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Justice, rights, and jural relations: a philosophy of justice and its relationships

By D.O. Humphris-Norman

Abstract

CHAPTER 1. Contains a general review of the concept of Justice from Plato on and distinguishes it from the concept of legal justice which is merely one (albeit the most important) of its applications.<br/><br/>CHAPTER 2. Then places the concept of Justice in context within a society and shows how the different governing aspects of any society, (The State, the System of Jurisprudence, and Justice) are based upon different philosophical inputs. These inputs are quite separate, and involve four different areas of philosophy, namely the Philosophies of Politics, Law, Ethics, and Morals. The chapter thus lays the foundations for the discussions of the applications of Justice.<br/><br/>CHAPTER 3. Defines certain matters which are necessary to an understanding of Justice. It defines with more clarity than is usual the meaning of the word “RIGHTS”, distinguishing it from Privileges and Liberty. This involves a study of Hohfeld. From this I deduce the proposition that Power is prior to Rights. It is also necessary for us to understand what a Jural relation is, and how therefore things such as rights are quite different from states, such as Freedom. This involves the study of Kocourek.<br/><br/>CHAPTER 4. Armed with the preceding we can go on to consider what happens when there is a clash between our sense of what is right or just, and the law. As examples I follow through cases of Conscientious objection and the much more difficult question of Civil Disobedience. Again it is shown how a justice based approach differs from the so called “rights” approach. This discussion brings us to <br/><br/>CHAPTER 5. In which we consider the conflict in philosophy of Law between the Natural Law theorists and Legal Positivism. This conflict has been raging for a great length of time and brings such people as Hart and Dworkin into conflict. It is my belief that in this chapter I have shown a means of reconciling the two by use of the proper concept of Justice. Philosophically it is the most important chapter in the book and solves a problem that Professor Raz admitted had defeated him. It introduces a distinction between Rules of Law and Principles of Justice and resolves an apparent conflict with Dworkin. Finally it introduces the concept of the Prime Inherent Law.<br/><br/>CHAPTER 6. From here I seek to take a more detailed look at the application of Justice in relation to law. To do this we need to understand the concept of Intentionality, and this chapter takes a detailed look at both the rules, as defined by some interesting civil and criminal cases, and the philosophical background. We even touch on the philosophy of mind.<br/><br/>CHAPTERS 7 &amp; 8. From here it is but a short step to consider some of the basic problems both philosophical and practical of Punishment. This subject is deeply concerned with concepts of justice, its philosophical justification, and for the necessity for punishments to be accepted as being Just by the public.<br/><br/>CHAPTER 9 Ties our explorations together in the form of some conclusions.<br/> Thus although the book treats radically different applications of Justice and its relation to Rights there is a particular order of progress. I have not attempted to deal with so called distributive justice for reasons which I explain in the text (I do not believe there is such a thing - it is merely a post hoc name given to a best solution to what is, in some cases, an unresolvable problem. Nor do I deal specifically with political justice save to imply that justice must be inherent in any society that purports to be civilized, irrespective of the actual rights of the individual in that society.<br/

Topics: B1, K1
Publisher: University of Southampton
Year: 2009
OAI identifier: oai:eprints.soton.ac.uk:65064
Provided by: e-Prints Soton
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