme court s argument

The Supreme Court's argument

1. “(A mother) can not take a totally voluntary and informed decision... Any decision prior to the baby's birth is, in the most important sense, uninformed”.

2. “Putting aside the issue of how compelling her need for money may have been, and how significant her understanding of the consequences, we suggest that her consent is irrelevant. There are, in a civilized society, some things that money can not buy”.


Moral arguments

Moral arguments

Vs 1. When is a supposedly voluntary agreement really voluntary? We are always compelled! Libertarians: justice requires respect for whatever people choose, provided these choices don't harm other people.

Vs 2. Does commercial surrogacy degrade women? We have to suppose that goods differ in kind, thus it is a mistake to value all goods in same way (money). But: how can we value these supreme goods? And why are they so supreme?


New perspectives on parenthood

New perspectives on parenthood

New horizon: IVF (in vitro fertilization)

Cost of a surrogacy in USA: $ 20,000 (surrogate mother) and 50,000 other costs.

Cost of surrogacy in India (from 2002 it is legal): in Anand, $ 25,000 (this cost includes surrogacy, medical costs, round-trip airfare, hotel). Clinics for surrogates provide housing with maids, doctors, and cooks.

Does the creation of a paid pregnancy industry on global scale degrades women by intrumentalizing their bodies and reproductive capacities?


Selling kidneys

Selling kidneys

I can donate one of my kidneys, but I can’t sell it on the open market. Why?

If I own my body, I should be free to sell its parts as I please. The moral value of my body, or its safety, doesn’t matter.


Euthanasia

Euthanasia

Should the law ban/allow euthanasia?

Suffering is intolerable, so patients should be able to demand their death, if they want it.

But why only for terminally ill patients?

My body belongs to me as my entire life does, and if I enter into a voluntary agreement with someone to help me to die, the law can’t interfere.


A step forward

A step forward

  • According to utilitarians, the right thing to do is always to maximize happiness.

  • Libertarians think that the right thing to do is most often to let people do whatever they want.

  • John Locke’s theory says that there are unalienable rights, afforded to every human being by the “law of nature.”


A step forward kant

A step forward: Kant

  • The philosopher Immanuel Kant thought that each of these views was mistaken.

  • Against the utilitarians, Kant held that freedom—and not happiness—is the goal of morality.

  • Against the libertarians, Kant denied that freedom is doing whatever one wants.

  • Against Locke, he held that morality, duty, and rights have their basis in human reason, not in a law of nature.


Kant s principle of morality

Kant’s principle of morality

  • Kant thinks that morality is a kind of law; everyone has to obey it. Therefore, he thinks it must be the case that everyone could obey it. This is his test for morality.

  • According to Kant, your action is moral only if it’s done from a motive that everyone else could act on at the same time as you’re acting on it.


Kant s morality principle do you agree

Kant’s morality principle: do you agree?

  • Kant imagines a shopkeeper who does not overcharge his customers only because he fears that word of his dishonesty will spread and he’ll lose money.

  • Kant thinks there’s nothing morally worthy about his action; his honesty is mere prudence, mere selfishness.


Kant and children

Kant and children

  • Kant also thinks the naturally kind person is not really moral because she acts out of habit.

  • According to Kant, habits can be useful, but not moral. Is that right? Is your childhood education really just a kind of conditioning and not really moral? What is moral character, anyway? Is it what you tend to do, or is it your attitude?


Problems and dilemmas

Problems and dilemmas.

  • Kant thinks that every rational human being has dignity, and that everyone’s worth is infinite. Is that true? Do murderers have dignity?

  • If all people have dignity and infinite worth, then how do we make choices about life and death? Suppose we have to choose between repairing a road in Boston and vaccinating children in Toledo. If we repair the road, ten fewer children will die in car accidents in Boston. If we vaccinate, twenty children will be saved in Toledo. If everyone has infinite worth, how do we choose?


Problems and dilemmas the duty

Problems and dilemmas: the duty.

  • Kant says that morality is doing the right thing for the right reason. But what is the right thing? What is our duty?

  • Kant’s claim is that our duty is given by the idea of a law—something that tells us what we must do, no matter what. Your action is moral only if it’s done from a motive that everyone else could act on at the same time as you’re acting on it.

  • Example: telling the truth.


Problems and dilemmas the humanily

Problems and dilemmas: the humanily.

  • Kant’s idea of humanity, or human reason says that you should never treat rational human beings merely as means to your end.

  • Whenever you use someone’s skills or services to your own end, you should always also treat that person as an end in him- or herself.

  • Since you’re a rational human being, this includes you! Therefore, you must never commit suicide, he thinks.


Problems and dilemmas freedom

Problems and dilemmas: freedom.

Freedom is not just doing whatever you want. Kant has a more demanding idea of freedom as self-determination.

If someone brainwashes you into doing something, you are not free. Likewise, if you buy expensive shoes only because you’ve had the desire implanted in you through advertising, then you are also not free.

Are smokers fully free?

Do you have impulses, cravings, or desires that you find it hard to control? Would you consider liberating to be able to control them to a greater extent?


Three questions to kant telling the truth

Three questions to Kant: telling the truth

Suppose you receive that tie, as a gift.

What can you say, without lying to the donor?

A misleading truth: I’ve never seen a tie like that before!

A white lie: Wow, it’s beautiful!

An omission: smile, and thank!


Three questions to kant telling the truth1

Three questions to Kant: telling the truth

Suppose you meet a friend in a mall, and he tells you he’s tried by a murder, and he asks you to save him.

You bring him home, and you hide him in the closet. Then, the murder comes.

“Tell me where your friend his, or I’ll kill you”.

What do you do?


Three questions to kant telling the truth2

Three questions to Kant: telling the truth

President Bill Clinton:

“I had no sexual relationships with Ms Monica Lewinsky”.

During the impeachment procedure the question was: did he lie?

There is a morally relevant difference between a lie and a misleading truth?

The intention;

The homage to the duty of telling the truth (the argument does not coerce or manipulate the listener).


Three questions to kant casual sex

Three questions to Kant: casual sex

Suppose you meet someone, and he/she agrees to have sex with you, only for one night.

It would be morally right to do it?

“The desire which a man has for a woman is not directed toward her because she is a human being, but because she is a woman… only her sex is the object of his desires”.

Under what conditions sex is morally right?

Same arguments for selling organs, for prostitution…


The moral force of a contract

The moral force of a contract

John Rawls, A theory of Justice.

A hypotethical agreement is the basis of justice. According to Rawls, principles of justice are those that we would all agree to if we were choosing rules for our society and no one had any unfair bargaining power.

Kant = Rawls:

each person possesses inviolable rights.

Principles of justice can be derived from a hypotethical contract, not from an actual one.


The moral force of an actual contract

The moral force of an actual contract

  • How do they bind obligate me?

    • Consent-based: Authonomy

    • Benefit-based: Reciprocity

    • Can consent create an obligation on its own, or is some element of benefit also required?

  • How do they justify the terms they produce? Are they fair?


  • A fair contract consent

    A fair contract: consent?

    According to Rawls, an agreement is not necessarily fair even if it is voluntary.

    It is unfair if one of the contracting parties is able to take advantage of the other party because he is stronger, richer, better informed or simply more powerful.


    A fair contract reciprocity

    A fair contract: reciprocity?

    After ten years of faithfulness on my part, I discover that my wife has been with other man. What can I say?

    I’m outraged, we did an agreement! You made a promise, you broke your vow! (Consent).

    But also…

    I’m outraged, I’ve been so faithful for my part… I don’t deserve this! This is no way to repay my loyalty! (Reciprocity).


    A perfect contract

    A perfect contract.

    Contracts derive their moral force from consent and reciprocity, but most actual fail to realize both.

    In real life, persons are situated differently, and thus the fact of an agreement does not in itself guarantee the fairness of the deal.

    But can we imagine a contract among parties who are equal in power and knowledge? And can be such a contract the way to assign duties and rights, and to determine principles of government?


    A perfect contract1

    A perfect contract.

    Rawls’s answer is that we have to limit our knowledge. Behind this veil, you do not know anything about yourself.

    You do not know your sex, your race, or the social class you belong to. You do not know how strong or weak you are, how stupid or intelligent, or whether you are disabled. You do not even know what your goals in life are, or whether you practice a religion.

    In this situation of ignorance, it’s not possible for anyone to propose social rules designed to benefit himself or herself over other people.


    A perfect contract2

    A perfect contract.

    What principles would emerge, in that situation?

    We wouldn’t choose utilitarianism: in case we turn out to be a member of a religious or ethnic minority, we don’t want to be oppressed, even for the best interest of the greatest number.

    We would agree to a principle of equal basic liberties for all citizens, and we would not accept to sacrifice our rights for social or economic benefits.


    A perfect contract3

    A perfect contract.

    But what can we do to guard against the risk of finding themselves in poverty?

    Suppose that by permitting certain inequalities (higher pay for doctors than for taxi drivers) we could improve the situation of the least advantaged: we would accept that?

    We would agree to a principle of difference, according to which social and economic inequalities are permitted only if they work to the benefit of the least advantaged members of society.


    Taxes and incomes

    Taxes and incomes

    • Could these inequalities be consistent with the two principles? For Rawls the question is whether Fazio’s whealth arose from a system that is just, as a whole. If Fazio is subject to a progressive tax system that taxes the rich to provide for the health, education and welfare of the poor, the system is fair.

    24.800 Euro

    5.4 Mln Euro


    Against moral arbitrariness

    Against moral arbitrariness

    These (other) systems are unfair?

    Aristocracy and caste system.

    Free market society, formal equality (libertarian system).

    Meritocracy, and natural lottery of talents.

    The accident of birth, different family’s opportunities, and even natural talents are arbitrary from a moral point of view. Thus, these factors can’t be the basis for a fair and egalitarian distribution of incomes, rights, duties. We should abstract from these contingencies, in order to find justice.


    Objections

    Objections

    Incentives: what if talented people decide to work less, or not to develop their skills? They could benefit from their talents only on terms that help the least well off?

    Rawls: if incentives (and higher incomes) generate economic growth or services that make least advantaged better off than they would be without it, incentives are permitted.

    Effort: Why people that worked hard don’t deserve to be rewarded, notwithstanding their talents and gifts?

    Rawls: like other factors in our success, effort too is influenced by contingencies (supportive families, social circumstances) for which we can claim no credit and no desert.


    Success and moral desert

    Success and moral desert

    Example: a brilliant young law graduate, with honors. It will be appreciated more in a

    1. Democratic society, complex, with an high level of conflict

    2. Warrior society

    3. Agricultural society

    4. Theocratic society

    He does fully deserve his success, and his incomes? What other factors influence his success?


    Justice and moral desert

    Justice and moral desert

    • “There is a tendency to suppose that (distribution) should be settled according moral desert. Justice is happiness according to virtue… Now justice as fairness rejects this conception”.

    • Does it mean that people who work hard and who have cultivated their talents don’t deserve a reward for their effort?

    • BUT: Rawls makes a subtle and pivotal distinction between moral desert and entitlements to legitimate expectations


    Justice and moral desert rawls distinction

    Justice and moral desert: Rawls’ distinction

    • Distributive justice is not about rewarding virtue, but about meeting the legitimate expectations that arise once the rules of the game are in place.

    Entitlement to legitimate expextations

    Moral desert


    Distributive justice and entitlements

    Distributive Justice and entitlements

    • Oncethe principles of justice set the terms of social interaction, people are entitled to the benefits they earn under the rules.

    • “A just scheme answer to what men are entitled to; it satisfies their legitimate expectations as founded upon social institutions. But what they are entitled to is not proportional to nor dependent upon their intrinsic worth”. Why?

    • My having the talents that enable me to compete more successfully than others is not entirely my own doing.

    • The qualities that a society happens to value at any given time are also morally arbitrary.


    Life is unjust

    Life is unjust?

    • “We should reject the contention (M. Friedman) that the ordering of institution is always defective because the distribution of natural talents and social circumstances are unjust, and this injustice must inevitably carry over human arrangements. Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on a par with being unable to accept death.

    • The natural distribution is neither just or unjust; nor is unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts”


    Turning to aristotle s perspective

    Turning to Aristotle's perspective

    We focus on two ideas:

    1. Justice is teleological – Defining rights requires us to think about the telos.

    2. Justice is honorific – To think about the telos implies arguing what virtue it should honor and reward.


    Aristotle and the cheerleader

    Aristotle and the Cheerleader

    Callie Smartt

    Should she be required to do exactly the same gymnastic routine, or is it unfair, given her disability?

    What does it mean not to discriminate?

    What does it mean to perform well in the role of cheerleader? What is essential to cheerleading?


    Aristotle and the cheerleader 2

    Aristotle and the Cheerleader #2

    Callie should be a cheerleader because she displays the virtues appropriate to the role... but: what she properly deserves?

    a) in order to determine a fair way to allocate positions and goods, we need to determine the nature and purpose of practices (cheerleading): what qualities are essential to it?

    b) determining the essential of a practice can be controversial, because we have to discuss what qualities are, case by case, worthy of honor.


    Justice and virtue

    Justice and virtue

    1. Justice involves equality, in a commutative or distributive sense.

    2. To determine the just distribution, we have to inquire into the telos, the intrinsic purpose of a practice or a good being distributed.

    3. Justice can not be neutral: it means to give people what they deserve, to give his or her due. But to know this, we have to discuss about virtue, honor, good life, ...


    Second example golf and golf carts

    Second example: golf and golf-carts.

    Can Casey Martin use a golf cart during tournaments?

    According to the American with Disabilities Act, reasonable accomodations are required, provided they don't “fundamentally alter the nature” of the activity (the télos).

    Is walking an essential aspect of that sport?


    Scalia s dissenting opinion

    Scalia's dissenting opinion

    To say that something is “essential” is ordinarily to say that it is neccesary for the achievement of a certain object. But since it is the very nature of a game to have no object except amusement... it is quite impossible to say that any of a game's arbitrary rules is essential.


    Sports and rules

    Sports and rules

    Are sport rules entirely arbitrary? Or, are they designated to call forth and celebrate certain skills and talents?

    Is it possible to argue the meaning of different rules? Consider the debates about soccer, and about its rules. Some of these rules have been changed (eg: goal kick rule).

    What exactly was the Casey Martin case about? Was it about fairness, or about the desire of golf players to be recognized as athletes?


    Moral individualism and shared duties

    Moral individualism and shared duties

    Are we responsible only for what we ourselves do?

    Are we responsible for the sins of our parents, or of our compatriots?

    Moral Individualism: to be free is to be subject only to obligations I voluntarily incur. I owe something to others only by virtue of some sort of consent, be it tacit or explicit.

    Collective responsibility is unconceivable.

    But...


    Collective apologizes

    Collective apologizes

    Germany: it has paid billions of dollars in reparations for the Holocaust (to survivors and families); political leaders have offered statements of apology, accepting responsibility for the Nazis' crimes.

    Australia: political debates about national apology to the aboriginal people, and measures to overcome social disadvantages (aboriginal children of mixed race were forcibly separated from mothers and placed in settlement camps: in 1997 a HR commission documented the cruelties inflicted on the “stolen generation”).


    Collective apologizes 2

    Collective apologizes (# 2)

    USA: political debate about reparations for African Americans, or for Natives (the Civil War promise of “forty acres and a mule” for freed slaves never came to be). In 2008 the House of Representatives passed a resolution apologizing for slavery and for racial segregation.

    Catholic Church: In 2000, Pope John Paul II issued a formal apology for all the mistakes committed by some Catholics in the last 2,000 years of the Catholic Church's history, including the trial of Galileo among others.


    Foundations of m i

    Foundations of M.I.

    Locke: we are all free, equal and independent beings, and no one can be put out of this estate, and subjected to the power of another, without his own consent.

    Kant: to be free is to be autonomous, and that is to be governed by a law I give myself. I follow my will not simply if I choose according to my desires, but when it participates in pure practical reason.

    Rawls: we are really free to think about justice if we set aside our particular interests, choosing behind a veil of ignorance.


    Consequences

    Consequences

    The moral agent is independent of his or her particular aims and attachments Justice and moral law are without reference to the roles and identities that situate us in the world, and make us who we are.

    Thus, once I set aside my identity (as a German, an American, an Australian, a roman Catholic...) there is no basis for saying I have an obligation to remedy past injustices of my country.


    Consequences the neutral state

    Consequences: the neutral state

    Theories of justice that rest on a certain conception of the good life (whether religious or secular) are at odds with freedom. These theories fail to respect persons as free and independent selves.

    The freely choosing and the neutral state go together. Everyone has the right to pursue his ends in a way that respects other people's rights.

    Right is prior to the good.

    Thus, we can not reason about the télos, or about the good.


    Rights duties and belonging

    Rights, duties and belonging.

    Can we really understand ourselves as free and independent beings, unbound by moral ties we haven't chosen?

    How can we justify moral and political obligations that we commonly recognize and prize, and that arise from the community and traditions?

    A possible answer: we ARE that tradition, and that community. Our identity depend on these factors.

    Aristotle: human beings are zoon politikon.

    MacIntyre: human beings are narrative beings.


    Justice and telos

    Justice and telos

    Stradivarius' violins are unfortunately very few. But a Stradivarius is now for sale.

    A russian wealthy collector wants to display the violin in his living room, and he outbids Anne-Sophie Mutter for it.

    Is it a just distribution?


    Same sex marriage

    Same-sex marriage

    Should we recognize same-sex marriages?

    We could:

    1. recognize only marriages between a man and a woman.

    2. Recognize any kind of marriages.

    3. Don't recognize marriages of any kind.


    Questions

    Questions

    1. Is marriage a public affair, or a private one?

    2. What is the real issue in the debate, individual's freedom of choice or whether same-sex unions are worthy of honor?

    3. Is there a télos in marriage? Two options: a) procreation; b) exclusive and permanent commitment.

    4. Do they fulfill both these purpose of that social institution?

    We cannot remain neutral: we always face competing conceptions of the good life.


    Conclusion

    Conclusion

    Three approaches to justice:

    1. Utilitarianism

    2. Liberalism / Libertarianism

    3. Objectivism (theory of virtue)

    But... can we consider only individuals, or should we think about a just society?

    R.F. Kennedy “Even if we act to erase material poverty, ... we have to confront the poverty of satisfaction, ... the mere accumulation of things”.


    Conclusion1

    Conclusion

    We need to talk about values, and about the community we wish to live in.

    Thus, we need to discuss about community and common good. We have to find a way to cultivate in citizens a concern for the whole, a dedication for it.


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