- Plato- an ideal between justice as an individual moral virtue and as a political virtue
- Thucydides- only existing between equals
- Hobbes- only a political virtue of non-ideal societies
- Locke- arising from and responding to natural moral rights via consent
Rights
- How to justify, what is the role of state in relation to rights
Rawls
- Fundamental idea in concept of justice is fairness
- Design of institutions
- 2 principles
- Inequalities work for everyone's advantage (difference principle)
- All institutions must be open to all (liberty principle)
- Justice: liberty, equality, rewards for services contributing to public good
Equilibrium and "Original Position"
- Recognition of equal standing, impartiality, fair procedure for attaining equilibrium
- Build society from scratch
Slavery
- Utilitarian- just if promotes general happiness
- Rawls attacks this
- Slavery is always unjust, slave-holder's happiness does not need to be taken into account
- Slavery violates difference and liberty principles
Criticisms of Rawls
- Simmons- principles don't follow, deliberators would seek social minimum
Nozick
- Accepting right to profit from talents undercuts difference principle
- 3 sense of justice: acquisition, transfer, rectification
- Historical justice: was it just? / end-state justice: justice as an ideal end
What Does It Show?
- Wilt Chamberlin- if each fan drops money into box and money goes to Chamberlin
- Should he profit?
- Nozick- right to profit
- Simmons criticizes
- Ok if Chamberlin paid taxes
Rousseau's 2nd Discourse
- What is the basis for the inequality we find among men?
Dedication
- To idealized Geneva
- Idealized republic- unified, law-abiding, simple and free, small city-state capable of governing itself without corruption and with full citizen participation
Preface- Basic Questions
- More we know, more we are removed from society
- All right from
- Amour propre (self-love)- desire to further our own interests / ends
- Pity- feel in relation to suffering of others
- Original man just ruled by passions
Human Nature
- Physically much like us
- Driven by passions
- Pre-linguistic
- Have will and perfectibility
- Natural state- equal state with little change b/c needs were satisfied
How did we end up where we are now?
- 1st man to enclose ground- civil society
- Property and tricking / deceiving each other = inequality of civil society
- Vs. Hobbes and Locke- civil society protects property
- Hobbes- need progress to have stable lives
- Locke- right to property is basis of all civil society
- Justice is about securing property
- Rousseau- injustice begins with property- fall of humankind
- Nothing natural about property- it is an attempt to deceive
The Initial Fall
- Natural population pressures
- Adaptation
- Drive men to pride, distinctions, jealousy
- Create distinctions that are unnatural
- Language allows people to lie
- Farming society may be best kind of human society
Society
- Humans lie and deceive = wars begin
- Weak banded together to protect from oppression and submitted to gain freedom from societies
- Part of our enslavement because of our dependence on them
- Dependences leads to inherent disequality
End Game
- Wholly dependent on society and laws = worst kind of tyranny
- Subordinating power to common good- Rousseau thinks this is bad
- Destroys natural pity we ought to feel
Legitimacy
- Criticizes predecessors
- How can you transfer liberty?
3 Stages of Inequality
- Law and Right of Property
- Institution of Magistracy
- Master and Slave- everyone alienated from their own liberty
Justifying Democracy
- Justified by showing it is optimal / even obligatory
Instrumental Justification
- Leads to greatest happiness
- Best expresses individual preferences, best tracks general will
Harm Principle
- 1st concern- liberty of action
- Only in cases of self-protection is it ok to interfere with liberty of action
- Can't make people do things for their own good
- "Over himself, over his own body and mind, the individual is sovereign"
Problem Cases
- Children, mentally ill- not capable of being sovereign over themselves = paternalism ok
- Problem: slippery slope
- Difference between making a statement and making a statement that would cause people to act
- Can't use other things as an excuse for your behavior
Speech and Truth
- Thought and discussion allowed b/c strongly connected to truth
- Isn't at all evident that we know the truth- horribly unpopular
- Knowing a truth means actively challenging orthodoxy and really understand why you accept a belief
Individuality, Eccentricity, Variety
- Continuously engaged with experiments of living
- Should cherish eccentricity
- Social laws force people to conform
- Character and life isn't one size fits all
Rights
- Should be hands off unless harm is manifest
Objections
- Don't we punish people all the time for moral indiscretion?
- When society interferes it does so in the wrong place and in the wrong way
- Govt. won't stop once they start
- Hart- allows judges to decide what is immoral
- Mill- need strict boundaries (harm principle)
Stephen
- What are the conditions under which and limitations within which law can be applied with success to the object of making men better
- Law is about making you moral and punishing things that are immoral
The Moral Role of Law
- Criminal law applied to suppression of vice
- Law is about also hurting people who hurt others because we are resentful and want revenge
The Law is about Morality
- Limits
- Law can't be meddlesome and strict rule of evidence
- Privacy- can't regulate with family- inefficiency of law in punishing in this way
- Law codes change as morality changes- reflect a moral majority
Hart
- Legal positivism- law code is arbitrary in that they don't need to deal with morality
Questions about Relation between Law and Morality
- Does the development of law been influenced by morals?- yes
- Must some reference to morality enter into an adequate definition of the law or legal system?- legal positivism, yes
- Is law open to moral criticism
- Is the fact that certain conduct is by common standard immoral sufficient to justify making that conduct punishable by law
Shaw v. Direct or Public Prosecutions
- Found guilty of conspiring to corrupt public morals
- Injects arbitrariness into law, advocates strong connection between law and morals
- Allows judge too much power
- Only based on morals
- Result: any cooperative conduct is criminal if jury considered it ex post facto to have been immoral
Is the enforcement of morality morally justified?
- Positive morality- moral system we have
- Critical morality- morality we should / ought to have
- Issues involves this
Paternalism and Punishment
- Devlin- consent not a valid defense, law is there to enforce moral principle and nothing else
- Paternalism- because it will be better for him / enforcement of morality- because in the opinion of others it would be right
- Stephen- grading punishments in relation to crimes shows that the law concerns persecuting the grosser forms of vice
- Doesn't show it- we grade punishments in proportion to our moral conventions
- Difference between justifying punishment as such and justifying the amount of punishment
- Morality can be part of law, but law cannot be based on punishing morality
Bigamy
- Seems to support Stephen / Devlin
- But law only concerns formal marriage, not cohabitation
- If done in private, it is not an offense to others
- Distinction between immorality and indecency
Extreme and Moderate Legal Moralism
- Moderate Legal Moralism- Devlin
- Shared morality is the cement of society
- Breach against moral principle is an offense against society
- Society can use law to preserve its morality as it uses it to safeguard anything else essential to its existence
- Extreme Legal Moralism- Stephen
- The enforcement of morality is regarded as a thing of value: even if immoral acts harm no one directly, or indirectly
- People have done immoral things and must be punished
Enforcement
- Enforcing sexual morality- coercion (fear of law), punishment
- What good can come from coercion if the act is consensual
Punishment
- What is retribution for sexual means?
- Denounce crime?
Positive Conservatism
- Social morality worth preserving
- Advocate holding onto any moral principle we happen to have and backing it by punishment
- Stephen and Devlin- this is the moral code we have therefore it needs to be preserved
Realism and Moral Reality of War
- Realism- Thucydides and Hobbes
- Reveal true human nature
- Just and unjust really means strong and weak
- Ex: Melian Dialogue and Hobbes' state of nature
Agincourt and POWs
- Henry V commanded that the prisoners be killed, then relented
- Walzer- shows how even in war we want to be moral
- Garrett- doesn't show this
The Crime of War
- Justice of war / justice in war
- Clausewitz- deny that there's any distinction- war naturally escalates beyond any boundary we set for it
"War is Hell"
- Saw war in moral terms
The Rules of War
- Degrees of coercion matter
- Wrong to kill wounded or surrendering
The War Convention
- Rules concerning when and how soldiers can kill and who they can kill
Aggression
- Legalist Paradigm
- There is an int'l society of independent states
- Int'l society has a law that establishes the rights of its members
- Any use of / imminent threat of force against T.I. or P.S. of another = aggression and is criminal
- Aggression justifies self-defense and law enforcement
- Nothing but aggression can justify war
- Once aggressor has been repulsed, it can be punished
Resistance vs. Appeasement
- Glorify resistance against immoral aggression
- Hard to decide when appeasement is appropriate
Preventative War and Pre-Emption
- Preventative war- justified by arguing that balance is essential to liberties and that not to act would incur dramatic costs
- Logic ends on devaluing human life
- Pre-emptive decisions harder
- Depends on manifest intent to injure, active preparation, and situation where waiting would increase risk
- 6 Day War- example of difficulties
Interventions
- Mill- anti-interventionist, self-determining
- Need strict standards of when and how
Civil War and Counter-Intervention
- Vietnam
- Walzer- hard to view as a legitimate case of counter-intervention
- Lack of internal support for S. Vietnamese regime
- Goal of counter-intervention: not to win war
War's Means
- How to guide means- proportionality? utility?
War's Ends
- Goal affects end of war- unconditional surrender
- Hold ends constant and in view- unchanged by way the war is going
- Rights of nations to be states can't be affected by end of the war
Noncombatant Immunity and Military Necessity
- Naked soldiers
- Civilians- make what soldiers need to fight / make what soldiers need to live
- Laconia Order
Double Effect
- Surface: limits what can be done in war
- Really: allows you to do things in war if they seem to be good
- Act is indifferent and good
- Direct effect is morally acceptable
- Actor's intention is good, doesn't intend evil effect
- Evil effect is not one of his ends nor a means to his ends
- Good effect is sufficiently good to compensate for the evil effect
Terrorism
- Random murder of civilians for strategic reasons
- Are you allowed different tactics because you don't have conventional things for war?
- Terrorism violates doctrine of double effect- kill civilians as a means to an end
- When do you move from being a civilians to being a govt. official
- Terror is the totalitarian form of war and politics
Reprisals
- Uneasy
- Always bad?
Winning and Fighting Well
- Duke of Sung- refused to engage in tactics against rules of war
- Rawls- sliding scale- more justice, more rights
- Walzer- erosion of rights (utilitarian argument)
- Still need to maintain justice in war- need to respect rights of soldiers
- Accepts that under certain conditions of necessity you can violate some / all rules
- What is an acceptable test?
Supreme Emergency
- When can we give into necessity and target civilians?
- Be careful when claim necessity for mere expediency
- Case of extreme annihilation, last stand
- Ex: Melos
- If you are ration and calm and can formulate the question of necessity- it's not necessity
War Crimes: Political Leaders
- Weizsaecker- how difficult to distribute responsibility
- Didn't like Nazis, mid-level German govt.
- Continued with duties
- Brought up on war crimes- should have resisted at some point
- Can you really expect people to be heroic?
- Gerstein- member of S.S. who killed himself
War Crimes
- Excuse defenses
- "I was insane"
- "I was just following orders"
- My Lai massacre
- General Yamashita- atrocities in Philipennes during WWI
- Couldn't communicate with soldiers when they were committing war crimes
- Sentenced to death and hung
- Generals should train their soldiers not to commit war crimes even when they are not there- Gen. Yamashita didn't train his soldiers well
