Justice Notes PDF

[Justice Notes] - State of nature theory: to figure out the purpose of government or "political society", first figure out what problem we'd face in a state of nature without government, and why we would come together to solve that problem - Hobbes: - Problem: war of all aga...

[Justice Notes] - State of nature theory: to figure out the purpose of government or "political society", first figure out what problem we'd face in a state of nature without government, and why we would come together to solve that problem - Hobbes: - Problem: war of all against all - Solution: an absolute government that enforces peace - the state of nature was a state of war, where life was \"solitary, poor, nasty, brutish, and short.\" He argued that a strong central authority (the Leviathan) was necessary to maintain order. - Aristotle: - Hierarchy is natural political society is natural - Some are naturally fit to rule others are naturally fit to be ruled - Each has an interest in playing this natural role - So, all share an interest in forming a political society in which some rule others and political society is a natural phenomenon - Hobbes Egalitarian Foundations - Humans are naturally equal, none naturally rule others - Equality of ability: equal ability to attain ones ends - Body: the weakest has strength enough to kill the strongest either by secret machination or by confederacy with others - Mind: there is not ordinarily a greater sign of equal distribution of any thing, than that every man is contended with his share - We don't have natural interests in ruling or being ruled, in the state of nature our main goal is survival and security---this generates conflict - Hobbes's sources of conflict - Competition: when we both want some good needed for survival (scarce food) we know that each has a roughly equal chance of obtaining it so we fight for it - Diffidence (distrust/fear): even if we have all the material goods we need, we can't trust others not to attach us, so our security depends on us engaging in preemptive attacks against others preventing others from conquering us or growing too powerful - Glory: even if most people just want their own security, others want glory (power beyond what is needed for their own security), which gives us extra reasons not to trust others, and so to preemptively attack - Prisoners dilemma - Two prisoners are arrested and interrogated separately. - Each has two choices: confess (betray) or stay silent (cooperate). - If both betray, they each get 5 years in prison. - If one betrays and the other stays silent, the betrayer goes free, and the silent one gets 10 years. - If both stay silent, they each get 1 year in prison. - Best collective outcome: Both stay silent (1 year each). - Likely outcome (Nash equilibrium): Both betray (5 years each), because each fears the other will betray. - Shows how rational self-interest can lead to worse outcomes for both. - Hobbes on rights - Claim rights (obligations) vs liberty rights (permissions) - E.g, free speech: if a liberty right then I am permitted to say what I want; if a claim right then others are obligated to let me say what I want - Hobbes: - In the state of nature there are no claim rights but instead an unlimited liberty right - Laws of nature: rules people should follow for the sake of their own self-preservation - A law of nature, according to Hobbes, is a rational rule that forbids actions harmful to one's life and requires actions that best preserve it. - Moral philosophy, in Hobbes' view, is entirely based on self-preservation, meaning all morality can be derived from the need to survive. - First two laws of nature - Fundamental Law of Nature: Seek peace when possible, but use war when necessary for survival. - Problem in the State of Nature: Absolute freedom leads to constant conflict (war of all against all). - Second Law of Nature: Mutual agreement to limit absolute liberty for the sake of peace and self-defense. - Justice is fundamentally about keeping our contracts - Third law of nature - Justice: For Hobbes, a "social contract" is an agreement to transfer rights, where individuals give up their natural right to attack each other, and "justice' (the third law of nature) requires fulfilling these covenants; otherwise, the state of war persists. - Hobbes says in the state of nature must follow various laws of nature including the law of justice "men perform their covenants made" but also says that there is no justice in the state of nature - Solution: no justice without assurance - Although it is a law of nature to keep our contracts, all of our contracts are void in the state of nature absent assurance that the other party will uphold their end of the bargain: we lack this in the state of nature - Also: contracts not to defend oneself are void, since the ground of all laws of nature is self-preservation - Hobbes's fool - The "fool", who claims there is no justice and that breaking covenants is rational if beneficial, by asserting that true reason requires keeping agreements to prevent the chaos of the state of nature. - In the state of nature the fool is right: you should only be moral when you can trust others to be moral - However, once we have established government the fool is wrong - Why shouldn't you act unjustly? Because you may get in trouble - The chance of getting caught and the severity of punishment are high enough that it's against your interest to try to break the rules - You can get caught by only tricking others -- but we overrate our own intelligence and if we get caught this involves not only formal punishment but also reputational punishment - This means governments must have some serious enforcement power - Solution to state of nature steps - Laws of nature but there are residual problems - We should comply only if we trust others to comply - We don't agree about what the laws of nature require - Instituting a sovereign (solution to residual problems) - Set up a power providing enforcement and mutual assurance and so peace and justice - How do we institute a sovereign? - Agreeing to this contract takes us out of the state of nature and so puts us in a position where contracts are no longer void - When everyone publicly agrees to obey the sovereign (and so to punish non compliers if the sovereign) this gives everyone else sufficient assurance that the sovereign's will will be enforced - we need an *absolute* (unlimited and undivided) sovereign - *Unlimited*: Subjects are not permitted to breach the contract (e.g., by rebelling), and nothing the sovereign does counts as breaching the contract - The sovereign *determines* what is right, wrong, just, unjust; they judge what is necessary for peace, what laws we should have, how legal cases are decided, what the true religion is, what should be taught vs. censored; etc. - Why? The sovereign's power over all this *needs* to be unlimited, since, otherwise, disagreements about these matters (and over whether the sovereign has exceeded its limits) will lead to war! - Basic argument for absolute sovereignty - If limited then there are certain disagreements the sovereign cannot resolve including disagreements over whether it has passed its limits---this implies that there is no supreme power to resolve all disagreements - If sovereignty is divided then disagreements may break out between branches of government and again there is no supreme power to resolve all disagreements - If there is no supreme power to resolve all disagreements then we have not really left the state of nature and we are still at war - Objections - Aren't you assuming an overly pessimistic view of human nature? Couldn't we have peace without government - He isn't assuming all people are totally self-interested just a majority so enough people are like this meaning we can't trust each other. Why do we lock doors even in a society with a powerful government? - This isn't all totally irrelevant to real life? It's just a made up store we haven't established the governments we live under by coming together and explicitly coming together agreeing to a social contract - It doesn't matter how the government was set up: what matters is that it's always rational to agree to the social contract, since going along with any government is better than living in the state of nature - This still seems extreme. Why would we possibly sign up for an absolute sovereign. Corruption! Checks and balances are better. - If we divide or limit sovereignty there is no one to resolve conflicts and corruption is still better than war. - Wouldn't it be horrible to live under an absolute sovereign? Peace isn't all that matters: what about justice and liberty? - Life may not be perfect but peace would be maintained but better than war - Sovereign can't be unjust because it determines what is just and what is unjust - We have the liberty to do whatever the law allows and to defend ourselves even if it conflicts with the sovereign - Hampton: self-defense creates inconsistency in Hobbes's system. If people can retain private judgement about when to exercise this right then there cannot be an absolute sovereign - Conflict between political theory and psychological theory - Political theory: to prevent war we need someone with absolute power to decide everything - Psychology: people must decide for themselves whether they can disobey the sovereign to defend themselves - Scope of self-defense: - Defending ourselves from a physical attack - Take things necessary for self-preservation (food, water) - Remain silent when accused in a criminal proceeding - Refuse to execute dangerous orders - Hampton: - There is no coercive power left for the sovereign. Self-defense right has become so broad it is equivalent to the entire right to preserve oneself - Hobbes and Locke - How do Hobbes and Locke differ in their understanding of the state of nature? - Unlike Hobbes who thinks the laws of nature direct us to self-preservation, Locke thinks the laws of nature direct us to do well by others - Unlike Hobbes who thinks we have liberty-rights to all things but not claim-rights in the state of nature, Locke thinks we have property rights in the state of nature - Like Hobbes Locke starts with an assumption of equality: all are equal in the sense that none naturally have authority over others - But, while Hobbes claims we have a liberty-right to all things but no claim-rights Locke disagrees: we have claim-rights to life, liberty and, property - We own ourselves and so groups all these rights under property rights - Hobbes vs Locke on the laws of nature - Hobbes: in the state of nature there are laws of nature that look a lot like commonsense moral rules, but these only direct us to self-reservation - Justice consists in honoring contracts but this: - Is impossible in the state of nature (where all contracts are void) - Simply amounts to following the law in a commonwealth - Locke: Justice consists in respecting other' property rights (and punishing and seeking reparations from those who violate these rights) and this: - Is possible in the state of nature where we do have property rights - Can conflict with the law in a commonwealth - Hobbes vs Locke on whether the laws of nature can prevent war - Hobbes: the laws of nature aren't enough to establish peace - Although all should want them in place they should follow them only conditional on assurance that others will follow them too - This is only possible if the laws are enforced - This enforcement is only possible given a government - Locke: rejects the last step---in the state of nature we can enforce the laws of nature ourselves and this prevents a war of all against all - Locke's response to Hobbes' residual problems - Problem 1: we should comply with them only given assurance that others will comply, and we can't have assurance without government enforcement - Locke: nope, we can enforce the laws ourselves!
 - Problem 2: we don't agree about what the laws of nature require, and need a government to serve as an arbiter to resolve such disagreements - Locke: hmm, good point... we can't trust everyone to interpret the laws of nature the same way, which will render our rights insecure - Also, disagreements about whether people have violated rights (and whether enforcement is appropriate) may lead to feuds and wars - From the state of nature to the justification of the state - Because Hobbes thinks the state of nature would be awful he argues that any government is better and that only and absolute government can ensure we don't go back to the state of nature - Because Lock thinks the state of nature is inconvenient but not awful, he disagrees, holding that only some governments are better and that an absolute government is way worse - Hobbes this state of nature=war Locke thinks state of nature=insecure property rights - Hobbes thinks social contract to obey=absolute sovereignty Locke thinks it means limited government - Hobbes think that the purpose of government in solving state of nature problem=to establish peace Locke thinks its to secure our property rights - Property rights - Locke: government's role is to secure property right but what are these? - A right to exclude---others are obligated not to take my stuff - This is why property rights are claim rights - Locke on natural property rights: - Theory of appropriation (acquiring property) - We begin by owning ourselves---natural property right - We acquire other things by mixing our labor with them so long as we meet two provisos - We don't take more that we can use without spoiling it - We leave enough and as good for others - Spoilage: we can only appropriate as much as we can use - Locke argues that money (which doesn't spoil) solves this problem: we can take more that we can use and sell the rest - Enough and as good---doesn't taking goods out of the commons always leave less for others? - No because appropriation is not zero-sum - By appropriating goods and mixing our labor with them, exchanging them with others can produce more value - To illustrate his point Locke suggests that a day-laborer in Europe is better of than a king in 17^th^ century America - The difference doesn't come down to land or natural resources but rather to industry being more developed in Europe - The core idea is key to contemporary economic and political thinking - Zero-sum: we assign property rights over a fixed stock of valuable goods - Positive-sum: assigning property rights often gives people the ability and incentive to produce more valuable goods, making everybody better off - Locke's defense of limited government - Securing property rights are key to prosperity - Although we have natural property rights in the state of nature and although we aren't in a war of all against all our rights aren't secure - So, government has an important role to play in securing our property rights and facilitating prosperity---it shouldn't overstep in this role - Locke against absolute monarchy - Core objection to sovereign: no one should be above the law - We need a separation of powers---the executive and legislative must be separate so that the executive is bound by law - Thus whereas Hobbes argues that the need for an arbiter to resolve disagreements requires an undivided government, Locke argues the very opposite - Locke identifies three inconveniences in the state of nature: there is no impartial arbiter to (1) interpret, (2) apply, (3) enforce the laws of nature - The government must (1) establish standing laws (2) employ impartial judges to adjudicate, and use its power only to (3) enforce these laws - Its purpose in doing so must be to respect and secure our natural property rights - Hobbes vs Locke contract - Hobbes: I give up my liberty right to all things, I keep my liberty right to self-defense, I get peace, the contract is unconditional---I am released only if sovereign loses power - Locke: I give up my liberty right to interpret and enforce the laws of nature, I keep my natural property rights, I get secure property rights, the contract is conditional---I am released if the sovereign doesn't serve its purpose and hold up their end of the bargain - The consent of the governed - The sovereign must rule by consent - We consent to following the sovereign's laws on the condition that it secures our property rights and rules in our interest - BUT if it acts tyrannically---in ways that we don't achieve the purpose we agreed too---this isn't something we have consented to - This is also true in cases of usurpation, where someone assumes power through procedures that we haven't consented to (military coup) - Objections to consent - 1---what is consent? - Hypothetical Consent (Hobbes) -- Some might argue that we don\'t need actual consent; instead, a rational person *would* consent to government because it\'s necessary for order. However, this is not real consent, just an assumption about what people *should* agree to. - Explicit Consent -- Real consent typically involves a clear agreement, like signing a contract. But most people never explicitly sign anything agreeing to government rule. So, does Locke\'s version of consent really count? - Tacit Consent (Locke\'s Idea) -- Locke argues that just by living in a country and using its benefits (e.g., roads, protection), we implicitly agree to follow its laws. But this is controversial---can we truly \"consent\" if we don't have a real choice? Many people can't just leave their country, making this argument weaker. - Locke assumes we consent simply by staying, but critics argue real consent requires a meaningful choice, and many people don't actively agree or have a real ability to leave. - 2---private judgement - Hobbes argues that the government needs to be able to resolve all disagreements to prevent war but Locke leaves room for private judgement and this may seem to threaten peace - Example: Unlike Hobbes Locke defends religious toleration: it is okay for people to disagree about religion as long as we can all agree not to fight about religion - We don't need to agree if we can agree to disagree -- in the case of religion this is a much better recipe for peace - The paradox of tolerance - Karl Popper argues that \*\*unlimited tolerance is self-destructive\*\* because if a society tolerates intolerance without resisting it, the intolerant will eventually overpower and eliminate tolerance itself. - Hobbes response to consent - Hobbes fears that allowing individuals to judge whether a government is tyrannical will lead to chaos and anarchy, as disagreement could undermine stability. - Locke responds that people are naturally resistant to change and will only revolt when the government causes real harm---so if a majority resists, it signals that the government \*deserves\* to be disturbed. - Locke on private judgement - Government should leave it up to people to form their own religious beliefs (at least as long as they ascribe to tolerant religions) - Less conflict than trying to legislate religion - It should also be up to people to decide if the government is being tyrannical; - Because the threat of disobedience helps keep government within its proper limits (disagreement and disobedience can be okay) - 3---Property - Do people have natural property rights(before government) or conventional property rights(given by government) - Locke: natural - Hobbes: conventional - What is Rousseau's view on whether property rights are natural or conventional - He disagrees with both: property rights only exist as a matter of human convention, though they can exist prior to the establishment of government or formal political institutions - Tragedy of the commons - Tragedy of the Commons: Individuals overexploit shared resources because they gain immediate benefits, while the long-term costs are spread across everyone. - Locke's View: This is a case where people won't voluntarily respect natural limits, so government intervention is needed to enforce fair and sustainable use. - -Fishing Example: If everyone keeps fishing at the current rate, the supply will collapse, but since each person thinks their small reduction won't matter, they keep overfishing---leading to collective disaster. - 4---Vague - Isn't Locke's account vague? - When do we count as mixing labor (Locke's mixing labor\*means a person gains ownership by working on unowned resources, as their effort transforms it into their property.) - When have we left enough for others - Locke: yes it is vague and that's one of the reasons we need a government to resolve it - 5---Purpose of government - Does the government have purposes beyond protecting rights to life, liberty, and property? Aren't secure property rights and satisfaction of provisos consistent with all sort of social ills? - What about providing assistance (welfare) - What about combatting economic inequality - What about other social inequalities? - Locke: to figure out the purpose of the government we need to ask what problems we would face without government - Rousseau - Two critiques - Methodological critique: what problems would we face in the state of nature is not a good way to discover the purpose of the government - Egalitarian critique: Locke and Hobbes are not sufficiently concerned about inequality and the tendency of governments to reflect and perpetuate it when they should be mitigating it - Rousseau on the state of nature vs anarchy - Hobbes and Locke assume the following two questions have the same answer - What would life be like if we never formed a political society? - What would life be like if we took people out of our society and threw them back into a state of anarchy - Rousseau: these questions have different answers because human nature is plastic---people change depending on their social circumstances - Hobbes and Locke are wrong---we would have been better off staying in the state of nature but unfortunately there is no going back - Phase 1: independence - Hobbes: people in the state of nature would be motivated by self-preservation and glorywar of all against all - Locke: people would be motivated by self-preservation but also by moral rules of natureinsecure property rights - Rousseau: people in the state of nature would be motivated by self-preservation but also by compassion---and they would hardly interact - People would be largely independent and this would be great - Phase 2: corruption - As population density grows people start interacting more and develop language and reason which lets them recognize opportunities for cooperation - People form together into bands, with some degree of cooperation and some new conveniences but they also begin to make comparisons with each other and to appreciate certain natural inequalities between them - Our emotions at this point become corrupted: our concern for self-preservation turns pride our compassion weakens and we become obsessed with status - Phase 3: property - As population continues to grow and technology advances we develop agriculture and a division of labor - This leads to a need for property rights to tell us whose land is whose - The origin of economic inequalities or the division of rich and poor which Rousseau believes magnifies any natural inequalities between us - Phase 4: politics - At this point we become prideful (wanting to do better than others) and greedy which leads to conflict for Hobbesian reasons - People would thus reason along familiar lines that they need a government to ensure peace and property rights which are ambiguous and insecure - This is especially true of the rich who have the most to gain from securing their property rights and putting a stop to instability - What kind of social contract do people agree to - People would agree to a Lockean social contract establishing limited government but this contract would not be morally justified - Hobbes basically sides with Locke: people wouldn't agree to an absolute sovereign the poor only have their liberty and wouldn't agree to give it up - However, unlike Locke he thinks the contract is a sham and morally abhorrent - Perpetuates inequality and creates conflict between societies - They may give consent but not informed consent - Phase 5: despotism - At this point we have a Lockean contract where people elect their officials who claim to rule by the consent of the governed - However at this point Rousseau sides with Hobbes: this would eventually lead to political instability and civil war since different factions would form and there would be no one to resolve disagreements over who should rule - Our status obsession would partly explain this: the rich would happily install someone above them so long as others stayed below - Eventually we would end up agreeing to an absolute sovereign to prevent this war even though we never would have agreed upon this originally - Total inequality: the sovereign and we are all slaves - Why go through the phases? - Methodological critique - Lots of the problems we face arise only because we live in society and under government and we can see this by imagining that we start out in a state of nature and adding more and more features of modern life - Status inequality is only possible once we are corrupted into making comparisons - Economic inequality only becomes possible once we establish property rights (theft and slavery) - Political inequality only becomes possible when we have a government - All compounds over time (rich get richer powerful get more powerful) - Rousseau doesn't think going back to the state of nature is an option - So an adequate theory shouldn't focus on the problems we'd face without government (as in Hobbes and Locke) it should focus on the problems we currently face given that we live in society under government - Dimensions of inequality - Class (Rousseau) - Political systems reflect and perpetuate between rich and poor that existed when they were instituted - Race (Mills) - Political systems reflect and perpetuate inequalities between white people and people of color that existed when they were instituted - Sex (Pateman) - Political systems reflect and perpetuate inequalities between men and women - The racial contract - Hobbes, Locke: as rational agents we all form a contract together - An ideal social contract between all - Rousseau: no the rich trick the poor into signing the contract - A non-ideal "domination" contract between all - Mills: contract is only about people who count (white people) - A non-ideal domination contract between the privileged group - Why do we come together in political societies? - Hobbes, Locke: for some proper moral purpose (property rights, peace, justice) - Rousseau, Pateman, Mills: no this is unrealistic we came together for morally unsavory purpose (some groups dominating others) - Mills: the contract is specifically a contract between white people ascribing an inferior status to non-white people - Responses to egalitarian critique - Rousseau: this shows that we should theorize about justice on the model of a different ideal, egalitarian social contract - Mills response: this shows that we should theorize about justice on the model of a nonideal, inegalitarian social contract - Basic idea: not (of course) that we should try this contract but rather that it is more fruitful to theorize how we can correct injustice - Mills' reasons: theorizing about ideal justice is a distraction and distorting the worst