Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

Justice

Nnamdi Ebo 2 241x300 RULE OF LAWLawyer Zone  | By Nnamdi Ebo.

 

Justice is the fair and proper administration of laws. It is also the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of the said ethics. 112 (see the Geneva Convention)

Concept of justice: John Rawls postulated that “Justice is the first virtue of social institutions, as truth is of systems of thought.” Justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion. Justice has traditionally been associated with concepts of fate, reincarnation or Divine Providence, i.e. with a life in accordance with the cosmic plan. The association of justice with fairness has thus been historically and culturally rare and is perhaps chiefly a modern innovation in the west.113

112. Konow, James. 2003. “Which Is the Fairest One of All? A Positive Analysis of Justice Theories ” Journal of Economic Literature 41, no. 4: page 1188

113. Daston, Lorraine (2008). “Life, Chance and Life Chances” Daedalus: 5–14.

Theories of retributive justice

Theories of retributive justice are concerned with punishment for wrongdoing, and in this wise, there is the need to answer three basic questions:

  1. why punish?
  2. who should be punished?
  3. what punishment should they receive?

This chapter considers the two major accounts of retributive justice, and their answers to these questions. Utilitarian theories look forward to the future consequences of punishment, while retributive theories look back to particular acts of wrongdoing, and attempt to balance them with deserved punishment. But punishment might be a necessary sacrifice that maximizes the overall good in the long term, in one or more of three ways:

  1. Deterrence. The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare.
  2. Rehabilitation. Punishment might make bad people into better ones. For the utilitarian, all that ‘bad person’ can mean is ‘person who’s likely to cause bad things (like suffering) ’. So, utilitarianism could recommend punishment that changes someone such that they are less likely to cause bad things.
  3. Security/Incapacitation. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning them might maximize welfare by limiting their opportunities to cause harm and therefore the benefit lies within protecting society.

Diversification of justice

Utilitarianism is a situation where punishment is forward-looking. Justified by the ability to achieve future social benefits resulting in crime reduction, the moral worth of an action is determined by its outcome.

Retributive justice is given or inflicted in requital according to merits or just deserts. The law of retaliation (lex talionis) is a military theory of retributive justice, which says that reciprocity should be equal to the wrong suffered; “life for life, wound for wound, stripe for stripe.” ‘Turn the other cheek’

Restorative justice is concerned with (a) making the victim whole and (b) reintegrating the offender into society. This approach frequently brings an offender and a victim together, so that the offender can better understand the effect his/her offense had on the victim.

Distributive justice is directed at the proper allocation of things — wealth, power, reward, respect — between different people.

Oppressive Law exercises an authoritarian approach to legislation that is “totally unrelated to justice”, a tyrannical interpretation of law is one in which the population lives under restriction from unlawful legislation.

Justice as natural law

For advocates of the theory that justice is part of natural law (e.g., John Locke), it involves the system of consequences that naturally derives from any action or choice. According to Roman law certain basic legal principles are required by nature, or so obvious that they should be applied universally without needing to be enacted into law by a legislator. Justice, on this account, is a universal and absolute concept: laws, principles, religions, etc., are merely attempts to codify that concept, sometimes with results that entirely contradict the true nature of justice.

Justice as divine law

Justice as a divine law is commanding, and indeed the whole of morality, is the authoritative command. Killing is wrong and therefore must be punished and if not punished what should be done? Is something right because God commands it, or does God command it because it’s right? If the former, then justice is arbitrary; if the latter, then morality exists on a higher order than God, who becomes little more than a passer-on of moral knowledge.

Justice as command

According to thinkers including Thomas Hobbes, justice is created by public, enforceable, authoritative rules, and injustice is whatever those rules forbid, regardless of their relation to morality. Justice is created, not merely described or approximated, by the command of an absolute sovereign power. This position has some similarities with divine command theory (see above), with the difference that the state (or other authority) replaces God.

Justice as harmony

In his dialogue Republic, Plato uses Socrates to argue for justice that covers both the just person and the just City State. Justice is a proper, harmonious relationship between the warring parts of the person or city. Hence Plato’s definition of justice is that justice is the having and doing of what is one’s own. A just man is a man in just the right place, doing his best and giving the precise equivalent of what he has received. This applies both at the individual level and at the universal level. A person’s soul has three parts – reason, spirit and desire.

Justice as human creation

In contrast to the understandings canvassed so far, justice may be understood as a human creation, rather than a discovery of harmony, divine command, or natural law. This claim can be understood in a number of ways, with the fundamental division being between those who argue that justice is the creation of some humans, and those who argue that it is the creation of all humans.

Justice as social contract

According to thinkers in the social contract tradition, justice is derived from the mutual agreement of everyone concerned; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under ‘Justice as fairness’.

Theories of distributive justice

Theories of distributive justice need to answer three questions:

  1. What goods are to be distributed? Is it to be wealth, power, respect, some combination of these things?
  2. Between what entities are they to be distributed? Humans (dead, living, future), sentient beings, the members of a single society, nations?
  3. What is the proper distribution? Equal, based on merit, according to social status, according to need based on property rights and non-aggression?

Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored distribution. On the other hand, property rights theorists argue that there is no “favored distribution.” Rather, distribution should be based simply on whatever distribution results from non-coerced interactions or transactions (that is, transactions not based upon force or fraud).

Egalitarianism: According to the egalitarian, justice can only exist within the coordinates of equality. This basic view can be elaborated in many different ways, according to what goods are to be distributed—wealth, respect, opportunity—and what they are to be distributed equally between—individuals, families, nations, races, species. Commonly held egalitarian positions include demands for equality of opportunity and for equality of outcome. It affirms that freedom and justice without equality are hollow and that equality itself is the highest justice. At a cultural level, egalitarian theories have developed in sophistication and acceptance during the past two hundred years. Among the notable broadly egalitarian philosophies are socialism, communism, anarchism and progressivism, all of which propound economic, political, and legal egalitarianism, respectively.

Justice as fairness

In his A Theory of Justice, John Rawls used a social contract argument to show that justice, and especially distributive justice, is a form of fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance that denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves. We don’t know who in particular we are, and therefore can’t bias the decision in our own favor. Find below, Rawls’s two principles of justice:

  • Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.
  • Social and economic inequalities are to be arranged so that they are both
    • to the greatest benefit of the least advantaged, consistent with the just savings principle, and
    • attached to offices and positions open to all under conditions of fair equality of opportunity.

_________________________________________________________________________________________

Legal Method . Book Cover 202x300 RULE OF LAWCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved

 

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