This is about "The problem of justice and legal interpretation in recent judgments of the Supreme Court of the United States of America: a analysis from the perspectives of Hart, Rawls and Dworkin. In this essay written by Nelson Dordelly-Rosales, he examines the problem of justice and legal interpretation in two recent cases or judgments of the Supreme Court of the United States of America : The first case (Gratz v. Bollinger), the court declared the admissions program for undergraduate students at the University of Michigan is unconstitutional because the system of giving points to applicants to be members of racial minorities is similar to the system racial quotas. The Court held that award points for race violates the principle of equality before the law. In a similar case in 1978 also the Court had declared it unconstitutional "The quota system of admission based on race." In the second case (Grutter v. Bollingerm) the Court found constitutional admissions system used by the Faculty of Law, University of Michigan itself, which takes into account race, but does not use the point system was used for undergraduates. According to the Court system the Faculty of Law is not a rigid formula (like the point system) but has a global vision of the appropriate application, and the race is taken as an element in deciding on admission. The ruling states that it is constitutional because it is underpinned by the principle of "racial diversity" el cual, “es un interés público que puede justificar excepciones a la prohibición constitucional de discriminación racial”.
El problema de la justicia y la interpretación legal de ambas sentencias se analiza en este ensayo desde dos ángulos: lo justo y lo injusto, a la luz de los jurisconsultos Hart (1961), Rawls y Dworkin, autores de origen anglosajón.
Con respecto a la primera sentencia, nuestra primera reacción, parafraseando a Hart (p.197) es la siguiente: “injusta sería la palabra apropiada para expresar nuestra disconformidad con una sentencia que quitara a la gente de color la oportunidad” de ingresar a la Universidad (que por desventajas sociales, económicas, political and historical, it is difficult to achieve the score required for entry). However, prima facie basis that human beings should be treated equally and that the privileges and immunities not based on relevant grounds, giving privileges to people of color can also be considered unfair to the distribution of benefits through discrimination between people based on characteristics such as color. In this sense, the hallmarks of justice and its special connection to the right start to arise if it appears that most of the criticisms made by using the words "fair" and "unfair" might be expressed about the same using the terms "equitable" (fair) and "unfair" (Unfair).
According to Hart, the concept of equity (fairness) is relevant "when our interest is not directed to an isolated individual behavior, but the way they are treated classes of individuals when a charge or benefit must be distributed among them. Hence, the typically "equitable" or "unfair" is a "participation." The second situation occurs "when it has caused harm to the victim claiming compensation or damages." "The general principle latent in these various applications of the idea of \u200b\u200bjustice is that individuals have the right, each at a certain position relative equality or inequality. This is something that must be respected in the vicissitudes of social life, when it comes to distributing burdens or benefits, it is also something that should be restored when it has been altered "(p.197).
In this sense, when in the name of justice, protesting the first sentence because it facilitates the entry of people of color in an equitable way to universities in USA, we are focusing on the traditional conception of justice as if it would provide a balance or proportion, which is questionable, as Hart (p.197). That is, when we say that the first sentence is bad because basically there is discrimination among people who, in all material respects, are equal or, conversely, when we praise the decision as fair because it eliminates any privilege or immunity enjoyed by a particular group or class (the class of color in this case), thinking guide is that there is no material difference between the privileged class and the rest of the community and that this deserves a special treatment (or as the lawyer Gratz: give 20 extra points for its color, is to tell the black they are inferior and need these points to be accepted into college). These two positions show that the rule, "treat similar cases in the same manner, and treat different cases differently" can not provide specific guidance for the conduct because any set of human beings will resemble each other in some aspects and differ from each other and, while not established what similarities and what differences are relevant, "treating similar cases in the same way "is an empty form. To fill we have to know when, for purposes that are in view, the cases must be considered equal and what differences are relevant. "Without this supplement, says Hart, we can not criticize legal rules or other social structures as unfair. There is therefore a certain complexity in the structure of the idea of \u200b\u200bjustice. We can say that is two parts: a uniform and consistent summary note on the precept "treat like cases in the same way" and a changing or variable criteria used to determine when, for a given purpose, cases are similar or different "(p.198) . In light of Hart, both judgments that reflect fundamental differences in overall approach, the moral and political can lead to irreconcilable differences and disagreements on what features of human beings should be as important to criticize the law as unfair. Thus, when in the previous examples it was unfair because the first sentence facilitates the entry of people of color to universities, we do on the basis that, at least in the distribution of such benefits or facilities, the color differences are irrelevant. Indeed, Hart says that "in the modern world, the fact that human beings, whatever their color, can think, have feelings and guide their behavior, is considered generally but not universally, as creating key similarities between them that the law must take into account "(p.201). The general principle latent idea of \u200b\u200bjustice is that individuals are entitled together to a certain position relative equality or inequality. The criteria of equality or inequality can vary depending on the fundamental moral approach a person or company. At this point, judges may make a choice that is not arbitrary nor mechanical and here you can display virtues such as fairness, neutrality when considering alternatives, consideration of the interests of all concerned and a concern for developing an acceptable general principle reasoned basis for the decision. For Hart, there is always a modicum of justice wherever human behavior is controlled by general rules that are made publicly and are judicially enforced. In discussing the idea of \u200b\u200bjustice, we must take seriously the notion of impartiality and that it be applied to a variety of different people is the same rule, without prejudices, interests or whims (Principle of legality and justice, p.254).
Regarding the second statement at issue in this trial, which is based on the need for the University to promote student body based on diversity. Rawls (year), stands as the foundation of unequal justice, and aim to highlight the importance of individual differences to ensure economic and political well-being, in this sense, justice is the only road leading to the private good. To speak of justice, it is necessary to clarify a common mistake: fairness and equity has been translated. In this sense, Rawls does not mean that justice is based on equity, but in fairness, justice is impartiality in inequality. By its conception of society as a fair system of cooperation among free and equal people, aims to resolve the criticisms of "social individualism", saying that social cooperation requires a publicly recognized set of rules, and a set of accepted procedures by members of society, who must be on terms that by cooperating with each other, all can realize their personal conception of the good. The problems identified by Rawls in modern American society, are the lack of social unity of citizens around a framework agreement which sets out the constitutional essentials. He advocates that the practical task of political philosophy is to ensure sustainable and stable social cohesion among citizens of a pluralistic society, present and future, by finding argued for a broad consensus that makes possible a just constitutional regime, or a deliberative democracy. Constitutional arrangements do not fix all the legitimate, but the minimum considered non-negotiable by the political consensus. Thus, Rawls distinguishes between two kinds of cases: those that can not be put to the vote, because they affect constitutional rights prefixed, and that can be debated and modified according to specific circumstances.
The aim of Rawls is to present a theory of justice to generalize and lead to a higher level of abstraction the familiar theory of social contract as found, say, Locke, Rousseau and Kant. The idea guideline is that the principles of justice for the basic structure of society, are the subject of the original agreement. Are the principles that free and rational persons interested in promoting their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate all subsequent agreements, specify the types of social cooperation that can be carried out and forms of government can be established. This way of looking is justice as fairness.
Theory of Justice Rawls is based on the following principles: First: Each person must have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second social and economic inequalities to be arranged so that both: a) is reasonably expected to be advantageous for all, b) can be linked to employees and fees affordable for everyone. The first principle simply requires that certain types of rules, those which define the basic freedoms apply to everyone equally and allow the further spread of freedom compatible with such freedom for everyone. The interpretation of the second principle, we have already mentioned that the phrase "benefits for all" and "equally accessible to all" are ambiguous, both sides of the second principle has two natural senses. Efficiency Principle: The principle states that a configuration is efficient whenever possible be changed in order to benefit some people (at least) without harm while others (at least). The Difference Principle: This principle is a concept strongly egalitarian in the sense, unless there is a distribution that improves people. To illustrate this principle, when considering the distribution of quotas at the University of Michigan Students whose selection is based on promoting diversity. What is it that can justify this kind of initial diversity in the perspectives of university life? Or as Rawls does reflect on political liberalism: What is there for a long time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable doctrines, religious, philosophical and moral?
Faced with the problem posed by the two conflicting judgments, Dworkin tells us that "sometimes, the judges spend anxious moments to clarify a legal principle, and frequently judges are equally experienced and intelligent en desacuerdo”. Al criticar a los positivistas que consideran que cuando el caso no se puede decidir “aplicando la ley” ha de ser decidido por un juez, que “ejerza su discreción” lo que significa ir más allá de la ley en busca de algún otro tipo de estándar que lo guíe en la preparación de una norma nueva o en la ampliación de una existente, Workin señala que un juez no tiene discreción cuando se cuenta con una norma clara y establecida”.La discreción judicial es un termino relativo. Discreción ¿Según qué normas? O Discreción, ‘¿segùn qué autoridad? El concepto se ve afectado por el contexto. Dworkin distingue dos sentidos del concepto: the weak and strong. The weak mean when a wide margin of discretion or are vague and difficult to implement. Or when an official has final authority to make a decision that can not be revised or revoked by another official. The discretion of an official does not mean it is free to decide without recourse to standards of reasonableness and justice, but only that his decision is not controlled by a standard provided by the particular authority that we raise the issue of discretion. According to Dworkin, we have the following problem: if the Theory of Judicial Discretion of the positivists is trivial because it uses the term "discretion" in a weak sense or unfounded because both lawyers have taken careful and intelligent? Positivists treat the law like baseball. When a positivist hear someone argue that the legal principles are part of the law, understood as an argument in defense of what he calls the theory of "higher law." It also concludes that there are extra-legal standards that each judge picks according to their own lights in the exercise of its discretion, which is false.
Dworkin believes that a modern nation is pluralist political control and changing it is a matter of flexibility and moderation, compromise, cooperation and alliance, So it is often impossible to say that any person or group has absolute control that needed to be recognized as sovereign. Dworkin distinguishes between principles (moral obligation, duty) guidelines (objective that must be met for an upgrade) of the rules and conceives the legal obligation on the basis of extra-legal principles. Dworkin believes that a modern nation is pluralist political control and changing it is a matter of flexibility and moderation, compromise, cooperation and partnership, so it is often impossible to say that any person or group has the absolute control, need to recognize as sovereign.
Dworkin distinguishes between principles (demand moral duties) guidelines (objective that must be met for an upgrade) of the rules and conceives the legal obligation on the basis of extra-legal principles. Workin The conclusion is that "if we treat the principles as law, we must reject the positivists' first tenet, that the right of a community is distinguished from other social standards by some criterion that takes the form of a screed. "I have decided that in that case we must abandon the doctrine of social discretion."
For Aristotle, justice is the virtue that regulates relations between people in social life, the habit of giving to each his own. In fact, it is the manifestation of the intimate justice or harmony within the soul, in the sense of his master Plato. Harmonious man's soul is just, gives each one his own, that is, practice justice. Develops two concepts: justice in the broadest sense: Virtue ----- Just half total equality how much and how little
commutative justice, transcript of the principle of reciprocity, which requires to give in return as much of what has been received as a benefit on a proportional basis taking into account things not people. Commutative justice bends the will to give the others their strict law, preserving the equality, so to speak, arithmetic, between the thing given and due. For example, if after purchasing goods and paying the price for the trader removes some weight, violates commutative justice, it does not give us what we owe. Remove the life of another is the greatest transgression against commutative justice, the reason that we can not return, or anything equivalent.
Distributive justice, a broader concept, which refers to solidarity with the weakest members of society, whose purpose will seek some redistribution of cargo, goods and benefits according to their needs in order to alleviate and eliminate inequalities that are independent of the merits and personal effort or social contribution. Justice distributive inclined to having a function of government to distribute the common property among members of the community, not as equal parts (arithmetically), but a proportion of the merits, services or talents (so to speak, as equal proportion or geometrical equality). BIBLIOGRAPHY
Dworkin, Ronald (year) "Rights Seriously. Editorial Ariel, Barcelona.
Frías, José Humberto (2003) Notes on the Chair of Philosophy of Law. UCAB.
Hart, LA (1961) The Concept of Law. Editorial Abeledo-Perrot. Oxford.
Rawls, John (year) "A Theory of Justice." Fondo de Cultura Economica. Caracas.
Rawls, John: A Theory of Justice, Cambridge, Harvard University Press, 1999, p.16.
Rawls, John, Political Liberalism, Mexico, Fondo de Cultura Economica, 1996, p. 31.
El problema de la justicia y la interpretación legal de ambas sentencias se analiza en este ensayo desde dos ángulos: lo justo y lo injusto, a la luz de los jurisconsultos Hart (1961), Rawls y Dworkin, autores de origen anglosajón.
Con respecto a la primera sentencia, nuestra primera reacción, parafraseando a Hart (p.197) es la siguiente: “injusta sería la palabra apropiada para expresar nuestra disconformidad con una sentencia que quitara a la gente de color la oportunidad” de ingresar a la Universidad (que por desventajas sociales, económicas, political and historical, it is difficult to achieve the score required for entry). However, prima facie basis that human beings should be treated equally and that the privileges and immunities not based on relevant grounds, giving privileges to people of color can also be considered unfair to the distribution of benefits through discrimination between people based on characteristics such as color. In this sense, the hallmarks of justice and its special connection to the right start to arise if it appears that most of the criticisms made by using the words "fair" and "unfair" might be expressed about the same using the terms "equitable" (fair) and "unfair" (Unfair).
According to Hart, the concept of equity (fairness) is relevant "when our interest is not directed to an isolated individual behavior, but the way they are treated classes of individuals when a charge or benefit must be distributed among them. Hence, the typically "equitable" or "unfair" is a "participation." The second situation occurs "when it has caused harm to the victim claiming compensation or damages." "The general principle latent in these various applications of the idea of \u200b\u200bjustice is that individuals have the right, each at a certain position relative equality or inequality. This is something that must be respected in the vicissitudes of social life, when it comes to distributing burdens or benefits, it is also something that should be restored when it has been altered "(p.197).
In this sense, when in the name of justice, protesting the first sentence because it facilitates the entry of people of color in an equitable way to universities in USA, we are focusing on the traditional conception of justice as if it would provide a balance or proportion, which is questionable, as Hart (p.197). That is, when we say that the first sentence is bad because basically there is discrimination among people who, in all material respects, are equal or, conversely, when we praise the decision as fair because it eliminates any privilege or immunity enjoyed by a particular group or class (the class of color in this case), thinking guide is that there is no material difference between the privileged class and the rest of the community and that this deserves a special treatment (or as the lawyer Gratz: give 20 extra points for its color, is to tell the black they are inferior and need these points to be accepted into college). These two positions show that the rule, "treat similar cases in the same manner, and treat different cases differently" can not provide specific guidance for the conduct because any set of human beings will resemble each other in some aspects and differ from each other and, while not established what similarities and what differences are relevant, "treating similar cases in the same way "is an empty form. To fill we have to know when, for purposes that are in view, the cases must be considered equal and what differences are relevant. "Without this supplement, says Hart, we can not criticize legal rules or other social structures as unfair. There is therefore a certain complexity in the structure of the idea of \u200b\u200bjustice. We can say that is two parts: a uniform and consistent summary note on the precept "treat like cases in the same way" and a changing or variable criteria used to determine when, for a given purpose, cases are similar or different "(p.198) . In light of Hart, both judgments that reflect fundamental differences in overall approach, the moral and political can lead to irreconcilable differences and disagreements on what features of human beings should be as important to criticize the law as unfair. Thus, when in the previous examples it was unfair because the first sentence facilitates the entry of people of color to universities, we do on the basis that, at least in the distribution of such benefits or facilities, the color differences are irrelevant. Indeed, Hart says that "in the modern world, the fact that human beings, whatever their color, can think, have feelings and guide their behavior, is considered generally but not universally, as creating key similarities between them that the law must take into account "(p.201). The general principle latent idea of \u200b\u200bjustice is that individuals are entitled together to a certain position relative equality or inequality. The criteria of equality or inequality can vary depending on the fundamental moral approach a person or company. At this point, judges may make a choice that is not arbitrary nor mechanical and here you can display virtues such as fairness, neutrality when considering alternatives, consideration of the interests of all concerned and a concern for developing an acceptable general principle reasoned basis for the decision. For Hart, there is always a modicum of justice wherever human behavior is controlled by general rules that are made publicly and are judicially enforced. In discussing the idea of \u200b\u200bjustice, we must take seriously the notion of impartiality and that it be applied to a variety of different people is the same rule, without prejudices, interests or whims (Principle of legality and justice, p.254).
Regarding the second statement at issue in this trial, which is based on the need for the University to promote student body based on diversity. Rawls (year), stands as the foundation of unequal justice, and aim to highlight the importance of individual differences to ensure economic and political well-being, in this sense, justice is the only road leading to the private good. To speak of justice, it is necessary to clarify a common mistake: fairness and equity has been translated. In this sense, Rawls does not mean that justice is based on equity, but in fairness, justice is impartiality in inequality. By its conception of society as a fair system of cooperation among free and equal people, aims to resolve the criticisms of "social individualism", saying that social cooperation requires a publicly recognized set of rules, and a set of accepted procedures by members of society, who must be on terms that by cooperating with each other, all can realize their personal conception of the good. The problems identified by Rawls in modern American society, are the lack of social unity of citizens around a framework agreement which sets out the constitutional essentials. He advocates that the practical task of political philosophy is to ensure sustainable and stable social cohesion among citizens of a pluralistic society, present and future, by finding argued for a broad consensus that makes possible a just constitutional regime, or a deliberative democracy. Constitutional arrangements do not fix all the legitimate, but the minimum considered non-negotiable by the political consensus. Thus, Rawls distinguishes between two kinds of cases: those that can not be put to the vote, because they affect constitutional rights prefixed, and that can be debated and modified according to specific circumstances.
The aim of Rawls is to present a theory of justice to generalize and lead to a higher level of abstraction the familiar theory of social contract as found, say, Locke, Rousseau and Kant. The idea guideline is that the principles of justice for the basic structure of society, are the subject of the original agreement. Are the principles that free and rational persons interested in promoting their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate all subsequent agreements, specify the types of social cooperation that can be carried out and forms of government can be established. This way of looking is justice as fairness.
Theory of Justice Rawls is based on the following principles: First: Each person must have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second social and economic inequalities to be arranged so that both: a) is reasonably expected to be advantageous for all, b) can be linked to employees and fees affordable for everyone. The first principle simply requires that certain types of rules, those which define the basic freedoms apply to everyone equally and allow the further spread of freedom compatible with such freedom for everyone. The interpretation of the second principle, we have already mentioned that the phrase "benefits for all" and "equally accessible to all" are ambiguous, both sides of the second principle has two natural senses. Efficiency Principle: The principle states that a configuration is efficient whenever possible be changed in order to benefit some people (at least) without harm while others (at least). The Difference Principle: This principle is a concept strongly egalitarian in the sense, unless there is a distribution that improves people. To illustrate this principle, when considering the distribution of quotas at the University of Michigan Students whose selection is based on promoting diversity. What is it that can justify this kind of initial diversity in the perspectives of university life? Or as Rawls does reflect on political liberalism: What is there for a long time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable doctrines, religious, philosophical and moral?
Faced with the problem posed by the two conflicting judgments, Dworkin tells us that "sometimes, the judges spend anxious moments to clarify a legal principle, and frequently judges are equally experienced and intelligent en desacuerdo”. Al criticar a los positivistas que consideran que cuando el caso no se puede decidir “aplicando la ley” ha de ser decidido por un juez, que “ejerza su discreción” lo que significa ir más allá de la ley en busca de algún otro tipo de estándar que lo guíe en la preparación de una norma nueva o en la ampliación de una existente, Workin señala que un juez no tiene discreción cuando se cuenta con una norma clara y establecida”.La discreción judicial es un termino relativo. Discreción ¿Según qué normas? O Discreción, ‘¿segùn qué autoridad? El concepto se ve afectado por el contexto. Dworkin distingue dos sentidos del concepto: the weak and strong. The weak mean when a wide margin of discretion or are vague and difficult to implement. Or when an official has final authority to make a decision that can not be revised or revoked by another official. The discretion of an official does not mean it is free to decide without recourse to standards of reasonableness and justice, but only that his decision is not controlled by a standard provided by the particular authority that we raise the issue of discretion. According to Dworkin, we have the following problem: if the Theory of Judicial Discretion of the positivists is trivial because it uses the term "discretion" in a weak sense or unfounded because both lawyers have taken careful and intelligent? Positivists treat the law like baseball. When a positivist hear someone argue that the legal principles are part of the law, understood as an argument in defense of what he calls the theory of "higher law." It also concludes that there are extra-legal standards that each judge picks according to their own lights in the exercise of its discretion, which is false.
Dworkin believes that a modern nation is pluralist political control and changing it is a matter of flexibility and moderation, compromise, cooperation and alliance, So it is often impossible to say that any person or group has absolute control that needed to be recognized as sovereign. Dworkin distinguishes between principles (moral obligation, duty) guidelines (objective that must be met for an upgrade) of the rules and conceives the legal obligation on the basis of extra-legal principles. Dworkin believes that a modern nation is pluralist political control and changing it is a matter of flexibility and moderation, compromise, cooperation and partnership, so it is often impossible to say that any person or group has the absolute control, need to recognize as sovereign.
Dworkin distinguishes between principles (demand moral duties) guidelines (objective that must be met for an upgrade) of the rules and conceives the legal obligation on the basis of extra-legal principles. Workin The conclusion is that "if we treat the principles as law, we must reject the positivists' first tenet, that the right of a community is distinguished from other social standards by some criterion that takes the form of a screed. "I have decided that in that case we must abandon the doctrine of social discretion."
For Aristotle, justice is the virtue that regulates relations between people in social life, the habit of giving to each his own. In fact, it is the manifestation of the intimate justice or harmony within the soul, in the sense of his master Plato. Harmonious man's soul is just, gives each one his own, that is, practice justice. Develops two concepts: justice in the broadest sense: Virtue ----- Just half total equality how much and how little
commutative justice, transcript of the principle of reciprocity, which requires to give in return as much of what has been received as a benefit on a proportional basis taking into account things not people. Commutative justice bends the will to give the others their strict law, preserving the equality, so to speak, arithmetic, between the thing given and due. For example, if after purchasing goods and paying the price for the trader removes some weight, violates commutative justice, it does not give us what we owe. Remove the life of another is the greatest transgression against commutative justice, the reason that we can not return, or anything equivalent.
Distributive justice, a broader concept, which refers to solidarity with the weakest members of society, whose purpose will seek some redistribution of cargo, goods and benefits according to their needs in order to alleviate and eliminate inequalities that are independent of the merits and personal effort or social contribution. Justice distributive inclined to having a function of government to distribute the common property among members of the community, not as equal parts (arithmetically), but a proportion of the merits, services or talents (so to speak, as equal proportion or geometrical equality). BIBLIOGRAPHY
Dworkin, Ronald (year) "Rights Seriously. Editorial Ariel, Barcelona.
Frías, José Humberto (2003) Notes on the Chair of Philosophy of Law. UCAB.
Hart, LA (1961) The Concept of Law. Editorial Abeledo-Perrot. Oxford.
Rawls, John (year) "A Theory of Justice." Fondo de Cultura Economica. Caracas.
Rawls, John: A Theory of Justice, Cambridge, Harvard University Press, 1999, p.16.
Rawls, John, Political Liberalism, Mexico, Fondo de Cultura Economica, 1996, p. 31.
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