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Index:
Adler
on Justice & Expediency
Only Aristotle uses the word "justice" in two
radically different senses. He distinguishes
between general and special justice. By justice in
general he means justice as one of the four
cardinal aspects of virtue, the other three being
courage, temperance, and prudence. The morally
virtuous man is a just man, an as such he is a
temperate man and one who is also courageous and
prudent.
By special justice, Aristotle means fairness in
exchange and fairness in the distribution of goods.
Fairness in exchange is commutative justice, and
the other aspect of fairness is distributive
justice. Fairness is the special justice that is be
found in just laws; and it is in connection with
the justice of human-made or positive law that
Aristotle introduces the notion of equitable
dispensation from a strict application of law to
difficult cases. In the Anglo-American tradition of
the common law, courts of chancery and equity
provide such as dispensations by the Lord
Chancellor in Great Britain and by a similar
official in some United States jurisdictions.
Machiavelli tells us that the prince should be
just in the use of power, but if a just use of his
power is not expedient, then he should be expedient
in his effort to be a successful prince. The ideal
use of power occurs when ruling justly is also
expedient. But when that is not possible,
Machiavelli says, then the prince or anyone else
with ruling power must be unscrupulous and use what
ever means will succeed in getting or keeping power
even if the means employed are unjust.
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Adler
on Punishment
The word "punishment" is used in the criminal
law to stand for whatever treatment the state
recommends for convicted offenders. That treatment
may be either utilitarian or retributive, but it
cannot be both.
The treatment is retributive when the punishment
fits the crime, not the criminal. Retributive
punishment may or may not have a salutary effect
upon the criminal, but the severity of the
punishment must be measured by the seriousness of
the crime. What was once called the lex
talionis required a just proportion between the
injury done to the victim of the crime and the
injury tone suffered by the criminal -- an eye for
and eye, a life for a life.
Punishment is utilitarian or pragmatic when its
aim is not to do strict justice, but rather to
deter or reform criminals. Here the treatment
accorded offenders judged guilty of committing the
same offense may not be the same. The treatment may
vary with the age and the character of the
offender.
It is in this context that the question of
capital punishment must be considered by those who
think the aim of punishment should be to prevent
crime, and particularly recidivism, which is the
recurrent criminality of offenders who are
paroled.
Some states have now abolished capital
punishment on the grounds that it is unjust, a
violation of the right to life. While the offender
is alive, errors that may have occurred in his or
her trial can be rectified. The right to life is
not violated by the incarceration of the offender
for life with no parole allowed. Nor is the right
to liberty violated, for the offender incarcerated
for life even though his exercise of liberty is
severely curtailed.
The offender's right to liberty would be
violated only if the warden treated the
incarcerated offender as his personal slave. That
would be unjust because it would be a violation of
the offender's right to be treated as a free human
being rather than as a slave.
Current recommendations that criminals found
guilty of three offenses should be incarcerated for
life with no parole allowed is not a violation of
human rights. They do not deprive the repeat
offender's life or liberty, but they may be
pragmatically sound measures aimed at reducing
recidivism and thus preventing crime.
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Adler
on Civil Disobedience
What are the conditions that justify dissent
from civil government, and how does justifiable
disobedience to civil government differ from
rebellion?
One ground for civil disobedience is religious.
Quakers who regard killing in war as sinful disobey
the draft laws by being conscientious objectors. At
the same time, they do not withdraw their consent
to civil government, and they voluntarily submit to
the treatment that their government inflicts on
those who refuse to be drafted.
Another ground for civil disobedience may be
that the deserter regards the war being fought as
unjust. The conscientious objector in this refuses
to participate in. Again, the individual must be
willing to take whatever treatment is accorded
those who disobey the law.
Disobedience to civil government may also
involve withdrawal of consent. When it is peaceful,
that act requires emigration, as with those who
opposed the war in Vietnam, and went to Canada or
Sweden for the duration. They required a
declaration of amnesty to return to the United
States and resume their status as citizens.
Violent disobedience constitutes rebellion or
civil war. This resistance is civil in name only,
since the authority of the government is not only
denied but resisted by resort to arms.
The war of independence and the civil war were
acts of rebellion, involving denial or rejection of
civil status by those who opposed the government.
Nevertheless, Lincoln's declaration of amnesty to
the rebellious population of the southern states
restored them to citizenship in the republic, in
effect nullifying their rebellion.
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Adler
on Coercion & Duress
Free choice is voluntary action, the very
opposite of the compulsory. What is called,
coercion occurs when individuals are compelled by
force to do something that they would not do
voluntarily.
The individual who surrenders his wallet to a
thug who holds a revolver to his head does so under
compulsion and involuntarily. He is being coerced.
Police, who enforce the law against criminals'
exercise coercive force.
If all individuals obeyed the law voluntarily
because they acknowledged its authority and its
justice, there would be no need for coercive force.
Because they do not, coercive force must be used to
enforce law in a population that includes
individuals who do not acknowledge its authority
and justice
What about those acts which no one would do
voluntarily, but, which, nevertheless, are not done
to avoid the threat of coercive force. Are they
done voluntarily or involuntarily?
In his Nicomachean Ethics, Book III,
Chapter I, Aristotle considers the action of the
captain of a ship who throws his cargo overboard in
order to save his ship in a storm at sea. Is he
acting voluntarily or involuntarily? Clearly, it is
not involuntarily. The captain is not compelled to
jettison his cargo under the circumstances, but
under those circumstances, he thinks it preferable
to jettison the cargo rather than lose his
ship.
The word "duress" is used for such actions that
partake of both the voluntary and the involuntary.
Another word that might be used for such actions is
"nonvoluntary." It applies to actions that partake
of both the voluntary and the involuntary. The
captain could have chosen otherwise under the
circumstances. His choice, being free, is
voluntary.
All of us, who act under duress, act voluntarily
and by free choice. We are not compelled or
coerced, but we also do something that no one would
regard as desirable.
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Adler
on Rights, Natural &
Civil
The word "rights" is a basic word in the
vocabulary of political science and political
philosophy.
Civil or political rights are those included in
constitutions or in the bills of rights. They are
the rights stated in the Constitution of the United
States, its amendments, and particularly in the
first ten amendments that are called our American
Bill of Rights.
These rights are either granted or not granted
by the state, and since they are within the power
of the state to grant, they can be countermanded by
the state when in the course of history fundamental
changes in policy are contemplated.
The Ninth Amendment contains an implicit
reference to natural rights by declaring that "The
enumeration in the Constitution of certain rights
shall not be construed to deny or disparage others
retained by the people." Jurists who deny the
existence of natural rights think that this Ninth
Amendment is an unfortunate blemish in our
Constitution because it appears to be an
affirmation of natural rights.
Why? Because in 1793, when this amendment was
adopted, the other rights retained by the people
were probably the natural rights mentioned in the
second paragraph of the Declaration of
Independence, such as the inalienable right to life
and liberty.
Natural rights are inherent in human nature.
They are, therefore, inalienable and belong to
every human being with no exceptions. They are
specifically human rights. Now that they have
become part of our government's declared foreign
policy, it becomes self-contradictory for legal
positivist to deny the existence of natural law and
natural rights, and yet to subscribe to our
government's foreign policy with regard to human
rights.
The exponents and defender of natural and human
rights can argue that the existence of natural
rights derives from the distinction between needs
and wants -- or, what is the same, between natural
and acquired desires. Since human needs are the
needs inherent in human nature, identified by the
potentialities that define them, natural rights are
rights to the real goods that everyone needs in
order to live a morally good human life.
The statement in the Declaration of Independence
that all human beings have certain inalienable
rights can be expanded to say that these include
the right to life, the right to liberty, and the
right to whatever any human being needs in order to
live humanely well.
Natural rights can be violated or secured by
government, but a perfectly just government is one
that secures and safeguards all natural and human
rights.
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