Lincoln Douglas Topic Analysis September/October 2011

Resolved: Justice requires the recognition of animal rights.

• Justice is by far the most common value due to its inclusion in many resolutions

• The framework also may contain definitions for purposes of clarity and/or excluding certain lines of argumentation, and preemptions or "spikes" - attempt to preclude certain arguments that one's opponent is expected to make.

• A narrow definition can be a spike.

• The contention(s), of which this type of case must have at least one, links the resolution to the value structure.

• A proper contention necessarily has:

• a claim, which summarizes the argument

• at least one warrant, which is a reason the claim is true

• an impact, which explains the importance of the argument—or specifically why this argument meets the value criterion

Quotes on Justice • There is a higher court than courts of justice and that is the court of conscience. It

supercedes all other courts. Mohandas Gandhi

• At his best, man is the noblest of all animals; separated from law and justice he is the worst. Aristotle

• Justice in the life and conduct of the State is possible only as first it resides in the hearts and souls of the citizens. Plato

• In the absence of justice, what is sovereignty but organized robbery? Saint Augustine

• Justice and truth are too such subtle points that our tools are too blunt to touch them accurately. Blaise Pascal

• Justice... is a kind of compact not to harm or be harmed. Epicurus

• Whenever a separation is made between liberty and justice, neither, in my opinion, is safe. Edmund Burke

II. Define Justice • According to most contemporary theories of justice, it is overwhelmingly

important: John Rawls claims that "Justice is the first virtue of social institutions, as truth is of systems of thought."[3]

• Justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion.

• Justice has traditionally been associated with concepts of fate, reincarnation or Divine Providence, i.e. with a life in accordance with the cosmic plan. The association of justice with fairness has thus been historically and culturally rare and is perhaps chiefly a modern innovation [in western societies].[4]

• Studies at UCLA in 2008 have indicated that reactions to fairness are "wired" into the brain and that, "Fairness is activating the same part of the brain that responds to food in rats... This is consistent with the notion that being treated fairly satisfies a basic need".[5]

• Research conducted in 2003 at Emory University, Georgia, USA, involving Capuchin Monkeys demonstrated that other cooperative animals also possess such a sense and that "inequity aversion may not be uniquely human."[6]

• indicating that ideas of fairness and justice may be instinctual in nature.

Differing approaches to understanding Justice

• Utilitarianism is forward-looking. Justified by the ability to achieve future social benefits

resulting in crime reduction, the moral worth of an action is determined by its outcome.

Retributive Justice

• Retributive justice regulates proportionate response to crime proven by lawful evidence so that punishment is justly imposed and considered as morally correct and fully deserved. The law of retaliation (lex talionis) is a military theory of retributive justice, which says that reciprocity should be equal to the wrong suffered; "life for life, wound for wound, stripe for stripe."

Restorative Jusitice

• Restorative justice is concerned not so much with retribution and punishment as with (a) making the victim whole and (b) reintegrating the offender into society. This approach frequently brings an offender and a victim together, so that the offender can better understand the effect his/her offense had on the victim.

Distributive Justice

• Distributive justice is directed at the proper allocation of things — wealth, power, reward, respect — among different people.

Oppressive Law

• Oppressive Law exercises an authoritarian approach to legislation that is "totally unrelated to justice", a tyrannical interpretation of law is one in which the population lives under restriction from unlawful legislation.

Justice as a Virture

• Some theorists, such as the classical Greeks and Romans, conceive of justice as a virtue—a property of people, and only derivatively of their actions and the institutions they create.

• Others emphasize actions or institutions, and only derivatively the people who bring them about. The source of justice has variously been attributed to harmony, divine command, natural law, or human creation.

• One thread all of these theories have in common is that they are theorizing about what constitutes a proper or right relationship. On this take of things, justice is the philosophy of right relationships

Quotes on Rights

• Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual. Thomas Jefferson

• Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing. Ronald Reagan

• The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. Ayn Rand

• Being a humanitarian, supporting animal rights activists, human rights activists, it's all the same. Daryl Hannah

• Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). Ayn Rand

• People tend to forget their duties but remember their rights. Indira Gandhi

II. Define Rights

• The Analysis of Rights

• An analysis of rights has two parts: a description of the internal structure of rights (their form), and a description of what rights do for those who hold them (their function). The Hohfeldian system for describing the form of rights is widely accepted, although there are scholarly quarrels about its details. Which theory gives the best account of the function of rights has been much more contentious;

The Form of Rights: The Hohfeldian Analytical System

• Analysis reveals that most familiar rights, such as the right

to free expression or the right of private property, have a complex internal structure. Such rights are ordered arrangements of basic components, much in the same way that most molecules are ordered arrangements of chemical elements. The four basic components of rights are known as “the Hohfeldian incidents” after Wesley Hohfeld (1879–1918), the American legal theorist who discovered them. These four basic “elements” are the privilege (1), the claim (2), the power (3), and the immunity (4). Each of these Hohfeldian incidents has a distinctive logical form, and the incidents fit together in characteristic ways to create complex “molecular” rights.

A. Privileges (or Liberties)

• You have a right to pick up a shell that you find on the beach. This right is a privilege:

• To say that you have a right to pick up the shell is to say that you have no duty(obligation) not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When a US President invokes “executive privilege” to resist an assertion that he has a duty not to conceal evidence, he is invoking a Hohfeldian privilege. Similarly, a license (to drive, to perform surgery, to kill) endows its holder with a privilege to engage in the licensed activity.

B. Claims

• A contract between employer and employee confers on the employee a right to be paid his wages. This right is a claim:

• The employee has a claim that the employer pays him his wages, which means that the employer has a duty to the employee to pay those wages. Every claim-right correlates to a duty in (at least) one duty-bearer. What is distinctive about the claim-right is that a duty-bearer's duty is “directed at” or “owed to” the right-holder.

• Not all claim-rights are created by voluntary actions like signing a contract; and not all claim-rights correspond to duties in just one agent. For example, a child's claim-right against abuse exists independently of anyone's actions, and the child's claim-right correlates to a duty in every other person not to abuse her. This example of the child's right also illustrates how a claim-right can require duty-bearers to refrain from performing some action (i.e., that “phi” can be a negative verb such as “not abuse her”).

C. Powers

• Privileges (a) and claims (b) define what Hart called “primary rules”: rules requiring that people perform or refrain from performing particular actions (Hart 1961).

• Indeed the primary rules for all physical actions are properly analyzed as privileges and claims. Were we to know all the privileges and claims that there are regarding physical actions, we would know for every possible physical action whether that action was permitted, required or forbidden.

• The Hohfeldian power is the incident that enables agents to alter primary rules:

• A ship's captain has the power-right to order a midshipman to scrub the deck. The captain's exercise of this power imposes a new duty upon him and so annuls one of his Hohfeldian privileges (not to scrub the deck). Or again, a neighbor waives his claim that you not enter his property by inviting you into his home. Ordering, promising, waiving, sentencing, buying, selling, and abandoning are all examples of acts by which a rightholder exercises a power to change his own Hohfeldian incidents or those of another.

D. Immunities

• The fourth and final Hohfeldian incident is the immunity. When A has the ability to alter B's Hohfeldian incidents, then A has a power. When A lacks the ability to alter B's Hohfeldian incidents, then B has an immunity:

• B has an immunity if and only if A lacks the ability within a set of rules to alter B's Hohfeldian incidents.

• The United States Congress lacks the ability within the Constitution to impose upon American citizens a duty to kneel daily before a cross. Since the Congress lacks a power, the citizens have an immunity. This immunity is a core element of an American citizen's right to religious freedom. Similarly, witnesses in court have a right not to be ordered to incriminate themselves (immunity from sending yourself to jail), and civil servants have a right(immunity) not to be dismissed after a new government comes to power.

For more info: http://plato.stanford.edu/entries/rights/

II. Define Requires

• re·quiredre·quir·ing • Definition of REQUIRE • transitive verb • 1: to claim or ask for by right and authority • archaic: request • 2: to call for as suitable or appropriate <the occasion

requires formal dress> b: to demand as necessary or essential : have a compelling need for <all living beings require food>

• 3: to impose a compulsion or command on : compel • 4: chiefly British: to feel or be obliged —used with a

following infinitive <one does not require to be a specialist — Elizabeth Bowen

• Merriam-Webster