W6 - : Law, Justice and Morality Flashcards
(11 cards)
What is the principle of proportionality?
The punishment should fit the crime, a harsher crime should get a harsher punishment especially to deter more serious crimes
What is a critique of the proportionality principle?
It’s just vengeance in disguise - an eye for an eye
What are the 4 definitions of proportionality?
1) Punishment should equal harm
2) 1) but EXPECTED punishment
3) Punishment should increase with harm
4) 3) but EXPECTED punishment
What is the Hart vs Fuller debate? Give the Nazi law example to demonstrate the debate
Hart - Legal Positivism, law and morality are separate
Fuller - Natural law, morality gives law its authority “an unjust law is no law”
Nazi scenario
German solider criticised Hitler to his wife, wife told authorities. After collapse of the regime, wife was tried for attempting to send husband to death.
Hart - even though immoral, the law is the law and she was bringing a criminal to justice
Fuller - The law had no moral backing so was not a law
Which side should the legal system uphold?
What did Hart say about the two way causality of law and morality?
Even though Hart said they were separate concepts, empirically acknowledged that morality shapes law and law can also shape morality
What is the internalisation of law and Scott’s 1st, 2nd and 3rd order effects of law
Linked to Harts view on 2 way causality, Law can change peoples morals, becomes a good for how to behave.
1) Direct state enforcement - do this or you will be punished by the state
2) Enforcement via social shaming
3) Internalised law, you enforce yourself via guilt
Give the case of facemasks in the UK and how it links to Scott’s order of effects.
Fine for not wearing a mask which later doubled and was then revoked.
Increasing the fine didn’t change behaviour.
Removing the fine led to less people wearing masks due to 1) no more worrying about being told off 2) no more feelings of guilt.
This demonstrates the 2nd and 3rd order of effects respectively and the “ expressive function of law”
What are the 5 forms of justice and which one aligns with the principle of proportionality best? Rich Chicks Really Prefer Diamonds
Retributive - proportionality
Corrective - compensation
Restorative - return to ex ante
Procedural - hear everyone out fairly
Distributive - how resources are allocated fairly
What are the different ways of optimal enforcement via the equation and how does it satisfy or conflict with the 4 definitions?
General equation is probability of getting caught (p) * fine (f) = harm (h)
Def 1 ) set p = 1
2) p is fixed
3) p * f = h (violates 1 and 2) - increasing p is costly so usually ends up at p* times f*(w) < h so violates 3
4) really low p really high f such that fine = wealth of non complier - violates 1 and 2
What mediates whether laws trigger Scott’s order of effects for compliance?
Legitimacy - the law needs to be perceived as legitimate by the people
