34 UNITS JUSTICE* Structure 5.0 5 52 54 55 56 57 58 39 Objectives Introduction Meaning of Justice 5.2.1 Justice and Law 5.2.2. Justice and Discrimination Distributive Justice 5.3.1. Distributive Justice and Eeonomie Justice Social Justice 5.4.1. Predominance of the Interest ofthe Community 5.42 Reforms or Social Change 543 Pound’s Illustration of Social Justice S44. Criticism of Social Justice Procedural Justice John Rawls’s Theory of J stice Justice: A Term of Synthe Let Us Sum Up References 5.10 Answers to Check Your Progress Exercises 5.0 _ OBJECTIVES This unit discusses the concept of justice, one of the most basic and important concepts in political science in general, and political theory in particular. After studying this unit, you should be able to: 5.1 Define the concept of justice: Distinguish between the various aspects of justice; Identify and describe the different theories of justice; and Describe the relationship between liberty, equality, law and justice. INTRODUCTION By now, you all must be familiar with concepts like law, rights, liberty and equality. A prior study of these concepts will help in understanding the concept of justice. The element of justice, in fact, connects the above mentioned themes. In this unit, we shall first try to understand the meaning of the concept in its different aspects, Then, we shall study the different theories of justice. We shall also try to bring out the relationship between justice on one hand and law, liberty and equality on the other. Justice is one of the important aims of the state, One of the earliest treaties on polities, Plato’s Republic was an attempt to construct a just state. Justice was its central concept. Therefore, a correct understanding of this concept will help in evaluating different political systems, their policies and ntributed by Dr. Rachna Suchinmayee, Magadh University, Patna, adapted from Unit 20, EPS-ILthe ideologies on which they are based. Thus, justice is the reconciler and synthesizer of political values and as said by Aristotle it is ‘what answers to the whole of goodness’. 5.2__ MEANING OF JUSTICE Any discussion of the concept of justice has to take into account its multi dimensional character. The answer to ‘what is justice’ can only be given by indicating guidelines (values) along which men have thought of justice and will continue to do so, It changes with the passage of time. Thus, what was justice in the past may be injustice in the present and vice-versa. Thus, there have been the ‘egalitarian’ perception of justice where the highest place is accorded to the value of equality; the libertarian’ perception in which liberty is the ultimate value; the Divine view in which justice is the execution of God's will, the “hedonist’ makes ‘the greatest good of the greatest number’ the criterion of justice; to the *harmonizer’ justice is the harmonizing of different elements and valu to produce a satisfactory balance. Some identify justice with “duty” or with maintenance of peace and order; others view it as an elitist function. Thus, justice concerns the rights of the individual as well as the social ordering of society. It is legal and moral at the same time. In short, it is an ethical concept. 5.2.1 Justice and Law ‘The Roman lawyers integrated the ideas of ‘natural justice’ with the positive law of the state. As such, the civil law and the law of nations are in conformity with the law of nature. This, however, is an abstract phase of jurisprudence. In fact, justice lies in the enforcement of the positive law. Both law and justi seek to sustain social order. John Austin is the main advoeate, who tells that the law has to function as an instrument of justice, on one hand, and function as an instrument to suppress mischief, on the other. Legally, the administration of justice can be criticised as unjust if it fails to meet the standards of fairness required by the procedures of the legal system, viz. the accused should be informed of the charges levelled against him; he should be given a reasonable opportunity to defend himself ete; while morally, a law can be called unjust if it fails to meet the moral ideas of justice. Morality, however, goes beyond justice. The symbol of justice is often portrayed as blindfolded because it is supposed to be impartial. There should be no discrimination between two extremes —rich or poor, high or low. Therefore, impartiality becomes a precondition to justice. Does it mean then that justice does not require discrimination at all? 5.2.2 Justice and Discrimination Plato and Aristotle argued fora different interpretation of ju equality” with the idea of “righteousness”. The philosophical interpretation of justice takes an empirical direction in the hands of Aristotle who says: “Injusti arises when equals are treated unequally”. This means that if in a democracy there is discrimination on the basis of sex, it would mean treating the equals, unequally. Also, it would be unfair to pit a heavy-weight wrestler against a lightweight one. Thus, justice requi mination on the basis of differences, which is relevant to the functions performed, Plato’s theory of justice too implied that the life of people should conform to the rule of functional specialization. SusticeConcepts 56 Here, justice becomes another name for the principal of ‘proper stations’; Le. a man should practice one thing only to which his nature is best adapted. This has both individual and social aspects. The highest good of both the individual and the society is conserved, if we take it for granted that there is nothing better for aman than to do a work that he is best fitted to do, there is equally nothing better for the society than to see that each should be filling the station to which he is best entitled by virtue of the special element of his personality. For this, the three elements of reason, sprit and appetite have been highlighted for the individual and the state, to keep their proper bounds. Also, normally the law does not interfere in instances of discriminatory treatment in private life. But if it causes social harm, the state would be justified in interfering in it, like in instances of untouchability, where some groups are denied ‘human rights. Therefore, a law against it would be just. Also, the separate facilities accorded cannot be truly equal. It is because of this that Babasaheb Dr. BR Ambedkar demanded the right of entry to temples for Scheduled Castes and opposed separate temples, schools or hostels for them, Check Your Progress 1 Note: i) Use the space given below for your answer. ii) See the end of the unit for tips for your answer. 1) Whatis justice? 2) How does discrimination fit in the concept of justice’ 5.3 DISTRIBUTIVE JUSTICE The idea of Aristotle came to lay down the foundation of what is called the doctrine of distributive justice. The essential implication of Aristotle’s explanation is that justice is either ‘distributive’ or ‘corrective’; the former requires equal distribution among the equals and the latter applying wherein remedy fora wrong is provided. The principle that Marx puts forward for distributive justice in the post- revolutionary socialist society is ‘from each according to his ability to each according to his work. The idea of distributive justice is reflected in the ‘work of some recent political economists. In this context, reference to the workof JW. Chapmen deserves merit, who seeks to integrate the idea of justice with his principles of ‘economic rationality of man’ and ‘consumer's sovereignty’ coupled with the individual claim of ‘moral freedom’. To him, the first principle of justice appears to be the distribution of benefits, which maximise benefits in accordance with the principle of consumer's sovereignty. The second principle is that a system is unjust, if the material well being of a few is purchased at the expense of many. It implies that justice requires that no one shall gain at the expense of another: 5.3.1 Distributive Justice and Economic Justice Distributive justice subjects to the condition of general welfare. It demands that the state of national economy be reshaped in a way that the benefits are made available to the common man. In this way, the idea of economic justice comes to imply a socialistic pattern of society. The first task of economic justice is to provide employment, food, shelter and clothing to every able-bodied citizen, In regard to this area of satisfying the primary and basic needs of all, it has been correctly said that freedom is meaningless if it prevents the achievement of economic justice. Thus, the liberals believe that economic justice can be attained in society if the state provides welfare services and there is a progressive system of taxation; a fair return for work provision of social security like old age pension, gratuity and provident fund. However, the Marxist view of justice has its origins in the area of economics. According to Marx, the positive law of the state is imposed on its members by the authority of the class, which controls the means of production. Law is determined by the economic interest of the ruling class. When private property is abolished and the working class controls the means of production, then the laws are bound to reflect the interest of the working class. ‘Therefore, the content of justice depends upon the class controlling the means of production. When the state withers away, as contemplated by the communists, there will be justice without an economic origin. Modem liberals have since Jong given up the doctrine of economic laissez-faire. Redistributive justice (of which Aristotle spoke) is an integral part of ‘revisionist liberalism’ as advocated by J.W. Chapmen, John Rawls and Arthur Okun. These writers advocate “redistributive justice” with its implication of state intervention in the economy in the interest of justice and freedom for all. Check Your Progress 2 Note: i) Use the space given below for your answer. fi) See the end of the unit for tips for your answer. 1) What is distributive justice? SusticeConcepts 58 5.4 SOCIAL JUSTICE Social justice relates to the balance between an individual's rights and social control ensuring the fulfilment of the legitimate expectations of the individual under existing laws and to ensure him benefits and protection against any encroachment on his rights. Let us examine the term, ‘social justice” in terms of the following aspects of justice, viz. one, the notion of the predominance of the interest of the community and two, the notion of ‘reform’, or social change. 5.4.1 Predominance of the Interest of the Commu ity With the decline of the laissez-faire doctrine, a new awareness has developed thal the rights of an individual should be reasonably restricted in the interests of the community because the ends of social justice require the reconciliation of individual rights with that of community interest. It also presumes that in the event of a conflict between the two, the community interest must prevail over individual concerns. Social justice is, thus, closely linked with the idea of what constitutes public good or community interest. Today with the penetration of democracy into the social and economic spheres, community interest has come to encompass not only the political (fair treatment in political matters) but also the social (non- discrimination in social areas) and economic (fair distribution of income and wealth) spheres. Thus, social justice ranges from the protection of minority political rights to the abolition of untouchability and the eradication of poverty. As such, in the backward countries of the world, the idea of social justice enjoins upon the state to make concerted efforts for the improvement of the downtrodden and weaker sections of the community. 5.4.2 Reforms or Social Change Social justice is used to denote organization of society on the basis of ideas of faimess and equality current at the time. It seeks a revision of social order so as to have a more equitable society. Men through the ages have sought changes in social order, just as much as they have also sought to preserve a given social order. Social justice stands for reformative justice, for revision of the social order and a redistribution of rights to suit current ideas of fairness. When Aristotle spoke of ‘distributive justice” he had reformative or what Raphael calls “prosthetic” justice in mind, because their aim was to modify the status quo. A hundred years ago, justice did not require governments to take care of the unemployed. Charity was supposed to do that. Due to the operation of notions of “reformative” or “prosthetic” justice, today, it is considered the state’s duty to take care of the unemployed and provide them employment 5.4.3 Pound’s Illustration of Social Justice The affirmation of the idea of social justice is very well contained in the interpretation of Dean Roscoe Pound who presents a six-fold illustration of social interest and lays down eight jural postulates to ensure social justice. Thus, the idea of social justice promotes the welfare of the people by securing a just social order.5.4.4 Criticism of Social Justice Theories of social justice are criticised on three grounds. Firstly, demands for social justice, by implication, enlarge the activities of the state. The state, then, will have to decide, “who gets, what, when and how.” Where the officers of the state develop vested interests, such subjective determination is not likely to serve the ends of social justice. Secondly, policies of social justice and their implementation require curtailment of liberty. How much of liberty should be sacrificed for how great/small social justice becomes a problem difficult to solve. Lastly, it is difficult to assess which are the basic needs that have to be satisfied to fulfil the criteria of social justice and which justify departure from equality. However, when the Indian Constitution announces reservation of seats in legislature, educational institutions and public employment, it strictly speaking, entails departure from equality. Various justifications are offered for these policies in terms of justice. Firstly, that such treatment compensates for hundred years of deprivations. Secondly, that these measures are necessary for realising ultimate ‘equality to bring the traditionally disadvanted on an equal footing with society and thirdly, that justice can be done only if the state comes forward with preferential policies to help them gain social respect, economic viability and political status. Check Your Progress 3 Note: i) Use the space given below for your answer. ) See the end of the unit for tips for your answer. 1) What is social justice? 5. PROCEDURAL JUSTICE A more narrow view of justice is what is known as procedural justice. In this sense, the term is used not so much to prescribe redistribution of wealth or values as to the rules and procedures applied to individual actions. Essentially, seeks to eliminate arbitrariness in human actions and supports the rule of law. ‘This conception deals with individuals and not collectivities. In this view, not sticking to rules and procedures, jumping the queue or giving unfair advantage to some in competition would be unjust. The procedural theorists (for example Hayek) believe that imposing criteria for redistribution of wealth would lead to totalitarianism and an unjustified sacrifice of liberty. It involves constant intervention by the state to maintain the pattem required by equality. They feel that even if the state follows a policy of welfare, this has little to do with justice, Crities of procedural theory of justice argue that mere following of rules does not ensure a just result, The rules formed in a social context are weighed in SusticeConcepts 60 favour of some groups. Therefore, a free competition may not always be a fair competition. Secondly, a free market relationship can be equally coercive for individuals who lack economic power; for them the liberty of a free market would be meaningless. 5.6 _JOHN RAWLS’S THEORY OF JUSTICE Different political theories offer different pictures of what would be a really just social order. Two of these theories are, the Utilitarian Theory, and John Rawls’s Theory of Justice as Faimess. Utilitarian theory asserts that the social order in which the largest number of people can have the highest satisfaction of their utility is just. But from its very carly days, erities have found great difficulties with utilitarianism, In this backdrop, Rawls's theory has offered, an altemative to utilitarianism, Rawls’s book, A Theory of Justice gives a final interpretation of the concept. To discuss Rawls’s theory of justice, his method of approaching moral problems must be mentioned first, which is in the contractarian tradition of social philosophy. But at the same time, Rawls's method entails that the conclusions of moral reasoning be always checked and readjusted against intuitive moral notions and this contrasts with others in the contractarian tradition, who maintain that the rules of justice are those that would be agreed to in a hypothetical setting. Rawls places men behind the ‘veil of ignorance’ ina hypothetical original position where individuals are deprived of the basic knowledge of their wants, interests, skills, abilities and of the things that generate conflicts in actual societies. But they will have what Rawls calls ‘a sense of justice’. Under these circumstances, Rawls argues, people will agree to accept two principles of justice in the lexical order. First, is the equality principle where each person is to have an equal right to the most extensive liberty compatible with a similar liberty to others. Here, equal liberties can be coneretised as the familiar rights of liberal democratic regimes. They include the equal right to political participation, freedom of expression, religious liberty, equality before the law and so on. The second principle is called the difference principle where Rawls argues that inequalities can only be justified, if it benefits the least advantaged. John Rawls’s concept of justice has two aspects to it. Firstly, it postulates a “constitutional democracy”; that is, government of laws and one, which is restrained, responsible and accountable. Secondly, it believes in the regulation of the free economy “If law and government”, writes Rawls, “act effectively to keep market competitive, resources fully employed, property and wealth widely distributed over time, and to maintain the appropriate social minimum, then if there is equality of opportunity underwritten by education for all, the resulting distribution will be just”. The “redistributionists” have their critics too. Thus, Mare F. Plattner makes two arguments against the above view of justice. Firstly, he believes that although equality is a cherished value, it may not be possible to have it at the expense of efficiency. According to Plattner, this problem of equality versus increased wealth lands Rawls into an inconsistency. Thus, on the one hand, Rawls “absolutely refuses to allow that those who make a greater economic contribution deserve greater economic rewards”. Yet his “difference principle” (which specifies that “social and economic inequalities are to be arranged so that they are to the greatest benefit of the least advantaged”) nonetheless affirms that it is just to grant them greater economic rewards insofar as these serve as incentives toincrease their contribution in ways that ultimately benefit the disadvantaged. ‘The second argument Plattner makes is that the redistributionists want to refuse to the individual the reward of his “honest industry “and instead, considers all produce as the “common asset” of society as a whole. And this Plattner wants us to believe, undermines the “moral foundations of private property and therewith of liberal society” Check Your Progress 4 Note: i) Use the space given below for your answer. ii) See the end of the unit for tips for your answer. 1) Discuss the second principle of John Rawls's theory of justice. 5.7 _ JUSTICE: ATERM OF SYNTHESIS Perhaps, the best approach to justice is to view it as a term of synthesis. The problem of justice is one of conciliation. The function of justice is the conciliation of different liberties (political, social and economic) with each other; the different equalities (political, social and economic) with each other as well as the task of coneiliating liberty in general, in all its forms, with equality in general, in all its forms. In brief, justice means the synthesis of conflicting values and holding these together in some state of equilibrium. Many eminent writers have chosen to take sides in the liberty versus equality tussle. Lord Acton had, many years ago, made the memorable pronouncement that “the passion for equality made vain the hope of freedom” (he was speaking in the context of the French revolution). The champions of “liberty alone” like 1 E. Lecky in his book Democracy and Liberty claim that, “Equality is only attained by a stringent repression of natural development”. Actually, liberty and equality both matter; as Carritt puts it, they involve one another. Freedom has a better content if there is equality. And, at the same time it is freedom that enables men to demand equality. Give men liberty and they are sooner, rather than later, going to ask for equality. The interlinking between liberty and equality can be brought out in many ways. Take the case of freedom of speech and vote, both of which can be vitiated by a grossly uneven distribution, of wealth, The wealthy are in a better position not only to contest but also to propagate. The wealthy have easier access to the propaganda apparatus. Harold Laski's words still ring true: “Every attempt of an individual to assert his liberty in a society of unequal will be challenged by the powerful”. In short, we find that political liberty and economic democracy have to go hand in hand. And if we examine several political values, we find though apparently they may appear mutually contradictory, on closer examination, they will be found to be complementary and interlinked. In any case, it is the funetion of justice to Sustice 61Concepts 62 synthesize or reconcile the various and often-conflicting values. Justice is the final principle, which controls the distribution of various rights, political, social and economic in the interests of liberty as well as equality. Such a concept of justice grows historically as a process of development of social thought. In this sense, it is a growing concept reflecting social reality and aspiration. 5.8 LET US SUM UP What we have seen so far leaves an impression that justice is essentially a normative concept having its place in various spheres like religion, ethics and law though its ramifications cover social, political and economic spheres. Impartiality is anecessary condition ofustice. Impartiality does not mean treating everyone equally without discrimination, One interpretation is to treat equals equally and unequals unequally. But chiefly discrimination has to be on relevant criteria, Justice requires discrimination of values on a just basis. Social justice emphasises the needs of the people. It also calls for preferential policies in the Indian social context, As against this, procedural justice requires the rule of law and elimination of arbitrariness. In Rawls’s theory of justice, individuals have to make a choice of social order. They would naturally prefer an egalitarian society. His theory grants equal basic liberties for all. Inequalities should be attached to offices open to all. They should benefit the disadvantaged section ‘the most. In the end, however, instead of delving deep into the debate over the perplexing connotations of justice, it shall be worthwhile to say that it is the connecting bond of all-important political values. For instance, there can be no liberty if the norm of equality is violated and there can be no equality if there is no justice. Obviously, justice is integrally connected with the norms of liberty and equality Likewise, we may say that there can be no liberty if there is no right, and there is no protection of rights, if there is no well organized system of law to ensure the administration of justice. Obviously, once again, the idea of justice is essentially bound up with the concepts of rights and law. The most important point to be taken note of at this stage is that not only the idea of justice is integrally connected with the norms of law, liberty, equality and rights, but that it constitutes the essential link. Justice in this sense is the reconciler and synthesizer of political values. Daniel Webster was perfectly right when he said that justice “is the chiefest interest of man” 5.9 REFERENCES Alllen, C.K. (1955). Aspects of Justice. London: Steven and Sons. Barry, Norman P. (1981). An Introduction to Modern Political Theory. London: Macmillan. Emest Barker. (1967). Principles of Social and Political Theory. London: Oxford Universit Raphael, D.D. (1976). Problems of Political Philosophy. London: Macmillan.Sustice 5.10 ANSWERS TO CHECK YOUR PROGRESS XERCISES Check Your Progress 1 1) Your answer should highlight egalitarian, libertarian, divine and hedonist views about justice. 2) Highlight that justice requires discrimination on the basis of differences. Check Your Progress 2 1) Your answer should highlight the following points: © Distributive justice argues for general welfare, ‘© Economic benefits should reach common man. ‘© Liberal and Marxist views, Check Your Progress 3 1) Your answer should highlight the following points © Social justice argues for balance between an individual’s rights and social control. ‘* State should protect the interests of the marginalised sections. Check Your Progress 4 1) The second principle, also called the difference principle argues that inequalities can be justified only if they benefit the least advantaged sections of society. 63