Talk

The basis of the modern justice system

John Rawls and Original Position

The modern judicial system is in some ways based on the work of John Rawls.
let there be light..

More information was gleaned from teach yourself ethics.
The concept of social contract encapsulates the implicit agreement reached between individuals in a society in order to live harmoniously. Contrast this with say a herd of horses. Generally there are 4-5 mares, one stallion and the foals. The mares (1-5) are in a strict hierarchy of dominance (1 being the pre-eminent, and 5 being subservient to the rest). Human societies function differently.

Thomas Hobbes (16th century) (in Leviathan (Leviathan means a totalitarian state having a vaste bueraucracy) proposed that the contract existed between a ruler and his subjects. The ruler was above the law. By living in a certain geographical area you had implicitly acquiescent to the contract prevailing in that area. Your only real option was relocation.

Whatsoever therefore is consequent to a time of war, where every man
is enemy to every man, the same consequent to the time wherein men
live without other security than what their own strength and their own
invention shall furnish them withal. In such condition there is no
place for industry, because the fruit thereof is uncertain: and
consequently no culture of the earth; no navigation, nor use of the
commodities that may be imported by sea; no commodious building; no
instruments of moving and removing such things as require much
force; no knowledge of the face of the earth; no account of time; no
arts; no letters; no society; and which is worst of all, continual
fear, and danger of violent death; and the life of man, solitary,
poor, nasty, brutish, and short.

--Leviathan, Thomas Hobbes - Chapter XIII - Of the natural condition of mankind as concerning their felicity and misery

Machiavelli (about the same time) pretty much agreed with Hobbes hypothesis. In the Prince he dicussed how a ruler can acquire and maintain power.

Between the two of them, Hobbes and Machiavelli essentially stated that when left to its own devices a group of humans would continually exist in a state of power sharing/recycling. The individuals in the group will consistently be fighting to take power away from each other and to amass more power. (Side bar on American isolationism (circa post-independence and pre WWI) esp. Monroe Doctrine would be a nice contrast)

-John Stuart Mill- proposed that while the social contrast did exist it did not place the ruler above rest of the society. Rousseau (age of enlightenment I s'pose) was quite agreeable with this concept.

Thomas Paine (the American constitution was framed on some of his work) made what I consider some very nice points. He maintained that it's ok for people to essentially be free to do anything until their actions effect the freedom of other people in the society.

John Rawls (1920's?) in his Theory about justice said the minorty is free as long as its actions are not deleterious to the majority. He also had a concept called veil of ignorance which stated that over all a society would choose rules/actions such that the entire society benefits. The basic premise of the veil was that you took people of different backgrounds and placed them within a veil that occluded all information about their background such that they could not identify their backgrounds. So rich people within this veil would choose policies that would benefit the poor since they have no knowledge of their own economic status. People would hedge their bets so that if they end up being poor their lives wouldnt be so bad after all.