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Greater Knowledge. Human Wisdom

LEGAL

DIFFERENT PERSPECTIVES OF
JUSTICE IN DIFFERENT STATUTES
By Kumar Rishabh Parth

 MAR 30, 2020  Justice, Law, Legal, statutes

“Justice without power is inefficient; power without justice is tyranny. Justice without
power is opposed because there are always wicked men. Power without justice is soon
questioned. Justice and power must, therefore, be brought together so that whatever
is just may be powerful, and whatever is powerful may be just.”

– Blaise Pascal

Introduction
Justice is a concept we believe we understand even if we have difficulty putting the
concept into words. Justice is defined by the relationship that exists between the
individual and the state, and justice means that the state treats every person equally
and seeks to resolve disputes on the basis of the facts and compared to objective
criteria rather than a subjective determination. Justice in the broadest sense is
fairness. Justice cannot assure that every dispute comes out “correctly” or that no
mistakes are made, but it should be such as to assure that the process by which
decisions are made and goods allocated is fair and produces an acceptable result in
the aggregate, even if an individual case justice might fail. Justice occurs when the
distribution of political power and economic opportunity is as uniform as possible or
when the social and political system is such that they tend toward a just distribution
even if it is not achieved. Justice is clearly an ideal, and ideals are to be sought but
may not be achievable. Justice is thus not defined by the outcome but by the fairness
of the process leading to an outcome.

Variations of justice
Utilitarianism is a form of consequentialism, where punishment is forward-looking.
Justified by the ability to achieve future social benefits resulting in crime reduction,
the moral worth of an action is determined by its outcome.

Retributive justice regulates proportionate response to crime proven by lawful

evidence so that punishment is justly imposed and considered as morally-correct and
fully deserved. The law of retaliation (lex talionis) is a military theory of retributive
justice, which says that reciprocity should be equal to the wrong suffered; “life for life
wound for wound, stripe for stripe.”

Restorative justice is concerned not so much with retribution and punishment as with
(a) making the victim whole and (b) reintegrating the offender into society. This
approach frequently brings an offender and a victim together, so that the offender can
better understand the effect his/her offence had on the victim.

Distributive justice is directed at the proper allocation of things — wealth, power,

reward, respect — between different people.

Oppressive Law exercises an authoritarian approach to legislation which is “totally

unrelated to justice”, a tyrannical interpretation of the law is one in which the
population lives under restriction from unlawful legislation.

Some theorists, such as the classical Greeks and Romans, conceive of justice as a
virtue—a property of people, and only derivatively of their actions and the institutions
they create. Others emphasize actions or institutions, and only derivatively the people
who bring them about. The source of justice has variously been attributed to harmony,
divine command, natural law, or human creation.

John Rawls is widely regarded as one of the most important political philosophers of
the second half of the twentieth century. He is primarily known for his theory of
justice as fairness, which develops principles of justice to govern a modern social
order. Rawls’ theory provides a framework that explains the significance, in a society
assumed to consist of free and equal persons, of political and personal liberties, of
equal opportunity, and cooperative arrangements that benefit the more and the less
advantaged members of society.

Rawls’ conception of justice, like any conception of justice whatsoever, is an

associational conception. It is about relationships between members of an association.
Rawls is chiefly concerned with the political association known as the modern nation-
state.

In A Theory of Justice, Rawls argues for a principled reconciliation of liberty and

equality. Central to this effort is an account of the circumstances of justice (inspired
by David Hume), and a fair choice situation (closer in spirit to Immanuel Kant) for
parties facing such circumstances. Principles of justice are sought to guide the
conduct of the parties. These parties face moderate scarcity, and they are neither
naturally altruistic nor purely egoistic: they have ends which they seek to advance, but
desire to advance them through cooperation with others on mutually acceptable
terms. Rawls offers a model of a fair choice situation (the original position with its veil
of ignorance) within which parties would hypothetically choose mutually acceptable
principles of justice. Under such constraints, Rawls believes that parties would find his
favored principles of justice to be especially attractive, winning out over varied
alternatives, including utilitarian and libertarian accounts.

A Theory of Justice
A Theory of Justice is a widely-read book of political philosophy and ethics by John
Rawls. It was originally published in 1971 and revised in both 1975 (for the translated
editions) and 1999. In A Theory of Justice, Rawls attempts to solve the problem of
distributive justice by utilizing a variant of the familiar device of the social contract.
The resultant theory is known as “Justice as Fairness“, from which Rawls derives his
two famous principles of justice: the liberty principle and the difference principle.

Reasonable Citizens
The political conception of justice points to a notion of reasonable citizens. “Citizens
are reasonable when, viewing one another as free and equal in a system of
cooperation over generations, they are prepared to offer one another fair terms of
social cooperation . . . and they agree to act on those terms, even at the cost of their
own interests in particular situations, provided that others also accept those terms.
For those terms to be fair terms, citizens offering them must reasonably think that
those citizens to whom they are offered might also reasonably accept them. . . . They
must be able to do this as free and equal, and not as dominated or manipulated, or
under the pressure of an inferior political or social position”. Rawls calls this the
“criterion of reciprocity.”

The second aspect of our being reasonable is “our recognizing and being willing to
bear the consequences of the burdens of judgment.”

The Original Position

The original position is a central feature of John Rawls’s social contract account of
justice, “justice as fairness,” set forth in A Theory of Justice. It is designed to be a fair
and impartial point of view that is to be adopted in our reasoning about the
fundamental principles of justice. In taking up this point of view, we are to imagine
ourselves in the position of free and equal persons who jointly agree upon and commit
themselves to principles of social and political justice.

The Veil of Ignorance

The main distinguishing feature of the original position is “the veil of ignorance”: to
ensure impartiality of judgment, the parties are deprived of all knowledge of their
personal characteristics and social and historical circumstances. They do know of
certain fundamental interests they all have, plus general facts about psychology,
economics, biology, and other social and natural sciences. The parties in the original
position are presented with a list of the main conceptions of justice drawn from the
tradition of social and political philosophy and are assigned the task of choosing from
among these alternatives the conception of justice that best advances their interests
in establishing conditions that enable them to effectively pursue their final ends and
fundamental interests.

“no one knows his place in society, his class position or social status, nor does anyone
know his fortune in the distribution of natural assets and abilities, his intelligence,
strength, and the like. I shall even assume that the parties do not know their
conceptions of the good or their special psychological propensities. The principles of
justice are chosen behind a veil of ignorance.”

The Principles of Justice

The first principle of justice: First: each person is to have an equal right to the most
extensive scheme of equal basic liberties compatible with a similar scheme of liberties
for others. ”

The basic liberties of citizens are, roughly speaking, political liberty (i.e., to vote and
run for office), freedom of speech and assembly, liberty of conscience, freedom of
personal property; and freedom from arbitrary arrest. It is important to explain what
the first principle means by the phrase “fully adequate scheme of equal basic
liberties.” First, what is included among the equal basic liberties? Rawls lists :

1) Freedom of thought

2) Liberty of conscience: He later explains liberty of conscience as “liberty as applied

to religious, philosophical, and moral view of our relation to the world.”

3) Political liberties: These liberties would require representative democratic

institutions, freedom of speech and the press, and freedom of assembly.

4) Freedom of association

5) Freedoms specified by the liberty and integrity of the person: He later elaborates
these as including freedom from slavery and serfdom and freedom of movement and
choice regarding occupation.

6) Rights and liberties covered by the rule of law: However he says, liberties not on the
list, for example, the right to own certain kinds of property (e.g. means of production)
and freedom of contract as understood by the doctrine of laissez-faire are not basic;
and so they are not protected by the priority of the first principle.

There is thus some uncertainty as to exactly what is mandated by the principle, and it
is possible that a plurality of sets of liberties satisfies its requirements.
The Second Principle of Justice: Social and economic inequalities are to be arranged
so that:

1. a) They are to be of the greatest benefit to the least-advantaged members of

society (the difference principle).

1. b) Offices and positions must be open to everyone under conditions of fair

equality of opportunity

Rawls’ claim in a) is that departures from equality of a list of what he calls primary
goods – ‘things which a rational man wants whatever else he wants’ – are justified
only to the extent that they improve a lot of those who are worst-off under that
distribution in comparison with the previous, equal, distribution. His position is at least
in some sense egalitarian, with a proviso that equality is not to be achieved by
worsening the position of the least advantaged.

An important consequence here, however, is that inequality can actually be just on

Rawls’s view, as long as they are to the benefit of the least well off. His argument for
this position rests heavily on the claim that morally arbitrary factors (for example, the
family we’re born into) shouldn’t determine our life chances or opportunities. Rawls is
also keying on an intuition that we do not deserve inborn talents, thus we are not
entitled to all the benefits we could possibly receive from them, meaning that at least
one of the criteria which could provide an alternative to equality in assessing the
justice of distributions is eliminated.

The stipulation in b) is lexically prior to that in a). ‘Fair equality of opportunity’ requires
not merely that offices and positions are distributed on the basis of merit, but that all
have reasonable opportunity to acquire the skills on the basis of which merit is
assessed. It is often thought that this stipulation, and even the first principle of
justice, may require greater equality than the difference principle, because large social
and economic inequalities, even when they are to the advantage of the worst-off, will
tend to seriously undermine the value of the political liberties and any measures
towards fair equality of opportunity.

The first principle is more or less absolute, and may not be violated, even for the sake
of the second principle, above an unspecified but low level of economic development
(i.e. the first principle is, under most conditions, lexically prior to the second principle).
However, because various basic liberties may conflict, it may be necessary to trade
them off against each other for the sake of obtaining the largest possible system of
rights.

Different Perspectives on
Justice
Martin Luther King on Justice
In Dr Martin Luther King Jr’s Letter From Birmingham Jail he dictates how injustice is
determined: a collection of the facts, negotiation, self-purification and direct action.
He says an “unjust law is a code that numerical or power majority group compels a
minority group to obey but does not make binding on itself.” By this definition, a great
injustice has existed throughout the course of human history. Each absolute monarchy
posed injustice on a large scale. Injustice can exist in any political system; sovereignty,
democracy, communism, each has a weak spot for unjust laws to be created by either
the majority of the dictator.

Plato’s Justice Philosophy

Plato’s idea of a just and fair society includes public education, philosopher-kings as
rulers, and an aristocratic government. He thought that men and women, though
generally different, should be treated equally. Just laws in Plato’s world would follow
these ideals accordingly. In his time, Plato’s ideas were seen as radical, though
throughout history we have seen instances of his philosophy. Today our society’s
children are educated by the state and it is illegal to treat men and women differently
and the majority of people agree with this.

Thomas Hobbes
Thrasymachus, a Greek philosopher once said, “Justice is simply the advantage of the
stronger.” No one could follow this philosophy more than Thomas Hobbes. In Hobbes’
political philosophy, all laws are fair and justified under the rule of an absolute
sovereign. According to him, even if a law makes no sense to citizens, it is justified
because all laws are to protect the greater good.
He never sees rebellion as justified within a government. Above all, Hobbes gives the
most justified action to those who do anything to protect themselves from death.

Jean-Jacques Rousseau
Hobbes’ philosophy of justice wouldn’t hold up in, say, Rousseauian world. Jean-
Jacques Rousseau’s ideas of just laws are in some ways nearly the opposite of
Hobbes; he believes that just laws are come by consensus and full participation of the
people. In Rousseau’s society, many laws could be perceived as unjust because
Rousseau believes that fair means agreed upon by everyone. Like Hobbes, Rousseau
also believes in the common good of the people; in his society, the sovereign is the
majority.

Robert Nozick
Entitlement theory is a theory of distributive justice and private property created by
Robert Nozick in his book Anarchy, State, and Utopia. The theory is Nozick’s attempt to
describe “justice in holdings” (Nozick 1974:150) – or what can be said about and done
with the property people own when viewed from a principle of justice.

Nozick’s entitlement theory comprises 3 main

principles:
A principle of justice in acquisition – This principle deals with the initial
acquisition of holdings. It is an account of how people first come to own common
property, what types of things can be held, and so forth.

A principle of justice in transfer – This principle explains how one person can
acquire holdings from another, including voluntary exchange and gifts.

A principle of rectification of injustice – how to deal withholdings that are

unjustly acquired or transferred, whether and how much victims can be
compensated, how to deal with long past transgressions or injustices done by a
government, and so on.

Pi J hP dh ’
Pierre-Joseph Proudhon’s
individualist social contract
(1851)
While Rousseau’s social contract is based on popular sovereignty and not on individual
sovereignty, there are other theories espoused by individualists, libertarians, and
anarchists, which do not involve agreeing to anything more than negative rights and
creates only a limited state, if any.

Pierre-Joseph Proudhon (1809–1865) advocated a conception of a social contract that

didn’t involve individual surrendering sovereignty to others. According to him, the
social contract was not between individuals and the state, but rather between
individuals themselves refraining from coercing or governing each other, each one
maintaining complete sovereignty upon oneself:

Thrasymachus
Thrasymachus says, “Justice is nothing else than the interest of the stronger”. Though
it seems like a very straight forward definition of justice, it is important to understand
why Thrasymachus uses the term justice in his definition of justice. Further, the
reading reveals that for him a major component of justice revolves around the
conventions of society. These conventions can be described as cultural customs such
as gender, slavery, and even holiday traditions. Moreover, he also reveals that the rulers
are the men who initiate and encourage the rituals of society. Working with this
definition of justice, it is important to know what is meant by the terms. The interest
of stronger individuals can take on several meanings. It can be speaking on physical
strength since it appears that Thrasymachus was a strong man. “Stronger” could also
mean the strength shown in political or mental arenas. The latter is more likely, but it
is feasible that Thrasymachus feels there is a correlation between physical, mental,
and political power.

Socrates
Socrates says that “one man should practice one thing only, the thing to which his
nature was best adopted,” and that is what he considers justice. He alludes to this
understanding of justice as being the only definition that has authority. He also
believes that this is the only definition that is right. This is the true understanding of
justice because it is the only virtue left when temperance, courage, and wisdom are
subtracted. However, Socrates uses logic through contradiction to prove justice. The
greatest harm to the city is someone stepping out of his or her own class, be that
warrior, ruler, and worker, and attempting to participate in another class. He then says
that harm to the city is unjust; therefore, it is unjust to do anything you were not born
to do. In conclusion, Socrates says that a city is a mirror image of man’s true identity.
He is able to apply this justice to men and their souls.

Critics of ‘A Theory Of
Justice’
Robert Paul Wolff wrote Understanding Rawls: A Critique and Reconstruction of A
Theory of Justice immediately following the publication of A Theory of Justice, which
criticized Rawls from a roughly Marxist perspective. Wolff argues in this work that
Rawls’s theory is an apology for the status quo insofar as it constructs justice from
existing practice and forecloses the possibility that there may be problems of injustice
embedded in capitalist social relations, private property or the market economy.

Feminist critics of Rawls, such as Susan Moller Okin, largely focused on the extent to
which Rawls’s theory could account for (if at all) injustices and hierarchies embedded
in familial relations. Rawls argued that justice ought only to apply to the “basic
structure of society”. Feminists, rallying around the theme of ‘the personal is political’,
took Rawls to task for failing to account for injustices found in patriarchal social
relations and the gendered division of labor, especially in the household.

The assumptions of the original position, and in particular, the use of maximin
reasoning, have also been criticized (most notably by Kenneth Arrow and John
Harsanyi), with the implication either that Rawls designed the original position to
derive the two principles, or that an original position more faithful to its initial purpose
would not lead to his favoured principles. In reply, Rawls has emphasized the role of
the original position as a “device of representation” for making sense of the idea of a
fair choice situation for free and equal citizens. Rawls has also emphasized the
relatively modest role that maximin plays in his argument: it is “a useful heuristic rule
of thumb” given the curious features of choice behind the veil of ignorance.
Some egalitarian critics have raised concerns over Rawls’s emphasis on primary social
goods. For instance, Amartya Sen has argued that we should attend not only to the
distribution of primary goods but also how effectively people are able to use those
goods to pursue their ends. In a related vein, Norman Daniels has wondered why
healthcare shouldn’t be treated as a primary good, and some of his subsequent work
has addressed this question, arguing for a right to health care within a broadly
Rawlsian framework.

Philosopher Allan Bloom, a student of Leo Strauss, criticized Rawls for failing to
account for the existence of a natural right in his theory of justice and wrote that
Rawls absolutizes social union as the ultimate goal which would conventionalize
everything into artifice.

Recent criticisms of Rawls’s theory have come from the philosopher G.A. Cohen.
Cohen’s series of influential papers culminated in his book, If You’re An Egalitarian,
How Come You’re So Rich? Cohen’s criticisms are levelled against Rawls’s avowal of
inequality under the difference principle, against his application of the principle only to
social institutions, and against Rawlsian fetishism with primary goods (again, the
metric which Rawls chooses as his currency of equality).

Conclusion
Rawls’ theory of justice as fairness involves a central contention that principles of
justice essential to the structure of a constitutional democracy must be viewed as
political in contrast to more comprehensive moral, philosophical or religious doctrines.
The concept of justice is not it is being true to an antecedent moral order and given to
us, but it’s being congruent with our self-understanding within the history of justice as
political is not a mere modus vivendi, for it embodies an overlapping consensus that
does have a moral basis. Critical reaction to Rawls has been that what is simply a
consensus within a tradition of public discourse cannot afford an adequate criterion of
moral justification and that Rawls cannot define the moral basis for justice as fairness
without some reference to a comprehensive theory of the good. But it will be argued
that critics are missing what is central to Rawls’ theory of moral justification as what
he sees to be the outcome of a process of “wide reflective equilibrium” in which
principles of justice initially given within a tradition are weighed against rival moral
theories and in relation to scientific theories of human nature and society in order to
establish what seems “most reasonable to us.”
 By Kumar Rishabh Parth

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One thought on “DIFFERENT PERSPECTIVES OF JUSTICE IN DIFFERENT

STATUTES”
1. Shallu Vashishth says:
April 1, 2020 at 12:10 pm
Great.
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