These criteria—need, desert, contribution, and effort—we acknowledge as justifying differential treatment, then, are numerous. On the other hand, there are also criteria that we believe are not justifiable grounds for giving people different treatment. In the world of work, for example, we generally hold that it is unjust to give individuals special treatment on the basis of age, sex, race, or their religious preferences.
If the judge's nephew receives a suspended sentence for armed robbery when another offender unrelated to the judge goes to jail for the same crime, or the brother of the Director of Public Works gets the million dollar contract to install sprinklers on the municipal golf course despite lower bids from other contractors, we say that it's unfair.
We also believe it isn't fair when a person is punished for something over which he or she had no control, or isn't compensated for a harm he or she suffered. Different Kinds of Justice There are different kinds of justice.
Distributive justice refers to the extent to which society's institutions ensure that benefits and burdens are distributed among society's members in ways that are fair and just. When the institutions of a society distribute benefits or burdens in unjust ways, there is a strong presumption that those institutions should be changed.
For example, the American institution of slavery in the pre-civil war South was condemned as unjust because it was a glaring case of treating people differently on the basis of race. A second important kind of justice is retributive or corrective justice.
Retributive justice refers to the extent to which punishments are fair and just. In general, punishments are held to be just to the extent that they take into account relevant criteria such as the seriousness of the crime and the intent of the criminal, and discount irrelevant criteria such as race. It would be barbarously unjust, for example, to chop off a person's hand for stealing a dime, or to impose the death penalty on a person who by accident and without negligence injured another party.
Studies have frequently shown that when blacks murder whites, they are much more likely to receive death sentences than when whites murder whites or blacks murder blacks. Only some egalitarians hold inequality to be bad per se. So called luck-egalitarians regard the moral significance of choice and responsibility as one of the most important values besides equality for an overview over the debate see Lippert-Rasmussen They hold that it is bad — unjust or unfair — for some to be worse off than others through no fault or choice of their own Temkin , 13 and therefore strive to eliminate involuntary disadvantages, for which the sufferer cannot be held responsible Cohen , The principle of responsibility provides a central normative vantage point for deciding on which grounds one might justify which inequality.
The positive formulation of the responsibility principle requires an assumption of personal responsibility and holds that inequalities which are the result of self-chosen options are just. See above all Dworkin, b, p. Unequal portions of social goods are thus fair when they result from the decisions and intentional actions of those concerned. Individuals must accept responsibility for the costs of their decisions.
Persons are themselves responsible for certain inequalities that result from their voluntary decisions, and they deserve no compensation for such inequalities, aside from minimal provisions in cases of dire need see below. In its negative formulation , the responsibility principle holds that inequalities which are not the result of self-chosen options are to be rejected as unjust; persons disadvantaged in this way deserve compensation.
That which one can do nothing about, or for which one is not responsible, cannot constitute a relevant criterion. Still, the initial assumption remains an ascription of responsibility, and each individual case requires close scrutiny: one is responsible and accountable unless there is an adequate reason for being considered otherwise but cf.
Stemplowska for a different interpretation.. If advantages or disadvantages that are due to arbitrary and unearned differences are unfair, this holds for social circumstances as well as natural endowments. The reasons favoring an exclusion of features like skin-color, size, sex, and place of origin as primarily discriminative apply equally to other natural human qualities, like intelligence, appearance, physical strength, and so forth. To sum up: natural and social endowment must not count, and personal intentions and voluntary decisions should count.
Thus, a given social order is just when it equalizes as much as possible, and in a normatively tenable way, all personal disadvantages for which an individual is not responsible, and accords individuals the capacity to bear the consequences of their decisions and actions, as befits their capacity for autonomy. In the eyes of such critics, along with the merit-principle this argument also destroys our personal identity, since we can no longer accredit ourselves with our own capacities and accomplishments.
However, pluralistic egalitarians should be able to argue that there are special cases, in which people are so badly off that they should be helped, even if they got into the miserable situation through their own fault.
In these cases, political institutions have to take certain decisions — for example, in which category a particular case of distress should be placed — and gather relevant information on their citizens. Against such a procedure, one could object that it subjects the citizens to the tutelage of the state and harms their private sphere Anderson , also Hayek 85— Approaches based on equality of opportunity can be read as revisions of both welfarism and resourcism.
Ranged against welfarism and designed to avoid its pitfalls, they incorporate the powerful ideas of choice and responsibility into various, improved forms of egalitarianism. In order to correspond to the morally central vantage of personal responsibility, what should be equalized are not enlightened preferences themselves, but rather real opportunities to achieve or receive a good, to the extent that it is aspired to. For Cohen, there are two grounds for egalitarian compensation.
This egalitarian response to disability overrides equality of opportunity to welfare. Egalitarians also favor compensation for phenomena such as pain, independent of any loss of capacity — for instance by paying for expensive medicine. But, Cohen claims, any justification for such compensation has to invoke the idea of equality of opportunity to welfare.
He thus views both aspects, resources and welfare, as necessary and irreducible. An incurred adverse consequence is the result of circumstances, not choice, precisely to the extent that it is a consequence that persons of one or another specific type can be expected to incur.
Theories that limit themselves to the equal distribution of basic means, in the hope of doing justice to the different goals of all human beings, are often criticized as fetishistic, because they focus on means as opposed to what individuals gain with these means Sen The value that goods have for someone depends on objective possibilities, the natural environment, and individual capacities.
A problem consistently raised with capability approaches is the ability to weigh capabilities in order to arrive at a metric for equality. The problem is intensified by the fact that various moral perspectives are blended in the concept of capability Cohen , p. In this manner, Nussbaum can endow the capability approach with a precision that furnishes an index of interpersonal comparison, but at the risk of not being neutral enough regarding the plurality of personal conceptions of the good, a neutrality normally required by most liberals most importantly Rawls ; but see Robeyns for a different take on the comparison with Rawls.
For further discussion, see the entry on the capability approach. Since the late s, social relations egalitarianism has appeared in philosophical discourse as an increasingly important competitor to distribuitivist accounts of justice, especially its luck egalitarian versions cf. Lippert-Rassmussen Proponents of social relations egalitarianism include Anderson , Miller , Scanlon , , Scheffler , , , Wolff , and Young Negatively, they are united in a rejection of the view that justice is a matter of eliminating differential luck.
Positively, they claim that society is just if, and only if, individuals within it relate to one another as equals. Accordingly, the site of justice i. Relational Egalitarianism has a certain overlap with many theories of recognition and non-domination. What does it mean that and when do individuals within a society relate to one another as equals? Racial discrimination, for example, is a paradigmatic instance of this condition?
But once we move beyond a handful of such examples things become much less clear. These claims to social and political equality exclude all unequal, hierarchical forms of social relationships, in which some people dominate, exploit, marginalize, demean, and inflict violence upon others:.
However, forms of differentiation that do not violate moral equality see above are not per se excluded from social equality, if they are compatible with the recognition of the equal social status of concerned parties, as with differences relating to merit, need, and, if appropriate, race, gender, and social background as in cases of affirmative action or fair punishment. Relational egalitarians need a certain conception of what an equal standing in society amounts to and implies in terms of rights and goods.
First, certain political conditions are necessary to allow citizens to participate as equals in democratic deliberation. These include, among others, the capabilities to vote, hold office, assemble, petition the government, speak freely, and move about freely Rawls , p. The principle of democratic equality as asked for by Anderson requires us to eliminate social hierarchies that prevent a democratically organized society, a society in which we cooperate and decide upon state action as equals.
Persons morally owe each other the capabilities and conditions to live as equals in a democratic community Christiano , Kolodny Democracy can be interpreted as realizing public equality in collective decision-making. Second, to participate as an equal in civil society, certain civil conditions must obtain. These include the conditions that make it robustly likely that injustices such as marginalization, powerlessness, cultural imperialism Anderson with reference to Young , or domination Pettit can be to avoided.
Third, certain social conditions and personal capabilities have to obtain that enable people to enjoy equal standing in society. Citizens need, in this regard, adequate nutrition, shelter, clothing, education, and medical care. This last point leads into the debate over whether a relational egalitarian conception of social justice yields intrinsic and instrumental reasons of justice to care about distributive inequality in socially produced goods, despite its emphasis on just social relationships and not the distribution of goods per se Schemmel , Elford Justice is primarily related to individual actions.
Individual persons are the primary bearers of responsibility the key principle of ethical individualism. This raises two controversial issues in the contemporary debate. One could regard the norms of distributive equality as applying to groups rather than individuals. It is often groups that rightfully raise the issue of an inequality between themselves and the rest of society, as with women and racial and ethnic groups.
The question arises of whether inequality among such groups should be considered morally objectionable in itself, or whether even in the case of groups, the underlying concern should be how individuals as members of such groups fare in comparative terms. If there is a worry about inequalities between groups of individuals, why does this not translate into a worry about inequalities between members of the group?
A further question concerns whether the norms of distributive equality whatever they are apply to all individuals, regardless of where and when they live. Or rather, do they only hold for members of communities within states and nations? Most theories of equality deal exclusively with distributive equality among people in a single society. There does not, however, seem to be any rationale for that limitation. Can the group of the entitled be restricted prior to the examination of concrete claims?
Many theories seem to imply this, especially when they connect distributive justice or the goods to be distributed with social cooperation or production. For those who contribute nothing to cooperation, such as the disabled, children, or future generations, would have to be denied a claim to a fair share. The circle of persons who are to be the recipients of distribution would thus be restricted from the outset.
Other theories are less restrictive, insofar as they do not link distribution to actual social collaboration, yet nonetheless do restrict it, insofar as they bind it to the status of citizenship. In this view, distributive justice is limited to the individuals within a society. Those outside the community have no entitlement to social justice. Unequal distribution among states and the social situations of people outside the particular society could not, in this view, be a problem of social distributive justice Nagel Yet here too, the universal morality of equal respect and the principle of equal distribution demand that all persons consider one another as prima facie equally entitled to the goods, unless reasons for an unequal distribution can be advanced.
It may be that in the process of justification, reasons will emerge for privileging those who were particularly involved in the production of a good, but there is no prima facie reason to exclude from the outset other persons, such as those from other countries, from the process of distribution and justification Pogge That may seem most intuitively plausible in the case of natural resources e.
Why should such resources belong to the person who discovers them, or on whose property they are located? Nevertheless, in the eyes of many if not most people, global justice, i. Caney Nationalism is an example for such a controversial thesis that may provide a case for a kind of local equality Miller For further discussion, see the entry on global justice.
Another issue is the relationship between generations. Does the present generation have an egalitarian obligation towards future generations regarding equal living conditions?
One argument in favor of this conclusion might be that people should not end up unequally well off as a result of morally arbitrary factors. However, the issue of justice between generation is notoriously complex Temkin For further discussion, see the entry on intergenerational justice. Does equality play a major role in a theory of justice, and if so, what is this role? A conception of justice is egalitarian when it views equality as a fundamental goal of justice.
Temkin has put it as follows:. In general, the focus of the modern egalitarian effort to realize equality is on the possibility of a good life, i. It is apparent that there are three sorts of egalitarianism: intrinsic, instrumental and constitutive.
For a twofold distinction cf. Parfit , Temkin , p. Intrinsic egalitarians view equality as a good in itself. As pure egalitarians, they are concerned solely with equality, most of them with equality of social circumstances, according to which it is intrinsically bad if some people are worse off than others through no fault of their own.
But it is in fact the case that people do not always consider inequality a moral evil. But something can only have an intrinsic value when it is good for at least one person, when it makes one life better in some way or another. For such an objection, cf. Nozick , p. Sometimes inequality can only be ended by depriving those who are better off of their resources, rendering them as poorly off as everyone else. This would have to be an acceptable approach according to the intrinsic conception.
But would it be morally good if, in a group consisting of both blind and sighted persons, those with sight were rendered blind because the blind could not be offered sight? That would be morally perverse. Doing away with inequality by bringing everyone down contains — so the objection goes — nothing good.
Such leveling-down objections would of course only be valid if there were indeed no better and equally egalitarian alternatives available, but there are nearly always such alternatives: e. When there are no alternatives, in order to avoid such objections, intrinsic egalitarianism cannot be strict, but needs to be pluralistic. Then intrinsic egalitarians could say there is something good about the change, namely greater equality, although they would concede that much is bad about it.
Pluralistic egalitarians do not have equality as their only goal; they also admit other values and principles, above all the principle of welfare, according to which it is better when people are doing better. In addition, pluralistic egalitarianism should be moderate enough to not always grant equality victory in the case of conflict between equality and welfare.
At present, many egalitarians are ready to concede that equality in the sense of equality of life circumstances has no compelling value in itself, but that, in a framework of liberal concepts of justice, its meaning emerges in pursuit of other ideals, like universal freedom, the full development of human capacities and the human personality, the mitigation of suffering and defeat of domination and stigmatization, the stable coherence of modern and freely constituted societies, and so forth Scanlon , For those who are worse off, unequal circumstances often mean considerable relative disadvantages and many absolute evils; as a rule, these relative disadvantages and absolute evils are the source of our moral condemnation of unequal circumstances.
But this does not mean that inequality as such is an evil. Hence, the argument goes, fundamental moral ideals other than equality stand behind our aspiring for equality.
To reject inequality on such grounds is to favor equality either as a byproduct or as a means, and not as a goal or intrinsic value. In its treatment of equality as a derived virtue, the sort of egalitarianism — if the term is actually suitable — here at play is instrumental. As indicated, there is also a third, more suitable approach to the equality ideal: a constitutive egalitarianism. According to this approach, to the aspiration to equality is rooted in other moral grounds, namely because certain inequalities are unjust.
Equality has value, but this is an extrinsic value, since it derives from another, higher moral principle of equal dignity and respect. But it is not instrumental for this reason, i. For the distinction between the origin of a value and the kind of value it is, cf. Korsgaard Equality stands in relation to justice as does a part to a whole. The requirement of justification is based on moral equality, and in certain contexts, successful justification leads to the above-named principles of equality, i.
Thus, according to constitutive egalitarianism, these principles and the resulting equality are required by justice, and by the same token constitute social justice. It is important to further distinguish two levels of egalitarianism and non-egalitarianism, respectively. In contrast, a non-egalitarianism operating on the same level considers such terms misplaced or redundant. On a second level, when it comes to concretizing and specifying conceptions of justice, a constitutive egalitarian gives equality substantive weight.
On this level, more and less egalitarian positions can be found, according to the chosen currency of equality the criteria by which just equality is measured and according to the reasons for unequal distributions exemptions of the presumption of equality that the respective theories regard as well grounded.
Stare decisis dictates that courts look to precedents when overseeing an on-going case with similar circumstances. A unique case with hardly any past reference material may become a precedent when the judge makes a ruling on it.
Also, the new ruling on a similar present case replaces any precedent that has been overruled in a current case. Under the rule of stare decisis, courts are obligated to uphold their previous rulings or the rulings made by higher courts within the same court system. For example, the Kansas state appellate courts will follow their precedent, the Kansas Supreme Court precedent, and the U.
Supreme Court precedent. Kansas is not obligated to follow precedents from the appellate courts of other states, say California. However, when faced with a unique case, Kansas may refer to the precedent of California or any other state that has an established ruling as a guide in setting its precedent. In effect, all courts are bound to follow the rulings of the Supreme Court, as the highest court in the country.
Therefore, decisions that the highest court makes become binding precedent or obligatory stare decisis for the lower courts in the system. When the Supreme Court overturns a precedent made by courts below it in the legal hierarchy, the new ruling will become stare decisis on similar court hearings. If a case ruled in a Kansas court, which has abided by a certain precedent for decades, is taken to the U. Insider trading in the securities industry is the misuse of material nonpublic information for financial gain.
The insider can trade the information for his portfolio or sell the information to an outsider for a cost. The precedent looked to by courts when dealing with insider trading is the case of Dirks v. In this case, the U. Supreme Court ruled that insiders are guilty if they directly or indirectly received material benefits from disclosing the information to someone who acts on it.
This decision became precedent and is upheld by courts dealing with financial crimes that are similar in nature. In the ruling of Salman v. Based on stare decisis, the confidential information given to Salman was considered a gift—as Dirks v. SEC makes it clear that fiduciary duty is breached when a tipper gives confidential information as a gift.
What the rule is to be, and indeed if there is to be a rule, in civil cases has been evenly disputed in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case. As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does.
In two cases raising the question when States are required to refund taxes collected under a statute that is subsequently ruled to be unconstitutional, the Court revealed itself to be deeply divided. Under the doctrine of stare decisis, when a court has laid down a principle of law as applying to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same.
The rule of stare decisis is a judicial policy, based on the principle that absent powerful countervailing considerations, like cases should be decided alike in order to maintain stability and continuity in the law. The doctrine is the means by which courts ensure that the law will not merely change erratically but will develop in a principled and intelligible fashion.
Stare decisis is the preferred course because it promotes evenhanded, predictable, and consistent development of legal principles fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.
Stare decisis is intended to insure that people are guided in their personal and business dealings by prior court decisions, through established and fixed principles they announce. Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right. Stated otherwise, stare decisis is the most important application of a theory of decision-making consistency in our legal culture and it is an obvious manifestation of the notion that decision-making consistency itself has normative value.
The doctrine of stare decisis permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. The doctrine of stare decisis is crucial to the system of justice because it ensures predictability of the law and the fairness of adjudication.
A number of commentators have explored the pros and cons of the doctrine of stare decisis. It also saves time and energy of judges as they are not required to determine the same question of law over and over again once it has been settled.
As noted by Bodenheimer, the doctrine also plays a role in curbing arbitrariness on the part of judges as they are bound to follow established precedents thus preventing bias and error. The doctrine brings flexibility in law and law is shaped according to the social, economic and other circumstances.
However, critics argue that stare decisis is an application of the argument from authority logical fallacy and can result in the preservation and propagation of cases decided wrongly. Another argument often used against the system is that it is undemocratic as it allows unelected judges to make law. A counter-argument in favor of the concept of stare decisis is that if the legislature wishes to alter the case law other than constitutional interpretations by statute, the legislature is empowered to do so.
Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to change precedents with which the judge disagreed. Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedents until a result is obtained that is greatly different from the original understanding of the Constitution.
Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents. Another factor is that the doctrine of binding precedent can in a sense hinder the development of law. Society is not static and there are changes in social, economic and other circumstances with time.
Changed circumstances may require a different interpretation of law. Although the doctrine of precedent is the normal course followed, decisions that are erroneous or that do not hold good in view of challenged circumstance, may be overruled by higher forums. Laksminath notes that a decision may be overruled where it is recent or there is a divided opinion, the opinion is erroneous, the decision is unclear, causes in convenience and hardship, the error in the prior decision cannot be easily corrected by the legislative process or the decision is vague.
Once overruled, a prior decision is no longer a binding precedent. However, if a precedent is overruled, this may lead to the re-opening of old disputes on the ground of change in the legal position and consequently, multiplicity of proceedings. By the application of this doctrine, changes in the position of law that are laid down by the court are made applicable only prospectively from the date that the change in law has been brought about by the court or from any other date specified by the Court so as not to disturb past matters that have been finally settled.
The doctrine of prospective overruling which is a feature of American Jurisprudence and an exception to the normal principles of law, was imported and applied for the first time in LC Golaknath v.
The court does not clearly define the doctrine during this case. The doctrine has been adopted to avoid multiplicity of proceedings, and avoid uncertainity in law.
It was observed in the case of M. Murthy v. State of Karnataka that the doctrine of prospective overruling was a part of the constitutional cannons of interpretation. State of U. The parameters have not been adhered to in practice. It may be mentioned here that unless the court expressly makes the operation of a decision of a decision prospective, it will be retrospective in operation. This doctrine has been applied in service matters. Karunakar, the view was adopted. Prospective over ruling is a part of the principles of constitutional cannon of interpretation and can be resorted to by the Supreme Court while superceding the law declared by it earlier.
It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings and to avoid uncertainty and avoidable litigation. In other words action taken contrary to the law declared prior to the date of declaration is validated in larger public interest. The law as declared applies to future cases. It is for the Supreme Court to indicate as to whether the decision in question will operate prospectively.
In other words there shall be no prospective over ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistencies in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of the transaction forming part of the daily affairs.
To illustrate, in very simple words, the implication of the invocation of the doctrine is that the decision of such a case would not have retrospective operation but would operate only in the future, i.
This project now seeks to embark on a detailed analysis of the application and implications, both positive and negative, of the doctrine in the light of its invocation in the above mentioned cases. The doctrine of stare decisis as is understood today appears to not have existed in India during the ancient or medieval times. It is only with the establishment of British rule in the country that the concept of binding precedent came to be applicable in India. The British Rule led to the hierarchy of courts as well as reporting of decisions, i.
In , Dorin suggested the adoption of the doctrine of stare decisis in India. In , the high court Act was enacted providing for the establishment of high Courts by issue of letters patent.
Such courts had original as well as appellate jurisdiction. A hierarchy of courts was thus established.
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