Varieties of Justice Aristotle

1
Varieties of Justice (Aristotle)

• Justice - in wide sense (all of morality)
• Justice in narrow sense
• Formal/procedural justice
• Substantive justice
• Distributive
• Remedial private (torts contracts) and
  Criminal (retributive)

2
Equality Remedial vs. Distributive

• In remedial justice, the relevant sort of
  equality is arithmetic equality of exchange
  (contract) or compensation/harm (torts).
• In distributive justice, the equality is
  proportional. Benefits distributed in proportion
  to merit, contribution.

3
Just Treatment

• Aristotle treat equals equally,unequals
  unequally.
• Is equality before the law an empty concept?
• Peter WestenYes. Means treat all the same,
  except when its right to treat them differently.
• Anthony DAmato No. Rules out arbitrary
  distinctions. Even-numbered vs. odd.

4
Law and Discrimination

• Why should the law be indiscriminate? Because the
  legal system is supposed to be one of mutual
  benefit, for the common good.
• Is is possible for a law to be indiscriminate?
• If a law prohibits some form of action, it
  pleases a heavier burden on those antecedently
  willing and able to perform that very action.
• If it prescribes some positive duty, it burdens
  those antecedently unwilling and those for whom
  the action is especially costly.

5
Classical Utilitarian Solution

• Laws should aim at maximizing total utility.
• Each person counts for one and only for one.
• Can, in principle, justify very unequal
  solutions e.g., gladitorial games.

6
Other Possible Solutions

• Aim at approximate equality of burden imposed by
  the entire system of laws.
• Apply the maximin rule always minimize the
  burden on those bearing the maximum burden.
  Always shift cost away from those over-burdened,
  unless doing so makes someone else still more
  over-burdened.
• Further problem how to measure burden
  inter-personally? Individually or by groups?
• Do prohibitions always burden the prohibited?
  Seat belt, DWI, pedophilia?

7
Discrimination and the 14th Amendment

• The Fourteenth Amendment
• Arbitrary Classifications
• Suspect categories and strict scrutiny
• Defensive doctrines
• Problem cases
• Alternatives to the standard interpretation

8
The Fourteenth Amendment

• No State shall make or enforce any law which
  shall abridge the privileges or immunities of
  citizens of the United States nor shall any
  State deprive any person of life, liberty, or
  property, without due process of law nor deny to
  any person within its jurisdiction the equal
  protection of the laws.

9
Section 5

• The Congress shall have power to enforce, by
  appropriate legislation, the provisions of this
  article.

10
What is equal protection?

• Amendment doesnt explicitly preclude any
  classification, not even racial ones.
• Arguably, the phrase is intentionally vague or
  open-ended.
• Who decides what it means, and on what basis?

11
Prohibiting Arbitrary Classifications

• Two elements
• Classification must fulfill some legitimate
  purpose. E.g., suppressing black people would
  not be a legitimate goal.
• The fit between the classification scheme and
  the goal must be sufficiently close not too
  over-inclusive, nor too under-inclusive.

12
Stated or Unstated Purpose?

• The stated purpose of the law may not be its real
  purpose. E.g. poll taxes, or literacy tests.
• In inferring the real purpose of the law, should
  (must) the courts apply a principle of charity?

13
Suspect Categories

• Certain forms of classification, such as ones
  involving race, sex, national origin, are
  considered suspect.
• If the classification is not suspect, then the
  law must only pass minimal scrutiny.
• Suspect classifications must pass strict
  scrutiny.
• What is it about race ethnicity that warrants
  strict scrutiny? What other categories?

14
Fundamental Rights

• If the classification scheme affects fundamental
  rights (such as the right to vote), strict
  scrutiny is once again triggered.
• No definitive list or criteria for fundamental
  rights has been given.

15
Minimal vs. Strict Scrutiny

• To pass minimal scrutiny, it is only necessary
  that the classification scheme bear some
  reasonable relationship to the legislations
  purpose.
• To pass strict scrutiny, the fit between the
  classification scheme and the purpose must be as
  close as possible, except in certain special
  cases.

16
Defensive Doctrines

• Defensive doctrines specify cases in which a law
  can pass strict scrutiny, even if the degree of
  fit to the purpose is not perfect.
• One step at at time unavoidable administrative
  (not political) obstacles.
• Compelling state interest for example, national
  security. Even then, the discrimination must be
  narrowly tailored.

17
Intermediate Scrutiny

• Triggered by discrimination on the basis of sex
  (gender).
• Must be substantially related to an important
  state interest.
• Supposedly a lower standard than strict but do
  the terms (important vs. compelling) have
  clear meaning?

18
Some Problems

• The question of whether a compelling (or
  important) state interest is involved seems to
  involve the courts in essentially legislative
  questions weighing the importance of some
  substantive end.
• In addition, it violates the idea that
  constitutional rights supercede issues of
  cost/benefit balancing.

19
Two Alternatives to the Standard Doctrine

• Limit the 14th amendment to the prohibition of
  classifications that stigmatize or insult certain
  groups.
• The Group Advantage Principle allow (even
  require) state action that favors the interests
  of historically disadvantaged groups.

20
Limit to Stigmatic Harm?

• Why should stigma (damage to dignity or social
  position) be the only harm considered?
• Can the courts reliably decide this? (In Plessy
  v. Ferguson, the SC denied that segregation
  carried any stigma of inferiority.)
• Is there a necessary link between discrimination
  against minorities and stigma? (E.g. quotas for
  over-performing minorities)
• Doesnt discriminating on the basis of
  intelligence, talent, achievement stigmatize the
  losers?

21
Individuals and Groups

• Are groups real entities in their own rights, or
  are they mere aggregates of individuals?
• Can groups have legitimate claims on other
  groups, that are not merely the sum of individual
  claims on other individuals?

22
Fisss Definition of Group

• An entity with distinct existence and
  identity, apart from its members.
• Members view themselves as part of the group, and
  are so viewed by others.
• Interdependency the identity and well-being of
  members depends, in part, on that of the group.

23
Group Disadvantage Theory

• The 14th amendment is to be interpreted as
  protecting the interests of groups that are
• Socially and economically disadvantaged (relative
  to others).
• Politically marginal and vulnerable (an isolated
  minority).

24
Fisss Arguments for Group Disadvantage
Interpretation

• Only explanation of how the 14th amendment
  applies, even when the state merely enforces the
  discrimination of others (Shelley v. Kraemer).
• Only explanation of how facially innocent, de
  facto discrimination can be found in conflict
  with 14th. (Poll taxes, literacy test).

25
Are all of Fisss criteria necessary?

• Must the group be perceived as such by others?
  (Gay, bisexual?)
• Must the group be disadvantaged? (Professions?
  Homemakers? Religious minorities? Asians?)
• Must the group be a source of identity? (Drug
  addicts? Mentally ill? Ex-cons?)

26
Fiss claims that the Courts must amplify the
voice of disadvantaged

• Is this consistent with the principle of majority
  rule?
• Does this apply only to protecting enumerated
  rights, or does it extend to influencing policy
  (taxes, regulations, welfare)?