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    I'd like to welcome our special guest, Emeritus  Professor Paul Redmond. After many years in the  

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    Faculty of Law at UNSW where he served as Dean he  is now an Emeritus Professor of both UTS and UNSW  

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    his principal research interests are in corporate  and securities law corporate governance and  

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    corporate responsibility his current focus is  on reforms that might make a reality of soft  

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    law frameworks that assert the responsibility of  business to protect human rights and global soft  

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    law standards of responsible conduct he also  has a particular interest in legal education  

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    and has been involved in several national and  international reviews of programs and structures  

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    he was the founding faculty co-director of the  Brennan program from 2011 until mid 2020 the  

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    program seeks to inspire law students to develop  their innate sense of justice and to make the  

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    world a better place for the exercise of their  rich talents as students and in the years to come  

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    he thinks that understanding the journey of  justice requires a lifetime's reflection and hopes  

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    that today's webinar helps you on that journey  I'd now like to introduce you to Paul Redmond.  

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    I'm just going to share the slides Paul thank you

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    if i can

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    okay how's that that that's terrific thank you  

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    thank you Mac can and and am i coming through  clearly yeah very good excellent excellent look  

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    and uh thank you for that lovely welcome uh Mac  and for the invitation to talk to students today,  

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    i'm grateful to the students for turning up  and for this discussion Mac can we go on to the  

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    actually go on no to the next slide if you don't  mind the i want to talk about the structure of  

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    today what the purpose is uh the the idea  of justice just what we mean by justice  

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    understanding the concept of justice is really  central to being a law student it's central to  

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    the Brennan Program there are these two limbs  to the program and for those who are new to  

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    the program i particularly welcome you into the  program it's really one of the one of the great  

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    great treats are actually coming to uts law school  that you get to be part of this program and the  

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    richness that it offers if we were if you were in  medical school one of the things that would that  

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    the background noise would always be about health  whether for individual health or public health  

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    in a law school the background concern is always  about justice laws connection to justice whether  

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    law is achieving justice but what do we mean by  justice justice is a concept that isn't something  

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    you get out of a textbook there are many different  understandings of justice many different ideas of  

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    justice and in a sense that thinking about justice  reflecting on it is a is a lifetime's work it's a  

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    lifetime's idea particularly for lawyers for  who are have responsibility as custodians  

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    for the nation of justice and i just wanted  today to introduce some of those conceptions  

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    of justice and start your thinking and and start  you moving down the path of that you know that  

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    that long reflection a path that of course  you would have begun already but it helps  

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    just to think about what do we mean we we try  to act justly as an individual and as a as a  

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    society and the structure for doing that i thought  would be to start with this lovely hypothetical  

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    from the great developmental economist  amateur sen on the idea of justice in  

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    in his book with that title i should say  i want to start with that hypothetical in  

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    just a moment but then the structure would be  okay i'd like just to invite you to nominate  

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    we don't really have time to just discuss  them today but some issues for of justice  

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    particularly going to you know justice at a wider  societal level that you think are really important  

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    let's just list some that you know you that  that stay with you that are important to you  

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    the and then i want to go and go through these  different notions of justice rather quickly  

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    um so all i can do is introduce them but to start  you on the way and give you some resources that  

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    might be useful in in your own journey to one to  reflect upon justice and then we might come back  

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    to the flute hypothetical and say okay how do we  apply those notions how do we resolve the question  

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    that i'm going to give you that's on the screen  in front of you who would you as the as the as the  

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    judicial figure the decision maker whom would you  give this flute to between these three claimants  

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    and we might just discuss and discuss that so  that's the structure so let's start with the  

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    with the idea of justice the hypothetical to get  us moving now i want you to imagine and i should  

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    i should say this hypothetical as i say comes  entirely from sin's book the idea of justice  

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    now there's a flute that three people claim  uh these people are geographically remote  

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    from one another so only one of them can  get the flute and the question is who would  

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    you give it to and why well what basis what  theory of justice what idea of justice would  

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    underground your decision now anna says i should  have the flute because of the three i'm the  

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    only one who will ever be able to play it i've  learned to play the flute i know how to play it  

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    the others will never be able to use  it for the purpose which it was created  

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    bobby's claim is fundamentally very different  bobby has had a life of great poverty  

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    uh up till now the other two have a comfortable  existence anna and claire bobby has never had  

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    a toy before the flute has come into his hands  innocently without any wrong on his part and he's  

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    formed a deeper emotional attachment to it it's  become for him a treasure a a an emotional support  

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    claire's claim is very different she says i'm  entitled to that flute because i made it with  

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    my own hands and just as i finished it someone  came in and took it away from me without any  

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    authority it was stolen if you like uh without  any and it's and it's found and it's and it's  

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    and it's in the hands now the decision maker i  should have it because i made it okay who should  

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    get it that's our question when we when we go  through these hypotheticals when we go through  

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    that and throw the different conceptions of  justice think about which one might apply  

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    if at all to those those three claims  mack if you could go on to the next slide

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    now uh there's a lot of you know what I  wonder if we can just spend a few minutes  

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    talking about some justice issues that you see is  pressing in Australia in contemporary Australia  

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    now Mac or Crystal if we'll keep a note and  I'll of course I'll be listening intently  

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    we just want to list some issues things that  you think are important justice issues for us  

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    in Australian society at the  moment the floor is over to you

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    yeah feel free to put your microphone  on everyone or if you'd like to  

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    put something in the chat as well Molly's just  put up treatment of refugees and asylum seekers

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    thanks Molly

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    inquiring to minister the conduct  

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    equal access to justice and equal positive  treatment from Raphaela open justice from Max

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    and i miss i'm sorry i missed  that oral contribution sorry  

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    i just said inquiring to ministerial conduct  like christian border exactly yes so yes the  

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    responsibility of ministry uh politicians and  in particular ministers conducting standards  

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    disability societal injustices towards  disability groups thanks Raphael

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    women's rights and equality from ek

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    another one is high incarceration rates amongst  the indigenous community in Australia despite a  

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    smaller being a smaller segment of the population  the percentage for incarceration is much higher  

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    that's an important one thank you thank you

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    any others that people want  to nominate at the moment

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    well

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    animal welfare lawyers from Davina thank you yes

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    these are important issues and  I think it's very helpful to

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    to get some sense of the issues on your mind so  that we can you know say we i mean the program i'm  

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    no longer the program um you can actually respond  to those so that's been very helpful keep putting  

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    me on the chat the chat site but maybe mac we  could go on to the next slide and i'll start my  

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    um i'll start my presentation in relation to  different theories of justice thank you um look  

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    i want to start with the first one utilitarianism  you know sometimes called consequentialism looking  

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    to the consequences of action of a decision  or of a uh or or of a resource allocation that  

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    goes to the greatest happiness or the greatest  number before i do so could i just i point on  

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    the screen there you'll see a couple of books  i want to refer in particular to michael sandal  

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    michael sanders book sandals book justice what's  the right thing to do it's now 11 12 years old  

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    is a terrific book a terrific introduction to the  idea of justice different theories of justice and  

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    i've drawn upon that today in this presentation  a martyr sends i should also say sandal teaches  

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    at harvard university he has a very famous course  which is available on online on for students there  

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    is lectures on the notion of justice if you've got  time to drip into that you'll find it very very  

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    stimulating and very helpful he subsequently  written a couple of other books recently on  

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    first most recently i think on meritocracy and the  claims of meritocracy is a foundation for justice  

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    as a spurious notion of superior spurious proxy  for just for justice his concern is really around  

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    whether equal opportunity is sufficient and  there's also before that a very significant book  

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    about the limits to markets as as determinants  as indicators of um of um of just outcomes of  

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    attribute of of reflecting human preferences  amateur sends book the idea of justice i've  

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    referred to already it's a bit more complex  but it's a really a very important book the  

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    other the other writer i draw attention to will  be come up in a later slide american philosopher  

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    john rawls his book the the a theory of justice  in 1971 has made a very important contribution  

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    and he's revised it subsequently rules as  a very important thinker so these are three  

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    writers that i'd particularly commend to  you sandal is a terrific accessible easy  

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    writer and i think you know he's both in his  books but also in his lectures is a very good  

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    starting point now let's go to utilitarianism  many of you will know this already perhaps from  

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    previous studies but i'm not going to assume that  there's been a great depth of prior knowledge  

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    utilitarianism says look a just outcome for it  for a decision maker whether it's a parliament  

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    a lawmaker um is is that a policy frame fallacy  set up is is that we look to consequences you  

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    know the morality of action the justice of a  of a resource distribution depends on its con  

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    it's our consequences what outcome will produce  the greatest aggregate happiness the greatest  

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    aggregate benefit or utility within the community  that's affected by that decision and that's and  

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    that goes back to jeremy bentham it goes back to  mill it's a very old notion very important one  

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    um look to the consequence of the  decision and see whether it makes  

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    more people happy whether it it it in aggregate  makes the satisfies community preferences  

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    maximally the difficulty i pose i was picking up  a couple of difficulties of that people have got  

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    differing preferences for happiness and and you  know is there a common currency a common coinage  

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    of value that enables um calculation we might  think of that by by reference to the claims for  

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    the in a moment in relation to the flute when  we get back to come back to that hypothetical  

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    how do you measure happiness how do you measure  utility on that on that aggregate notion and also  

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    it excludes other things from the calculus the  mathematics the the the arithmetic if you like of  

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    calculating aggregate value what it leaves out are  intangibles which are which many would argue and  

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    i would certainly be amongst them that tangible  such as a sense of social solidarity a sense of  

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    our responsibility for each other a conception  concept will come back to and also leaves out it  

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    it also raises the question which is fundamental  to utilitarianism what about individual rights  

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    i put there in the little line there probably  don't make doesn't make a lot of sense may the  

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    majority resume coliseum entertainments now by  that i mean you recall the raymond coliseum you  

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    there was a bit of the the entertainment bread and  circuses was are all around for example sending  

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    minorities typically christians to be eaten by  lions or gladiatorial contests but in a sense a  

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    better example is the notion of universal human  rights are there some rights that ought to be  

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    protected individual rights civil and political  rights even economic social and cultural rights  

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    that ought to stand against the majority that  the majority isn't sovereign in relation to  

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    everything so that's there's some problems  with utilitarianism but it's one it's it's a  

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    notion that has a long and proud lineage mac if i  could trouble you to move to the next one please

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    now second conception is justice the just  outcome is that which promotes freedom  

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    and of course it's it's a notion that is  fundamental to a number of constitutions  

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    perhaps most commonly most commonly expressed  perhaps in the united states constitution  

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    that freedom of liberty of action of thought of  action of pursuit of the pursuit of happiness  

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    is is a fundamental principle that ought to  determine whether the justice of particular  

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    policy settings or decisions one form of that and  perhaps the most popular one is libertarianism  

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    that markets alone allow the satisfaction of  wants the mark that in through markets we express  

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    the depth of our affair of our  feeling towards a particular  

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    course of action a particular  product a particular commodity  

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    and markets play an a a a role in allocating  weighing up the aggregate satisfaction

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    satisfy human wants um that just leave it to the  market uh and in a sense that will work out the  

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    aggregate preference adam smith famously called it  the light on the hill the market the the invisible  

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    hand of a market will guide us towards the that  uh the the best satisfaction of our community  

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    individual wants within a particular community  now of course this negates a role for government  

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    um ronald reagan famously said government  isn't the solution government is the problem  

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    and that that sentiment of course has had  in the sentencing particularly in the last  

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    three decades under economic globalization  where governments have stepped back from  

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    uh the regulation of economic activity in  particular as ma as boundaries between states  

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    disappeared under an under economy which  became increasingly global what's been very  

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    interesting of course in the last year and a half  has been under the influence of covert the crisis  

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    government coming back into action and and  in fact playing a very significant role  

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    and not leaving to markets alone but relying  upon markets for example for the production and  

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    generation of vaccines so there's a more complex  subtle play between government and business  

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    government and mark regulation and markets but  that that thinking has changed a little somewhat  

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    i think thinking within communities  and within governments themselves  

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    and of course it's also always a very excessively  narrow view the famous speech that franklin delano  

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    roosevelt before freedom speech in 1941 he spoke  about the four fundamental freedoms the freedom  

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    of speech freedom of belief but also the  freedom from want and the freedom from fear  

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    and those last two figure freedoms are collective  freedoms freedoms that collect depend upon a role  

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    for social solidarity but also for government  regulation now i also want to pick up but not  

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    at the great expense of your time yeah emmanuel  kant's categorical imperative can woods kant is  

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    a great we would say german philosopher probably  was prussian philosopher and koenigsberg and the  

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    in the east in the east coast of of prussia then  was us now i think within one of the baltic states  

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    um he spoke about you know really true freedom  is a different kind of freedom it's a freedom  

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    that comes from within and is given by our our  decision to act not from a kind of external  

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    inclination you know from thirst or from hunger or  other you know bodily appetites but from our own  

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    exercise of internal freedom it's conditioned  upon a concern for the motive of our action  

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    not the consequence but the moral worth of  our action motive gives confers a moral worth  

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    you do something because it is right therefore  the woman or the man for whom honesty is the  

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    best policy is not this is not his phrase  he's not an honest man the motive is false  

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    and he says he looks towards what might be  a universal law that would determine freedom  

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    the the real exercise of freedom and he says  act on the maxim that act on the rule that you  

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    would accept as a universal rule applicable  to everyone and fundamentally he says under  

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    that maxim you would treat people as ends in  themselves not as means to another purpose another  

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    another objective but ends with an absolute value  not a relative value and of course an absolute  

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    value and a dignity anyway and of course the  notion of universal human this is the foundation  

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    of universal human rights where that everybody  has a dignity which is equal um and absolute  

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    and it does not depend upon the exercise does it  overrides state action or exercise of majority  

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    only when we act under these three notions of  of motive universal law treating people as ends  

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    to react freely because that's i'm not a candian  scholar and this is not the time ready to pursue  

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    that more fully but it's a it's a it's an another  concept of freedom and it's one that grounded  

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    another theory of justice which mack if you would  be kind enough we'll move on to on the next slide

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    now justice is fairness and equality i spoke  about john rawls the great american philosopher  

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    he was concerned about you know what what would be  what would be a just society look like if we came  

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    together to frame a just society but separated  from our particular status our particular  

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    place within the existing society what would that  look like and he spoke about a social contract for  

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    a just society drawn up behind a veil of ignorance  where we we wouldn't know how we would be placed  

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    under that society so we would have to kind  of take a chance and we would want therefore  

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    assuming a measure of equality and he says such  a social contract such an idea of justice would  

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    be one that provides equal and basic liberties  for everybody of speech and belief and those  

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    liberties would prevail over the the tyranny of  the majority but it would permit inequality but  

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    only such a social and economic inequalities  that would work to the advantage of the least  

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    well-off member of society for the poorest so you  would ask yourself is paying somebody a doctor a  

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    lawyer or you know whatever it is a politician  a higher amount is that going to actually  

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    improve the position of the poor rather than under  a regime of strict equality and you know he would  

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    say yes doctors need to be need to be and lawyers  perhaps need to be paid more to encourage them to  

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    go through legal studies and medical studies the  the concern is to avoid moral arbitrariness the  

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    you know the advantages of opportunity and  natural endowment of of having being born  

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    in a particular country you know you know in a  family or in a situation with with personal gifts  

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    um that you can that you can pursue with a  generation with social capital it comes from  

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    of a variety of kinds these these gifts  including the personal ones pretty should  

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    it be exercised only for the common good now the  objections to that are obvious you know why why  

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    would anyone get out of bed in a certain  situation what's the what's the incentive  

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    to act you can just go back one second um what's  the incentive to exercise exercise effort to act  

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    for you know for a um for a for a drug company to  find a vaccine so quickly but of course it's got  

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    a consensual foundation albeit one that's  presumed mac if you could move on please

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    that's the justices fairness and equality now  justice is that the promotion of virtue this is  

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    a a complicated one um it's complicated because it  moves we can state it simply it's it's roots like  

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    an aristotle a just society is one that promotes  the virtue of its citizens that develops their  

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    human capacities and potential and really  laws should be such a rule of law of life  

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    that will make citizens good and just that's the  purpose of a law that's the purpose of a policy  

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    it's about promoting human virtue and and  the goodness and the justice of action of  

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    india the individuals and if you look at  the you can test the justice of an action  

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    a decision a policy decision by its purpose what's  its purpose what's its goal what's its end or he  

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    would pay its tear telos what's the what's the  is is it for the promotion of virtue or of a  

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    of a culture of justice a culture of goodness or  at the individual level the virtue of its end of  

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    of individual citizens in their own human  capacities and they could and their capacities for  

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    flourishing now it's interesting is to think about  that about the flute hypothetical what can you see  

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    uh how might that apply to the problem that we've  got now canton and rawls say this this this virtue  

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    norm it really doesn't take us very far a just  society surely will permit each of us to choose  

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    our own conception of how we want to live what is  the good life we've all got different conceptions  

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    of how life should be lived how we want to live  and how we think our fellow citizens should live  

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    but of course in a sense that raises another  conception of justice which i'd call a fifth one  

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    where which mills into a kind of a  communitarianism it says is that you individualism  

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    that canton rules is it taking you back into a  kind of a utilitarianism does it re does it really  

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    reflect the reality of our lives that there are  two different conceptions of our lives we are  

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    we are individuals acting atomistically in a  society in which we don't um we we we pursue  

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    our own conception we we're individuals bouncing  around we pursue our own our own conception of  

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    the good life and we do it by us by a series of  contracts arrangements etc another view which is  

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    more the sociologist emil durkheim over a century  ago spoke about lives we we don't live like that  

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    our lives are all embedded in a society they're  embedded in a culture they're embedded in in in  

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    the communities in which we live from which we are  descended where socially embedded is the reality  

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    of our lives we inherit a history and an identity  we inherit moral obligations of solidarity and of  

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    loyalty and responsibility to each other um  from the family beyond that into a network of  

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    friendship revolution of relationships and within  the within within a country now you're probably  

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    too young to know johnny farnham and you know  his famous song sadie the cleaning lady but he  

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    um which launched him launched to korea but he he  had another song his name i don't remember but um  

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    he says we're all someone's daughter we're  all someone's son in a sense we're shaped  

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    by families we're shaped by tribe we're shaped  by an identity we've inherited that may be the  

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    countries from which we have come from where our  parents have come from to which we hold allegiance  

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    maybe there are belief structures maybe our  sporting connections a whole host of things  

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    we live richly embedded lives now i think that's  a conception of another conception of justice  

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    that sees us as socially embedded in a community  with obligations of solidarity that come from that  

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    and mak if you could just move on to the next one  we'll just explore some that and some limitations  

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    look you know we as a family we you know we feel  i think obligations of special responsibility to  

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    family members relative to strangers i think it's  just part of the reality of obligations of care  

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    of support we probably we prioritize family first  it's an impulse that is very difficult now sandra  

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    gives another gives he talks about the limits  of family solidarity and there you know you  

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    you probably don't you would none of you  would know about the examples he gives but  

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    there was a a particular nasty uh  thug i've forgotten his his nickname  

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    sandium bulger operating up in up in the united  states up in the northeast in in massachusetts  

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    his criminal history was just appalling um and  he went hiding but his brother was the legislator  

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    in the massachusetts um parliament congress and  his brother turned him in um because simply he  

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    was bulger uh was actually his criminality  was unaffected and the unabomber one again  

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    it's the inner obama was a very interesting um a  man with who had very strong views that probably  

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    many people here on the on this call would share  about social justice but he pursued those views by  

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    sending uh ins the century devices through the  mail um and he was he lived in a hermit's life  

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    and would say and and and he he promised at one  stage that he would stop doing that if the new  

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    york times published on the front on its opening  pages the uh a lengthy text in a a program of um  

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    of civil uh civil action and civil  reform his brother turned him in  

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    i basically just examples of of limits of family  loyalty very difficult painful ones um the brains  

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    by the brother turned him in because he just  recognized in the new york times article the the  

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    writing style and then there's the the apology for  stolen generations in australia this is you know  

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    the the difference taken between john howard and  kevin rudd do those of us living in australia now  

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    who might have only his family may only have one  or two generations of connection to the country  

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    and who are not in who are not indigenous  do they have a what is the do they have a  

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    personal responsibility for past wrongs what  is that do we have a collective risk a personal  

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    as well as a collective responsibility and do  we do in particular do we even have a collective  

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    responsibility um and the different views  taken in relation to that we're not we didn't  

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    perpetrate the stolen generations past wrongs but  nonetheless is there a degree of collective guilt  

    30:07

    and responsibility in relation to those uh if only  perhaps because one derives benefits from the um  

    30:14

    from those that passed action and the  claims are patriotism you know should  

    30:19

    we buy australian products what if in fact an  alternative product comes from a country where  

    30:26

    levels of poverty are far greater than our own  what are the what are the moral claims of buying  

    30:31

    australia i suppose are buying australian prefer  prefer prioritizing australian products what's  

    30:38

    the significance of this conception i suppose  it leads to a communitarian idea of justice  

    30:43

    which you know that we cultivate social solidarity  we that we recognize that our lives are not just  

    30:48

    individuals atomistic individual lies but their  lives that have a degree of social embeddedness  

    30:55

    we cultivate an effort and that means to  cultivate a social solidarity and a sense  

    30:59

    of mutual responsibility i have to say the  brennan justice and leadership program is that  

    31:04

    um inequality undermines social inequality that  we and would undermine that social cellular daily  

    31:13

    through dividing life experience and  life and opportunities and of course  

    31:17

    one implication is maybe we need a culture of  robust public engagement or moral disagreement  

    31:23

    we shouldn't be driving discussions of  morality and justice from the public square  

    31:28

    this is part of a a sense of community and  the engagement that comes from the community  

    31:34

    now look i think that's all i really want to  say in relation to those you know different  

    31:41

    theories of justice it's a very inadequate  one it's it's meant to open up a discussion  

    31:46

    and i just wonder if we could just go on back  to the next slide which i think is the last  

    31:52

    and it takes us back to where we started  the idea of justice who are you going to  

    31:57

    give that flute to and why and do any of  these theories help you make that decision  

    32:05

    i wonder whether people want to um we should we  just should we just take anna anna's situation  

    32:12

    who would what's the basis for anna's what  would the basis for anna's claim be do you think

    32:23

    if you go through those theories

    32:28

    don't know whether mac with you maybe  you would just want to um you do you  

    32:31

    remember the facts she's the only one  who'll ever be able to play the flute  

    32:35

    mac if you perhaps run through the um just run  through some of those slides again are you okay  

    32:42

    the question is can you source more flutes and  the answer is no this is just one particular flute  

    32:47

    yes that would be lovely if someone could come in  and give a flirt to all three but there's only one

    32:55

    please you know please please feel free to unmute  and um and come in so oh i see right so max has  

    33:01

    said arguably uh anders cost depends upon a  utilitarian utilitarianism that she will get  

    33:10

    the greatest happiness from the flu does that  max do you want to unmute and develop that  

    33:16

    um yep hello paul um hi personally i'd probably go  go with claire just in terms of the flute wouldn't  

    33:23

    exist to begin with and therefore we wouldn't end  up with the other uh ideas to consider but if i  

    33:28

    was to argue booklet i'd say that while um there  was one other party that would get happiness from  

    33:35

    owning the flute outright even if they couldn't  play it i feel that in the situation if claire was  

    33:41

    to use the flute with her ability to perform that  would outweigh in terms of like the utilization of  

    33:48

    flute would produce the most useful happiness from  the flute as opposed to it just being an object  

    33:52

    owned by one party yeah look that's that's very  clear and helpful thank you look i wonder what  

    33:57

    should we shop sharing the screen so we can just  um see each other that'd be good and phil feel  

    34:05

    free to come in but if you want to go back to the  screen to look at the slides again phil just just  

    34:09

    let me know um yeah so just go let's just stay  with claire sorry with anna first okay that's  

    34:16

    utilitarianism does anyone see an objection  to the utilitarian argument in this situation

    34:27

    again take take a view against max's position  i guess one like you could argue that happiness  

    34:34

    is quite a subjective thing so you can't  exactly measure who would get the most happiness  

    34:39

    because it just means different things to  different people exactly that's exactly that the  

    34:45

    there's no currency of happiness and who who would  be um who would be another who's the other person  

    34:51

    who might say my you know my utility needs to  be counted my happiness needs to be counted here  

    34:59

    i poses both of them but is that the problem  bobby's bobbies are certainly clear isn't it  

    35:06

    it's a it's an emotional attachment and you're  saying we don't know how do you weigh bobbi's  

    35:12

    against claire's against anna's happiness there's  no common currency the coinage is different

    35:22

    i'll just put that back on so  everyone can have another look

    35:29

    that's um is that one objection how do you  measure different different elements of happiness  

    35:37

    and what's an is there another  argument that might be made for anna  

    35:43

    and that's the pro that's the problem isn't it  with the utilitarian calculus and the maths aren't  

    35:46

    the same you know you've got apples and oranges  you're weighing one against the other in terms of  

    35:52

    who's how do you actually do the mathematics do  the math what's another argument from different  

    35:59

    theories of justice i anna's performance  may bring others happiness as well says  

    36:05

    mariam that's right that's part of the  the calculus anything else any others

    36:15

    you're staying with the utilitarian the calculus

    36:20

    are these parties the only three existence or  is there a third parties that make no i think  

    36:24

    there will be others who would hear it  family members anna's family member maybe  

    36:28

    and it would perform it would  be used to work for an audience

    36:39

    adding on to that i think maybe it's arguable that  you can take the happiness perspective and put it  

    36:46

    to claire's benefit because then her playing it  could bring happiness to others through hearing  

    36:51

    the music so it's the happiness of the greater  community as opposed to one person that's sort  

    36:56

    of just trying to think of alternate arguments  yeah yeah that well and claire has the pride of  

    37:02

    she she made the flute so she has the pride of  ownership of you know if she had it she would  

    37:07

    have the pride of the the pleasure would come from  having having her own the fruits of her own labor  

    37:17

    uh with her and and to be enjoyed even if  she couldn't play it the joy of the creator  

    37:25

    what's another what's another kind of  theory of justice that anna might invoke

    37:33

    i was looking at um promotion of virtue  um in the sense of that kind of collective  

    37:40

    um um social connection and has the idea that  you know that form of justice would promote  

    37:50

    anna's potential as a flute player um enabling  her to have flute will i guess in the words  

    37:59

    used on the slide makes citizens wouldn't just  the um purpose of giving another flute is so  

    38:06

    he can play it i guess and um along with  utilitarianism that can extend to others  

    38:13

    and increase the aggregate happiness yep yep  that's that's that's a nice invoke that's a  

    38:19

    nice invading of the two different arguments yes  is there another another way of looking at the  

    38:25

    at the virtue argument in relation to a flute  can you say a flute has a virtue can you say it  

    38:31

    has an end what is its end what's its telos  what's the purpose of which it was created

    38:44

    it's a musical instrument so it was created to be  um played and i guess that could be compared to um  

    38:54

    bobby rather than being played it is not really a  toy it is i guess a musical instrument so that's  

    39:01

    the perspective yeah i think that's a strong  argument that the the that the purpose of a flute  

    39:06

    at the end its ground of action was um  

    39:11

    uh was was that the um it is to be used it's  a musical instrument it's not a toy so that  

    39:17

    so anna would would would invoke those two  theories should we go on to bobby what does  

    39:25

    what's the basis for bobby's claim in terms of  these theories of justice who would he invoke

    39:35

    bearing in mind that anna and claire  are both people who are comfortable

    39:42

    i think for me paul it might be um number  three um and john roll's theory of the social  

    39:50

    contract that you know everyone should  have this equal um and basic opportunity um  

    39:57

    and i guess because bobby hasn't had the  enjoyment of a toy or instrument before um  

    40:06

    his um this might i guess even the playing field  and create greater sort of equality for all yeah  

    40:15

    it would it would address us  a a significant inequality  

    40:19

    between the three in that he's he has never had  a toy before he's been in poverty abject poverty  

    40:25

    and this would you know would give some restore  some measure of fairness and equality between the  

    40:32

    three claimants and improve his position that i  think would be the argument is that right anyone  

    40:38

    would want to pick that argument up and and  either develop it or or look at its limitations

    40:49

    it's a difficult one because this is  you know these theories of justice  

    40:52

    are meant to operate and essentially as questions  about as at a societal level rather than the  

    40:58

    indiv the level of individual claimants so  there's a little bit of distortion when you  

    41:02

    apply it to a a a purely personal  individual hypothetical like this

    41:12

    there's not a great shift in inequality in  addressing the problem of inequality but  

    41:17

    it is moves in that direction and for  bobby it has a very significant impact  

    41:22

    his deep emotional attachment  to that particular flute

    41:28

    and i think yeah would it um oh  

    41:31

    molly were you going to say something i was just  going to kind of contribute to that based on what  

    41:36

    paul and um mac have said just um that yeah it  wouldn't make a substantial difference compared to  

    41:44

    um maybe a stimulus check or a you know  a centrelink benefit from the government  

    41:52

    but if claire and anna possibly or more likely  i would say have other toys or objects or  

    42:00

    other parts of their life that could keep them  occupied and maybe they will discard the flute  

    42:07

    um after a while and i will get bored maybe or  claire will just kind of display it and forget  

    42:15

    about it and let it collect dust whereas  bobby does have that attachment and there's  

    42:19

    no reason to believe that later on in life bobby  could not actually learn how to play the flute

    42:27

    yeah thank you that's good it's good because  we don't know what the age of anna and bobby  

    42:33

    and claire are we assume they're young i've taken  the the hypothetical as it's from the book itself  

    42:39

    we assume they they're people who a bit  younger than you young younger than you  

    42:42

    are and we don't know maybe they're not all the  same age but certainly that attachment's there  

    42:49

    how do we know bobby will actually will like the  flute even if he just believes well he we we know  

    42:53

    that bobby does like it that he loves it he's  come to form a deep emotional attachment to it  

    43:02

    people want to pick up move on to claire's claim

    43:09

    how would you if you're the if you're the  advocate for claire you're peering for claire  

    43:15

    before this tribunal how would how would  you frame her claim on the basis of justice

    43:25

    rafaela do you you've you've posted  there do you want to um talk to your post

    43:41

    anyone want to come in unmuted  yep um yeah rafaela or maximilian  

    43:49

    if any of you would like yeah so i just say um  instead of for example we've been looking a lot  

    43:56

    into utilitarianism for the other options i'd say  that the taking of the flute away from claire is  

    44:02

    a reduction in happiness in one party for a gross  or an increase overall in gross happiness however  

    44:08

    i wouldn't see that as fair under something like a  more egalitarian model um i'd probably argue that  

    44:14

    as the creator of the flute the flute wouldn't  exist without clear to begin with and we wouldn't  

    44:18

    even be having the argument of where the flute  should go if it wasn't created so at the very  

    44:22

    least there should be a compensation to clear  or she should have the right to hold on to it

    44:28

    that's good i think you look and  that that's thanks max that's  

    44:32

    um i i pose the notion of compensation is one that

    44:37

    and perhaps that is the solution but um but  it's not that's not one of the options that  

    44:42

    comes out we assume that isn't probably isn't  the um i've got there's some great there's some  

    44:49

    comments on this on scrolling down i think i think  rafaela can't come on already she but she can't  

    44:56

    admit but she's written here just to object to  you i feel like we should we should ask claire  

    45:01

    as well what her purpose of course because only  she knows i'm sorry i'm scrolling down a bit more

    45:10

    only she only knows she knows really of course  it is intrinsically not a toy whoever only claire  

    45:15

    would really know that's is so what would be  does claire's claim depend upon her purpose

    45:27

    what do you think is is how would you of those  theories which one i know it's not transparent  

    45:36

    but i think one of them i think could be  invoked more more readily than the others  

    45:42

    what's the basic putting it without without by  ref without reference to the theories what's  

    45:47

    the basis for claire's claim it is that she  made the flute it's the work of her hands  

    45:54

    it's the product of her of her effort um  wouldn't both a marxist and a right-wing  

    46:02

    lawyer a lawyer a right-wing politician say  that she therefore has a significant moral claim  

    46:09

    could you not put that on just on the libertarian  grounds that this is something this is the product  

    46:15

    of her of her of her own work of her own  effort and achievement that she's made  

    46:22

    it it comes and it's part of her fundamental  liberty to um enjoy the fruits of our own labor  

    46:32

    now with and to deny here that the to deny  her the fruits of her labor would be to  

    46:37

    would be to weaken the incentives to produce  should be she should be entitled to those fruits  

    46:43

    but what's missing what would there  be one other matter that you would  

    46:47

    think about uh one other question  you would ask that would go to that  

    46:52

    question we might answer that what don't  we know about claire's work with the flute

    47:03

    what don't we know that you know would  go we would that if we knew the answer  

    47:09

    to it it would strengthen claire's claim  considerably on these libertarian grounds  

    47:14

    her motive was for making the flute um because  under um libertarianism promotion of freedom  

    47:22

    the motive not the consequence confers moral  worth yes yes yes well that that's right  

    47:29

    the um so the motive and that in that sense  would be that's particularly under a certain  

    47:35

    view wouldn't it yes the pure freedom if her  motive was to produce something of value of a  

    47:40

    purpose that might be used as a flute rather  than as a toy that would certainly count

    47:49

    so in that sense who owned the  materials from which the flute was made  

    47:54

    would it matter that claire owned those materials

    48:00

    or that they were made they were owned by somebody  else and she she simply received the materials  

    48:05

    which when in respect of which ownership hadn't  transferred and from them she made the flute would  

    48:11

    that would that affect her claim on libertarian  grounds or on any other grounds i think i think  

    48:20

    it would simply because the creation of the  flute was a collective um a collective response  

    48:29

    and that it's more than simply um uh her choice  um claire's choice because she made it it would  

    48:39

    be up to you know maybe more than one person yep  yep got a few more comments coming in yeah matt  

    48:49

    do you want to uh do you want to outline pick up  comments that yeah i think hugh has an interesting  

    48:57

    point um he said that um the question then  becomes when do collective social rights override  

    49:04

    individual rights um what if this wasn't a flu  but medicine yeah i think it's quite interesting

    49:15

    and that's and that's that's of course been a part  of the story of covet hasn't it to what extent do  

    49:20

    you seek to protect those who are most vulnerable  in in in aged care facilities and elsewhere  

    49:27

    even at the cost by by clamping down on the  liberties of other people the extents of lockdowns  

    49:34

    most particularly in victoria that's been a  clear con conflict between collective interests  

    49:41

    in the interests of a particular  subset of the collectivity

    49:49

    and yeah and then raphaela has said you know  perhaps claire was commissioned for this flute  

    49:55

    that perhaps ownership has already been um  granted which i guess comes to the question of  

    50:02

    um equality as well um yeah like you were saying  is this is this flute going to be in a gift shop  

    50:09

    or is this flute you know it's taken a year  to make and it's for one person in mind um  

    50:16

    who's who's entitled to it yeah yep i would that  i think that's a that's a that's a very good point

    50:25

    we know nothing about the  circumstances in which he made it

    50:33

    um i think max had a question if you max if you'd  like to ask go for it oh cool sorry this is a bit  

    50:39

    outside the hypothetical but um paul i just wanted  to get your opinion in terms of these different  

    50:44

    justice systems as they relate to for example  different countries of different population  

    50:49

    sizes and socioeconomic statuses would you say  that different systems could be utilized at  

    50:55

    different levels and would have like a different  overall utility for example maybe if it's a more  

    51:01

    impoverished country they don't have the luxury  to process or do things through a system which  

    51:07

    would be fair at every party and that a more  utilitarian system would overall end up leading  

    51:12

    to the most prosperous growth of the society  yeah well the um clearly different countries had  

    51:20

    have different traditions that shape the the the  balance between um the individual rights and the  

    51:29

    rights the focus upon the collectivity that's  the fundamental difference between i suppose  

    51:34

    you know western systems with its individual  particularly those that have a very strong  

    51:39

    individualistic philosophy of which the united  states is perhaps the the obvious paradigm  

    51:45

    and those that that come from from command  economies where the the the focus of which  

    51:54

    the soviet union was perhaps one was perhaps  again again a modern paradigm command  

    52:00

    economies where the focus is nominally upon the  collective and they see in eastern formal terms  

    52:07

    though they're different traditions india stands  as a nice example in the sense that the india  

    52:14

    has a very strong collective tradition  in policy and decision making but is also  

    52:22

    a very strong tradition of reflecting you know  of of stressing and paying homage to individual  

    52:30

    and political rights civil and political rights  a good expression of it is in the united nations  

    52:35

    in the principle instruments under the united  know human rights instruments under the united  

    52:41

    nations the universal declaration of civil  and political rights in 1948 adopted by the  

    52:47

    united nations has both civil and political  rights which are essentially concerned with  

    52:52

    individ the rights of individuals to freedom  of speech freedom to to believe a quality of  

    52:58

    of treatment but also his economic and social  and cultural rights and that was that was  

    53:04

    a non-binding declaration of principle um  but it it would needed to be expressed in  

    53:10

    other in in other instruments of universal human  rights and the two principal ones that grew from  

    53:16

    that were the international covenant on civil and  political rights and the international covenant  

    53:21

    on economic social and cultural rights now the  united states for example has never adopted the  

    53:26

    latter one its focus has been exclusively upon  the implementation of both the international  

    53:32

    of the international covenant and civil and  political rights australia has ratified both  

    53:37

    but the implementation has been fuller in relation  to the former the civil and political rights than  

    53:44

    the economic social and cultural and generally  western democracies are more modest in their  

    53:49

    implementation of the economic social and cultural  rights so there are different traditions which one  

    53:56

    is best is essentially a matter for individual  countries i you know and to state a personal  

    54:02

    preference i'd i'd rather do it at this time and  you know obviously i i would feel a sense that the  

    54:09

    that we need to be concerned with economic  and social rights a sense of social solidarity  

    54:16

    um and a sense of development of the of  of that particular covenant and the rights  

    54:21

    under it it's very worth it it's worth having a  look at the the work of the special rapporteur  

    54:28

    under the uh under i forget uh on next i think  what i forgot his current his current title philip  

    54:34

    alston an australian um who is now based in new  york but he's written he's doing extraordinarily  

    54:40

    good work in relation to poverty that that  you know since the the economic right against  

    54:45

    against put against poverty to ground  certain certain protections against um uh  

    54:53

    against extreme poverty and he's he's made  some wonderful reports very significant figure  

    55:00

    i think in a sense that goes down that that  that that body of covenants that that covered  

    55:06

    in economic social and cultural rights is grounded  in more of a communitarian than an individualistic  

    55:12

    um conception and i think you you it's looking  tracking different countries ratifications and  

    55:20

    their degree of development of each implementation  of each is a way of uh marking these two different  

    55:26

    conceptions between libertarianism on the one  hand and a communitarian model on the other  

    55:33

    of course it runs through the number of  your courses you know if you do when you  

    55:37

    do corporate law for example you'll talk about  this issue will come up in talking about what's  

    55:42

    the responsibility of corporations do they  have a responsibility towards society or is  

    55:46

    it just to shareholders to maximize profit and and  shareholder wealth these questions are essentially  

    55:52

    legal in their in their decision and of course  in human rights law they're richly embedded  

    55:58

    but i think i'm max i'm not sure i've given  you a satisfactory answer but i hope i've  

    56:03

    given you one that's opened up you know  the issue of the balance between the two  

    56:09

    of course the other comment to make simply is  every country has its own path it's dependent upon  

    56:14

    it's a it's past path it's past identity it's  past traditions and culture we're all in we're  

    56:20

    all embedded in our own culture our culture  in australia was quite specific to particular  

    56:26

    um things look i think i should hush there though  mac and um give you back the floor no that was  

    56:32

    great paul i think um it's just hit 2 p.m um so i  think we'll have to wrap it up there everyone um  

    56:40

    thank you everyone for all those great questions  yeah and and for using the chat so well um  

    56:47

    and also thank you paul for your time  knowledge and expertise this afternoon  

    56:52

    i know personally this is the second  time i've attended um the what is justice  

    57:00

    talk and i think the second time i've definitely  got even more out of it so thank you very much  

    57:06

    and i just wanted to remind everyone that  we have another justice talk coming up soon  

    57:13

    it's with the honourable justice anne ainsley  wallace a judge of the appeals division of the  

    57:18

    family court of australia and an adjunct professor  at uts i'm just going to put the link to the event  

    57:27

    in the chat box it's going to be in the great  hall so it'll be an in-person event and you'll  

    57:34

    be able to ask questions on the night as well  in person which i think will be really great um  

    57:40

    yeah please sign up if you'd like i think it'll  be a really worthwhile opportunity look i just  

    57:47

    add she is tremendous she's a great speaker this  this this talk will change your thinking about  

    57:53

    what you want to do come i i i've heard her speak  to students before she's one of the best speakers  

    57:59

    we've had in 11 years of the brenham program  and she really does have an impact she's got  

    58:04

    something to say not just about the family  you only probably want to mention family law  

    58:09

    but you'll talk about being a lawyer about being  a law student what it means and what you can get  

    58:14

    from it it will actually change your thinking  dramatically tell your friends to come too

    58:22

    yeah and it'll be it'll be in person  as well which will be really nice  

    58:26

    um we're going to have microphones set up on the  night so you'll be able to um walk up and ask a  

    58:32

    question if you like as well okay all right all  right well thank you everyone so much for coming  

    58:41

    uh we really appreciate it and  yeah i hope to see a few of you  

    58:45

    around campus and at the next justice  talk event soon bye everyone bye-bye

  • What do we mean by justice? What are some competing conceptions of justice that might be applied interpersonally and in society? How do different ideas of justice give us frameworks for thinking around specific problems that law and society face in finding ways for all of us to live together harmoniously despite our competing interests and diverse conceptions of the good life?

    Guest speaker: Emeritus Professor Paul Redmond, UTS Law