criminalethics/discussion lesson 2

profiledbrown83
Pollock_7e_ch03_final_final.ppt
Home>Law homework help>Criminal homework help>criminalethics/discussion lesson 2


CHAPTER 3:

Justice

and Law

Lecture Slides prepared by Cheryn Rowell

*

  • Fairness
  • Equality
  • Impartiality

Justice

*

Defining Justice

The concept of justice originates in the Greek word dike, which refers to everything staying in its proper place.

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.

*

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.

*

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).

*

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.

*

Possible Standards
for Distributive Justice

  • Need
  • Merit
  • Performance
  • Ability
  • Rank
  • Station
  • Worth

Work

Agreements

Requirements of common good

Valuation of services

Legal entitlements

*

Theories of Distribution (I)

Egalitarian Theories: Based on the premise of equality or equal shares for all.

Marxist Theories: Places need above rights.

Libertarian Theories: Merit, entitlement, and productivity have more weight than needs or equal shares.

Utilitarian Theories: Attempt to maximize benefits for society by balancing entitlement and needs.

Rawls Theory: Any inequalities in a society should benefit the least advantaged.

*** All have an equal right to basic shared liberties

*

Rawl’s Theory of Justice

  • All inequalities in a society should benefit the least advantaged.
  • 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.

*

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.

*

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

*

Two Philosophies of Justice

Retributive

Utilitarian

*

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)

  • Lez 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 the suffering or loss in incarceration (most typical modern punishment)

*

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

*

Utilitarian Justice

  • Based on concept of “good for all”

  • Justice requires punishment be for the greatest good.

  • Bentham’s hedonistic calculus.

  • Punishment is prescribed on the basis of perceived

deterrence.

  • Treatment is acceptable because it supports deterrence.

*

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.

*

Due Process Clauses

  • Article V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  • Article XIV, Section 1. All persons born or naturalized to the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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

*

Who Deserves Due Process Protections?

  • Only citizens? (not illegal immigrants?)
  • Only residents? (not Marielitos?)
  • All those held against their will by this government? (enemy combatants)

Habeas Corpus: ancient form of due process

Thinking Point

In April of 2010, Arizona Governor Jan Brewer signed into law SB 1070, The Support Our Law Enforcement and Safe Neighborhoods Act. This law allows law enforcement to require those who may be illegal immigrants to provide documentation of their residency status, or face possible prosecution. Critics of this law claim this is racial profiling at its best.

Does this law infringe on basic due process rights?

What type of justice does this law exemplify?

Civil Disobedience

1. It must be nonviolent in form and actuality.

2. No other means of remedying the evil should be available.

3. Those who resort to civil disobedience must accept the legal sanctions and punishments imposed by law.

4. A major moral issue must be at stake.

5. When “intelligent men of good will” differ on complex moral issues, discussion is more appropriate than action.

6. There must be some reason for the time, place and target selected.

7. One should adhere to “historical time.”

*

  • Emphasizes compensation over retribution.
  • Returns focus to rights and needs of the 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

*

  • Victim-offender mediation

  • Community reparative boards

  • Family group conferencing

  • Circle sentencing

Community Justice Models

*