Brennan Justice Talks 2021 The Idea of Justice

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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  

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

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

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

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

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

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

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

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

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

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

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

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through dividing life experience and  life and opportunities and of course  

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

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

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

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

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

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

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

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

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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