MoralVersus Legal Rights and Restorative Versus Retributive Justice
QuestionOne: Human Rights: Moral or Legal Rights?
Introduction.Bydefinition, human rights are privileges that are believed to belongjustifiably to every human being fundamentally, they apply to allhuman beings, regardless of their culture, race, ethnicity, religion,or sexual orientation — everybody is entitled to them by virtue ofbeing human. Correspondingly, legal rights are claims that arerecognized and delimited by the law with the aim of securing themthey are all the rights that are traceable in existing local codes.Essentially, legal positives assert that only the rights that can bealleged to exist legitimately are legal. Contrarily, moral rights aremore of moral claims that may or may not be assimilated withininternational or national law they propose what society thinks isthe ethically right way to treat all people due to the fact that theyare human. Over the years, a discourse has emerged on whether humanrights should be categorized as legal or moral rights, as they fitvarious criteria of each of the two groups (Steiner, Alston, andGoodman 78). Nevertheless, prevailing studies as well as logicalthinking demonstrate that human rights are more of moral rights thanthey are legal rights and should be classified as such. Essentially,this paper will defend this stand by demonstrating that both moraland human rights apply equality, and are inalienable, universal, andnatural.
Equality.Firstboth human rights and moral rights are equal it is impossible forthem to be distributed unjustly. Contrarily, it is possible for legalrights to be unequal for instance, it is not rare for murderers towalk free after convincing a court of law after exploiting certainlegal loopholes, consequently leading to injustice on the part of thevictim and his/her family. As mentioned earlier, human rightsautomatically apply to everyone by virtue of them being human thereis no basis for discrimination, whether race, religion, or sexualityamong others, meaning that they apply equally (Wellman76).On this basis, human rights are moral rights due to the fact thatthey apply equally to all human beings.
Conceptof Inalienability. Moreover,human rights, similar to moral rights are inalienable, whereas legalrights are alienable. Essentially, moral rights cannot be taken froma person without his/her consent, unless the person voluntarilysurrenders them (Shortall 112). In a similar manner, human rightsapply to every human being they can only be taken away from theperson as long as they stop being human. However, legal rights oftenhave limitations, which when breached, revoke a person’s rights tothose claims. In such a way, human rights are moral rights, not legalones, as they are inalienable from all humans.
UniversalApplication. Additionally,both moral rights and human rights are universal, while local rightsare local. Inherently, moral rights apply equally to all humanbeings, no matter where they are on the planet. In a similar way,human rights apply to every single person on the globe regardless oftheir geographical situation. Conversely, legal rights often changewhen a person moves from one jurisdiction to another (Wellman84).For instance, prostitution is a legal right in Amsterdam, while it isconsidered a criminal offense in most African countries such asUganda this demonstrates that legal law differs between places,hence is not universal. In this regard, human rights are more ofmoral than legal rights, as far as the scope of their application isconcerned.
NaturalOrigin. Finally,both moral and human rights are natural they are only discovered,not created. On the other hand, legal rights are created, and can beamended, by legislation. Essentially, both moral and human rights arebased on moral realism, which is a belief that there exist variousmoral values and facts/truths that are independent of people’sperception of them, as well as their attitudes and beliefs towardsthem. Intrinsically, this implies that people are automatically awarewhat entails treating other people correctly without being giveninstructions. According to human rights, as long as people are human,they are entitled to certain privileges and certain treatments thesedo not have to be spelled out — they apply automatically (Shortall123). However, legal laws are often created to address a certainissue or concern that affects people locally, and they are notautomatic people have to learn about them in order to follow them.In such a way, human rights are more of moral rights than they arelegal rights.
OpposingViewpoint. Interestingly,those who think legal rights are closer to human rights than moralrights are due to the fact that the fundamental human rights areoutlined in the constitution, under the Bill of Rights. Nevertheless,these individuals fail to understand that human rights are governedby moral realism, not created. Essentially, this means that they donot need to be incorporated in legal statutes in order to becomeapplicable this is the same with moral rights. Correspondingly, thetruth remains that human rights are more of moral rights than theyare legal rights.
Conclusion/Implication.Insummary, human rights are essentially moral rights, not legal onesthis claim is based on the fact that human rights bear moresimilarities to moral rights than they do legal ones. Both moralrights and human rights apply equality, and are inalienable,universal, and natural. Contrarily, legal rights may be appliedunjustly in various contexts, can be taken from a person withouthis/her consent, apply locally, and are created by legislation, notnatural. In this regard, endorsers of legal rights in the legalversus moral rights debate on human rights are terribly misguided.Human rights automatically apply to all individuals regardless oftheir ethnicity, race, sexuality, religion, or location the onlycriterion required is to be human. In such a manner, human rights aremore of moral claims than they are legal standards therefore, theyshould be more widely accepted as moral rights by merit. If this isdone, legislations will not have the power to revoke human rights.
QuestionTwo: Restorative Versus Retributive Justice
Introduction.Fundamentally,justice refers to the process or consequence of using legislation tofairly judge and penalize criminals or crime. When people arewronged, they have an option of seeking one of the four types ofjustice these are distributive justice, restorative justice,retributive justice, and procedural justice. People seek distributivejustice when they feel that they are not receiving a fair share ofwhat they are entitled to, whether goods or attention. Contrarily,restorative justice is available for people who want restitution forbeing betrayed this can be in the form of an apology, and oftenreturns things as they were before the betrayal. Unlike restorativejustice, retributive justice is all about punishment, instead offorgiveness. Finally, one may seek procedural justice if they feelthat an unfair process was used to determine what was to bedistributed (Murithi 71). Notably, the most controversial of thesecategories are retributive and restorative justice. Pro-retributionindividuals argue that unless people are punished, they will neverunderstand the magnitude of their crimes. On the other hand,supporters of restorative justice state that retribution leans moretowards malice and revenge, which might impair justice. Despite thisconflict, I believe that restorative justice is more suitable thanretributive justice is. I am going to defend my stance in this paperby showing that unlike retribution, restorative justice reduceshatred among people, fosters a sense of community, and guarantees therehabilitation of criminals.
Reductionof Hatred.Restorative justice allows people to settle disputes throughapologies, leading to the restoration of peace. Most times, peopleforgive the wrongdoer when an apology is issued, restoring thefriendship or relationship that the two had prior to the conflict. Inthis regard, restorative justice puts hatred at bay. In addition, itallows both the offender and offended to benefit from the finalresolve the victim receives a sincere apology, whereas the suspectavoids punishment. Correspondingly, no hatred or malice is likely toarise from a restorative judgment. Nevertheless, retributive judgmentis targeted at obtaining vengeance for the victim and his/her familyin such a manner, it aggravates the hatred that the accuser hastowards the defendant, instead of quelling it (Murithi 53). Moreover,retributive justice often results in the suspect facing a punishmentthat exceeds his/her crime this can make him/her angry. Effectively,anger is a deterrent to peace and order. In such a manner,restorative justice is more preferable to retributive justice due tothe fact that it does not propagate hatred, but rather mitigates it.
Community.Restorative justice increases the sense of community within a givenregion. When people settle their disputes via apologies and mutualunderstanding, they often forget about their disagreements and learnto value friendship and collaboration in the society.Correspondingly, this fosters oneness/unity in the society, which isessential for maintaining peace in the society. Tightly knitsocieties experience lower crime rates than the ones whoseinhabitants are estranged (Murithi 88). Essentially, the logic behindthis phenomenon is that people who care for each other are lesslikely to want to offend or hurt their neighbors, compared to peoplewho they have no emotional attachment to. On the contrary,retributive justice further intensifies the hostility between thesupporters of the victim and those of the defendant. Effectively,this prevents people from working together to promote development inthe society. Overall, restorative justice is better than retributivejustice due to the fact that is fosters a greater sense of communityin the society than retributive justice does.
Rehabilitation.Notably, one of the functions of the criminal justice system is torehabilitate criminals. Nevertheless, this becomes almost impossibleif the suspects feel that their punishment is unfair this is oftenthe case with retributive justice. In essence, retributive justiceemphasizes punishment more than it does rehabilitation this can makethe accused to lose hope in the justice system, especially if he/shewas sentenced unfairly. As a result, he/she might intentionallyrefuse to become rehabilitated by the very government that was unfairto him/her in the first place. On the contrary, restorative justiceconsiders all sides of the story, making the suspect see that thestate has a genuine interest to make him/her a productive member ofthe society again (Lawrence 127). Correspondingly, this improvestheir compliance with the rehabilitation program, ultimatelyincreasing the number of positive minded and productive individualsin the society.
OpposingViewpoint.Critics of restorative justice argue that being too soft onperpetrators increases their chances of reverting to their criminalways after court is over. Therefore, they recommend harsh penaltiesfor offenders in order to discourage them from repeating the sameunacceptable actions. Nevertheless, this is not entirely truerestorative justice is not as amateurish and insignificant as theseindividuals imply. Restorative justice only applies when the one whofiled the lawsuit agrees to accept the defendant’s apology hence,it is not the law that desists from punishing the offender, it is thecomplainer. Therefore, restorative justice is not soft, it merelyresolves a conflict based on the mutual agreement of the partiesinvolved.
Conclusion/Implementation.Overall,restorative justice is more suitable than retributive justice due tothe fact that it minimizes hatred, promotes a sense of community, andfacilitates the rehabilitation of offenders. By definition,restorative justice is the process of settling disputes by obtainingan apology and reverting to the initial state before thedisagreement. Contrarily, retributive justice promotes hostility andviolence in the society, as well as makes suspects non-compliant torehabilitation. In this regard, governments should substituteretributive laws with restorative ones in order to improve peace andunity in the society.
Lawrence,Richard, and Mario Hesse. JuvenileJustice: The Essentials.SAGE Publications, 2010.
Murithi,Timothy. TheEthics of Peacebuilding.Edinburgh University Press, 2009.
Shortall,Michael. HumanRights and Moral Reasoning: A Comparative Investigation by Wayof Three Theorists and Their Respective Traditions of Enquiry: JohnFinnis, Ronald Dworkin and Jürgen Habermas.Editrice Pontificia Università Gregoriana, 2009.
Smith,Dominique, Douglas Fisher, and Nancy Frey. BetterThan Carrots or Sticks: Restorative Practices for Positive ClassroomManagement. ASDC,2015.
Steiner,Henry J., Philip Alston, and Ryan Goodman. InternationalHuman Rights in Context: Law, Politics, Morals: Text and Materials.Oxford University Press, USA, 2008.
Wellman,Carl. TheMoral Dimensions of Human Rights.Oxford University Press, 2011.