Chapter 26 4. The School of Rights and Principles

The School of Rights and Principles inherited the social reform tradition of American liberalism.We should point out at the outset that many people refer to the term "liberal" as the social reformers who reached the apogee of their political and legal activity during the New Deal period.However, the term "liberalism" is also often applied to the 18th-century classical liberalism of Adam Smith and David Ricardo.These two English economists advocated a principle of laissez-faire in industry and commerce which, as we have seen, has been revived in the schools of law and economics. The term "economic laissez-faire" can be used to refer to a social view of society to distinguish it from the social reform liberalism of the Rights and Principles school.

Unlike the School of Law and Economics and the School of Critical Legal Studies, the School of Rights and Principles is in the middle of politics.It accepts the established foundations of constitutional and institutional institutions, but wishes to correct the serious imbalances that have emerged in the social distribution of property.Its most distinctive feature is its firm emphasis on rights and principles of justice that favor individuals regardless of their social status.The view of this school is that individual rights and principles of justice, so long as they are recognized by law, constitute rights or "trump cards" that override collective goals defined in terms of the public interest.John Rawls and Ronald Dworkin are the most famous proponents of this philosophy.They may disagree on specific issues concerning political and legal systems, but as we have seen, they also share some basic assumptions.

1. The Philosophy of Justice of John Rawls.John Rawls, a professor of philosophy at Harvard University, published the work titled 1971.The book was a hit when it was published, and within a few years it became one of the most widely discussed works of legal philosophy.The ideals of political and legal life promoted by Rawls can be understood as a mildly socially reforming description of liberal theory.Unlike classical laissez-faire, Rawls was not opposed to government measures aimed at improving the position of disadvantaged classes.Achieving a reasonable degree of economic equality is, for him, a just need.However, as we shall see, Rawls gives priority to liberty when liberty and equality come into conflict.

Rawls always says that one of its many purposes is to generalize and raise to a higher level the social contract theory of Locke, Kant, and Rousseau (these theories are in Bodenheimer Jurisprudence pp. , described in Section 15).According to Rawls, the social contract is entered into by imaginary persons in a state of what Rawls calls an "original position."They concluded the social contract under the "veil of ignorance". They did not know the political, economic and cultural conditions of the society in which they lived, nor did they know their social status, age, gender and personal characteristics, Its life plan and its chances of success.They do, however, know general facts about society, the basic needs and psychological laws of social organization.They also know that they want as much goods, rights, power and wealth as possible for themselves.They are selfish, but they also know the limits to selfishness that coexistence with others requires.They are very sensible, and there is not a trace of irrationality in them.

The notion of original status that Rawls uses must seem unreal at first glance, so what is his purpose?He wants the principles of justice to be chosen by men who are completely unbiased, who have no idea of ​​their respective circumstances in life, so that they can choose them objectively without being influenced by the situation of defrauding others for their own benefit. lure.In other words, the "veil of ignorance" will prevent contracting parties from becoming agents of special interests. What basic principles of justice would the parties in the original position agree to?The first principle gives everyone "the equal right to a system of fundamental liberties that is the broadest and equal consistent with the same system of liberties for all."The second principle asserts that, like inequality in wealth or power, social and economic inequalities are justified only if the following two conditions are met: first, that the positions and positions to which they are attached are within an equitable open to all under conditions of equal opportunity; second, they must compensate the interests of everyone, especially the least benefited in society. (page 302)

Fundamental freedoms include political freedom (ie the right to vote and hold public office), freedom of speech and assembly, freedom of person and freedom to own private property, and freedom from arbitrary arrest and detention.These freedoms are basically the right to be free from government constraints and oppression.It does not include involuntary restrictions on opportunities arising from unfavorable economic or social conditions. Rawls realized that the value of liberty was not the same for the rich and the poor, the advantaged and the disadvantaged, individuals in power and ordinary citizens.Those with power or money have a greater ability to achieve their goals.For example, the rich have a greater opportunity than the poor to influence public opinion through the media or other means of communication.They also have a greater opportunity to influence the behavior of elected officials, employ accomplished lawyers in court trials, and get laws passed in their favor, among other things.

Rawls argues that his last principle (which he calls the "difference principle") provides the necessary corrective for imbalances in the true value of liberty due to different people and different classes in society.Social and economic inequalities should only be considered acceptable if they benefit the most disadvantaged members of society.In other words, unless the unequal distribution of income and wealth gives more to the poorest in the long run than it would under conditions of perfectly equal distribution of income and wealth, income and wealth should be equally distributed. (Rawls seems to assume that this exception is in fact the rule.)

The key question is, of course, what kind of inequality produces favorable outcomes for the disadvantaged.Some economists argue that the more wealth there is at the top of society, the more that will seep through to the bottom in the form of wages and other rights.Other economists strongly disagree with this view, arguing that large disparities in wealth and power can only be compensated for by strong government measures.Rawls does not present a clear economic doctrine of how compliance with the difference principle can be achieved.His general discussion of the issue, however, can be described as a social reform liberal view in that it favors social reform through government action.

This approach allows the state to intervene in policies to promote aggregate welfare, but it has been criticized by Robert Nozick.Nozick was a colleague of Rawls' philosophy department at Harvard University.His views were similar to those advocated by the School of Law and Economics, but he went further than most members of the school because he advocated laissez-faire policies in the political, economic, social and cultural spheres.His philosophy is linked in many ways to that of Richard Epstein. Nozick argues that the "minimum state" can be justified because of its limited role in protection against force, theft, fraud, enforcement of contracts, etc. . . . Individuals should not be compelled to claim rights over certain things that can be deemed unjust" ("Anarchy, the State, and Utopia") Thus, "the "Non-minimal state" is illegal. Everyone is entitled to all that he or she acquires through legitimate efforts; taxes are permissible only if they are necessary for the functioning of the smallest state. Nozick against Rawls his theory of justice because it allows for intervention in the free, unregulated market system, which he believes is the only one capable of assuring a satisfactory social life.

Let's move on to Rawls' point.What needs to be emphasized here is that the three sub-concepts in his conception of justice, namely liberty, equal opportunity and the principle of difference, do not have an equal status in his system of thought.There is an order of precedence between them: the principle of freedom occupies the first place, the principle of equal opportunity occupies the second place, and the principle of difference occupies the last place.Suppose the leaders of a contemporary state decide that greater economic equality can be achieved only by taking certain drastic measures, at least temporarily, to curtail certain basic liberties in freedom of speech and property ownership, an action that, Rawls argues, would constitutes a violation of liberty.Liberty, he said, could only be limited for the sake of liberty, and therefore the protection of liberty took precedence over the achievement of equality.However, Rawls also said that liberty can be limited by public safety and order, because the maintenance of public order is an indispensable prerequisite for the exercise of any liberty.Rawls also argues that in an underdeveloped society where even people's most basic needs are not met, the priority of liberty can be disregarded as an exception.In such a society, he said, freedom could be temporarily restricted until material conditions improved.

In addition, Rawls also believes that between the two components of his concept of equality, equality of opportunity should take precedence over the difference principle.Therefore, it is not possible to limit the opportunities of rich children in this area just because the children of the poor can enjoy more educational conditions. Rawls believed that some of the goods that he called "the first good of society" are what everyone wants. These are the basic liberties, including freedom of movement and freedom of choice of occupation, income and wealth, and "social Base".He is sure that these first good things are properly protected by the principles of his justice.Those social good or values ​​beyond the protection of his principles are a matter of individual inclination and choice.Such as: Should society be primarily concerned with meeting consumer needs?Should society, above all, be devoted to the achievements of the arts, sciences, and culture?Should societies see the promotion of a religious ideal or a communal social ideal as a goal of domination? Rawls argues that government should remain as neutral as possible to the competing notions of the good life in society.In his view, society is best served by those principles which guarantee the right of free equals to order their lives and to pursue their lives so arranged.The enforcement of moral principles that go beyond those implicit in his conception of justice is left to the forces and interest groups themselves. "Liberalism as a political creed presupposes that there are many contradictory and incomparable conceptions of the good, each of which corresponds to the fullness of human reason." (Philosophy and Public Affairs, p. 248) Therefore, various forms of social welfare maximization should not be part of a theory of justice.Rawls makes it clear that the rights he asserts in his theory of justice cannot be calculated in terms of social interests. (p. 4) As he put it in his 1982 lecture, "The priority of liberty actually means that a fundamental freedom can only be achieved for the sake of another fundamental freedom or restricted or deprived for the sake of perfectionism." Rawls defines perfectionism as "the realization of human perfection in all cultural forms", which is the guiding star of a society ruled by able men.In such a society, the maxim of "distribute according to its due" is the highest principle of distributive justice.Rawls rejects this principle as a condition of justice.He said that individual talents and aptitudes are not the products of individual deserves, but are given to people by nature.Accordingly, the sum total of talents and abilities that can be acquired in a society should be seen as a common pool from which to draw the resources and efforts necessary to maintain and function a society.This view of Rawls may well be explained by the fact that, according to the difference principle, to increase the property of the least advantaged in society it may be necessary to recover the remuneration due to an individual for his contribution to society part (that is, what he called "deserved"). This part of Rawls' theory has also been attacked by Robert Nozick.It is true that people should not be credited for the talents they are born with or the situation they are born in, but whether to develop or squander their talents and social advantages is in part their own choice, says Nozick .People are both responsible for developing and using their abilities, and also owe a certain share of what their work produces.Nozick acknowledged that not all benefits and rights in a free market society are attributable to human talents and virtues.But, as a staunch libertarian, he insisted that people have the right to keep and use whatever they acquire through legal exchange (but, as we have seen, taxes are payable to keep order); The life of the less fortunate member loses any part of his assets. 2. Ronald Dworkin's Law and Judgment Theory.Dworkin agrees with Rawls' point of view, and believes that the basic rights that individuals should enjoy cannot be compromised or derogated because of public welfare. "If someone has a right to something, it is wrong for the government to take away that right, even if it is in the general interest to do so." ("Taking Rights Seriously", p. 269) On the other hand, in the mutual existence Dworkin also disagrees with Rawls on the priority distribution of potentially contradictory rights.As we have seen, Rawls puts liberty at the top of the ladder of rights, and that one basic liberty can only be restricted for the promotion of another basic liberty, but not for the promotion of equality or other values ​​of social institutions (public order except) are restricted.Dworkin, however, believed that equality has the highest social value.The most basic requirement of equality is that the government must treat a person under its jurisdiction with equal attention and respect. "Governments must never distribute goods or opportunities unequally on the grounds that some citizens deserve more because they deserve greater attention." (Ibid., pp. 272-273) Dworkin called the equality he advocated "resource equality". The so-called "resources" in his view were individual private property. He did not advocate that all people in society should be allocated an equal share of available resources. Products of.Different people have different needs, he said, and equality of resources means that no one has reason to be jealous of what anyone else has or controls. Dworkin hopes to achieve this effect through the means of market economy.He pointed out that people often see the market as an enemy of equality because the market economy allows for the huge accumulation of wealth, which leads to huge disparities in the distribution of wealth.But Dworkin believed that this obstacle to realizing his ideal could be overcome, and the arguments he used to justify his conclusion were too complicated to explain clearly in such a brief examination of American jurisprudence. Dworkin's greatest contribution to legal philosophy was his dedication to the analysis of judicial procedures.His analysis can only be understood by placing it in the context of the jurisprudential movement of the 1930s and 1940s.That movement had a powerful impact on the thinking of lawyers, law professors and law students.That movement is often referred to as the "American Legal Realism Movement."Realists believe that the rules of law do not play a dominant role in the trial process as earlier legal theory believed.Like their academic successors (critical legal researchers), realists firmly believe that legal rules are largely indeterminate, ambiguous, and self-contradictory.Thus, judges are able to choose among inconsistent rules that lead to different outcomes.Realists believe that judges still have considerable latitude in appraising the facts that form the basis of a particular case.They may believe or disbelieve certain witnesses, interrupt witnesses in different ways, and disagree with the relevance or due attention of facts discovered at trial.In the realist view, this situation leads to the fact that judges have a great deal of discretion in making the decisions they themselves desire.Furthermore, realism holds that judges are often policy-determiners concerned with establishing the primacy of certain values ​​rather than merely as policy decisions as reflected in constitutional provisions, statutes, and other sources of law the executor. Dworkin questions the basic assumptions of legal realism.In his view, judges have extremely limited discretion in the adjudication process.He concedes that rules established through legislation or through judicial precedent are insufficient to deal with the variety of cases before the courts.In all legal systems there are gaps that must be filled by the courts in some way.According to Dworkin, these gaps cannot be filled by the exercise of judicial law-making discretion, but by appeals to the general principles of fairness and justice that underlie the entire legal system or a particular system.According to Dworkin, these principles are law even before they are recognized by a positive law decision.Dworkin mentions, among other principles, two general principles of this nature which form the basis of judicial decisions.In one case, an heir intentionally killed the testator in order to inherit his share immediately.The question here is whether he is still entitled to that inheritance.Because the statute dealing with this question had not before made an exception.The court then disinherited the heir on a general principle of justice which states that "no man shall benefit from his own fault."In another case the question arose as to whether a car manufacturer could, by concluding a contract with the buyer, relieve it of its liability in the event of a defect in the car.No statute or established rule of law prevents automakers from asserting their contractual rights.However, the court refused to enforce this relief, stating that owning a car is an economic necessity for the buyer.Accordingly, courts cannot legalize transactions in which one party unfairly exploits the economic necessity of the other. Dworkin originally defined the term "principle" broadly, but in some of his later writings he restricts this definition considerably.Arguments for principles, he argues, are arguments for establishing or depriving individual rights, or for effecting adjustments to contradictory individual rights.He distinguishes such arguments from arguments for policy, which are aimed at promoting collective goals.In his view, in the absence of applicable rules, judges can base their judgments on the principles defined above.They may not pass judgments on the basis of public or social policy designed to safeguard the ends of the community as a whole, unless they are ordered to do so by statute or except in cases of "extraordinary urgency" to prevent "catastrophic" harm to society . Dworkin's view does not reflect the actual practice that US courts have been following earlier.While Dworkin's exception is inapplicable, courts have routinely invalidated contracts because they violate public policy.The need for effective crime control has sometimes led judges to interpret the rights of those accused of crimes narrowly.There are also decisions in which property rights have to yield to concerns for the public environment.Thus, if courts adopted Dworkin's thesis (which he called the "rights thesis"), it would prompt a dramatic change in judicial methodology.