Tutorial Assignment 1 - Distributive Justice PDF

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First juris assignment...

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Tutorial Assignment 1

LEGAL203 Assignment

Name: Student ID: Paper code:

LEGAL203-21D

Paper:

Jurisprudence

Assignment Name:

Tutorial Assignment 1

Lecturer:

Dr Robert Joseph

Due Date:

Friday 11 June 2021, 5.00 pm

Word Count: 1051

Question Two The application of distributive justice is the main concern within this situation. Justice as fairness will need to be addressed in order to formulate a ‘fair’ criteria for entry alongside affirmative action. S 224(6) of the Education Act 1989 states that the overseeing admissions council “may, in the selection of the students to be enrolled, give preference to eligible persons who are included in a class of persons that is under-represented among the students undertaking the programme or training scheme,”1 in the case that applications to a course exceed the places available. The distributive justice theories of liberalism, communitarianism and meritocracy are appropriate bases for formulating a criterion for entry. Rawls’ approach to distributive justice through opportunities and liberties is highly applicable in this situation. Rawls’ veil of ignorance may also be needed to determine what is ‘fair’ without knowing of race, gender, heritage, culture, ideologies, academic ability, et cetera, which he states as “those which rational persons concerned to advance their interests would consent to as equals when none are known to be advantaged or disadvantaged by social and natural contingencies.”2

Under liberalism, the fundamental unit of primary concern is that of the individual’s flourishing. The basis of this justice is personal liberty and equality in terms of fairness, equality of treatment, and respect for individual rights. It allows for personal freedom as long as one does not harm another. Within an admissions scheme, liberalism would be best applied by carefully examining how each applicant would benefit from being accepted into the School of Law. A common benefit may be that an applicant would be able to enter into a prestigious degree of study, leading to a path where they may reach personal success and self-actualisation. However, in giving admission preference to under-represented classes of people, liberalism may be dismissed in favour of communitarianism, as both liberalism and communitarianism cannot exist without the other - where an individual cannot flourish without also having a flourishing community. 1 Education Act 1989, s224 (6). 2 John Rawls in A Theory Of Justice (1 st ed, The Belknap Press of Harvard University Press, 1971) at 102.

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The fundamental unit of primary concern in communitarianism is that of the community and collective flourishing – i.e. what each individual can do to help themselves and everyone else flourish. In the situation of a limited-place admissions criteria, it adds complexity as an applicant must be able to provide a reason why they may benefit the law school community, as well as stating how they may personally benefit from being accepted. An application from an under-represented person may be considered to be highly beneficial in terms of communitarianism and affirmative action, as their admittance would increase diversity within the School, helping every individual to flourish through new knowledge, in turn allowing the community to flourish through mutual understanding.

The above examples of liberalism and communitarianism assume that every applicant is equal in terms of liberty, opportunity, income and wealth. In practicality, it is obvious that not all people are equally advantaged or disadvantaged in these ways. Affirmative action in universities aims to reduce discrimination and increase representation of under-represented groups of people based on gender, race, sexuality, nationality et cetera, to lessen the inequalities in education, employment and pay. Admission quotas for race are not uncommon due to affirmative action. Rawls’ general principle of justice states that all social primary goods “are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favoured,”3 but some may view affirmative action to be unfair in the eyes of meritocracy.

Meritocracy is based on the idea that the perceived ability or education of an individual grants them more liberties and opportunities than those with less. A 'merit-based' admissions process focuses on scoring applicants to measure their academic potential regardless of background. This system favours those with higher grades and gives people with less talent a lower chance of being admitted. Under this system, the School would likely favour the students from 3 John Rawls in A Theory Of Justice (1 st ed, The Belknap Press of Harvard University Press, 1971) at 85.

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privileged backgrounds who have spent time at prestigious high schools, and completely ignore those who have not performed well at high school. This approach allows applicants to be considered for their own merits rather than how they would benefit others as Rawls’ principles of justice are based on equality and liberty, not their personal or community benefits. Often, meritocracy ignores admission quotas and does not take liberalism and communitarianism into account, although admission schemes today are commonly partly merit-based as law schools require certain grade benchmarks to be met for entry into the degree.

Affirmative action and admission quotas are a topic of much academic dispute. Many people think that affirmative action should only involve the admission of those with the best chance to succeed (meritocracy). The positions on affirmative action also differ on whether it should aim for equal representation among individual groups, or equal representation between the different groups within society. The main ethical concerns with affirmative action are that it is unfair, that it discriminates against other applicants, that it is illegal, and that it may lead to supposed reverse discrimination. A practical concern or criticism of affirmative action is the effect of affirmative action on the opportunities open to its beneficiaries. There have been cases where people who have benefitted from positive discrimination have gone on to become successful professionals in fields unrelated to those in which they were discriminated against.

Because of differing approaches to justice and fairness, a ‘fair’ admissions policy would need to integrate elements of liberalism, communitarianism and meritocracy, as well as considering how to justly apply affirmative action. It is difficult to create a perfect admissions policy and it would be reasonable for law schools to use an admission scheme that is suitable for them, even if it isn’t ‘the best’ or the ‘fairest’ one. Currently, law schools use different factors to weigh in an applicant’s favour during the application process: these can be educational achievements, extracurricular experience or special circumstances like familial responsibilities. A suitable policy would be to award students points for their high school grades (amount or percentage of excellence or 3

merit NCEA credits) and attribute further points for disadvantaged or underrepresented status, yet still consider an applicant’s personal and community benefits. These criteria could serve as an admission scheme that would ensure that all applicants are treated fairly based on academic merit and those from disadvantaged backgrounds are also considered.

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Bibliography Education Act 1989 Rawls, J. A Theory Of Justice (1st ed, The Belknap Press of Harvard University Press, 1971)

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