MORAL HARM

The difference between Dworkin's conception of equality and others lies In his theory of moral harm. Considering the first principle he says, "It is part of the principle that no decision may deliberately impose on any citizen a much greater risk of moral harm than it imposes on any other." For example let us take the right not to be convicted if innocent. According to Dworkin, the main function of this kind of right is as an instruction to the government. However, even if government heeds the instruction yet still makes a blameless mistake we should still consider government wrong because the violation of a right constitutes a special kind of harm. It is a harm that people suffer even when the violation is accidental Dworkin summed It up in these words.

We must distinguish, that Is, between what we might call the bare harm a person suffers through punishment, whether that punishment is just or unjust,--for example, the suffering or frustration or pain or dissatisfaction of desires that he suffers Just because he loses his liberty or is beaten or is killed--and the further Injury that he might be said to suffer whenever his punishment Is unjust, just In virtue of that unjustice.

An Important point about moral harm is that it occurs even when no one is aware of it, in fact it occurs even when no one, or at least a very few care. This makes it a powerful concept. "Suppose," Dworkin argued, "we discover that some person executed for murder several decades ago was in fact innocent. We shall want to say that the world has gone worse than we thought, though we may add, if we reject the idea of moral harm, that no one suffered any harm of which we were ignorant, or was In any May worse off than we believed." Moral harm then, applies as much to situations as it does to people. Consider a society which enacts a set of laws that apply equally to all of its citizens. Some may disagree about the wisdom of those laws, but moral harm has nothing to do with the way people feel about laws, it only deals with the equality with which the rules are enacted and enforced.

This bring us to Dworkin's second principle. Dworkin amplified the concept in this way, "The second principle appeals to the fairness of abiding by open commitments fair when adopted--the fairness, for example, of abiding by the result of a coin toss when both parties reasonably agreed to the toss." For example, If we examine the deliberate conviction of someone known to be innocent from the standpoint of these two principles He see that this is a worse case of moral harm than that of a mistaken conviction. "Framing someone is a case of a fresh political decision that does not treat him as an equal as required by the first principle" This is not a case of the application of public commitments. Even if there were a public commitment to frame people who meet a specific test, this would not meet the requirements of the first principle. As Dworkin emphasized, the deliberate conviction of some one known to be innocent involves greater moral harm because it violates the equal standing of all citizens.

Legal principles emerge as a response to the failure of laws as they are written to apply directly to every case. Those that are successful at developing reactions to such disappointment that are generally accepted by the community will remain. Thus, from a study of the relatively Just societies of the United States and Britain Dworkin was able to Identify a pair of principles that he has extracted out of the more successful Judicial decisions. Their success, however, cannot be attributed to some natural or god-given concepts. They emerge naturally at the Interface between the serial network of Judicial review and the parallel network of the societies sense of justice. Cultures with very different concepts of Justice would develop different sets of principles. Thus principles are the highest level of the legal system. In other words, above that level the legal system is Just one element in a higher level system which emerges out of the interactions between it and other social systems as the cultures unique response to the universe.

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