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< | Determining What Notion of “Justice” We Should Protect |
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> | Misplaced Values in our Institutions |
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< | -- By KregKatoski - 27 Feb 2009 |
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> | -- By KregKatoski - 19 Apr 2009 |
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< | Advantage in society is not a right |
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> | Although the legal realism embodied in Holmes' idea that “things are what they do” has had a great impact on the way we think about the law, there still remain many discrepancies between what we do and what we aim to accomplish. It appears that our institutions are often subconsciously governed by the notion that things are not what they do, but rather what they signify. We perceive the spectrum of values imposed on us through our institutions as the culmination of hundreds of years of rational thought and experience as to what is and is not just, when, in reality, the emergence of such a system of values is far less organized and systematic than we would like to believe. As Arnold suggests, the elements of consciousness and choice that we attribute to our organizations tend to be misplaced, leading us to assign greater significance to their social output than may be warranted. |
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< | If we adopt Thurman Arnold’s view and assume that success in life is dependent mostly upon chance, this should indeed affect the way in which we look at our role in society. We tend to believe that we have a “right” to what we own and feel we have earned, though this is obtained simply by the luck of the draw. But is it just that we should fall into such a position of success while others suffer through no fault of their own? I do not believe it is, and if we are to seek justice, this ought to affect what we do with our lives and how we view the policies of our institutions with respect to individuals in varying circumstances. |
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> | Criminal Punishment |
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< | Assessing society’s current values |
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> | We would find it inhumane for a criminal to be beaten or whipped as punishment for a crime, as these forms of punishment are only practiced by uncivilized nations. We would scarcely flinch, however, in sentencing a criminal to 25 years in prison. Though few of us have direct experience with either form of punishment, the vast majority of the population would undoubtedly prefer to be subjected to the former rather than the latter. Why, then, is the preferable punishment considered less humane? What purpose do our values serve if they stand in opposition to desires of those it would seem they are intended to protect? |
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< | In order to effect social change, we must first assess our current values to determine whether these are truly the values that we should seek to protect. It seems that in terms of values, we do not fully believe, as Holmes suggests, that “things are what they do.” Rather, we still tend to believe in many instances that things are what they signify. For example, we would find it inhumane for a criminal to be beaten with a cane as punishment for a crime, while we would scarcely flinch in sentencing him to 25 years in prison. Though I do not have experience with either form of punishment, I propose that the vast majority of the population would prefer to be subjected to the former rather than the latter. Why, then, is the preferable punishment considered less humane? What purpose do our values serve if they stand in opposition to desires of those it would seem they are intended to protect? |
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> | Perhaps one reason the punishment of being beaten or whipped is viewed as less humane than imprisonment is that it would generally effect little societal change. It is unlikely that a beating would make an individual less likely to commit a crime in the future, while it is often argued that imprisonment will. While in prison, an individual cannot commit crimes against society, and we are led to believe that once released, such an individual will likely be rehabilitated. But rehabilitation on a broad scale seems to be somewhat of a myth, and those who have been incarcerated for half of their lives, upon release, might even prove to be a greater danger to society than when originally convicted. This would severely undermine the argument that incarceration is more humane than beating because the punishment of incarceration benefits society. |
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< | The role of institutions in shaping our values |
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> | The Choice of Attorney |
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< | We seem to get so caught up in what society tells us our values ought to be that we never truly consider whether these values actually make sense to us. We may use these core values as the basis for justifying other beliefs, but we rarely ever question the values themselves. We perceive the spectrum of values imposed on us through our institutions as the culmination of hundreds of years of rational thought and experience as to what is and is not just, when, in reality, the emergence of such a system of values is far less organized and systematic than we would like to believe. As Arnold suggests, the elements of consciousness and choice that we assign to our organizations tend to be misplaced, leading us to assign greater significance to their social output than may be warranted. |
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> | We value the ability of an individual to choose an attorney in a criminal or civil trial. Some might even strongly believe that a denial of this choice would be a violation of one's rights. But it appears that this practice might actually undermine the justice that we undoubtedly value in our legal system. |
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< | Deciding upon a conception of justice |
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> | We believe it to be an important principle of the law that the outcome of a case for a particular party should depend not on the quality of that party's legal representation but on the merits of the case itself. Those who choose attorneys, however, usually do so in order to gain an advantage in court proceedings by buying better lawyering. O.J. Simpson would not have paid top dollar to assemble the "Dream Team" if those lawyers did not stand a better chance of getting him acquitted. This significantly tilts the scales of justice in favor of the rich and powerful, who are able to select the most skilled lawyers. If we are to accept the fact that the law favors those who are able to afford better lawyers in this way, we must accept the notion that justice is not blind and that justice will not be done in many cases. |
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< | But if the values imposed by our institutions are inadequate, how then should we choose what to value as a society? Here, we might employ a method similar to that used by John Rawls in postulating his “Justice as Fairness” theory, in which he seems to borrow much from Arnold's ideas about our place in society resulting largely from chance. He suggests that justice would be served by individuals deciding upon principles to govern society behind a “veil of ignorance,” which would prevent them from knowing their place in society, as well as any personal or familial attributes. This “veil of ignorance” might allow us to better decide what values we ought to place importance upon in our society, helping us to set aside our biases, at least in theory. Once we establish what values are of importance to us and what our conception of justice truly is, we might be able to pursue goals in furtherance of such a notion of justice, ultimately reforming our institutions to better account for the disparity in fortune assigned by chance. |
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> | Conclusion |
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- I'm not sure how you derived from Thurman Arnold the view that "success in life is dependent mostly upon chance," and you don't say. But from there, we have paragraphs whose topic sentences are "In order to effect social change, we must first assess our current values to determine whether these are truly the values that we should seek to protect," and "We seem to get so caught up in what society tells us our values ought to be that we never truly consider whether these values actually make sense to us." The big lesson coming from the idea that where we get is mostly chance is that we should get in touch with our real values? I feel as though I've fallen into a vat of liquified language in a greeting card factory. At any rate I haven't learned much.
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> | By acknowledging the inconsistencies between what we value and what we actually do, we can begin to think critically about what values our institutions are actually supporting. This will then allow us to reform our institutions, structuring them so as to better comport with our notions of justice. |
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- I think you need to take a close look at what it was you wanted to write about. I don't think it was Thurman Arnold, who hasn't in fact made much of an impression. And John Rawls was a pretty late arrival there, in the conclusion, so I don't think he's the subject. "Values," I think, is a little too indistinct to be your idea. But you want the thesis that begins a strong first paragraph and backs a tightly-reasoned conclusion.
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