The public interest in the administration of justice requires access to justice for all. But access to justice must be “meaningful” access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific (...) changes in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of legitecture to analysis of problems of institutional design in law. (shrink)
Law as one sign system can be recorded and interpreted by another sign system—media. If each transaction in court is taken as a sign, it can be interpreted or transferred by different signs of media for the same purpose, though with different effects. This study focuses on the transformative effects of the semiotic revolution in media on law. The present research revealed that the evolution of media has driven the administration of justice to pay more attention to the process (...) of court proceedings. This research also discusses the semiotic conflict and compatibility between the sign subsystems within media upon interpreting the administration of justice. In addition, disequilibrium between different sign systems highlights the consequent need for intersemiotic translation, consciousness and evaluation as part of decision making on court domains. (shrink)
David Lyons is one of the preeminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses "formal" justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)
This book looks at the civil justice system - the courts and what they do; legal aid and other methods of providing access to justice; lawyers and their conduct; and the role of legal procedure. It also looks at the impact the civil justice system has on wider society, and its relationship with economics and commercial development. The book is largely focussed on Britain, but includes material from the USA, the Indian sub-continent, south-east Asia, and Aboriginal society in Australia.
In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)
This book addresses the retributive and "orthodox subjectivist" theories that dominate criminal justice theory alongside recent "revisionist" and "postmodern" approaches. Norrie argues that all these approaches, together with their faults and contradictions, stem from their orientation to themes in Kantian moral philosophy. He explores an alternative relational or dialectical approach; examines the work of Ashworth, Duff, Fletcher, Moore, Smith, and Williams; and considers key doctrinal issues.
This new text will encourage students to develop a deeper understanding of the context and the current workings of the criminal justice system. Part One offers a clear, accessible and comprehensive review of the major philosophical aims and sociological theories of punishment, the history of justice and punishment, and the developing perspective of victimology. In Part Two, the focus is on the main areas of the contemporary criminal justice system including the police, the courts and judiciary, prisons, and community penalties. (...) The active engagement of students with the material covered distinguishes this text from others in the area and makes it a real teaching resource and invaluable text. (shrink)
Thompson considers the concept of international justice as it has developed in political theory from Hobbes to the present day, and develops a theory designed to take account of both individual freedom and differences among communities. This title available in eBook format. Click here for more information . Visit our eBookstore at: www.ebookstore.tandf.co.uk.
The challenge from the sophists with whom Plato is confronted is: Who can prove that the just man without power is happy whereas the unjust man with power is not? This challenge concerns the basic issue of politics: the relationship between justice and happiness. Will the unjust man gain the exceptional happiness of the strong by abusing his power and by injustice? The gist of Plato’s reply is to speak not of justice but of intrinsic justice, i.e., the strength of (...) virtue which, in his account, is the fundamental good of man. Nevertheless, many contend that intrinsic justice is actually injustice, for the division of power in the state is undemocratic while in the soul, the suppression of desire by the reason. Plato’s advocacy of hierarchical, elite political system has enraged democrats, while his idea of philosopher king has enraged the aristocrats as well. So, who will appreciate Plato’s effort? (shrink)
The Pigou-Dalton (PD) principle recommends a non-leaky, non-rank-switching transfer of goods from someone with more goods to someone with less. This Article defends the PD principle as an aspect of distributive justice—enabling the comparison of two distributions, neither completely equal, as more or less just. It shows how the PD principle flows from a particular view, adumbrated by Thomas Nagel, about the grounding of distributive justice in individuals’ “claims.” And it criticizes two competing frameworks for thinking about justice that less (...) clearly support the principle: the veil-of-ignorance framework, and Larry Temkin’s proposal that fairer distributions are those concerning which individuals have fewer “complaints.” -/- The Article also clarifies the relation between the PD principle and prioritarianism. Prioritarians will surely endorse the PD principle (with the “good” individual well-being), but they are also committed to a distinct axiom of separability: the moral value of someone’s well-being change does not depend upon her position relative to others. The PD principle neither implies separability, nor is implied by it. Although prioritarianism is very plausible, the case for the PD principle is yet more compelling than for the combination of that principle with separability. In discussing prioritarianism, we should differentiate between these two, logically independent aspects of the view. -/- . (shrink)
Let us say that an individual possesses aprincipled preference if she prefers satisfying her preferences without violating the principles of justice governing her community to satisfying her preferences by violating these principles. Although living among possessors of principled preferences benefits individuals, maintaining such a preference is individually costly. Further, individuals can benefit from others possessing principled preferences without themselves possessing one. In this paper, I argue that occupying a choice situation which mirrors key aspects of our own situation, maximizing rationality (...) requires individuals to develop and maintain principled preferences.To establish that maintaining a principled preference is individually rational for the occupants of such a choice situation, I define a range of individual strategies for them, model their choice of individual strategies as a game, and argue that this game involves an equilibrium in which all of its participants would choose to develop and maintain a principled preference. (shrink)
People currently regard justice as the main principle of institutions and society, while in ancient Greek people took it as the virtue of citizens. This article analyzes Aristotle’s virtue of justice in his method of virtue ethics, discussing the nature of virtue, how justice is the virtue of citizens, what kind of virtue the justice of citizens is, and the prospect of the virtue of justice against a background of institutional justice. Since virtue can be said to be a specific (...) individual character, Aristotle also defines the virtue of justice as the character of justice, with which citizens act justly and desire to do what is just. The virtue of justice is also an individual ethical virtue, differing from others for it is at the same time a social ethic. We can call the virtue of justice a “non-individual individual ethical virtue.” It has been explained as between pure altruism and egoism, which is a wrong explanation. John Rawls regards justice as the first virtue of social institutions, challenging Aristotle’s virtue of justice, an assertion which also needs further deliberation. (shrink)
War can be defined as organized political violence among two or more nations. In accordance with the purpose, processes and results of war, the ethics of war generally comprises three aspects: right ethics, action ethics and duty ethics. The most important issue in ethics of war is “justice”. “Justice” and “injustice” as a conceptual pair do not prescribe the objective character of war but rather convey a subjective attitude and ethical position that have the potential to compel a populace to (...) either support or oppose a war. (shrink)
Technology used in online marketing has advanced to a state where collection, enhancement and aggregation of information are instantaneous. This proliferation of customer information focused technology brings with it a host of issues surrounding customer privacy. This article makes two key contributions to the debate concerning digital privacy. First, we use theories of justice to help understand the way consumers conceive of, and react to, privacy concerns. Specifically, it is argued that an important component of consumers’ privacy concerns relates to (...) fairness judgments, which in turn comprise of the two primary components of distributive and procedural justice. Second, we make a number of prescriptions, aimed at both firms and regulators, based on the notion that consumers respond to perceived privacy violations in much the same way they would respond to an unfair exchange. (shrink)
Despite the importance of ethics in corporate crisis management, they have received limited attention in the academic literature. This article contributes to the evolving conversation on ethics in crisis management by elucidating the ethics of "justice" and "care" and distinguishing between them. Examples of the two approaches are offered through consideration of cases in corporate crisis management, including the alleged glass contamination case faced by Gerber Products Company, and, the shooting tragedy at San Ysidro faced by McDonald''s Corporation. It is (...) argued that both an ethic of justice and an ethic of care can be appropriate approaches in corporate crisis management. Areas for future research are discussed. (shrink)
I argue that the aporetic character of clemency must be understood in terms of its unmerited and merited character to achieve the underlying purposes of justice within criminal justice: justice as fairness (punishment must be deserved and proportionate) and justice as restoration (repair of the harm to victims and society and the reintegration of offenders) are paramount goals. Rather than destabilizing political order, pardons can render productive potential tensions between justice as fairness and justice as restoration. Taking as my conceptual (...) point of departure Paul Ricoeur's claims about the suprajuridical and supraethical character of pardon, I develop the argument through three central sections: an excursus into historical and contemporary practices of clemency in the United States; a critical analysis of the merited and unmerited aspects of clemency with respect to remorse and atonement theories within theological and legal discourse; and a normative engagement with pardons and felony disenfranchisement. (shrink)
In a controlled laboratory experiment, we found evidence for our predictions that participants who received fair distributive treatment were more likely to lie to give a supervisor a good performance evaluation than those treated unfairly, and those who received unfair distributive treatment were more likely to steal money from a supervisor than those treated fairly. We further proposed that the presence of an ethical code of conduct would moderate these relationships such that when the code was present these relationships would (...) be weaker than when the code was absent, but we failed to find support for these moderating effects. Our findings suggest that the relationship between distributive justice and unethical behavior is likely more complex than previously considered. Both researchers and managers may benefit from a broader understanding of the factors that motivate and inhibit unethical behaviors intended to benefit and harm supervisors and/or organizations. (shrink)
The article lays down the broad strokes of an interpretive approach to social criticism. In developing this approach, the author stresses the importance of both a pluralistic notion of social justice and a rich ideal of personal growth. While objecting to one-dimensional conceptions of social justice centering on legal equality, the author develops the idea of there being multiple "spheres of justice", including the spheres of "care" and "merit". Each of these spheres, he argues, is subject to historical interpretation. He (...) furthers this view by arguing that the social basis for these different spheres is best understood against the canvas of an ideal of self-fulfillment and individuality. Based on the elaboration of these two sets of premises—a pluralistic conception of social justice and a collective ideal of personal self-fulfillment—the article outlines the basis for and challenges inherent to the practice of interpretive social criticism. (shrink)
This collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact with (...) conditions that lie at the farthest reaches of its empirical and normative force. (shrink)
The case law of the Court of Justice of the European Union (ECJ) is shaped by the language in which it is drafted—i.e. French. However, because French is rarely the mother tongue of those drafting that case law, the texts produced are often stilted and awkward. In addition, those drafting such case law are constrained in their use of language and style of writing (owing to pressures of technology and in order to reinforce the rule of law). These factors have (...) led to the development of a ‘Court French’ which necessarily shapes the case law produced and has implications for its development, particularly insofar as it inevitably leads to a type of precedent in that case law. That case law also undergoes many permutations of translation into and out of up to 23 different languages. The resultant texts that make up the case law are hybrid in nature—consisting of a blend of cultural and linguistic patterns, constrained by a rigid formulistic drafting style and put through many permutations of translation. The present paper investigates the production of the Court’s multilingual case law and considers whether the hybrid nature of that case law can actually aid the presentation (and thus the development) of a ‘uniform’ EU case law. (shrink)
Amartya Sen argues that for the advancement of justice identification of ‘perfect’ justice is neither necessary nor sufficient. He replaces ‘perfect’ justice with comparative justice. Comparative justice limits itself to comparing social states with respect to degrees of justice. Sen’s central thesis is that identifying ‘perfect’ justice and comparing imperfect social states are ‘analytically disjoined’. This essay refutes Sen’s thesis by demonstrating that to be able to make adequate comparisons we need to identify and integrate criteria of comparison. This is (...) precisely the aim of a theory of justice (such as John Rawls’s theory): identifying, integrating and ordering relevant principles of justice. The same integrated criteria that determine ‘perfect’ justice are needed to be able to adequately compare imperfect social states. Sen’s alternative approach, which is based on social choice theory, is incapable of avoiding contrary, indeterminate or incoherent directives where plural principles of justice conflict. (shrink)
In my 1990 work – Marxism, Morality, and Social Justice – I argued for four modifications of Rawls’s principles of social justice and rendered a modified version of his theory in four principles, the first of which is the Basic Rights Principle demanding the protection of people’s security and subsistence rights. In both his Political Liberalism (1993) and Justice as Fairness (2001) Rawls explicitly refers to my version of his theory, clearly accepting three of my four proposed modifications but rejecting (...) the fourth -- the demand for social and economic (in addition to political) democracy – on grounds that it automatically justifies socialism as opposed to capitalism. I argue, contrary to Rawls, that it is not true that this demand automatically picks (democratic) socialism as the preferable socioeconomic/political system and that a Social and Economic Democracy Principle demanding workplace and neighborhood democracy is officially neutral between these two systems … although plausible empirical assumptions may, indeed, favor the former. I then reprise my second version of Rawls’s theory of social justice which is composed of the following principles arranged in a very strong order of priority (if not quite a lexical order): (1) Basic Rights Principle, (2) Equal Basic Liberties Principle, (3) Fair Equality of Opportunity Principle, (4) Modified Difference Principle, and (5) Social and Economic Democracy Principle. (shrink)
John Rawls famously claims that ‘justice is the first virtue of social institutions’. On one of its readings, this remark seems to suggest that social institutions are essential for obligations of justice to arise. The spirit of this interpretation has recently sparked a new debate about the grounds of justice. What are the conditions that generate principles of distributive justice? I am interested in a specific version of this question. What conditions generate egalitarian principles of distributive justice and give rise (...) to equality as a demand of justice? My paper focuses on relationalist answers to this question. Advocates of relationalism assume that ‘principles of distributive justice have a relational basis’, in the sense that ‘practice mediated relations in which individuals stand condition the content, scope and justification of those principles’. To say that principles of justice are ‘based’ on and ‘conditioned’ by practice mediated relations is ambiguous. I will here be concerned with advocates of what I call the relationalist requirement , viz. positions which assume that ‘practice mediated relations’ constitute a necessary existence condition for principles of egalitarian distributive justice. Relationalists who endorse this view come in different varieties. My focus is on relationalists that view social and political institutions as the relevant ‘practice mediated relation’. The question at stake, then, is this: Are institutionally mediated relations a necessary condition for equality to arise as a demand of justice? Strong relationalists of the institutionalist cast, call them advocates of the institutionalist requirement , differ in important respects. They argue about what set of institutions is foundationally significant, and they disagree on why only that institutional relation gives rise to egalitarian obligations of justice. My paper engages two ways of arguing for the institutionalist requirement : Julius’s framing argument and Andrea Sangiovanni’s reciprocity argument . The issue at stake are the grounds of egalitarian justice and I will argue that the institutionalist requirement is mistaken. It is not the case that egalitarian obligations of distributive justice arise only between and solely in virtue of individuals sharing a common institution. (shrink)
Empowerment is a key word in Catherine Audard’s new book on Rawls and a central characteristic of Rawls’ approach to justice. A very different “hermeneutic” approach to justice is presented by Paul Ricoeur, the French philosopher and theologian who, against the background of his own work, examined Rawls’ views in several publications. This essay compares the two views and defends the proposition that empowerment is the common denominator. The author suggests that Rawls would not have objected to including some of (...) Ricoeur’s ideas in the past-principle stage of his Theory. (shrink)
Recent literature on the relationship between knowledge and justice has tended to focus exclusively on the social and ethical dimensions of this relationship (e.g. social injustices related to knowledge and power, etc.). For the purposes of this article, I am interested in examining the virtue of justice and its effects on the cognitive faculties of its possessor (and, correspondingly, the effects of the vice of injustice). Drawing upon Thomas Aquinas’s account of the virtue of justice, I argue that in certain (...) cases justice can be a criterion of epistemic evaluation and that it deserves more attention than it has been given among virtue epistemologists. More precisely, the virtue of justice may become a criterion of epistemic evaluation in cases when a belief is formed on the basis of testimony. It would seem that there are cases when A’s assent to proposition p is something that is owed to B on the basis of B’s testimony; or there may be instances when A is culpable for declining to let B’s testimony have any effect on A’s belief. I briefly sketch four distinct scenarios in which this bears out. (shrink)
This paper argues that intellectual property rights are incompatible with Rawls’s principles of justice. This conclusion is based upon an analysis of the social stratification that emerges as a result of the patent mechanism which defines a marginalized group and ensure that its members remain alienated from the rights, benefits, and freedoms afforded by the patent product. This stratification is further complicated, so I argue, by the copyright mechanism that restricts and redistributes those rights already distributed by means of the (...) patent mechanism. I argue that the positions of privilege established through both the patent and the copyright mechanisms are positions that do not “allow the most extensive liberty compatible with a like liberty for all.” They do not “benefit the least advantaged.” Nor are they “open to all under conditions of fair equality of opportunity.” In making this argument I critically assess the utilitarian defense of intellectual property rights and find it insufficient to respond to the injustices manifest in our current arrangement for the protection of intellectual property rights. (shrink)
Machine generated contents note: 1. Introduction and overview; 2. The nature of forgiveness and resentment; 3. The moral analysis of the attitudes of forgiveness and resentment defined; 4. The moral analysis of the attitudes of self-forgiveness and self-condemnation; 5. Philosophical underpinnings of the basic attitudes: forgiveness, resentment, and the nature of persons; 6. Moral theory: justice and desert; 7. The public response to wrongdoing; 8. Restorative justice: the public response to wrongdoing and the process of addressing the wrong.
The problem of standard of care in clinical research concerns the level of treatment that investigators must provide to subjects in clinical trials. Commentators often formulate answers to this problem by appealing to two distinct types of obligations: professional obligations and natural duties. In this article, I investigate whether investigators also possess institutional obligations that are directly relevant to the problem of standard of care, that is, those obligations a person has because she occupies a particular institutional role. I examine (...) two types of institutional contexts: (1) public research agencies – agencies or departments of states that fund or conduct clinical research in the public interest; and (2) private-for-profit corporations. I argue that investigators who are employed or have their research sponsored by the former have a distinctive institutional obligation to conduct their research in a way that is consistent with the state's duty of distributive justice to provide its citizens with access to basic health care, and its duty to aid citizens of lower income countries. By contrast, I argue that investigators who are employed or have their research sponsored by private-for-profit corporations do not possess this obligation nor any other institutional obligation that is directly relevant to the ethics of RCTs. My account of the institutional obligations of investigators aims to contribute to the development of a reasonable, distributive justice-based account of standard of care. (shrink)
In his celebrated work, A Theory of Justice (1971), John Rawls argues that, from behind the veil of ignorance, parties in the original position will employ the maximin decision rule to reason to his two principles of justice. In this journal, Olatunji Oyeshile offers a brief and concise outline of some of the historical criticisms of that argument. Oyeshile offers two important criticisms of Rawls' argument. Both, however, are somewhat misplaced, as I shall show. First, he claims that decision theory (...) offers parties in the original position other decision procedures. In fact, none of the alternatives are suitable, given the situation. And second, parties in the original position would first guarantee some minimum of libertarian goods, and then seek additional profits. This objection demonstrates a misunderstanding of the place of the maximin decision rule, as I shall show. -/- I believe that both criticisms stem from a close and careful reading of Buchanan's essay on Rawls. Unfortunately, Buchanan himself seemed to have misunderstood Rawls' original arguments. I rely on problems in Buchanan's original work to defend Rawls' theory against Oyeshile's criticisms. (shrink)
Education is interpreted as something basic to our humanity. As part of our primordial way of being human, education is intrinsic to the understanding’s functioning. At the same time education involves an originary ethical relation to the other, unsettling the self-directed character of the striving to live. And because of its social setting, the call of many others, education orients one to the social, to the call of justice.
J. van den Hoven suggested to analyse privacy from the perspective of informational justice, whereby he referred to the concept of distributive justice presented by M. Walzer in “ Spheres of Justice ”. In “privacy as contextual integrity” Helen Nissenbaum did also point to Walzer’s approach of complex equality as well to van den Hoven’s concept. In this article I will analyse the challenges of applying Walzer’s concept to issues of informational privacy. I will also discuss the possibilities of framing (...) privacy from the point of the “art of separation” by looking at the intersection of information infrastructures and institutions. (shrink)
John Rawls is arguably the most important political philosopher of the past century. His theory of justice has set the agenda for debate in mainstream political philosophy for the past forty years, and has had an important influence in economics, law, sociology, and other disciplines. However, despite the importance and popularity of Rawls's work, there is no clear picture of what a society that met Rawls's principles of justice would actually look like. This article sets out to explore that question.