What Intellectual Tools Are Useful in Making Decisions about Issues of Corrective Justice?

This lesson is taken from the Justice section of Foundations of Democracy: Authority, Privacy, Responsibility, and Justice.

Purpose of Lesson

This lesson introduces you to some intellectual tools which are useful in resolving issues of corrective justice. When you have completed this lesson, you should be able to explain and use these intellectual tools. Other intellectual tools which you can use to evaluate, take, and defend positions on issues of corrective justice will be introduced in the next lesson.

Terms to Know

How can we decide upon fair or proper responses to wrongs and injuries?

As you have learned, a basic goal of corrective justice is to "set things right" in a fair way when a wrong or injury has happened. Other important goals of corrective justice are to prevent additional wrongs or injuries and to deter others from committing such wrongs or injuries.

Deciding what is fair may be simple in some situations, such as when a young child takes away the toy (property) of another child. Our sense of justice may be met by merely restoring the toy. Our interest in preventing such things from happening again may be met by informing the child that it is wrong to take another person's property without permission. It is hoped these actions will teach the child proper behavior.

In other situations, finding a fair response to a wrong or injury may be more difficult. Unfortunately, there is no simple formula for deciding what would be proper responses in difficult situations. However, there are a number of intellectual tools that can be useful when making such decisions.

Following are some of these intellectual tools. They form the first three steps of a procedure you can use to examine situations in which a wrong or injury has happened. Simple examples have been added to each step in the procedure to illustrate its usefulness. In the lessons that follow, you will learn the intellectual tools you need to complete the remaining steps of the procedure. You will be asked to apply this procedure and use these intellectual tools to examine and take positions on some interesting problems of corrective justice.

Critical Thinking Exercise
Examining Intellectual Tools

This exercise may best be accomplished during a class discussion, or you may wish to examine the steps in small groups and then discuss your responses with the entire class.

Read each step below and the questions and examples that it includes. Then be prepared to

• discuss the usefulness of each step
• give examples of its application from your own experiences and observations
  
  

Step 1. Identify the characteristics of the wrong or injury.

1. What was the wrong or injury?
   
   
   • A wrong is conduct that violates a duty or responsibility imposed by laws, rules, customs, or moral principles.
     
     
   • An injury is harm or damage to persons or property, or violation of a person's rights.
     In some cases, conduct may be wrong and also cause an injury. In other cases, conduct may be wrong but not cause an injury. And in some cases there may be injuries without wrongful conduct.
     
     For example: Look at each of the following situations and answer the question: Was there a wrong, an injury, or both?
     
     
     1. George drove his car through a red light but no accident resulted.
        
        
     2. Monica did not fix the car properly before she rented it to a customer. The car's left front wheel fell off while the customer was driving, and she was injured when the car skidded off the road and hit a parked truck.
        
        
     3. Paul and Maggie were playing baseball. Maggie threw a ball that hit Paul in the shoulder. For the next few days Paul's shoulder hurt.
        
        
2. How serious was the wrong or injury?
   
   
   • In order to decide how serious a wrong or injury may be, it is often helpful to look for the answers to four questions. The following situations are designed to illustrate the usefulness of each of these questions.
     Suppose it was discovered that tuna, an important game and food fish, were about to become extinct because of overfishing. To protect the fish, the government passed a law limiting the amount of tuna that might be caught by any one company to 500 per day. Two fishing companies broke the law and caught more than 500 per day. To determine how serious the wrong or injury may be, it is often helpful to look at a situation and answer the following four questions:
     
     
     1. What was the extent of the wrong or injury?
        Over a six-day period the Tuna Can Company caught 6,000 tuna, or 3,000 over what they were allowed.
        
        The Albacore Company caught 3,050 tuna over the same six-day period, or 50 over what they were allowed.
        
        
        
     2. What was the duration of the wrong or injury? The Tuna Can Company broke the law for six days before being caught.
        
        The Albacore Company only broke the law for one day.
        
        
        
     3. What was the impact of the wrong or injury? The Tuna Can Company caught 1,000 tuna fish in one day.
        
        The Albacore Company caught 550 in one day.
        
        
     4. How offensive was the wrong or injury?
        The owners of the Tuna Can Company were aware of what they were doing and had intended to catch as many tuna as they could in order to benefit by the higher prices being paid for the scarce tuna.
        
        The owners of the Albacore Company had tried to stay within the limit but were careless in counting the tuna they had caught.
        
        

Step 2. Identify the important characteristics of the person or persons causing the wrong or injury.
The following are five questions that should be answered about the person or persons causing a wrong or injury before deciding what to do.

1. What was the person's state of mind at the time he or she caused the wrong or injury? A person's state of mind is one of the most important things to consider when trying to find a fair response to a wrong or injury. To determine the person's state of mind, a number of things should be considered. They are
   
   
   1. Intent: Did the person act intentionally (on purpose) to bring about the wrong or injury?
      
      
   2. Recklessness: Did the person deliberately (or knowingly) ignore obvious risks of serious harm?
      
      
   3. Carelessness: Did the person act in a thoughtless manner, without paying enough attention to risks that were foreseeable?
      
      
   4. Knowledge of probable consequences: Did the person know, or have the capability of knowing, that what he or she was doing was wrong or likely to cause an injury?
      
      
   5. Control: Did the person have physical and mental control over his or her actions?
      
      
   6. Duty or obligation: Did the person have a duty to act, or not act, in a certain way in order to prevent the wrong or injury?
      
      
   7. More important values and interests: Did the person have any other important values, interests, responsibilities, or motives that might justify or excuse his or her actions?
      
      
   The following imaginary situation is designed to illustrate the usefulness of the ideas described in this section on state of mind.
   Xavier Kahn, the commander of a space ship from a planet at war with other planets, was accused of destroying the crops and shelter of a neutral space station, leaving its inhabitants without food and shelter.
   
   The following facts were revealed at his trial. Examine these facts to find out what Xavier Kahn's state of mind was when he caused the wrongs and injuries to the neutral space station.
   
   Xavier Kahn and his troopers herded everyone in the space station. He informed them he was going to destroy their crops in order to prevent the food from falling into enemy hands, even though the station was neutral.
   
   Xavier Kahn thought he could limit the fire's destruction to the crops, but he was wrong. The fire spread and destroyed most of the buildings on the station, leaving the inhabitants without food or shelter. However, Kahn left them with temporary shelters and enough food for about a week by which time he thought help would come from the nation that owned the station.
   
   At his trial, one of Kahn's officers testified that by the time they had reached the station, their space ship was badly damaged, they were out of food, crew members were ill and injured, Kahn hadn't slept for days and his "ship was in trouble," and he had just been informed that his brother had been killed in a training accident.
   
   
2. What was the person's past history? Has the person committed similar wrongs or caused similar injuries in the past?
   Suppose that Xavier Kahn had an excellent record as an officer and a history of respect for human rights. Should his excellent record be considered in deciding what should be done in response to his wrongdoing?
   
   
3. What character and personality traits has the person shown? Is the person generally trustworthy, careful, considerate of another's rights, and nonviolent?
   Suppose that one of Kahn's officers testified that Kahn flew into rages over little things, that most of his men feared him, and that he had a deep hatred for the nation that owned the space station in spite of its neutrality?
   
   
4. What feelings did the person express? Does the person regret (feel sorry about) his or her conduct, or is the person unconcerned about the wrong or injury he or she caused?
   At his trial, Kahn testified, "There were wrongs committed - wrongs for which I as commander am responsible." It was clear from his testimony that Kahn was sorry for his actions.
   
   
5. What was the person's role in causing the wrong or injury? Did the person act alone or with others, as a leader or minor participant?
   During his testimony, Kahn took sole responsibility for his actions. However, other officers testified that before landing on the space station, all of the officers of the ship had met with Kahn and agreed they should destroy the crops of the neutral station to prevent them falling into enemy hands.
   
   
   
   

Step 3. Identify the important characteristics of the person or persons who were wronged or injured.

Besides looking at the relevant characteristics of the person or persons causing the wrong or injury, there may be important characteristics about the person or persons who suffered the wrong or injury that should be considered. The following two questions are designed to focus your attention on this "side of the coin."

1. Did the person or persons contribute to causing the wrong or injury?
   Suppose when Xavier Kahn landed on the space station he had asked for food for his hungry men and had been refused. Furthermore, the people living on the station had attacked them and tried to destroy their space ship. Could it be said that the people on the station contributed to the wrongs or injuries they suffered?
   
   
2. What is the person's ability to recover from the wrong or injury?
   Suppose that because of radiation from the weapons used by Kahn's men, it will not be possible to grow crops on station land for five years. If the crops had been destroyed by less drastic measures the land could have grown another crop within a few months. Should this be taken into consideration when deciding what response should be made?
   
   

What do you think?

1. Are the steps listed above enough to consider when deciding how to correct a wrong or injury? What other considerations should be added?
   
   
2. What should be the purposes of correcting wrongs and injuries?
   
   
   

Using the Lesson

1. Bring to class excerpts from newspapers or descriptions of television news or entertainment programs, in which issues of corrective justice are raised. Determine and explain which of the tools you have studied were used in making decisions about how to respond to the wrongs and injuries in the situations.
   
   
2. Working with your teacher, invite a judge or attorney to class to discuss how the intellectual tools you have studied in this lesson are used in court cases.

All rights reserved. Permission is granted to freely use this information for nonprofit educational purposes only. Copyright must be acknowledged on all copies. These materials were originally developed with the support of a grant from the National Endowment for the Humanities and have been prepared under Grant #85-JS-CX-0009 from the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, US Department of Justice. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the US Department of Justice. ISBN 0-89818-150-X