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Boston College
PHIL 1160
Matthew Mulane

Introduction to Course: The Question of Justice Thucydides, “The Melian Dialogue” • Plato’s The Republic is written as a rebuttal to the incidence at Melas • Laws of: God, community, humans, history, and nature- themes of political community and justice • Present necessity vs. future hope • Theological question: What is the will of God? UN Declaration of Rights: Universal Call for Justice UN Declaration on Human Rights • Principles, personal liberties, individual associative rights, spiritual liberties, economic/cultural/social rights, individual community rights Mary Ann Glendon, “Knowing the Universal Declaration of Human Rights” • Each person deserves freedoms • Process demonstrates universalism • Ability to judge wrong from right • Cold War: liberal democracy/capitalism vs. communism/authoritarianism • Political and civil rights vs. material needs • Denies Locke and Rousseau philosophy (general will, no individual has more say as each man is free and equal, social contract) as it goes back to natural law-Aristotle (men are equal/moral) Human Rights Transforms the World Drinan, The Mobilization of Shame • How things have gone since 1948 • Ch 3: Economic Rights • Human rights movement in a Cold War mentality, propaganda warfare > separated sections because of political climate • Gave rise to NGO movement • Focused on staunching the power of the military/military coercion • Not about individual rights but about arbitrary military rule • Global structural poverty- emerging economies, must be a common understanding of mutualism between 1 and 3 world st • WTO seeks to maximize and equalize trade among all nations; 1 world ha a responsibility to share • Least successful UN declaration (Us outside effort) • Ch 4: • Political and economic rights linked and inseparable • Sovereignty does not supersede individual rights of human beings • 1948- UHDR- first framework to undermine sovereignty • Human being transcend political institutions • Relativizing of the state, sovereignty not exclusive • Political and Civil Rights: right to be left alone • If its not forbidden, it’s permitted, immunities from coercion through enforcement> police> judges • Economic, Social, and Cultural Rights: right of universalism, natural need= right, in order to sustain life • Example: Healthcare (Obamacare)- distribution now fixed, socialized, social dependence • Ch 5: • Female rights: equal pay for equal work • Female Genital Mutilation • Paid maternity leave, only industrialized country without pay is the US • Capitalism is defeating ESC rights, corporate culture setting tone for rights • Women are the “Change agents” • Strategy- education, economic development independent of the male • Ch 11: • Alien Tort Statute- 3 party suing on the foundation of internal law Challenges to Human Rights Ignatief, Michael,Attack on Human Rights • American exceptionalism: problem if you believe in the responsibility to protect/enforce/respond to HR • Obvious power- moral authority • Ethical argument- personal responsibility • 3 elements to exceptionalism: 1) sign treaties and covenants, exempt ourselves through non-ratification, explicit exemption, or noncompliance, limited applicability; 2) rise of Islam (extremist)- non-secular democratic rule not protecting individual rights; 3) east Asia- puts the community before the individual • Within the West: political institutions are unique- above reproach, cultural- manifest destiny • The whole moral focus of human rights is the protection of the individual, especially the powerless, from tyranny whether from the state, community, or family • Claims the real foundations to the UHR is classic Natural Law theory derived from Greek, Stoic, and Christian sources and not modern Natural rights theory • US exceptionalism is based in part in the belief that the US was founded as a “light on a hill” whose political institutions would serve as a model for humane governance for humanity • Negative liberty- to be free from oppression • HR emanate from the bottom • Universalism Harold Koh, “Jekyll and Hyde Exceptionalism” • The most practical way a citizen can support human rights is to endorse efforts to codify universal humans rights into international law • Double standards (by defending folks actively violating HR for the pursuit of the national interest) are the most damaging practice to US moral leadership, followed by non- ratification of human rights treaties, overlooking global leadership- moral and political components • Fling buttress rather than a pillar Human Rights: Foundations Mahoney, Jack, “Establishing Human Rights” • What are rights based in? • Legal positivism, religion, social consensus, prudential/consequential, vital needs, rational being • Alluded to the in the UDHR but not specified as to not be contentious: pragmatic document • Sources: • 1) Legal Positivism- agreement leads to consensus that builds entitlement because it is mutually agreed upon • 2) Religious faith- image and likeness of God, spiritual transcending nature, right ought to be defended, nature=right • 3) Appeals to human dignity (rational)- all equal in capability/claim • 4) Societal consensus- coalition to promote individual rights • 5) Best ends/Prudence- live as if we have human rights • 6) Consequentialism- HR observed by all created peace/justice • 7) Character of Rights- protect positive values, vital needs including personal security material subsistence, • 8) Rational being- equality before law, personal freedom, recognition of part in community • Aviolation is damage to the person • Convergence of opinion: no one conclusive theory contributes to an argument, but all have the same end • It is correct to say that a right is a claim to some freedom, power, immunity, or benefit that usually has an identifiable addressee • For secular theorists on rights, the foundation lies in human dignity and that HD is the moral autonomy, conscience, universal human need, commonality, and human rationality • Rights are a bare minimum- rudimentary protections Aristotle • General justice founded in the common good • Triangle: legal justice, distributive justice, commutative/retributive justice • Legal: obeying laws contributes to CG, just persons are law abiding • Distributive: citizens have claim on CG, cannot be greedy, cannot be unfair, make take some burdens on, benefits are imminent • Commutative/Retributive: relationships between individuals, business/moral/legal, contracts are promises, mutual obligations, accidents/losses/injury, injury must be made whole, failure to fill responsibility • The Good:Action > habit > character > life= concern for others • Character builds/diminishes • Justice: give the other person their due with a constant and perpetual will • Natural Justice: human mind/rationality, what makes us capable of creating right laws? – We are naturally inclined to desire truth, but the why is untaught • Understanding is knowing, and we must know good- spontaneous • Plato/Aristotle- we ought not to punish but we must • Difference between punishment and cruelty • Rational Ends (purpose): 1) Retribution- injury deserves respite and to make it whole again; 2) For the safety of the community; 3) Deterrence; 4) Conversion- rational principle, right judgment measured against law; 5) rehabilitation- new habits; 6) reconciliation- offender and offended • Objective Theme: make oneself fit to live under the law • Observations: penal code- since the 1970s, closed public prisons and deinstitutionalized/privatized the prison system- created prison industrial complex • Prime mover: War on Drugs (Reagan) • 3 strike rule: go away for life- not rational nor reasonable Sandel, Chap. 5, “What Matters is the Motive/ Immanuel Kant” • Kant’s two categorical imperatives work in a way to eliminate personal bias and self- interest in moral decision making • We are moral being deserving of individual rights • Universalize your maxim, treat person as your ends (absolute value) Retributive JusticeAccording to Class and Caste Alexander, The New Jim Crow • History of slavery post-reconstruction • Race is targeted by the justice system, war on drugs • Separate but unequal • Political/social silence • Ignorance/invisible • 1985-2000: 31 million arrested for drug related causes, 4/5 possession, 1/5 selling • 1980- 300k for all reason, 2000- 2 million (all other crime rates remain stable) • Police: more arrests, more funding; Federal money based on war on drugs prosecution • Militarization of local police pre 9/11; defense department doles out sophisticated weaponry to local units and gives special training for pretext arrests • Zealous prosecution0 keep a percent of the confiscated property (assets) • Plea bargaining- cannot afford lawyer, scared to lose as they will face mandatory sentencing • Punishment prioritized over treatment • Parallel between Jim Crow and Prisons- existing discrimination that is non-personal • Drugs used at same rates along all racial lines • Formal vs. informal punishment • Jail vs. culture, post-jail life • Out of jail: stigma, disenfranchisement; if you plead to a felony you lose: employment box, public housing, welfare • Must end war on drugs: stop financial incentives for police, stop using the ghetto as a means to arrest/target • Colorblindness is the problem Preventing Violence as Justice James Gilligan, Preventing Violence • Shame and violence: self worth is demeaned causing one to act out • Poverty and violence correlate • All thought they were ‘right’ working for a sense of twisted justice • ‘The living dead’- pain so great that they felt nothing and committed acts of violence as a way to feel something • In prison- continue to be violent, self-mutilation • So shamed all they felt was shameful • Shame- social construct, socially produced, one is lower in our eyes by other’s treatment, we must lower the stimulus • Patriarchal societies stimulate shame for homosexuals • Creates out-groups- school massacres • Penal system- runs on shame, pervasive- rape/beatings • More violent upon release, 95% go back on the street • Reform: we must rehabilitate society or expect more violence • Malcom X- no one can give someone self esteem, it is self acquired • We must provide the tools as a society Utilitarianism Sandel, Ch. 2, “The Greatest Happiness Principle/Utilitarianism” • Betham and Mills • Action- should be what is most good for most people • Welfare approach to justice • No individual rights, mirage, no basis in reality • Reason to do anything: to increase utility in the form of pleasure and decrease pain • Mill: less sensual, On Liberty- concept of personal rights while maximizing utility; cannot harm others • Lower standard of morality • Sandal counters: pleasure is subjective, ignored individual liberties Libertarianism Sandel, Ch. 3, “Do We Own Ourselves? / Libertariansim” Ch. 4 “Hired Help/Markets and Morals” • John Locke on Speed • Individual rights are absolute • Ourselves/property used as we see fit • Absolute discretion • Rights as immunities from coercion • Limit government- clearly defined function • No to: 1) paternalism- government/civil society, we have moral autonomy; 2) no moral legislation- no judgment in law of morality; 3) no redistribution • As long as it does not harm others • Locke: rights are for self-preservation • Issues: equal opportunity- accident of birth, eliminates identity of the public • Function of government: defend property rights, taxing for other purposes is coercion • Army/police: conscription, payment for service, volunteer Liberalism and the Case for Equality John Rawls, “A Theory of Justice” • Utilitarian and libertarian- threat to the individual based in equality • Justice as fairness • Original position: certain conditions- can determine what is fair by eliminating external stimuli • No domination and no advantage • “Veil of ignorance” • no knowledge of position in future, of goal, life plans, others, privilege • Know: circumstances of justice- conflict will happen, cooperation is possible and beneficial, human nature- principles should be adhered to not arbitrary but rational • There is a mutual disinterest for others • Self interested way of being altruistic • Principles: 1) Liberty- equal right to the most extensive total system of equal basic liberties compatible with similar liberty for others; 2) social/economic inequality are to be arranged so a) it I reasonably expected to be to everyone’s advantage and b) but if not everyone then to they advantage of the least advantaged • Difference principle: (social disparities based on roles in society) accepted if it leads to overall better situation for society • Why is it supported? Self-interest, liberties defended • Rejects meritocracy as is it based in individual talents which one should not selfishly benefit from • The way things are does not determine the way they ought to be Sandel, Ch. 6, “The Case for Equality/John Rawls’ • Acknowledges Rawls tries to eliminate external stimuli • Rules are fair, Kantian • Committed to liberty of individual without being libertarian- bringing in social and economic rights and the rights of others • Built into a pluralistic system- absence of a common understanding of the good life, but life plans vary irrelevant to the ends • Two objections: incentives – Rawls permits inequality in wage insofar as it will encourage one to work, 2) effort- aren’t entitled morally to what our efforts produce – people are entitled to the benefits they earn under the rules Liberalism and Distributive Justice Isbister, Capitalism and Justice, Ch. 1, 2, 3, 6 • Distributive Justice: liberal= individual rights are the priority • Agrees mostly with Rawls • Prudent of allocation, not ideological • Triangle of Social Justice: equality, freedom, and efficiency • Justice- constant and perpetual wish to surrender to everyone their due • Social justice- 3 components often in conflict • Prudence- a mix of wants that varies dependent on the circumstances • Equality: • Moral worth based in DOI “all equal” • Of opportunity and resources (deserved) vs. of outcomes (not always deserved) • Unequal outcomes- arrive at/create unequal opportunity- must be remedied • Different compensation for different performance- Rawls is wrong on difference principle-we should receive the benefits because we earn them from moral actions based in individual will • Opportunity- no discrimination, must have fair rules, and same start, same basket of resources • Liberty/freedom: • Freedom to vs. freedom from- rights and exercises vs. hunger home poverty • Maximization is complementary- mutually conditioned, each necessary for full freedom • Efficiency: • Best utilization of resources • Hard work reaps larger benefit • 2 corollary (benefit the least advantaged) unnecessary • Kantian- we are all moral being having an obligation to social justice • Inefficiency in paying for natural ability beyond what encourages one to work economic injustice • Just rates of compensation- different rates for different work/performance, unequal wages are justified if the inequality persuades people to pursue further training rather than enter the work force • Marking status by pay • 600:1- should be 8:1 • Median 50k, average 90k, healthcare 12k (household) • Must unite median and average Norton “Quintile” • All underestimated discrepancy • The ideal was not proportionate but close • Across all income/political/gender brackets- same ideal • Cognitive dissidence about actuality • Inspire change by informing/recognizing issue Isbister Ch 6 • Unjust/unfair inefficient • Solution- Milton Friedman • Welfare support with grant • Progressive tax rate to earn up to 20,000$ • Negative income tax; Efficient • Voluntary unemployment- should be covered, freedom to do what we want • Rights and no obligations Justice as Complex Equality: Communitarians v. Liberalism Walzer “Spheres of Justice” • Communitarian distributive justice • Insight: men and women make communities for sake of security and welfare • All goods made are first intended meaning that the good is for community • Each good occupies certain sphere ought to be distributed related to means ex) political power in sphere- voting 1 person, 1 vote • Difference between communitarian and liberalism: • >>Liberalism- individual and state policy, Hobbes/Locke/Rousseau • >>Communitarian- individual and common good; not for community, common goods, sum of all necessary conditions (intellectual, moral, spiritual fulfillment) • -Social living- produces conditions for individuals to flourish, • -Share 1) particular goods- any need/want, 2) good of order- how to make conditions happen over and over again, 3) good of value- vital need and wellbeing- all compose the common good in civil society • Function of the good of order for socially imagined goods- historical, changes over time • Distribution autonomous according to social meaning • Difficulty of power- enemy of distributive justice • Power of dominance- possessing 1 good that gives influence in another sphere; monopoly- unchallenged dominance • Complex Equality- no one good can be converted across all social spheres, unjust; tension- between spheres, no dominating force, participatory democracy • Principle: no social good X should be distributed to people who possess Y because they possess Y and without regard to meaning of X • Ordinary methods of distribution- free exchange, cant be adjudicated by the market Rawls • Leaves out history, culture, memberships, citizenship • Exempts from natural relationships • Good breeds rights • Just distribution • Social goods- ought to be distributed for different reasons/ procedures/agents • Understanding of social goods and meanings • No single set of basic goods • Conceivable across all moral and material worlds0 culture differences • Meaning of goods determines their movement • All distribution is relative to
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