Law and Justice Relationship Philosophy - Assignment Example

Law and Justice Relationship Philosophy According to Aristotle, while all persons share a common "nature," some persons can acquire by engaging in habitual behaviour something like a "second nature" that is as much a determinant of their actions as is their "first" nature. (Aristotle, 1941) Aristotle and Plato have debated about the Rule of Law. Barker writes about Aristotle's viewpoint and how being ruled by a constitution and rotation of office provides everyone with the same rights and worth, rather than being ruled by a king judging in accordance with his/her own feelings and thereby, not having a 'neutral' mind when exercising authority. Plato suggests powers exercised by a ruler are governed by customary and community rules. Decisions are made by the minds of the rulers and their delegates. Humans have some innate knowledge of what is important and good in human life and because of this, we should not be constrained by laws and rules but by what our minds tell us what is right and just in the circumstances. The laws do not expressly provide on how to deal with this specific situation and judgment must then be made on moral principles. Permanent laws are incompatible with changing demographics and technology. Laws must change at the same pace with the rest of society to maintain society's current perspective of justice and righteousness, but time delays in passing laws precludes this. Still now, the public waits for tougher dog laws to be passed on pit bulls and others alike. Even worse, there is no guarantee administration will be efficient. Here, Plato argues, rules fail to meet the differences of time and there is a need for rulers to exercise discretion as it encourages efficiency. Where rules fail to take into account of specific, exceptional cases, Aristotle claims, equity should apply. Judges should correct errors of the law, rising from oversight by the lawmakers, given there are rules to be corrected in the first place. This is therefore, an argument to being ruled by laws. He favours rule by democracy where government by a collective of good men is better than being ruled by an absolute king. Decisions ought to be made by a democratically-elected assembly. Unlike Plato's idea of 'permanence', offices and positions will be rotated; enforcing the idea that everyone is equal and everyone should both rule and be ruled. The practice of using legal precepts to decide disputes was criticized by American Legal Realists as either redundant or pernicious. Disputes, it is said, should be decided justly. Where legal precepts dictate the same outcome as that of justice, and then legal precepts are redundant--acting justly will achieve the same results as following the precept. Where legal precepts recommend a different result than that recommended by justice then following the rules are pernicious. The result is, in the words of Jerome Frank, "injustice is according to law." (Frank, 1936) Most people are of a similar opinion when confronted with what appears to be the "unjust" application of a rule to a particular situation. One assumption underlying this objection is that, because they are formulated before a dispute arises, legal precepts cannot take into account the specific facts of a dispute that may argue in favour of a different "just" result than that recommended by the legal precept. Only after the fact can we know enough about the actual dispute to do real justice between the parties. As Frank argued, The judge, at his best is an arbitrator, a "sound man" who strives to do justice to the parties by exercising a wise discretion with reference to the peculiar circumstances of the case. He does not merely "find" or invent some generalized rule which he "applies" to the facts presented to him. He does "equity" in the sense in which Aristotle--when thinking most clearly--described it. "It is equity," he wrote in his Rhetoric, "to pardon human failings, and to look to the law giver and not to the law, and for this an arbitrator was first appointed, in order that equity might flourish." (Frank, 1936) When based on this assumption, however, the objection against legal precepts amounts, then, to an argument in favour of ex post decision making. As was just discussed, the costs of ex post decision making are exceedingly high. Even a highly imperfect application of ex ante legal precepts is usually preferable to an ex post determination. Nonetheless the common-law process of adjudication does provide for a method of taking changed circumstances into account by modifying or refining legal precepts. Moreover, this assumption views legal precepts as distinct from and at least sometimes opposed to the requirements of justice. However, the analysis presented here offers a quite different picture of this relationship. Justice, at least in its first derivation, is extremely abstract and general. For justice to be brought to bear effectively on individual decision, specific legal precepts are needed to guide conduct. Such precepts are the necessary means by which just results or ends are to be achieved in practice, and they are also the means by which persons decide how to act justly so as to avoid a dispute that requires resolution. Most importantly, perhaps, this objection to the use of legal precepts assumes that persons decide how to act or judges deciding how to resolve a dispute have access to a conception of justice that is specific enough to decide the outcomes of disputes. Where this assumption is false and a conception of justice, such as one based on natural rights, does not provide specific enough guidance, as is commonly the case, legal precepts are the inescapable means of putting the abstract requirements of justice into practice. Where this assumption holds true and abstract natural rights do recommend for or against certain conduct, legal precepts generally have no difficulty mirroring the requirements of justice. Where the just result is very clear and a legal precept violates it, this is an argument for changing or refining the precept at issue, not discarding the use of precepts altogether. Unlike some philosophers, (Razz, 1983) persons who make laws are not content to employ a merely descriptive "value-neutral" conception of law which proscribes no duty of obedience. When they use the term "law" to describe their commands they typically claim that others do have a moral duty to obey them. It is legitimate therefore to assess the validity of their claim. Do their commands really create a duty of obedience? H. L. A. Hart correctly acknowledged that the challenge for legal positivism is to explain how a legal command is different than a command of a gunman, only a "gunman situation writ large." (Hart, 1961) To this he responded by invoking (albeit without acknowledgment) Locke's distinction between being obliged to obey a command in the sense that one will be coerced into obedience, and having an obligation. (Hart, 1961) While one was obliged--or to use Locke's word, "compelled"--to obey the gunman, one had no obligation to do so. Hart departed from nineteenth-century legal positivist John Austin (Oliver, 1897) by acknowledging that legal obligation is typically perceived by individuals, not merely as a command from a superior to a subject or as a way to predict the imposition of a legal sanction, but also as a reason for personal conduct. This "internal" point of view cannot be explained entirely by the physical coercion attached to non-compliance. (Hart, 1961) For Hart, the perception of obligation was based either on the widespread acceptance of "primary rules" regulating individual conduct (Hart, 1961) or on the widespread acceptance of "secondary rules that regulate the making of primary rules." (Hart, 1961) Rules are conceived and spoken of as obligatory when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great. . . . The rules supported by this serious social pressure are thought important because they are believed to be necessary to the maintenance of social life or some highly prized feature of it. (Hart, 1961) Legal obligation in Hart's scheme, then, is largely if not entirely, a matter of perception. Legal rules create obligations of obedience when they are "thought important because they are believed to be necessary." (Hart, 1961) But at most Hart's account explains the general perception in a given society of an obligation to obey the law not whether there truly is such an obligation. When a lawmaking authority claims that we are obligated to obey its commands, we are entitled to ask whether this claim is warranted. When a normative conception of law entailing a moral obligation to obey is invoked, whatever quality a law must have to make it binding in conscience, we are entitled to demand that this quality goes in before the name "law" goes on. In sum, to determine whether legal rules are really obligatory we must ask whether they are in fact, as Hart put it: "necessary to the maintenance of social life." And this is exactly what a natural rights enquiry attempts to do. If adherence to natural rights is indeed essential for the maintenance of social life, as natural rights theorists maintain and then laws are obligatory only if they are consistent with natural rights. By this account, a command may be a "law" in the descriptive sense that it is issued by a recognized law-maker, but it is only law in the normative sense of a command that binds in conscience on the citizenry if it does not violate the background rights of persons. Thus, for human laws to be obligatory, they should not violate natural rights. For human beings in society with others to pursue happiness, peace, and prosperity, enforceable legal rights must not conflict with certain background natural rights. Law-makers claim that subjects of their law have a moral duty of obedience; they also invariably claim that their laws advance the general welfare or the common good. Indeed, if pressed, many would advance the latter claim in defence of the former--that is, people have a duty to obey the law because adherence to such laws does advance the general welfare. Thus human laws which violate natural rights are not obligatory and only those human laws that respect natural rights can be obligatory. This previous observation suggests yet another basis for legal rights to adhere to natural rights. We have all heard that the legitimacy of law making is grounded on the "consent of the governed" to the law-making regime. Yet the analysis just presented suggests that the obligation of law-makers to respect natural rights rests, at least in part, on the "consent of the governors" to respect these rights. For do not law-makers explicitly or implicitly claim that their laws promote the common good and are not unjust? By doing so are they not consenting to adhere to any principles of justice that, if violated, would thwart the common good? For example, the Preamble to the United States Constitution explicitly claims that its purpose was to "establish Justice, ensure domestic tranquillity promote the general Welfare, and secure the blessings of Liberty to ourselves and our posterity" Do not law-makers in the United States who take an oath to uphold the Constitution explicitly obligate themselves to pass laws that actually do establish justice, do ensure peace, do promote the general welfare, and do secure liberty? Therefore, if the argument presented in this paper in favour of certain natural rights holds, then these background rights must be respected by law-makers in devising legal rights if for no other reason than because they have promised or consented to do so. For all these reasons, even if natural rights generated only a "prudential" or "hypothetical" obligation, this would be plenty significant. For the hypothetical obligation at issue is: if we want a society in which persons can survive and pursue happiness, peace and prosperity, then we should respect the liberal conception of justice--as defined by natural rights--and the rule of law. The accomplishment of total liberty can not be achieved without the complete satisfaction of equality. Sir Isaiah Berlin once said "If you have maximum liberty, then the strong can destroy the weak, and if you have absolute equality, you cannot have absolute liberty, because you have to coerce the powerful... if they are not to devour the poor and meek... Total liberty can be dreadful, total equality can be equally frightful." The yin and yang of freedom's political society; a nation conceived in freedom can not have both of two worlds. Each of these subjects differs in many ways yet is similar in many ways, like a magnetic object each has attracting and deflecting energy within them. The statement quoted by Sir Isaiah Berlin portrays his point of view of liberty, equality, and justice. He stated that a society can not have both absolute equality and liberty working together side by side. Meaning, that both of these are opposite of each other due to the nature of their laws. Achieving maximum liberty can give more power to the strong, wealthy class citizens, to govern over the weak, lower class citizens. The strong have power over others due to their excessive wealth; for example, a wealthy individual would drape themselves with designer clothing, jewellery, and be well groomed, whereas a diminutive citizen would appear in less glamour than the wealthy, due to lack of funds. If either of them were to commit a crime the wealthy would be able to afford a better attorney and have a better chance of being acquitted of the crime, but a poverty-stricken citizen would have to struggle just to receive the same acquaintance as his counter part with a less likely chance of succeeding. The strong could contend with the law and act as if they could get away with anything, whereas the opposite action would occur to the weak. Berlin's statement proves that the strong can take advantage of the freedom given to them, and use it for their own luxury. Now if absolute equality would rein society, then we can not have equal liberty, considering that if everyone was equal than each person would receive equal pay, property, power, laws, jobs, and so on, basically, everyone would have to be equal to one another. This would not give them freedom to choose what to do in their life, because each person would be the same as each other, also being similar to communism. John Rawls argues that the principles of justice determine how the benefits and burdens of society are to be distributed among individuals in an equal manner. Thus for Rawls, justice is fairness. But consider, how can people decide what is fair, when they live in a nation of great inequalities and diverse interpretations of utopian society? Rawls suggests that the principles of equality would have to be agreed upon by the people as what he would call 'original position.' Rawls' idea of 'original position' would be hypothetical or imaginary, meaning that the individual would not know his position in life, including race, sex, and economy. Rawls' would then appoint his two principles towards that individual. He states that basic rights and liberties should be as extensive as possibly could, to each individual. Rawls' stated, second that any social and economic indifference should be made equal in any position, while providing the greatest benefits to the poverty-stricken. The beliefs of Berlin and Rawls on liberty and justice are two completely different beliefs with many arguments that contradict each other. Rawls believes everyone in society should be treated with justice and liberty to the fullest extent, but on the other hand Berlin's thoughts differ from Rawls, because how can one have justice and liberty in the same package if having to much of either one will imbalance them. Rawls' two principles suggests that social and economic indifferences should be equal and basic rights and liberties should be as extensive to each individual, but how can you achieve both when having extensive basic rights and liberties will handicap their economic status by having each individual endure a political aspect that are similar to each one another. (Rawls, 1996) Meaning, that each person would have the same power as the person right next to them, but to achieve this they would have to settle differences through their imperfect factors, such as, ethnicity, creed, and sex. How can humans eliminate these factors in their society when there is no such thing as a 'perfect individual?' Thus making Berlin's comparison to Rawls' statement inconsistent, because of how the two societal factors can not balance each other without losing some attributes to them. With the two philosophers enduring thoughts about liberty and justice, mixed in with the equality of individuals of society, these factors can not be consistent with each other. Berlin's statement would be a true pick towards how society can not have both of two worlds. These two different attributes would not give part in what utopia is, as Rawls would have thought it could have. Even with the optimistic views of Rawls, some views can not be viewed without seeing the darker perspective to it. Thus, tying in with what Berlin would consider his 'dark perspective.' Whatever gaps or uncertainties remain after conventional rules are chosen to implement the abstract requirements of justice is commonly handled in practice by the right of freedom of contract. Herbert Spencer made a similar point concerning the principles of equal liberty: "Though further qualifications of the liberty of action thus asserted may be necessary, yet . . . in the just regulation of a community no further qualification of it can be recognized. Such further qualifications must ever remain for private and individual application." (Spenser, 1851) So, for example, while it would be unjust for Ann to blow smoke in Ben's face but unclear whether she should be allowed to wear perfume, Ben may allow smoking or prohibit the wearing of perfume in his own restaurant for anyone who consents to eat there. Prohibiting this form of consensual centralized order would violate the background rights of Ben and his customers. The rule prohibiting physical interference with use and enjoyment is simply a "default rule" (Randy, 1992) or baseline which specifies who bears the obligation to seek (and possibly pay for) the consent of another. There is considerable irony in the tendency of some who stress the importance of centralized ordering of society as a whole to deny or disparage the exercise of centralized ordering by people exercising their rights of several properties and freedom of contract. Given the serious constraints imposed by a decentralized regime, the control exerted by owners or managers of several properties over those who actually manifest consent to their authority is far less dangerous than imposing the authority of central rulers on subjects without their consent. There has been debate over the Rule of Law suggesting a separation between the rules by law and rules made by mere power of a ruler. In the days of Aristotle and Plato, there was a clear distinction between rules and rule by mere power. These distinctions will be discussed below, detailing the benefits and defects of both types of rules. More recently, the Rule of Law encompasses both rules (mainly Statutes) and judiciary-made rules. Statutes are necessary to limit judges' ultra vires but at same time, judiciary precedents are needed to 'complete loopholes' within these general statutes. As seen throughout the discussion, notwithstanding defects/benefits statutes and judiciary-made rules have, both are incident to the Rule of Law. Greek Debate over what is incident to the rule of law and what are its benefits and defects. Furthermore in 1979, Raz, outlines conformity with the Rule of Law. Yet this should be only being done if the values that the Rule of Law serves, are clearly know to all. Conformity by those with legal authority includes government and judges subject to laws too. These officials exercise arbitrary power and must be dealt with objectively by the rule of law. Laws give officials political freedom, that is, conferring powers to prohibit certain behaviours and public authorities' powers that interfere with individual personal freedom. Thus, observing the rule of law is fundamental to respecting human dignity, otherwise, people become uncertain as to how their cases will result and may lead to a rise of disappointed expectations. First, people are encouraged to rely on the laws and then that assumption is withdrawn by authorities' disregard for the laws. Pound challenges the ideal of justice. That being, law administers all cases expressly, through laws, or indirectly, through logical reasoning by judges. In reality it is always difficult when deciding in cases where choosing amongst authoritative premises and deciding cases where no authoritative premises exist! To overcome this difficulty, Pound claims equity takes it role. But, once again, there must be’ over-rigid' rules in the first place. Notwithstanding their inflexible stance, rules still secure us against well-meant ignorance of the judge and improper motives on those who administer justice.( Pound, 1951) Pound explicitly outlines the advantages and disadvantages of following rules by law. Advantages including prediction of administration, security against individual judgements and improper motives, upholding ethical community-formulated standards and benefiting from predecessor's experience. (Pound, 1951) Disadvantages included impersonal and arbitrary operation on subjects, dealing with a practical matter too academically, and the slowness to advance its conceptions of justice with that of the present. Modern Discussion: Parliamentary Statutes compared to Judiciary Supremacy - benefits and defects of each. Raz also acknowledges how arbitrator's authority alone is an exclusionary reason. (Raz, 1983)Thus, should follow arbitrator's authority, given the authority is based on these three conceptions: Dependence thesis - directive authorities are depended on by subjects to decide reasons for them in their cases. Normal Justification thesis - more beneficial for directive authorities to apply binding laws applicable to subjects, than to not apply. Pre-emption thesis - the fact law is a pre-requisite, alone, justifies reason to perform. Laws must not be obeyed blindly as, like the Normal Justification thesis states, rules and authority must be justified. They reflect authorities' limited roles as mediators deciding between reasons brought about by dependent, conflicting parties and they are not intended to allow authorities to create new laws by their own personal considerations. Both Hart and Dworkin claim the rule of law consists of both rules and judicial discretion. However, Hart contended there were only rules and judges, where ambiguous rules were clarified by judicial discretion. This is what Hart called the "Open-texture" theory and such a theory did not support the "command" theory, whereby rulers alone comprise the rules for society. Laws have an 'open texture' as some have indeterminate language, general and unclear standards (e.g. "fairness" "reasonable") and no clear governing selection of precedents for particular cases - judicial discretion would then be required to assist in these ambiguous areas. Dworkin takes the legal system further, claiming that principles are an essential to the Rule of Law, as well as rules and judicial discretion. Principles include society's norms, moral standards, policies and ethical views. The inflexibility of rules means they have this 'all-or-nothing' application and where they do not apply, principles are necessary to influence decisions. For example, the laws on abortion. This is a classic case of who has a right to life - the mother or the child - and what principles should apply and how they should be weighed. Here, judges take rules and principles into account. Judicial discretion without principles can lead to unethical decisions that may be final and may operate retroactively. The Elmer case demonstrated that judges needed to look at society's standards and morals when deciding on whether to give legal entitlement to the beneficiary who killed the trustee, otherwise there would be public outcry over the unethical and immoral standards of judges. Ekins challenges the requirement for judges to have the power of judicial review. Adjudication is based on an assumption defining fundamental rights and who is entitled to them in particular circumstances. Judicial supremacy, following adjudication, rests on an assumption "Rights adjudication is so determined by judges who will weigh out parties' assertions to particular rights, according to their own moral convictions". For example, the right to life - this is accepted as a fundamental right yet its application to political disputes is still unclear. The right to life is a reason used by opposers and supporters of euthanasia and even abortion. Such conflicting matters still now have no logical method to resolve them. Rights adjudication allows judges to decide on what they think is just, when it should be parliament's choice given they were elected democratically. Parliament represents society's moral convictions more than judges do. This leads to constitutional implications where judges place themselves as legislators by expounding self-evident fundamental principles. Dworkin argues here that the legislative process is far more equipped for changes in the rule of law in comparison to judicial supremacy as parliamentary legislation apply prospectively and are designed to be clear and understandable. Legislation also considers ramifications of particular decisions and consultation with other diverse groups. But under judicial supremacy the judiciary has the final legal authority on what legislation is applicable. This can lead to a reluctance to rely on legislation in your case - no matter whether legislation is clear or not, the judge can still revise or invalidate such legislation - and this is inconsistent with the doctrine of parliamentary sovereignty. The separation of rules by law and rules by the judiciary is unrealistic and impractical. In ancient Greek times, the distinction was generally clear between rules by law and rules by rulers. The former having advantages of certainty and security against abuse of power, whilst the latter advocated moral principles, ethical standards and timeliness. Through the 20th century and up until now, the Greek debate evolved into a new debate between parliament-made laws and judiciary-made laws. (Kenny, 1987) The Rule of Law now consists of these two 'incident' elements: the judiciary and parliament. Each with its own benefits and defects, but both are necessary to trade-off each other's defects.( James, 1985) Parliament-made laws are secondary reasons providing consistency, security, and certainty amongst citizens and government officials. This is all apart of the doctrine of parliamentary sovereignty whereby laws are intended to represent everyone's perspectives, voted upon by the democratically-elected parliament. But judiciary precedents are necessary where lawmakers have overlooked particular cases. Ekins and Raz, conjure the concept that the judiciary should not have the final legal authority - obedience to parliament-made laws is fundamental to maintaining orderliness and security. But like Dworkin and Hart views, rules alone do not constitute the legal system. Legally authorised judges are still needed to 'fill-in-the-gaps' where laws are too ambiguous in certain cases and to outline moral principal and ethical standards. Being ruled by law and ruled by judiciary are crucial to the Rule of Law. Both are interdependent and they ensure each validly exercises power upon its subjects. One's defects may be another's benefits and vice versa, thus both are co-dependent and incident to the rule of law. The incompatibility of a morality of aspiration with either the formal requirements of the rule of law or a decentralized legal order makes the risk of enforcement abuse simply intolerable. If we have learned nothing else from the millions of killings we have witnessed in the twentieth century we have learned that the problems of power are only magnified when force is used to assure compliance with a vision of "the good." One purpose for recognizing and respecting rights is to avoid the occurrence of such devastations without resorting to social experimentation. Those who reject this conception in favour of enforcing a morality of aspiration must take these pervasive social problems seriously if they expect us to take seriously their proposed alternative. This is a task that few critics of liberalism have been willing even to attempt. Critics of liberalism either ignore these problems altogether or describe how they would deal with them in far too cursory a fashion. Yet neither theory nor historical experience gives us any reason to suspect that a system that attempted to impose coercively a morality of aspiration upon everyone could possibly handle the problems of knowledge, interest, and power. If a morality of aspiration ought not to be enforced by a coercive monopoly, then what kinds of institutions can promote it voluntarily? In a society that rigorously adhered to the liberal conception of justice, the most important institution for inculcating a morality of aspiration is the family. Given the knowledge that immediate family members have of the facts of time and place, they seem uniquely qualified to handle this responsibility and also uniquely interested as well. Although families may sometimes fail miserably at this task, we are speaking now of comparative competence based on the knowledge that such a task requires. And when families fail, their failure is compartmentalized--its breadth far more limited then when coercive regimes fail. In addition, so-called "intermediate" institutions that have traditionally bridged the gap between individuals, their families, and the larger community--schools, theatres, publishers, clubs, neighbourhood groups, charities, religious and fraternal groups, and other voluntary associations--all serve a vital function of developing and inculcating values. As a practical matter, our values come not from coercion but from the exhortations and examples set by countless individuals and groups. In a completely free society, all these institutions could pursue a morality of aspiration unburdened by the forcible interference of third parties that is now made possible by the Single Power Principle. To some this all may sound a bit trite, even hackneyed. But it is no coincidence that totalitarian regimes invariably strive to regulate, co-opt, subvert, and ultimately annihilate these institutions at every turn. And is it not exceedingly odd that the same critics of liberalism who view the impact of "economic" choices in a market as powerful enough to invariably obliterate any conception of a good society that stands in the way, at the same time so seriously underestimate and deprecate the social institutions created by the free "moral" choices that liberalism also makes possible? Perhaps there is an element of the expedient in such arguments. Of course, there is no enforceable guarantee that such voluntary institutions will be "enough" to ensure that a morality of aspiration will be achieved. But, as by now should be apparent, a system that uses a Single Power Principle to impose a morality of aspiration offers no such guarantees either, or cannot honour any guarantees its proponents may issue. Even an ideally wielded coercive monopoly of power is only as "good" as the persons wielding the power. But power to coercively impose morality invariably corrupts those who wield it, and virtue is its first victim. (Joseph, 1984) Then there is the perennial question of which conception of the good will turn out to be mandated? What are the chances that the "correct" one will be "guaranteed" by the coercive monopoly of power? Despite their denials, advocates of imposing a particular morality of aspiration invariably assume that theirs will win out or that the struggle will continue indefinitely, but what if the wrong morality is coercively imposed upon them instead? True, if given a choice, most of us would want to see our moral vision prevail. But if they cannot get their own way, which would most people prefer: the amorality of the liberal conception of justice or the immorality of their rivals? Given the risks that, in a conflict among competing moralities, we will be subjected to someone else's morality, the liberal conception of justice becomes nearly everyone's second-best outcome. And this turns out to be its greatest strength. Some, perhaps even most, who condemn the particular conception of justice and the rule of law presented here as "too little" do not mean by this that it fails to ensure the achievement of some particular conception of the good. Rather, they think the rights of several property, freedom of contract, first possession, restitution, and self-defence provide an inadequate or impoverished conception of justice itself. In particular, by barring forced takings, these rights are not compassable with an enforceable right to certain basic or primary goods, or the "rights and liberties, powers and opportunities, income and wealth," 4 that are the prerequisites of the pursuit of happiness. In the words of John Rawls, "these goods normally have a use whatever a person's rational plan of life." Then there is the problem of compliance. Redistribution exacerbates the potential conflict between justice and interest. Whole classes of persons from whom resources are taken will experience. A gap between their subjective interests and the requirements of justice. Advocates of redistribution realize this, of course, which is why they argue so hard for defining redistribution as a theory of justice. By doing so they can justify using violence or force to coerce the takings that are required to meet the chosen distributive standard. But as was seen above, employing force to implement a scheme of rights raises the costs of enforcement error and leads to enforcement abuse. Distributive justice gives rise to enforcement error in at least two ways. First, the costs of error imposed on the innocent are increased when an incorrect conception of distributive justice is chosen. Second, whatever conception of distributive justice is chosen will be incorrectly applied on occasion. When either error is made, innocent people will be jailed, their incomes attached, their homes and businesses confiscated. Lives will be ruined. No theorist of distributive justice can assume perfect information if their theories are to be implemented in a world of imperfect information and fallible human decision makers. They must explain both how their theories will handle the problems of power and how the inevitable sacrifice of the innocent is to be justified. Even more serious, however, is the problem of enforcement abuse. Those given the power to forcibly confiscate resources can be expected to abuse this power in innumerable ways. For example, the massive amounts of personal information to implement any scheme of redistribution will inevitably be misused. Worse yet, the potential either to benefit from redistribution or be harmed by it creates factions of persons who will, depending on how the conception of distributive justice is chosen, lobby for favourable treatment or attempt to corrupt those who are charged with choosing who will benefit and by how much. Vast amounts of wealth will be expended seeking the "rents" that redistribution can provide or avoiding its imposition. Using coercive takings to implement a scheme of redistribution impedes the ability of these rights to perform their task. This is not always fully appreciated by advocates of distributive justice. For example, John Rawls has written that among the basic liberties of the person is the right to hold and to have the exclusive use of personal property. The role of this liberty is to allow a sufficient material basis for a sense of personal independence and self-respect, both of which are essential for the development and exercise of the moral powers. (Lomasky, 1987) With so limited recognition of the functions of several properties, Rawls predictably adopts an impoverished view of the right itself. Rawls excludes from the set of basic liberties the "certain rights of acquisition and bequest, as well as the right to own the means of production and natural resources" on the ground that these property rights "cannot, I think, be accounted for as necessary for the development and exercise of the moral powers." (Lomasky, 1987) Perhaps they cannot, though I strongly suspect otherwise. (Lomasky, 1987) But when Rawls limits his basic liberties to those that "are essential for the adequate development and full exercise of . . . moral personality over a complete life," (Rawls, 1996) his conclusions cannot help but be affected by his failure to take into account how property handles the problems of knowledge, interest, and power. (Rawls, 1996) What about Rawls's well-known claim that because, "[n]o one deserves his greater natural capacity nor merits a more favourable starting place in society," (Rawls, 1996) physical resources should be distributed in a manner so that "no one gains or loses from his arbitrary place in the natural distribution of assets or his initial position in society without giving or receiving compensating advantages in return." (Rawls, 1996) Would this not apply to one's own knowledge as well as to one's natural endowments? If people do not "deserve" the personal and local knowledge they possess, how does the mere "arbitrary" fact of their possessing personal and local knowledge justify any particular distribution of physical resources? Before answering this challenge directly, it is interesting to notice that Rawls's argument concerning desert resembles the objection, discussed above, that liberalism is insufficiently impartial. For Rawls would not himself distribute all resources on the basis of desert. "There is a tendency," he writes, "for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Rawls's use of desert to challenge the holdings allocated by the rights of several property acquisition, use, and transfer identified here looks considerably less substantial once one acknowledges the myriad social problems that these rights address. Given that the distribution of knowledge throughout society cannot be redistributed, a jurisdiction to exercise bounded individual and personal discretion over physical resources enables persons and associations to put their knowledge to work. Although physical resources differ from personal and local knowledge in that it is possible to redistribute them, if adhering to the liberal conception justice described here is the best or only way to handle the first-order problem of knowledge, as well as the problems of interest and of power, then the fact that personal and local knowledge cannot be redistributed places serious limits on the wisdom or justice of redistributing physical resources in some other manner. Doing so would be, in Rawls's term, "impracticable." Moreover, even if it is true that persons do not deserve the knowledge they have--a claim that appears less compelling than the claim that natural endowments are undeserved since much knowledge acquisition is a product of effort--recognizing that the concepts of several property and freedom of contract function, in part, to handle the first-order problem of knowledge suggests that the notion of "moral desert" is irrelevant and even pernicious in this context. The dispersion of personal and local knowledge to which individuals and associations have limited access is one of the pervasive and intractable social problems addressed by the concept of justice being examined here. The idea that the possession of resources or endowments or knowledge must be deserved has no place in solving this problem. The knowledge problem exists and must somehow be dealt with whether or not individuals and associations deserve the knowledge in their possession. If it did not possess an at least 'relative' autonomy, law obviously would not take the form of a system; it would lack that minimal differentiation with regard to its environment which alone makes it possible to identify a specific whole. Is it possible to push this idea a bit further and, rejecting the concept of 'relative autonomy', describe law as a self-referential, indeed even 'autopoietic', system: not only self-organized but even self-produced? This is the view now held by an important tendency in sociology of law, led by Luhmann, and itself inspired by recent work done in biology, cybernetics, and information theory. We must now describe and discuss this new theory, called autopoiesis, which confronts us with a choice whether the autonomy of a legal system is complete or relative. (Luhmann, 1988) Luhmann and his disciples take the paradigm of autopoiesis from work on the organization of living forms by two contemporary biologists, Maturana and Varela. Their approach to living forms is deliberately mechanistic: living systems, such as the cell or the brain, are to be understood as machines, which are to be explained by their internal organization. (Maturana, 1980) But whereas, in an allopoietic machine such as a car, the product of its operation is different from itself, the product of the operation of an autopoietic machine is nothing other than itself. A cell can then define itself by its self-generation, on the model of an artificial machine able to construct itself. An autopoietic system can therefore be understood as a machine organized in the form of a network of processes of component-production, in which the components, through their constant interaction and transformation, endlessly regenerate the network of processes of component production and thereby provide the machine with a particular spatial unity. An autopoietic machine is thus a network of tangled or 'looped' processes, which ensures a continual regeneration of its constitutive elements and thus defines its unity in space. This initial conception has several consequences. Luhmann, a sociologist of law whose earliest works largely followed the structural-functionalist ideas of Parsons, later resolutely adopted the autopoietic paradigm in order to conceptualize a legal system. Stripping the autopoietic thesis of those of its connotations that are too directly biological, Luhmann begins from the idea that the minimal constitutive element of a legal system, a sort of legal atom, is found in acts of communication. (Luhmann, 1988) More precisely, Luhmann's disciple Teubner takes the legal act to be the basic element of systematicity in law. (Luhmann, 1988) A legal system can be called autopoietic so far as the self-reference characterizing it affects not only its structures, its mode of organization, but also its basic elements themselves. Law, as with any other operational and well-differentiated social subsystem, presupposes and reproduces itself: its unity, as well as its mode of organization, its constitutive elements and its borders, results, through 'reduction of complexity', from specifically systemic achievements: they proceed neither from nature nor from any condition deriving from the environment. Consequently, there is no law other than positive law (in the form of legislation, case law, or contract). (Luhmann, 1988) An autopoietic system is thus, above all, a closed system. In law, this closure is normative. Only legal norms are able to decide the pertinence or relevance of any element to a legal system. After centuries of debate, it is now admitted that neither nature, nor morality, nor religion possesses this power to create law. Only a legal system, through its autopoietic functioning, has the capacity to confer on the elements that it determines the quality of being law. There thus reproduces itself an endless and non-intentional process of reproduction of legal elements by themselves. But the progress that the autopoietic paradigm claims to represent consists of superseding the classic opposition between openness and closeness formerly important in systems theory. An autopoietic system, defined as functionally (normatively, as concerns law) closed, is also a system open to the environment, which is a source of information for it. Normative closure thus goes hand in hand with cognitive openness. A legal system can be programmed in such a way that it deliberately makes itself dependent on the evolution of external circumstances; modification of the program itself, under pressure from the environment, is also possible (Luhmann, 1988) in as much as, after this search for optimal adaptation, the system does not lose control of its transformations. All too often the idea that the legal profession is unitary, if not united, is mobilized in order to advance the interests of lawyers or to promote a particular reform agenda. For example, more than a decade ago, the American Bar Association's Commission on Professionalism issued a "Blueprint for the Rekindling of Lawyer Professionalism," asserting the continuing validity of some of the bar's most cherished ideals. (American Bar Association Commission on Professionalism, 1986) In particular, the "Blueprint" tried to provide a coherent identification of the demands that professionalism makes on all lawyers. Despite growing diversity among lawyers, and in the face of increasing commercialism, the Commission argued that lawyering continues to be a distinctive and cohesive occupational pursuit. Using the words of Roscoe Pound, the Commission described lawyers as united by a "`common calling'" and insisted that, despite their differences, lawyers share common ideas of professionalism. (Austin, 2002) References American Bar Association Commission on Professionalism, "... 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Joseph William Singer, "The Player and the Cards: Nihilism and Legal Theory," Yale Law Journal, vol. 94 ( 1984), p. 7. Kenny Hegland, "Goodbye to Deconstruction," Southern California University Law Review, vol. 58 ( 1985), p. 1203; Lawrence B. Solum, "On the Indeterminacy Crisis: Critiquing Critical Dogma," University of Chicago Law Review, vol. 54 ( 1987), pp. 462-503. Lomasky, Loren E. 1987. Persons, Rights, and the Moral Community (New York: Oxford University Press, pp. 111-51 Luhmann 1988, ' "The Unity of the Legal System"', trans. P. Knight, in G. Teubner (ed.), Autopoietic Law: A New Approach to Law and Society ( Berlin: de Gruyter). Maturana, H., and Varela, F., 1980, Autopoiesis and Cognition: the Realization of the Living ( Dordrecht: Reidel). Oliver Wendell Holmes Jr., "The Path of the Law," Harvard Law Review, vol. 10 ( 1897), p. 459. Pound, Roscoe Justice According to the Law (New Haven: Yale University Press, 1951) Randy E. Barnett, "The Sound of Silence: Default Rules and Contractual Consent," Virginia Law Review, vol. 78 ( 1992), p. 821. Rawls, John Political Liberalism ( New York: Columbia University Press, 1996), p. 228 Raz Joseph. The Authority of Law: New Series, Vol. 90, No. 359 (Jul., 1983), p. 233 Spencer, Herbert. 1851 Social Statics, (London: John Chapman, p. 95. Read More