Social Contract, — invicta

man made laws — invicta

Both of these are intended to serve a need: to satisfy both the abstract concept and the instinctive desire of social animals for some rational balance between individual actions and group stability; an atavistic sense of fairness.

How should retribution be applied through court of law in secular society for punishable crimes such as murder? — invicta

On a case-by-case basis. There is no single motivation or condition or degree of culpability for all killings of one human by another. That is why even the most simplistic legal system differentiates different categories, even of what is, for convenience, classified as "murder" - i.e. the illegal killing of one human by another - comes in degrees.

Retribution is not necessarily just, any more than punishment and revenge are. Justice should restore balance and harmony in social relations. Punitive acts more typically disrupt harmonious social relations.
There is a different approach:

The purpose of a justice system in an Aboriginal society is to restore the peace and equilibrium within the community, and to reconcile the accused with his or her own conscience and with the individual or family who has been wronged

Justice systems are cultural constructs: they evolve along with the life experience and philosophical development of a people, in very close conjunction with its religious beliefs.

I would suggest one of the biggest struggles we face is disempowerment.

Many forms of alienation from participating.

The justice system is mainly concerned with proscriptive justice and hence with punishment. Retributive justice. It is unlikely that this aspect of justice can ever be made or considered perfect. On the other hand, the more universal form of justice, distributive justice, is more prescriptive in nature, and is not encapsulated by any single institution or social mechanism, but is in effect the underlying principle governing the operations of all social institutions. The education system needs to be just (universal availability). The labour-market needs to be just (fair compensation, universal availability). Etc. Justice as fairness should be seen as an ideal and a goal. In that sense, it is possible.

But that is merely an egalitarian ideal whose actualisation is an ongoing process where social mobility is still a factor holding it back due to hidden nepotisms still pervading a meritocratic society.

But that is merely an egalitarian ideal whose actualisation is an ongoing process where social mobility is still a factor holding it back due to hidden nepotisms still pervading a meritocratic society. — invicta

What is merely an egalitarian ideal?

Egalitarianism (from French égal 'equal'), or equalitarianism, is a school of thought within political philosophy that builds on the concept of social equality, prioritizing it for all people.Egalitarian doctrines are generally characterized by the idea that all humans are equal in fundamental worth or moral status. Egalitarianism is the doctrine that all citizens of a state should be accorded exactly equal rights. Egalitarian doctrines have motivated many modern social movements and ideas, including the Enlightenment, feminism, civil rights, and international human rights.

Sure. Which doesn't mean that the human tendency to fairness derives from the egalitarian school. Rather, the egalitarian school is a codification of the human tendency to fairness, as is the entire concept of justice. Indeed, our modern concept and use of rationality assumes the ideals of fairness and equality. Prejudices are seen as 'anti-rational'. Rightly so, since they are a foreshortening of the rational perspective.

In that sense then there exist in society nuanced forms of unfairness such as unmeritocratic achievements when it comes to job access or a good environment to live in.

Although nuanced from the outset the end result can be vastly different for two equally able individuals boiling down to luck and circumstance which cannot be deemed unfair if the idea that we’re all equal is true, as unequality eventually develops.

Yes. All the more reason for fairness to be an objective. And returning to your original formulation, it seems to me that the failures of proscriptive justice to achieve its ends are more to blame for the problems requiring prescriptive justice than the successes of prescriptive justice contribute to the overall social good.

In this thread I will aim to distill in this broad topic of what constitutes justice, its basic operation in society, implications and its deliverance by laws.

1. Is Justice part of Natural Law (John Locke), Divine Command, Social Contract, or Utilitarian Agreement (John Stuart Mill) or combination of all four of these ?

2. Is justice karmic in nature or does injustice highlight a discrepancy in man made laws?

3. How should retribution be applied through court of law in secular society for punishable crimes such as murder? Would capital punishment be fitting for the most serious of crimes? (Genocide, serial killers etc)

The above principles are the main points for which most justice systems are based upon including international courts of law with the added ambiguity of remaining neutral in regards to the sovereignty and claims of state actors.

In the eyes of the philosopher is the existence of a perfect justice system possible or are all such systems unable to provide the deliverance of perfect justice either because of technicalities or other factors? — invicta

Difficult questions and hard to answer without assuming some sort of apriori definition of justice. Justice would, in some sort of Kantian vein be the capability of distinguishing between right and wrong. I reckon it is a category of thought, that is, an intrinsic part of what 'being in the world' entails. We add a 'coloring' of right or wrong to the world we perceive. Now if justice is a capability it does not as yet tell us what to consider right or wrong. That exact determinitation is I think a product of history. However, that does not make it relative. Justice, at the very minimum, has to do with equal treatment. If person A gets praised for deed X, person B will expect to be praised for a similar deed. Unequal treatment violates our sense of justice, a sense that we all have, because it is a category of thought. (If you accept this assumption, as I do).

That means, at its minimum, it is bound up with natural law, but this minimum is itself not saying so much as it does not ascertain whether deed X deserves praise or condemnation, only that if deed X is praised both A and B deserve praise. However, if we also accept that equality is a minimum standard, then justice implies some sort of capability to recognize others as equals, that is to say, to overcome a certain strangeness in the other. That allows us also to ask the other for reasons regarding his or her conduct. Because we see the other as equals and because justice entails equal treatment we ask the one who is judged to give an account of the reasons for the action. Is it a reason we find reasonable, i.e. recognizable for ourselves as just, being in a position of equality, then we will treat the other lik we want to be treated, that is, not inflict pain and suffering.

The infliction of pain and suffering as prima facie unjust is a product of equality as well. Equality and recognition means we can relate to others and feel the same pain. We can therefore ascertain that most probably acts that produce pain and suffering are unjust. Probably, because of the same principle of recognition we can also deduce that in situations in which one might expect oneself to commit pain and suffering, say in self defense, we can also estimate others to react in similar fashion. Likewise, many people see gross harm done by someone as worthy of harm caused in retribution. It might be possible to overcome that intuition, but I am not sure.

Therefore, justice does not equate with a system of law. There can be different interpretations of deeds, and these interpretation may be historically grown. However, a bedrock of justice may be deduced, at least in the form of the negative. When we see unequal treatment, we perceive it as unjust, unless the actor provides a reasonable explanation for his or her conduct. What does reasons are eventually form the code of laws, after having been written down, rewritten, and shaped over time.

The above allows us some answer to the questions posed, but not much as some of these are unanswerable and some bound up with the law and tradition of the land.

As for question 1. The bedrock of justice resides in natural law in as far as the principle of equality goes, but that is far from informative. The outcome of proceedings reside in the law of the land, a law that will try (if the legislator is benevolent) to approximate the ideal of equal treatment.

2: I do not know what is meant. Karmic in nature... maybe but in as far as justice is aimed at equal treatment so if someone is wronged the person is compensated because we feel he has suffered unequal treatment. Justice of course can also be an ideal. IF someone says: "this is unjust", he in fact says: "people are not being treated as equals!" but whether that is true entirely depends on motivation and reason giving.

3 I think the death penalty violates the idea of equal treatment or at least of recognition. It tells someone he or she is completely alien, not worthy to be considered and therefore it is allowed to put him or her to death. I am not sure though if that is not the outcome of the trajectory of European history in which I have been trained and brought up.

Treating everyone as equals is not possible, over disagreements of what equal means in such respect. Even if that difficulty could be overcome, it might not be socially efficient to do so and sometimes efficiency concerns trump concerns of justice.

In that sense then there exist in society nuanced forms of unfairness such as unmeritocratic achievements when it comes to job access or a good environment to live in. — invicta

Sometimes justice even gets mixed up with efficiency. A meritocratic system may well be efficient, but why does it also entail equal treatment to reward some people who are talented more than others? I am not saying meritocracy is unjust, just that historical reasons play a part in our assessment of justice. It is an illustration to make my point that justice is a category of thought, that at its core lays the principle of equality, but that the concrete stipulations of what is just and unjust are historically grown.

Treating everyone as equals is not possible, over disagreements of what equal means in such respect. Even if that difficulty could be overcome, it might not be socially efficient to do so and sometimes efficiency concerns trump concerns of justice. — Tobias

Justice and fairness require that persons be classified into groups and judged according to a uniform standard for each group. A child, or adult with the mental capacity of a child, would be judged according one set of criteria; fully competent adults by a stricter one; the mentally ill, differently again.

It doesn't require that people within a legal category be equal in any other way; only that they be treated the same under the law: accorded the same rights and burdened by the same degree of responsibility for their actions - which also mean, being tried by the same legal process, by the same rules of evidence, and given the same amount of leeway for mitigating circumstances if they're found guilty.

Is the perfect justice system possible? — invicta

What was done cannot be undone. We ought not let "the perfect" vanquish the good that we can approximate or try to do. Besides, in the long run oblivion renders "in/justice" moot.

:100:

Therefore, justice does not equate with a system of law. — Tobias

You would think this should be obvious, but it isn't, even to some lawyers. O.W. Holmes, Jr. famously noted that we have courts of law, not courts of justice. Some say he made this point to a young lawyer appearing in court: "This is a court of law, young man, not a court of justice." I like to think he did. It's one of my favorite quotes about the law, though I'm also very fond of this one by John Marshall: “The acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says.” I think most lawyers know there are judges who have this ability.

So, I think it follows that efforts to define justice as if it equates to the law are misguided. There is no "justice system." I'm inclined to the view of the Stoics that justice is, properly speaking, a virtue. It applies to how we act in our relations to others. Fairness to and respect for others are characteristic of just action. For the Stoics, justice is part of acting according to nature, so I suppose that they may be said to consider it as based on natural law, a theory which they had a part in creating.

Justice and fairness require that persons be classified into groups and judged according to a uniform standard for each group. A child, or adult with the mental capacity of a child, would be judged according one set of criteria; fully competent adults by a stricter one; the mentally ill, differently again.

It doesn't require that people within a legal category be equal in any other way; only that they be treated the same under the law: accorded the same rights and burdened by the same degree of responsibility for their actions - which also mean, being tried by the same legal process, by the same rules of evidence, and given the same amount of leeway for mitigating circumstances if they're found guilty. — Vera Mont

Yes, but there is always some kind of arbitrariness in group classification. Many 17 year olds are very capable of casting votes, many 19 year olds are not. Is it than fair that those 17 yos cannot vote? You seem to conflate justice, fairness and law. It might very efficient to make those crude categorizations, because it saves us time. We do not need to assess competence in every given case. However, whether it is fair or just in all cases remains to be seen. Even people in the same legal category get treated in different ways. You have two people, A and B, who committed a crime for instance. The same kind of crime, not a big one, a rather mediocre one, the same criminal circumstances, the same personal circumstances etc. The only difference being that in case A evidence was very easy to procure, in case B it turned out to e very difficult. The prosecutor may prosecute A and dismiss B. Here concerns of time get in the way of justice. It is in theory possible to treat everyone equally, but practically it is not for two reasons: first we do not know with certainty where to draw the line of our legal categories and B there are societal reasons that hold us back from going all the way to assure equal treatment.

That said, if the core of your argument is that law at the very minimum, to be considered a system of law, needs to at least try to treat people equally, then I agree. Equal treatment means at least providing the same treatment to people within the same legal category as much as possible, however the question is, what are the reasons to make distinctions to begin with. Here I think more is needed than just a procedural guarantee of equal treatment. I will try to illustrate:

Say we indeed make classifications between children adults and the mentally handicapped and what not. We have these three categorizations. When a crime is committed, say murder, we punish the children least severe. They have not yet reached a level in which they can make choices and they can still be corrected into doing the right thing so a light punishment is preferred and laid down in law. Next come the adults. They have their full mental faculties and they can be corrected, since they understand the nature of punishment. They are punished harsher then children because we assume they made their choice more deliberately. The mentally handicaped are punished most severely. Their act is not an act of choice, but therefore they are all the more dangerous. Apparently their mental illness makes them violent and not in control of their actions. Moreover there is no reason to assume the sentence will have the corrective effect. Therefore they should be punished most severely. Would you think that criminal law is fair or just? People are treated the equally according to their legal category after all...

I think you would not accept this and rightly so, but it presents us with a problem. If, as you and I agree, justice is about equality, it cannot just be a procedural requirement, but it has a material component. I think next to equality there is another fundament and that is giving account, recognizing each other as equals in that the other is a meaningful protagonist in a debate or argument. Law is the historical prectice or arguing again again and again and through these arguments it is historically edified.

You would think this should be obvious, but it isn't, even to some lawyers. O.W. Holmes, Jr. famously noted that we have courts of law, not courts of justice. — Ciceronianus

:100: Indeed although I remember you being a bit more of a positivist then I was. I remember rehashing the Hart Dworkin debate here with you. All in all though we have quite a broad measure of agreement. :grin:

Besides, in the long run oblivion renders "in/justice" moot. — 180 Proof

The ultimate irony for assuming oblivion would be persistence. And while oblivion might obviate moral responsibility, obliviousness wouldn't... :wink:

Yes, but there is always some kind of arbitrariness in group classification. — Tobias

Yes. In large populations, that can't be helped. In small ones, each person can be considered individually, as can each situation. But even in a systemic procedural, the prosecutor has a degree of autonomy in considering each case on its merits and some flexibility is accorded to the jury in its deliberations and to the judge in sentencing. In a very large, unwieldy, badly designed and corruptible justice system, people of good will can still apply the law more fairly than people with axes to grind.

Is it than fair that those 17 yos cannot vote? — Tobias

No, and that can be helped. As immigrants need to take a fitness test for citizenship, so could all prospective voters. Unfortunately, that, too, is corruptible. Of course, civics should be a standard subject in school anyway.

Even people in the same legal category get treated in different ways. — Tobias

That's nothing to do with meritocracy or equality under the law.

Would you think that criminal law is fair or just? — Tobias

As stated earlier, I don't think punishment is the correct answer at all. I'm in favour of putting a lot more effort into preventing the causes and occasions of crime before damage is done.
Nor do I think it's possible for humans to contrive a perfect system of laws or to administer them perfectly. The more numerous and diverse a population, the more difficult any kind of equality or equity is to reach, and of course, money hugely complicates everything, politics tends to increase difference in treatment of people and disparity of wealth and power skew things horribly.

All we can do is blunder about, trying our best, with the tools at hand, to keep society operating in reasonably good order.

Yes. In large populations, that can't be helped. In small ones, each person can be considered individually, as can each situation. But even in a systemic procedural, the prosecutor has a degree of autonomy in considering each case on its merits and some flexibility is accorded to the jury in its deliberations and to the judge in sentencing. In a very large, unwieldy, badly designed and corruptible justice system, people of good will can still apply the law more fairly than people with axes to grind. — Vera Mont

Yeah, but what is the point? There is indeed flexibility, which creates a tension with legal certainty. That is why a ' perfect' justice system is at least in practice unreachable. Legal principles sometimes contradict one another. Of course everything can be helped by creating a rule of exception in each individual case, but that renders law rather moot. It is actually a perennial tension in any legal system, you ideally want to be able to make tailor made decisions, but you also want a code of law that provides for general guidelines of conduct in broad terms.

No, and that can be helped. As immigrants need to take a fitness test for citizenship, so could all prospective voters. Unfortunately, that, too, is corruptible. Of course, civics should be a standard subject in school anyway. — Vera Mont

No idea if that would solve anything, that is an empirical question. But giving everyone exams before allowing a certain competence is highly inefficient. That is the tension I highlight between fairness and efficiency. Fairness is not the only interest that the law upholds.

That's nothing to do with meritocracy or equality under the law. — Vera Mont

Yes it does. The law might even sanction differential treatment, for instance in cases of positive action. As again, fairness in individual cases is not law's only concern. Justice on a collective level may not be in line with fairness on an individual level.

As stated earlier, I don't think punishment is the correct answer at all. I'm in favour of putting a lot more effort into preventing the causes and occasions of crime before damage is done. — Vera Mont

They are not mutually exclusive, but most importantly you dodge the question. You held that equal treatment according to a certain category is What justice and fairness meant.

Justice and fairness require that persons be classified into groups and judged according to a uniform standard for each group. A child, or adult with the mental capacity of a child, would be judged according one set of criteria; fully competent adults by a stricter one; the mentally ill, differently again. — Vera Mont

I challenged you with a thought experiment that shows that more is needed than just equal treatment. That still stands. As for your preference to prevent crime, there is a limit at which prevention becomes itself an injustice. Sure we can prevent lot of crime when we institute a police state subjecting everyone one to invasive monitoring. That would be a huge violation of the right to privacy though and therefore illegal.

So yes we blunder about, but law is about blundering about according to the best justifications we have for our blunders. It does need clear headed reasoning though. It is not 'anything goes'. That is why philosophy of law is a mature philosophical subject.

You held that equal treatment according to a certain category is What justice and fairness meant. — Tobias

No, I said that's the best that can be expected in large, diverse populations.

It is not 'anything goes'. That is why philosophy of law is a mature philosophical subject. — Tobias

Right you are.

I don't think a perfect system is possible. I'm going to say it's probably some combination of the candidates highlighted in (1). I think human justice is achieved when humans flourish. By flourishing, I would say the emphasis is on quality and not just quantity, obviously. Having lots of folks doesn't necessitate human flourishing. Injustice, then, includes those human acts that prevent or diminish general flourishing.

Which system works best for the end of human flourishing? I would say it would include laws determined by those subject to said laws (social contract/original position kind of thing?). I don't think punishment should be thought of in terms of retribution. It should be remedial given the end of general flourishing, which includes those whose acts have prevented or diminished flourishing. I know that can seem a bit pollyanna, but it fits the idea that justice is achieved when humanity, in general, flourshes. I also think such flourishing would need a particular kind of culture that did not reduce flourishing to the acquisition of possesions. A flourishing humanity would value beauty, learning, leisure- philosophically understood. :smile: Yeah, we're doomed, per the usual.