Justice:

what is the right thing to do?

Theories and Questions

PHILOSOPHY OF LAW 2014 - LUMSA

The runaway trolley

Suppose you are the
driver of a trolley car
hurtling down the track at
60 mph.

The runaway trolley case 1

Case 1 : the single worker

The runaway trolley (#2)

Case 2: the heavy man

The runaway trolley (#3)

Why does the principle that seem right in the first

case (numbers count), seem wrong in the second?

Others reasons:

The fat man didn't choose to be involved, we can't

use him against his will.
The railway workers willingly incur a risk
Our intention is different

The emergency room (#3)

Now you are a doctor

6 patients come to you. 5
of them are severely
injured, but 1 is at risk of
his life.
In the time you care about
the one, 5 others can
die, but in the time you
save the 5, the one
would die.

The emergency room (#3)

Now you are a transplant

surgeon. You have 5
patients each in need of
an organ transplant in
order to survive. You
dont have donors, but
In the next room there is a
healthy guy who came
for a check up!

Utilitarianism
The Mignonette case

If you were the judges...

The three man were picked up on the 24th day, and

they returned to England.
Dudley and Stephen went to trial, Brooks turned state's
witness.
They confessed, but they claimed to have done so out
of necessity.
How would you rule?
(put aside the question of law, and concentrate on the
moral dilemma)

Arguments and objections

Necessity vs. Calculation (cost benefits)

But
Benefits really overweight the costs?
We can use a human being in this way?
And
What if Parker would consent to be eaten,
in order to save his colleagues?
What if they accepted the lottery?

Conflicting principles

Some moral dilemmas arise from conflicting moral principles

We should save as many lives as possible
Vs
It is wrong to kill an innocent person, even for a good reason
(categorical objection)
l
A fair procedure would be better, such as a lottery
(procedural objection)
l
Only the subjective consent would make the difference
(lack of agreement objection)
l

But
Other moral dilemmas arise because of uncertainty: in real life we
confront uncertain choices!

Homeworks

Two different approaches to justice

Consequentialist
The morality of an action depends on
the consequences it brings about:
the right thing to do is whatever
produces the best state of affairs, all
considered.
Deontological
Consequences are not all we should
care about: certain duties and rights
should command our respect, for
reasons independent of the social
consequences.

Action
Consequences
Judgement
Judgement
Action
Consequences

Utilitarianism

Bentham:
We like pleasure and
dislike pain
Maximizing utility is a
principle for individuals and
legislators
There is no possible
ground for rejecting this
argument

Utilitarianism
What did Bentham mean with utility?
A balance between
Pain

Pleasures

Suffering

Happiness

Costs

Benefits

The Afghan Goatherds

June 2005

What to do?

The goatherds appeared to be unarmed civilians

but

Letting them go would run the risk that they would

inform the Talibans of the presence of the US soldiers
To kill:
l
US soldiers have a right to do everything they can to save
their lives
Not to kill:
l
It is wrong to execute unarmed man in cold blood.

What is happened...
M. Luttrell's team

Moral criteria

Killing two Afghans would have saved the lives of

19 US soldiers
(X = trolley case1 or 2?)
It was a bad decision?
And if goatherds would have been tortured by
Talibans to reveal US soldiers' location?

Objection 1: individual rights

Utilitarianism fails to respect

individual rights
It can consider it correct to
violate fundamental norms of
decency and respect.

Individual liberty vs Utilitarianism:

three cases
Case 1: throwing Christians to lions

Individual liberty vs Utilitarianism:

three cases (#2)
Case 2: torture
l

Is torture consistent
with individual rights?
Can we justify torture
for its own sake?

Individual liberty vs Utilitarianism:

three cases (#2)
The ticking bomb
scenario

Rejecting torture in the name of...

Utility:
l
Information is unreliable
l
Fear of worse treatment for soldiers made
prisoner
Principle:
l
Doesn't respect human rights
l
Dignity lies beyond practical results
But... numbers make the difference?

Numbers make the difference?

Would it be morally acceptable (in the name of utility,

and of numbers) to torture his innocent daughter, if it
was the only way to induce him to talk?

Case 3: the city of happiness

Are those conditions acceptable?

Objection 2:
Preferences are all equal?
U is based on measuring preferences, without judging
them. For that reason, U claims to offer a science of
morality:

Cost - Benefit analysis

But...
a) Can we translate complex social choices into monetary
terms (it is possible to put a price tag on life)?
b) Can we reduce different preferences and pleasures to a
single scale (it is possible to measure pleasures)?

a) Cigarettes and cancer

An incredible analysis

Cigarettes and cancer

What is the real problem?
The disregard for human value...
or a bad calculation of costs?

a) Cars and Explosions

Ford Pinto (1970)

Costs and Benefits

Lives saved and injures
prevented: 180 deaths
and 180 burn injures (if
no change)
Life's value = 200.000 $ x
180
+ Injury = 67.000 $ x 180
+ Number and value of
burned Ford Pinto
= 49.5 $ million

Production costs
(adding a device to 12.5
million vehicles)
11 $ x 12.5 million

= $ 137.5 million

How to calculate
the value of human life?
Highway Safety Administration
calculated the cost of traffic fatality, counting:
future productivity (earnings) losses +
medical costs +
funeral costs +
victim's pain and suffering =
$ 200,000 per fatality
Jury contested the price, not the principle. One
should include also the loss of future happiness!

A better calculation.
Environmental Protection Agency:
Costs-Benefit of pollution standards (how much we can pollute?)

$ 3.7 million per life saved due to a cleaner air, but...

$ 2.5 million for people older than seventy.
Saving an older person produces less utility
(a young person has more happiness to enjoy).
Critics: placing a value on human life is morally obtuse.
Defenders: many social choices are based on such
calculation, even if we don't admit it.

A better calculation: speed limits

In Italy, the use of cars causes more than 4,000 deaths and
302,000 injured (2010) per year.
Speed (among other factors) influences this rate.
Should we reduce speed limits?

Cost-benefits of higher limits: T/N=C

Time saved ($20 per hour) if limit is 10 mph higher
Number of additional deaths
Acceptable cost of driving faster per fatality
($ 1.54 million per life)

b) Pleasures

Bentham: pleasure is pleasure, we can't judge them, so we

can measure them (if more people want rather watch
cockfights than renaissance paintings, the State should
subsidize animals arenas rather than museums).
The quantity of pleasure being equal, pushpin is as good as
poetry (J. Bentham).

How compelling are these objections?

A revision of utilitarianism.
J. S. Mill (18061873)
He tried to humanize
Utilitarianism, by
demonstrating that:
a) it respects individual
rights;
b) it is possible to
distinguish higher
and lower pleasures.

How compelling are these objections?

A revision of utilitarianism.
a) In the long run, respecting liberties will
promote the welfare of society as a whole;
b) Of two pleasures, if there be one to which
all who have experience of both give a
decided preference, irrespective of any
feeling of moral obligation to prefer it, then
that is the more desirable pleasure.

Test: your pleasures list

(for an enjoyable Sunday).

Mill's thesis on pleasures.

Which of those experiences you find more

pleasurable?
Which you consider qualitatively higher?
So... pleasures are higher because we prefer
them, or we prefer them because we
recognize they are higher?

Libertarianism: wealth and taxes

Libertarianism: wealth and taxes

Shall we redistribute wealth?
YES: if we take 1 million to Bill Gates, and distribute it to
hundred needy recipient overall happiness would
increase.
NO - 1: high tax rates (on richest people) reduce the
incentives to work hard and produce, leading a decline in
economy. The overall level of utility will go down.
NO - 2: taxing is unjust. Taking money from Bill Gates, even
for a good reason, violates his fundamental rights to do
with his money what he prefers.

Free Market Philosophy

Libertarian principles are a challenge to our ideas of distributive
justice and self ownership.
Minimal State - Distributive justice depends on two
requirements:
1.

Justice in initial holdings (resources you used to make

money were legitimately yours)

2.

Justice in transfers (free exchanges or voluntary gifts)

Only demonstrating that present situation is due to past

injustices, it is possible to remedy through taxes,
reparations, affirmative actions, etc

Samuel Etoo
Etoo's earnings in 2011: 20 millions
USD. Is it just?
It is the consequence of a free market:
people prefer see Etoo playing than
others.
Can we impose Etoo by taxing him
to support disadvantaged people?
Doesnt it violate his liberty, forcing
to make a charitable contribution
against his will?
Taxes are is on a par with forced labor?

Taxes and forced labor

Libertarians: if the State has the right to claim
some portion of my earnings, it also has the
right to claim some portion of my time.
Taxes

Forced labor

Slavery

Do I own myself? Do I own my time? Do I own

my earnings?

Five objections to redistribution

1. Taxation is not as bad as forced labor
2. The poor need the money more
3. Etoo doesnt play alone, so he owes a debt
to those who contributed to his success
4. He consented, as a citizen of a democracy
5. He is lucky

A stronger defense of rights:

Libertarianism
Minimal State
1 - no paternalism. Laws can't protect
individual from themselves
2 - no moral legislation. Laws can't
promote a particular notion of virtue
3 - no redistribution of wealth

Minimal State: questions

Fighting wars
We need to find a way of recruiting soldiers:
Conscription: based on age, or on a lottery
Market: to increase pay and benefits
Outsourcing: to hire mercenaries
Hybrid system (Civil War System): Market +
Conscription

First objection
Free market is not truly free for those without alternatives
We should know more about the background conditions: is
there a reasonable degree of equality and opportunities?
If someone has no other good option, or it is the only way
to get a college education, those who choose to enlist
may be conscripted by economic necessity.
N.B.: this is not an objection to the vol. army as such, but
only to this system when it operates in a society with
considerable inequalities

Second objection
The civic virtue: military service is not just another job
All citizens should serve their country (but one has also
other possibilities: Caritas, MSF, Fire Dept.). It is a civic
duty, so it can not be sold on the market.
An analogy: jury service (yes, no one dies, but it can be
onerous if it conflicts with a good job or other
commitments). Can we create a professional jury
system?
Perhaps we think that the quality (if the jurors would come
from disadvantaged backgrounds) would suffer...

Second objection (#2)

Jurors don't simply vote: they deliberate with
one another about the law. It is a form of civic
education, an expression of democratic
citizenship and societal belonging.
In the same way, turning military service into a
commodity corrupts the civic ideals that
should govern it.
We pay someone to fight and to die for us. Does
it increase liberty, or undermines it?

Market and Morals

Our arguments and debates involve the role of
markets: is it fair? Are there some goods that money
can't buy?
Liberals: letting people engage in volountary exchanges
respects their freedom (laws shall respect individual
liberty)
Utilitarians: free market promotes the general welfare:
if two people make a free deal, both gain. In general,
a free market increases overall utility.

Selling kidneys

I can donate one of my

kidneys, but I cant sell it
on the open market.
Why?
If I own my body, I should
be free to sell its parts
as I please. The moral
value of my body, or its
safety, doesnt matter.

Market and Morals

Contact Information
Contact Michelle
Location: Sydney, NSW, Australia
More Information
My partner and I have been together for 3 years. We found each other
unexpectantly and fell in love. We are best friends and soul mates and would love
nothing more than to have a child a family together.
We have been trying to conceive for the last 2 years, but due to my age (I am 44
and my partner is 31), our chances of conceiving are not good. This is devastating
for us.
We have done the necessary tests and doctors have confirmed an egg donor is
the only option.
We are looking for your help. Please help us make our dreams come true.
Thank you for considering our story,
Michelle & Adam

Pregnancy for pay

The case of Baby M.
Focus on the moral aspects: should we
morally enforce such a contract?
YES: a deal is a deal (parents get a
genetically related child, the mother
get up to 20.000 $).
Trial Court: She was fully informed, and
they didn't pay for a baby: they had
paid for the service of carrying out
their child to term, not for a product.

The Supreme Court's argument

1. (A mother) can not take a totally voluntary and
informed decision... Any decision prior to the baby's
birth is, in the most important sense, uninformed.
2. Putting aside the issue of how compelling her need for
money may have been, and how significant her
understanding of the consequences, we suggest that her
consent is irrelevant. There are, in a civilized society,
some things that money can not buy.

Moral arguments
Vs 1. When is a supposedly voluntary agreement really
voluntary? We are always compelled! Libertarians:
justice requires respect for whatever people choose,
provided these choices don't harm other people.
Vs 2. Does commercial surrogacy degrade women? We
have to suppose that goods differ in kind, thus it is a
mistake to value all goods in same way (money). But:
how can we value these supreme goods? And why are
they so supreme?

New perspectives on parenthood

New horizon: IVF (in vitro fertilization)
Cost of a surrogacy in USA: $ 20,000 (surrogate mother)
and 50,000 other costs.
Cost of surrogacy in India (from 2002 it is legal): in Anand, $
25,000 (this cost includes surrogacy, medical costs,
round-trip airfare, hotel). Clinics for surrogates provide
housing with maids, doctors, and cooks.
Does the creation of a paid pregnancy industry on global
scale degrades women by intrumentalizing their bodies
and reproductive capacities?

Euthanasia
Maynard was born in Anaheim,
California on November 19, 1984. On
January 1, 2014, she was diagnosed with
grade 2 astrocytoma, a form of
brain cancer,and had a
partial craniotomy and a
partial resection of her temporal lobe.The
cancer returned in April 2014, and her
diagnosis was then elevated to grade 4
astrocytoma, also known asglioblastoma,
with a prognosis of six months to live.
She moved from California to Oregon to
take advantage of Oregon's Death with
Dignity Law,[4] saying she had decided
that "death with dignity was the best
option for me and my family

Euthanasia
Should the law ban/allow euthanasia?
Suffering is intolerable, so patients should be
able to demand their death, if they want it.
But why only for terminally ill patients?
My body belongs to me as my entire life does,
and if I enter into a voluntary agreement with
someone to help me to die, the law cant
interfere.

Do we own ourselves?

J. Locke: Freedom,
equality, property
rights (a), and
government by consent
(b) each of these
ideas figures
prominently in
contemporary political
thought. And each idea
was central to the
political thought of
John Locke

a) Unalienable rights
According to Locke, our natural rights are governed by
the law of nature, known by reason, which says
that we can neither give them up nor take them
away from anyone else, because:
1. God is the real owner of any man and any thing;
2. The reason teaches all mankind that being all equal
and independent, no one ought to harm another in
his life, liberty or possession.
1. Certain rights are so essentially mine, that I cant give
them up, I cant sell them, I cant renounce to them.
2. Really to be free, means to recognize that there some
rights that are unalienable.

But, what about private property?

Private property can arise even before there is any

government, even in the state of nature.
Every man has a property in his own person. This
nobody has rights to but himself. The labor of his
body, and the work of his hand, are properly his.
For this labor being the unquestionable property of
the laborer, no man but he can have a right to what
that is once joined to, at least where there is
enough, and as good left in common for others

Locke and our problems

b) Consensus and rights

If we all have unalienable rights to life, liberty, and

property, how can a government enforce tax laws
passed by the representatives of a mere majority?
Doesnt that mean to take some peoples property
without their consent?
Lockes response is that we give our tacit consent to
obey the tax laws passed by a majority when we
choose to live in a society.
But to what extent?

b) Consensus and rights

Property is natural (in the sense we have some

unalienable rights, and that the institution of
property exists and shall be respected),
but
Property is also conventional (what counts as
property, what is defined, thats up to the
government).

b) Consensus and rights

Since people decided to leave the state of nature, in order

to make their condition better, they agree to a limited
government that protects their natural rights to life,
liberty, and property.
People are free by nature, but liberty is not license.
Rights to life, liberty, and property are unalienable; they
cannot be given away.
A democratic government has the right to tax people, but
it has to be with consent (not of each individual, of
course, because they consented to governments
decisions when they decided to live in a community).

Consensus and rights

The consent is about to join government, and to

be bound by the majority.
Government is limited (limited by the fact that
we have some inalienable rights), but it does
mean that it has to govern by generally
applicable laws, and it cant be arbitrary.
But, why is consent such a powerful instrument?

A step forward
According to utilitarians, the right thing to do is
always to maximize happiness.
Libertarians think that the right thing to do is
most often to let people do whatever they
want.
John Lockes theory says that there are
unalienable rights, afforded to every human
being by the law of nature.

A step forward: Kant

The philosopher Immanuel Kant thought that each of
these views was mistaken. He leads us into two new
accounts of freedom and morality.
Against the utilitarians, Kant held that freedomand
not happinessis the goal of morality.
Against the libertarians, Kant denied that freedom is
doing whatever one wants.
Against Locke, he held that morality, duty, and rights
have their basis in human reason, not in a law of
nature.

Kants principle of morality

Kant thinks that morality is a kind
of law; everyone has to obey it.
Therefore, he thinks it must be
the case that everyone could
obey it. This is his test for
morality.
According to Kant, your action is
moral only if its done from a
motive that everyone else
could act on at the same time
as youre acting on it.

Kant and habits

Kant also thinks that a naturally kind person
is not really moral because she acts out of
habit. According to Kant, habits can be
useful, but not moral. Habits are a sort of
necessity.
The difference between humans and animals
is that we (can) act according to our
reason, and not (only) to our feelings,
desires, passions, ends, etc

Kants morality principle: the motive.

Kant imagines a shopkeeper
who does not overcharge his
customers only because he
fears that word of his
dishonesty will spread and
hell lose money.
Kant thinks theres nothing
morally worthy about his
action; his honesty is mere
prudence, mere selfishness.

Problems and dilemmas: freedom.

Freedom is not just doing whatever you want.
Kant has a more demanding idea of freedom
as self-determination.
If someone brainwashes you into doing
something, you are not free. Likewise, if you
buy expensive shoes only because youve had
the desire implanted in you through
advertising, then you are also not free.
Are smokers fully free?
Do you have impulses, cravings, or desires
that you find it hard to control? Would you
consider liberating to be able to control them
to a greater extent?

Problems and dilemmas.

Kant thinks that every rational human being has dignity,
and that everyones worth is infinite. That worth
comes from our capacity to act autonomously.
Autonomy vs. Heteronomy
Only by acting autonomously we really are ends in
ourselves, and not only means (we threat ourselves
as means if we act under the pressure of a
heteronomy, such as desires or passions).
We act according to our dignity only if we do the right
thing for the right reason.

Problems and dilemmas: the duty.

Kant says that morality is doing the
right thing for the right reason. But
what is the right thing? What is our
duty?
Kants claim is that our duty is given by
the idea of a lawsomething that
tells us what we must do, no
matter what. Your action is moral
only if its done from a motive that
everyone else could act on at the
same time as youre acting on it.
Example: telling the truth.

Three questions to Kant: telling the truth

Suppose you receive that tie, as a gift.
What can you say, without lying to the donor?

A white lie:
Wow, its
beautiful!

A misleading truth:
Ive never seen a tie
like that before!
An omission:
smile, and
thank!

Three questions to Kant: telling the truth

Suppose you meet a friend in a mall,

and he tells you hes tried by a
murder, and he asks you to save him.
You bring him home, and you hide him
in the closet. Then, the murder
comes.
Tell me where your friend his, or Ill kill
you.
What do you do?

Three questions to Kant: telling the truth

President Bill Clinton:
I had no sexual relationships with Ms
Monica Lewinsky.
During the impeachment procedure the
question was: did he lie?
There is a morally relevant difference
between a lie and a misleading truth?
a) The intention;
b) The homage to the duty of telling the
truth (the argument does not coerce
or manipulate the listener).

Problems and dilemmas: the humanity.

Kants idea of humanity, or human
reason says that you should never
treat rational human beings merely
as means to your end.
Whenever you use someones skills or
services to your own end, you
should always also treat that person
as an end in him- or herself.
Since youre a rational human being,
this includes you! Therefore, you
must never commit suicide, he
thinks.

Three questions to Kant: casual sex

Suppose you meet someone, and he/she
agrees to have sex with you, only for one
night.
It would be morally right to do it?
The desire which a man has for a woman is
not directed toward her because she is a
human being, but because she is a
woman only her sex is the object of his
desires.
Under what conditions sex is morally right?
Same arguments for selling organs, for
prostitution

The moral force of a contract

John Rawls, A theory of Justice.
A hypotethical agreement is the basis of
justice. According to Rawls, principles of
justice are those that we would all agree
to if we were choosing rules for our
society and no one had any unfair
bargaining power.
Kant = Rawls:
a) each person possesses inviolable rights.
b) Principles of justice can be derived from
a hypotethical contract, not from an
actual one.

The moral force of an actual contract

1. How do they bind obligate me?
a. Consent-based: Authonomy
b. Benefit-based: Reciprocity
Can consent create an obligation on its own, or is some
element of benefit also required?
2. How do they justify the terms they produce? Are they fair?

A fair contract: consent?

According to Rawls, an agreement is not necessarily fair even if it
is voluntary.
It is unfair if one of the contracting parties is able to take
advantage of the other party because he is stronger, richer,
better informed or simply more powerful.

A fair contract: reciprocity?

After ten years of faithfulness on my
part, I discover that my wife has been
with other man. What can I say?
Im outraged, we did an agreement!
You made a promise, you broke your
vow! (Consent).
But also
Im outraged, Ive been so faithful for
my part I dont deserve this! This is
no way to repay my loyalty!
(Reciprocity).

A perfect contract.
Contracts derive their moral force from
consent and reciprocity, but most
actual fail to realize both.
In real life, persons are situated
differently, and thus the fact of an
agreement does not in itself
guarantee the fairness of the deal.
But can we imagine a contract among
parties who are equal in power and
knowledge? And can be such a
contract the way to assign duties and
rights, and to determine principles of
government?

A perfect contract.
Rawlss answer is that we have to limit our knowledge. Behind
this veil, you do not know anything about yourself.
You do not know your sex, your race, or the social class you
belong to. You do not know how strong or weak you are, how
stupid or intelligent, or whether you are disabled. You do not
even know what your goals in life are, or whether you
practice a religion.
In this situation of ignorance, its not possible for anyone to
propose social rules designed to benefit himself or herself
over other people.

A perfect contract.
What principles would emerge, in that situation?
We wouldnt choose utilitarianism: in case we turn out to be a
member of a religious or ethnic minority, we dont want to be
oppressed, even for the best interest of the greatest number.

We would agree to a principle of equal basic liberties for all

citizens, and we would not accept to sacrifice our rights for
social or economic benefits.

A perfect contract.
But what can we do to guard against the risk of finding
themselves in poverty?
Suppose that by permitting certain inequalities (higher pay for
doctors than for taxi drivers) we could improve the situation
of the least advantaged: we would accept that?

We would agree to a principle of difference, according to which

social and economic inequalities are permitted only if they work
to the benefit of the least advantaged members of society.

Taxes and incomes

Could these inequalities be consistent with the two principles?
For Rawls the question is whether Fazios whealth arose from
a system that is just, as a whole. If Fazio is subject to a
progressive tax system that taxes the rich to provide for the
health, education and welfare of the poor, the system is fair.
5.4 Mln Euro

24.800 Euro

Against moral arbitrariness

These (other) systems are unfair?
1. Aristocracy and caste system.
2. Free market society, formal equality (libertarian system).
3. Meritocracy, and natural lottery of talents.

The accident of birth, different familys opportunities, and even

natural talents are arbitrary from a moral point of view. Thus,
these factors cant be the basis for a fair and egalitarian
distribution of incomes, rights, duties. We should abstract
from these contingencies, in order to find justice.

Objections
Incentives: what if talented people decide to work less, or not to
develop their skills? They could benefit from their talents only
on terms that help the least well off?
Rawls: if incentives (and higher incomes) generate economic
growth or services that make least advantaged better off than
they would be without it, incentives are permitted.
Effort: Why people that worked hard dont deserve to be
rewarded, notwithstanding their talents and gifts?
Rawls: like other factors in our success, effort too is influenced
by contingencies (supportive families, social circumstances)
for which we can claim no credit and no desert.

Success and moral desert

Example: a brilliant young law

graduate, with honors. It will be
appreciated more in a
1. Democratic society, complex, with
an high level of conflict
2. Warrior society
3. Agricultural society
4. Theocratic society
He does fully deserve his success, and
his incomes? What other factors
influence his success?

Justice and moral desert

There is a tendency to suppose that (distribution) should be
settled according moral desert. Justice is happiness according
to virtue Now justice as fairness rejects this conception.
Does it mean that people who work hard and who have
cultivated their talents dont deserve a reward for their
effort?
BUT: Rawls makes a subtle and pivotal distinction between
moral desert and entitlements to legitimate expectations

Justice and moral desert:

Rawls distinction
Distributive justice is not about rewarding virtue, but about
meeting the legitimate expectations that arise once the rules
of the game are in place.

Moral desert

Entitlement to
legitimate expextations

Distributive Justice and entitlements

Once the principles of justice set the terms of social interaction,
people are entitled to the benefits they earn under the
rules.
A just scheme answer to what men are entitled to; it satisfies
their legitimate expectations as founded upon social
institutions. But what they are entitled to is not
proportional to nor dependent upon their intrinsic worth.
Why?
1. My having the talents that enable me to compete more
successfully than others is not entirely my own doing.
2. The qualities that a society happens to value at any given
time are also morally arbitrary.

Life is unjust?
We should reject the contention (M. Friedman) that the
ordering of institution is always defective because the
distribution of natural talents and social circumstances
are unjust, and this injustice must inevitably carry over
human arrangements. Occasionally this reflection is
offered as an excuse for ignoring injustice, as if the
refusal to acquiesce in injustice is on a par with being
unable to accept death.
The natural distribution is neither just or unjust; nor is
unjust that persons are born into society at some
particular position. These are simply natural facts.
What is just and unjust is the way that institutions deal
with these facts

Turning to Aristotle's perspective

We focus on two ideas:
1. Justice is teleological Defining rights
requires us to think about the telos.
2. Justice is honorific To think about the telos
implies arguing what virtue it should honor
and reward.

Aristotle and the Cheerleader

Callie Smartt
Should she be required to do exactly
the same gymnastic routine, or is it
unfair, given her disability?
What does it mean not to
discriminate?
What does it mean to perform well in
the role of cheerleader? What is
essential to cheerleading?

Aristotle and the Cheerleader #2

Callie should be a cheerleader because she displays the
virtues appropriate to the role... but: what she properly
deserves?
a) in order to determine a fair way to allocate positions and
goods, we need to determine the nature and purpose of
practices (cheerleading): what qualities are essential to
it?
b) determining the essential of a practice can be
controversial, because we have to discuss what qualities
are, case by case, worthy of honor.

Justice and virtue

1. Justice involves equality, in a commutative or distributive
sense.
2. To determine the just distribution, we have to inquire into the
telos, the intrinsic purpose of a practice or a good being
distributed.
3. Justice can not be neutral: it means to give people what they
deserve, to give his or her due. But to know this, we have to
discuss about virtue, honor, good life, ...

Second example: golf and golf-carts.

Can Casey Martin use a golf cart during
tournaments?
According to the American with
Disabilities Act, reasonable
accomodations are required,
provided they don't fundamentally
alter the nature of the activity (the
tlos).
Is walking an essential aspect of that
sport?

Scalia's dissenting opinion

To say that something is essential is ordinarily
to say that it is neccesary for the achievement
of a certain object. But since it is the very
nature of a game to have no object except
amusement... it is quite impossible to say that
any of a game's arbitrary rules is essential.

Sports and rules

Are sport rules entirely arbitrary? Or, are they designated to call
forth and celebrate certain skills and talents?
Is it possible to argue the meaning of different rules? Consider
the debates about soccer, and about its rules. Some of these
rules have been changed (eg: goal kick rule).
What exactly was the Casey Martin case about? Was it about
fairness, or about the desire of golf players to be recognized
as athletes?

Justice and telos

Stradivarius' violins are unfortunately very
few. But a Stradivarius is now for sale.
A russian wealthy collector wants to display
the violin in his living room, and he outbids
Anne-Sophie Mutter for it.
Is it a just distribution?

Same-sex marriage
Should we recognize same-sex
marriages?
We could:
1. recognize only marriages between
a man and a woman.
2. Recognize any kind of marriages.
3. Don't recognize marriages of any
kind.

Questions
1. Is marriage a public affair, or a private one?
2. What is the real issue in the debate, individual's freedom of
choice or whether same-sex unions are worthy of honor?
3. Is there a tlos in marriage? Two options: a) procreation; b)
exclusive and permanent commitment.
4. Do they fulfill both these purpose of that social institution?
We cannot remain neutral: we always face competing
conceptions of the good life.

Moral individualism and shared duties

Are we responsible only for what we ourselves do?
Are we responsible for the sins of our parents, or of our
compatriots?
Moral Individualism: to be free is to be subject only to
obligations I voluntarily incur. I owe something to others only
by virtue of some sort of consent, be it tacit or explicit.
Collective responsibility is unconceivable.
But...

Collective apologizes
Germany: it has paid billions of dollars in reparations for the
Holocaust (to survivors and families); political leaders have
offered statements of apology, accepting responsibility for
the Nazis' crimes.
Australia: political debates about national apology to the
aboriginal people, and measures to overcome social
disadvantages (aboriginal children of mixed race were
forcibly separated from mothers and placed in settlement
camps: in 1997 a HR commission documented the cruelties
inflicted on the stolen generation).

Collective apologizes (# 2)
USA: political debate about reparations for African Americans,
or for Natives (the Civil War promise of forty acres and a
mule for freed slaves never came to be). In 2008 the House
of Representatives passed a resolution apologizing for slavery
and for racial segregation.
Catholic Church: In 2000, Pope John Paul II issued a formal
apology for all the mistakes committed by some Catholics in
the last 2,000 years of the Catholic Church's history, including
the trial of Galileo among others.

Foundations of M.I.
Locke: we are all free, equal and independent beings, and no
one can be put out of this estate, and subjected to the power
of another, without his own consent.
Kant: to be free is to be autonomous, and that is to be governed
by a law I give myself. I follow my will not simply if I choose
according to my desires, but when it participates in pure
practical reason.
Rawls: we are really free to think about justice if we set aside
our particular interests, choosing behind a veil of ignorance.

Consequences
The moral agent is independent of his or her particular aims and
attachments Justice and moral law are without reference to
the roles and identities that situate us in the world, and make
us who we are.
Thus, once I set aside my identity (as a German, an American, an
Australian, a roman Catholic...) there is no basis for saying I
have an obligation to remedy past injustices of my country.

Consequences: the neutral state

Theories of justice that rest on a certain conception of the good
life (whether religious or secular) are at odds with freedom.
These theories fail to respect persons as free and
independent selves.
The freely choosing and the neutral state go together. Everyone
has the right to pursue his ends in a way that respects other
people's rights.
Right is prior to the good.
Thus, we can not reason about the tlos, or about the good.

Rights, duties and belonging.

Can we really understand ourselves as free and independent
beings, unbound by moral ties we haven't chosen?
How can we justify moral and political obligations that we
commonly recognize and prize, and that arise from the
community and traditions?
A possible answer: we ARE that tradition, and that community.
Our identity depend on these factors.
Aristotle: human beings are zoon politikon.
MacIntyre: human beings are narrative beings.

Conclusion
Three approaches to justice:
1. Utilitarianism
2. Liberalism / Libertarianism
3. Objectivism (theory of virtue)
But... can we consider only individuals, or should we think about
a just society?
R.F. Kennedy Even if we act to erase material poverty, ... we
have to confront the poverty of satisfaction, ... the mere
accumulation of things.

Conclusion
We need to talk about values, and about the community we
wish to live in.
Thus, we need to discuss about community and common good.
We have to find a way to cultivate in citizens a concern for
the whole, a dedication for it.