Week 2: Philosophies of Law and Justice

Flashcards covering the concepts of liberalism, its various forms, principles of liberty and equality, and theories of distributive, procedural, and retributive justice from Week 2 lecture notes.

Liberalism

A theory serving as the philosophical foundation of the Australian legal system that views liberty or freedom for all people as a principal objective.

Classical liberalism

A branch of liberalism that emphasizes individual freedoms and links individual liberty with an economic system based on private property.

Neo-liberalism

A variation of liberalism that places greater emphasis on freedom of trade and commerce, deregulated markets, and a more limited role for government.

Social justice liberalism

An approach that aims to incorporate principles of fairness into liberalism by recognizing that market forces can entrench inequalities, often supporting wealth redistribution.

Maurice Cranston (1967) definition of a liberal

A person who believes in liberty.

Liberty (Locke's view)

A state where humans are naturally in a state of perfect freedom to order their actions as they think fit without asking leave or depending on the will of any other man.

Harm principle

A principle by J.S. Mill stating governments must only restrict liberty when necessary to prevent harm to others and must not interfere with 'self-regarding conduct'.

Social contract theory

The theory that individuals agree to surrender a portion of their liberty in return for the safety and security of living in a community, as discussed by Thomas Hobbes and John Locke.

Negative liberty

The concept emphasized by classical liberalism referring to the freedom from interference.

Positive liberty

The idea that the state has a duty to provide assistance to the disadvantaged so they are able to enjoy their liberty to the highest degree.

Reason (as a liberal principle)

The rejection of religious explanations for the authority of the sovereign, requiring government power to be derived instead through rational thought.

Formal equality

A distinction of equality where the law treats all people equally and without any distinction.

Substantive equality

A distinction of equality where the law recognizes that some people require more assistance due to historic or systemic factors to correct existing inequality.

Libertarianism

A political ideology calling for maximum freedoms and minimum state regulation, which frequently opposes taxation and welfare.

Pluralism

One of the characteristics of government compatible with liberalism, defined as the tolerance of different opinions and beliefs.

Justice (James and Field definition)

Typically understood to mean the same thing as fairness, such as fair punishment, a fair decision, or a fair distribution of resources.

Distributive justice

A theory of justice concerned with the fair and proper distribution of things such as wealth, resources, and power within a group or community.

Egalitarian approach

An approach to distributive justice where everyone gets an equal share of resources.

Desert approach

An approach to distributive justice where everyone gets what they deserve based on criteria such as need or effort.

Utilitarian approach

An approach to distributive justice that seeks to distribute resources in a way that maximizes total happiness or welfare across the group.

John Rawls's two principles of justice

1) Each person has an equal right to the most extensive system of equal basic liberty; 2) Social and economic goods should be distributed equally unless a different distribution benefits those who are worst off.

Procedural justice

A form of justice achieved if safeguards are built into the legal system to ensure a person receives a fair hearing, regardless of the final outcome.

Retributive justice

A theory of justice relating to the imposition of punishment or penalty by the state for wrongdoing.

Desert theory (Retributive justice)

The idea that a person who commits a wrong deserves to be punished, and the punishment should be proportionate to the offence.

Deterrence theory

A version of retributive justice suggesting punishment should be tailored to maximize the effect on other people so they do not commit the same offence.

Rehabilitation theory

A version of retributive justice suggesting punishment should be tailored to maximize the offender's opportunity for rehabilitation.