Issues & Policies in US Politics Module 8.1: Theories of Justice
Dec 16, 2015
The Natural Rights Argument
• From the Declaration of Independence• Fundamental Human Equality• Endowment with “Certain Inalienable Rights”
– Life – Liberty– Pursuit of Happiness
• Rights neither created nor destroyed by human beings
• Purpose of government: secure rights• Measure of justice: the degree to which
government secures rights
John Rawls
• Author of A Theory of Justice (1971)• Two factors inform the substance of justice
– The Veil of Ignorance in human choices (The liberty principle)– Natural human equality and societal inequality (the difference principle)
• Rawlsian Justice:– All societal benefits must be equally distributed UNLESS– An unequal distribution is to the advantage of the Least Favored in
society
Justice = Fairness
Robert Nozick
• Author of Anarchy, State, and Utopia (1974)• Two factors inform the substance of justice
– Freedom of action– Coercive power of government
• Nozickean Justice– All individuals in society must remain free to pursue societal benefits
without coercionUNLESS– Such pursuit constitutes a willful injury to another
Justice = Freedom
So what?
• Nozickean justice– Emphasizes liberty– Prescribes a
reactive government limited to resolving claims of willful injury
– May be blind to persistent inequality of unfairly marginalized individuals and groups
• Rawlsian justice– Emphasizes equality– Prescribes active
redistribution to benefit “least favored”
– May conflict with property rights and individual “pursuit of happiness”
Civil Rights
• Natural Rights connection– Civil Rights are extensions of Natural Rights into civil society– Civil Rights are societal benefits
but– Civil Rights are not created by government– Civil Rights may, however, be recognized by government
• Rawls connection– Civil Rights are therefore to be distributed equally, unless
unequal distribution benefits least favored in society
• Nozick connection– Civil Rights may be pursued by individuals, unless doing so
willfully injures someone else
Through the Lens of Equality• Rights of participation
– Voting– Legal standing– Jury participation– Speech, press, assembly and petition
• Equal protection of the laws– Due Process rights
• Security against unreasonable searches and seizures• Defensive silence• Security against bearing witness against oneself• Habeas corpus• Legal counsel• Speedy & public trial• Jury trial• Security against double jeopardy of life or limb • No excessive bails or fines; no cruel and unusual punishments
Criminal Due Process• Major Stages
1. Search & Seizure
2. Investigation & Indictment
3. Trial & Verdict
4. Sentence & Execution
• Limits: Stage 1• Security against
unreasonable searches and seizures
– Probable cause
– Exclusionary rule
• Defensive silence• Security against bearing
witness against oneself• Security against excessive
bail
• Limits: Stage 2• Security against
unreasonable searches and seizures
• Defensive silence• Security against bearing
witness against oneself• Legal counsel• Indictment by Grand Jury
– Grand Jury must specify the crime committed according to the applicable Penal Code
– Grand Jury must decide if sufficient evidence exists to demonstrate guilt of the defendant
• Limits: Stage 3• Defensive silence• Security against bearing
witness against oneself• Habeas corpus• Legal counsel• Speedy & public trial• Jury trial• Security against double
jeopardy of life or limb
• Limits: Stage 4• Legal counsel• Security against double
jeopardy of life or limb • Security against excessive
fines• Security against cruel and
unusual punishment
• Limits: Arraignment• Legal counsel• Habeas corpus• Defensive silence• Plea
– Guilty
– Not guilty
– Nolo contendere (not available in felony cases)
• Plea bargaining
Through the Lens of Equality
• Equal protection of the laws– Rights against discrimination
• Race• Religion• Ethnos• Sex• Handicap• Class?• Age?
Civil Liberties
• Natural Rights connection– Civil Liberties are extensions of Natural Rights into civil society– Civil Liberties are societal benefits
but– Civil Liberties are not created by government– Civil Liberties must, however, be recognized by government– Civil Liberties restrain government action against individuals
• Rawls connection– Civil Liberties are therefore to be equally respected by
government, unless unequal respect benefits least favored in society
• Nozick connection– Civil Liberties may be enjoyed by individuals without interference
from government, unless doing so willfully injures someone else
Through the Lens of Liberty• Freedoms of expression
– Religion
• No establishment
• Free exercise
• Religious practices unprotected if
– Practice requires legal injury
– Practice contradicts ‘overriding gov’t interest’ in public safety or health
– Peaceable Assembly & Petition
• Protected Assembly– Public demonstration– Organized Interest
Groups – Lobbying
• Unprotected Assembly– Riot– Collusion– Conspiracy– Racketeering
– Press
• Protected press– No prior restraint
» by Federal & state governments» Tribal governments may censor
press under their jurisdiction» Private sector may censor itself
– Partisan press– Investigative journalism
• Limits on press– “clear & present danger” (to national
security)– Equal time (eliminated in 1984)– Defamation
» Libel» Slander
– Speech
• Political expression
• Limits on speech– “clear & present danger”– “fighting words”– Incitement– Commercial speech
Through the Lens of Liberty
• Private property rights– Against takings without “just compensation”
• Eminent domain– Security against unreasonable searches and seizures– Security against deprivation of life, liberty or property without due process
• Due Process restraints– Defensive silence– Security against bearing witness against oneself– Habeas corpus– Legal counsel– Speedy & public trial– Jury trial– Security against double jeopardy of life or limb – No excessive bails or fines; no cruel and unusual punishments