JST108: Justice Studies Theory and Practice

JST108- Justice Studies Theory and Practice What is Wrong with Committing Crime?AnnouncementsAssignment 1 due on FRIDAY 19TH December

TodayCritical CriminologyMarxismFeminismPostmodernism

State Legitimacy and Citizens Duties

Anarchism What it is notWhat it isWhat it meansWarning: Contains Theoretical Language!!Critical CriminologyThe goal of Critical Criminology is to expose the ways in which power relations shape the world society (e.g. the CJS) is designed

Purports to show how behind an apparent reality of law and order there is, in fact, oppression and inequality MarxismSociety is divided in classes (i.e. rich/capitalist and poor/workers)Crime is defined according to class structure: the rich define what constitute crime!The rich defend their own interests against the poor

MarxismThe CJS is capitalisms instrument to keep the workers oppressedThe law punishes always the poor, and what is defined as crime is what the poor are more likely to do overrepresentation in prisonThe rich never get punished (compare street crime and corporate crime)A reform of the CJS calls for changing the structure of society, i.e. a revolution

Criminals?

FeminismThe CJS reflects not just a division between social classes (capitalist vs. workers), but also between genders (men vs. women)Women are treated differently, the law perpetuates womens subjugationAn example: Domestic violence, abuses of sex workers not seriously treated?

PostmodernismWhat is it?

Similar to Marxism/Feminism in saying that the definition of crime is imposed by a group of people onto another

The key issue is not society structure but the power to control language: those who control the means of expression are seen to hold the key to controlling and exercising power over othersPostmodernismThere are no objective truths (i.e. truths valid for everyone), but only subjective ones

Thus, language does not describe things as they really are meanings are contested, that is, open to criticisms and changes

Think about the media and moral panic enforcing a certain idea of right and wrong

Consequences of the Critical ApproachIf we cannot change the structure of society, then at least we should abolish prisons! Those who end up in jail are the most vulnerable in society, and punishing them does further injustice. More punishment and repression will not solve the problemTendency towards peacemaking criminology (White&Perrone, pp. 93-96)

But still..If critical criminology is right, then crime is what some people decide it is.

But now there are (at least) two problems!

Who/what gives those people the right to put others in jail for committing crime? That is to say, what gives the state or ruling class legitimacy?

Is it wrong to disobey the law? If it reflects the will of a privileged group of people, do we have an obligation to obey it?

13LegitimacyIf one has legitimate authority, then s/he has the right to impose obligations on others.

Can you think of an example of legitimate authority??

NSW Police gets its legitimacy from the NSW and Federal Government

But what gave legitimacy to the Australian Government in the first place? Why has the Australian Government the right to impose obligations on others (i.e. us)?

More generally, what gave states the right to rule??The Social ContractThomas Hobbes (1588-1679), John Locke (1632-1704), Jean-Jacques Rousseau (1712-1778)

Humans lived in a pre-social state of nature, and decided to set up a political society for peaceful living

They gave up their rights and consented to subdue their individual wills to an overarching authority

So, it is us who gave power to our governments to rule upon us

We have made a pact with each other to abide by the law

Its like a promise!

17From Legitimacy to DutyCorrelativity thesis: if a person has a right, then others have a duty. To every right, there corresponds a duty. E.g. if I have a right to my property, you have a duty not to take it.

If the state has the right to rule, then others (i.e. we) have a duty to obey the state

But if the state is based on a mutual promise (a contract), then crime is like breaching a promise it is morally wrong!

Doubts about state legitimacy

Do you recall signing any contract?..Did we give our consent?We havent actually signed a contract, we havent done anything voluntarily. Does this mean the state has no legitimacy?

Tacit consent (Locke): its true we havent signed anything. However, we have given our consent by accepting to live in Australia. We could have left, if we did not want to be subject to the rule of Australian law. By staying here, we have expressed our consent.

Objection: Moving country is not that easy. Plus, why should I leave my home country simply because the state says so??Hold on.

If the idea of social contract is unacceptable, at least to some people, then the state has no legitimacy! And therefore, we have no moral obligation to obey the law! This is bad news for NSW Police Force prospective employees..

Maybe, what makes criminal behaviour morally wrong is not that it is a breach of promise, but that it is unfair to others

Fairness and Political ObligationThe state provides benefits to all citizens (security, welfare, employment, etc.)The state can survive only if people acknowledge its authority and abide by the lawIf a few people disobey, the state will not be at risk, and will keep providing benefits to everyoneBut those who disobey are just free-riders they take advantage of others discipline in order to get an undeserved benefit Therefore, crime is a way to take unfair advantage of other citizens. And this warrants punishmentObjectionSo, the reason why we have to obey the law is that we receive these benefits, not that we have voluntarily signed the contract. This avoids the previous problems

But what if I dont want these benefits? What if I dont care about security, welfare, employment? Just leave me alone.

If youre giving me benefits I dont want, then you cannot say Im taking an unfair advantage! Still, I have no moral duty to obey the law and you (the state) have no right over me.Anarchism Who is the anarchist?

The word anarchy means without ruler. However, we tend to think of it as implying lack of order basically, a big big mess!

But there can be order even if there is no ruler

One can be an anarchist without advocating social disorder. The only thing that anarchists deny is the notion of a centralised power, i.e. the state

There are various kinds of anarchism, but they all accept the following principle: all states are illegitimate - there is no legitimate state. Which means, no state has the right to rule.

John Simmons Philosophical AnarchismComparing a priori and a posteriori anarchismA priori = the concept of a legitimate state is logically impossibleA posteriori = it is possible to have a legitimate state, but we have not seen one yetIf you support the second, then you are just criticizing the existing states, for failing to achieve a standard of legitimacyAlso, Simmons distinguishes

Weak anarchism simply accepting the basic premise about no legitimacy

Strong anarchism there is also a duty to fight against the state

Simmons argues in favor of a posteriori, weak anarchism. Which means the following: No actual state is legitimate. Therefore, there is no moral obligation to obey the law of any state. However, and very importantlythe state is not necessarily an enemy to defeatthere are often other reasons to obey the law. Which means, disobedience might be wrong even if the state is illegitimate.

Why obey the lawEven illegitimate states may have virtues (), and the refusal to do what the law requires is, at least in most (even illegitimate) states, often wrong on independent moral grounds (i.e. the conduct would be wrong even were it not legally forbidden).

The fact that X is a law is not a reason to do X. On the other hand, the fact that not doing X would cause harm to others is a reason to do X.Example:

Suppose you are driving an encounter a stop sign. Do you have a duty to stop? Yes.But we said the state has no legitimacy. Why do you have to obey the law?You do not stop because the state tells you. You stop because, if you didnt, you would put other people at risk. And thats wrong.

Wrong Vs. IllegalCertain behaviours are wrong because the law says so e.g. not wearing seatbelts. These are called malum prohibitum theyre wrong because they are prohibited by the law. According to Simmons, the notion of malum prohibitum is unjustified nothing is wrong simply because the law says so, the law has no authorityOther behaviours are just wrong e.g. rape. They are malum per se, that is, intrinsically wrong. Even if the law were to say that rape is OK, rape would still be wrong. Summary of Simmons viewAll states are illegitimate. That is to say, no state has the right to impose duties onto the citizensThere is no moral obligation to obey the law. That is to say, there is nothing wrong per se with disobeying the lawHowever, we are under a moral obligation not to commit malum per se. If, by disobeying the law, we cause something morally wrong (e.g. harm to others), then we may have to obey the law in that particular case. But the reasons for obeying are not to be found in the law, or in the states right to impose duties.This approach would also benefit the state, which would become more liberal and less state-like (p. 118).Question: If states are illegitimate, what role can the criminal justice play? Would Simmons allow for police etc.?

ConclusionBeing an anarchist does not mean throwing rocks at the police. It rather involves reflecting on what the role of the state is/should be

A recurrent problemCan we agree on what constitutes malum per se? Apart from obvious cases (rape, murder, paedophilia) are we now back to the problem that critical criminology was denouncing, i.e. that we cannot agree on values?Tutorial:Workbook Task 4: Q1: What expectations do you have about the content of the article from the information conveyed in the title?

Example:Look at the keywords used within the title- what do they mean?, do they offer a point of reference?37Q2: From the abstract, what do you believe is the main aim of the authors in this paper?

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Example:

Once again pull the abstract apart. Look at the keywords, are there linking words, does the author indicate a particular viewpoint? Look at the big picture of the abstract and narrow your focus.39Q3: Draw a concept map of the ideas contained in the abstract?Aka mind mapHow to create a concept map:Identify the general/broad topic.Brainstorm on the general topic and list all the concepts and themes that are related to the topic on a large piece of paper. Keep the concepts as concise as possible. Write the main theme in the centre of the page.Take the other concepts identified in the brainstorming and connect them to the centre concept. You can use other organisational patterns such as branches, arrows or groups. More important ideas should be put nearer to the centre and less important ones closer to the edge. Identify the relationship between the concepts.

Concept maps aka mind maps:https://bubbl.us/

Great source to professionally construct a mind map to enter into your workbook task!

I would advise you to use the above software to create a professional concept map for your workbook task.Q4: List the main ideas of the entire paper, then in your own words, briefly summarise the main argument of the authors. Is there more than one argument? If so, how are they connected?

Breaking down the question:What is the topic of the paper?What are the authors trying to say (arguments)?

Q5: Do the authors achieve their aims for this article?Q6: What evidence do they use to support any argument?

Include the reference for this article in your reference list at the end of this task!Critical Reading Strategies:Previewing: Learning about a text before really reading it. Contextualizing: Placing a text in its historical, biographical, and cultural contexts. Questioning to understand and remember: Asking questions about the content. Reflecting on challenges to your beliefs and values: Examining your personal responses. Outlining and summarizing: Identifying the main ideas and restating them in your own words. Evaluating an argument: Testing the logic of a text as well as its credibility and emotional impact.7. Comparing and contrasting related readings: Exploring likenesses and differences between texts to understand them better.

Part of being a critical thinker is being a critical readerTo recognise an authors purposeTo understand tone and persuasive elementsTo recognise biasHave understood the message being put forwardEvaluated the evidence supporting that messageEvaluated the writers perspective

Your Questions:Contact me if you have any issues in regards to the workbook tasks.Assessment 1:The Four workbook task are due next Friday:19th December 2014Need to submit the first FOUR workshop tasks

Submission via EASTS (through the interact site)- NO PDF FORMATS; word documents only!50Any Questions regarding the workbook tasks? Workbook 1 assignment which includes 4 workbook tasks is due 19th December 2014 = next Friday!!!!