Law vs. justice: What is our duty in society? | James Stoner | Big Think

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Law vs. justice: What is our duty in society?
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Can you divorce the rule of law from the virtue of justice? Immanuel Kant said the perfect constitution would work even among a nation of devils, provided they were intelligent devils.

Professor James Stoner thinks the opposite is true. The right punishments don’t lead people to behave well, we are also guided to make morally good decisions by our conscience—by our internal sense of justice.

The ability of all people to pursue their own good is itself a kind of common good of a liberal society.

This video was made possible thanks to Big Think’s partnership with the Institute for Humane Studies. https://theihs.org/
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JAMES STONER:

James R. Stoner, Jr. is Hermann Moyse, Jr., Professor and Director of the Eric Voegelin Institute at Louisiana State University. He wrote Common-Law Liberty (2003) and Common Law and Liberal Theory (1992) and co-edited The Political Thought of the Civil War (2018) and three other books. His A.B. is from Middlebury and his Ph.D. from Harvard.

Check James Stoner’s latest book Common-Law Liberty: Rethinking American Constitutionalism at https://amzn.to/2Ueg4jQ
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TRANSCRIPT:

JAMES STONER: I think the rule of law only works, in the end, among people who have a sense of justice. In other words, that you can’t divorce the rule of law from the virtue of justice. That doesn’t mean that people aren’t allowed to pursue their own interests in the marketplace. Actually, it’s just for people to be able to pursue their own interests and to a large extent to pursue the good as they understand it. Actually, that’s almost the definition of conscience, is to be able to act according to the law but according to your own judgment of what the circumstances require—you, who know those circumstances and everything about them because you’re a human being, right, you can make those judgments. That’s a specifically human capacity, something the robots can’t do and the algorithms, for Pete’s sake, certainly don’t do. But the question is whether you can have the rule of law without conscience, without people having consciences, without people having the virtue of justice? And I guess I think you can’t really.

Immanuel Kant said the perfect constitution would work even among a nation of devils, provided they were intelligent devils. If you had all the right punishments you could lead people just out of their own interests never to do anything wrong, if you could calibrate it in that way. But I think the overwhelming evidence is the other way on that one; people are clever enough, maybe I should say human sinfulness is fertile enough that people will always figure out a way around any law. The virtue of justice, it has to be there in judges, it has to be there in juries, but if it has to be there in juries, it has to be there in society generally. And I think that our sense that the law can be only something external to us, rules that just hedge us in in certain ways and don’t care about our internal life in any sort of way, don’t care whether we’re just or unjust in our souls, in ourselves, I think that’s a tremendous threat to the rule of law. So, it’s a kind of paradox and the best of the classical liberals really understood this, that part of the game of classical liberalism is to make the rules a little more external, to give us a little bit more room to pursue the good as we understand it or as we see it. But that, I think, can never go so far as not to be concerned that we ourselves or that everyone who is a player in that game has a basic sense of justice, has a sense that there’s a duty, a duty and conscience, to obey the just rules that are made for the sake of the common good of everyone. The ability of all people to pursue their own good is itself a kind of common good of a liberal society. It’s something that we share and something that, of course, we have to sacrifice a little bit for in order to have the real benefits of.
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28 COMMENTS

  1. 👋 Tough times never last, but tough people do. The main man @evenkingsfall (his insta) always says you have to THINK BIG to WIN BIG! Always keep that mindset! Onwards and upwards ✌️

  2. the biggest issue with this topic as described is the pure subjectivity of the term 'justice' – each person raised with the values of 'their' subculture will define 'justice' differently according to their specific set of ideals – laws are in place to give a societal baseline to work from – whether your a socialist ideologue or a ultra conservative ideologue the laws are designed to establish common ground and 'protect society' from 'your version' of justice

  3. Ideally a set of laws should be agreed upon by everyone and reflect our collective sense of justice. This doesn't happen because as it turns out human beings are pretty shit when it comes to Justice . . . And that is reflected in our laws.

  4. Justice is an abstract concept created by humans and is at the root of the problem and many atrocities of law enforcement and incarceration: You or anyone else will never get “justice” by tweaking laws, sentences, prison conditions, etc. because you would need to get everyone to agree on what “justice” in any and all cases would be; you’d sooner get people to agree on what “art” is than justice!… And, in the end, it is beside the point.

    As long as people will see the law, its enforcement and incarceration as a mean to PUNISH or separate away from the “innocent” those one disapproves of, the system is doomed to fail from that impossibility to satisfy the vast majority of people (Not to mention the abuse of power from those in control of the system and corporate greed). The approach and the mentality needs to be overhauled so that the system is there to both prevent the need for criminal activity (Raising the standard of living amongst the poorest, eliminating NEED, WANT and GREED, narrowing the wealth gap, etc.), recognizing that each crime committed after prevention failures is a failure of SOCIETY (Not of the individual! And therefore, it is society that should bear the burden for the failure), offer treatment and aid to those society failed (Norway is a great example to follow in that regard, even if their system no more perfect than any other) and after all that still recognizing that there are a VERY SMALL number of individuals who cannot be reformed (Psychopaths and such) REGARDLESS of which system is used; but that punishing them for their condition will serve nothing and no one in the end.

    And if such a concept seems “too soft” and hard to swallow for some, I would venture that that is their overinflated sense of that abstract concept of “justice” that makes it so hard; showing exactly how it is both at the root of the problem and part of a vicious cycle that perpetuates itself to no end. We need to break that cycle if we are ever to stop repeating the same mistakes over and over again.

  5. Our duty is not to make everyone happy…is to make things fair enough for everybody…neutral to everyone without taking in consideration very own self preferences…without ideologies and based in true hardrock realities…real needs and real problems being solved…

  6. 1:05 what planet are you on? we have a legal system with NO sense of justice. justice doesn't exist for most people coming in contact with the legal system. it is a LEGAL system, not a JUSTICE system.

  7. I think a valid measure of a society is how well their laws coincide with and serve justice. So far we have not come very close. It's probably an evolutionary (slow, slow!) thing. We are (I think) going in the right direction, though.

  8. But can a sense of justice override law? I find that the former tends be very subjective and the latter is (supposed to be at least) objective. People want justice to be getting what they feel someone else deserves. Consider how the terms are used in society. Bias cam be a very dangerous thing here. Is there a way to screen for that?

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