Justice has the central importance in political practice and theory. In defending or opposing laws, public policies and administrative decisions of government, appeals are made to notions of justice. Justice is also involved in social and political movements like Civil Disobedience Movement and Satyagraha campaigns.
In the words of the leading contemporary moral and political philosopher, John Rawls of Harvard university. "Justice is the first virtue of social institutions". He made that statement in his book, A Theory of Justice, which was published in 1971. Rawls' book inaugurated a golden age in theorising about justice. Consequently, justice, as noted by Tom Compbell, is today
"The central and commanding concept of current mainstream normative political philosophy".
Meaning of Justice
The word justice is derived from the Latin words jungere (to bind or to tie together) and jus (a bond or tie). As a bonding or joining idea, justice serves to organise people together into a right or fair order of relationships by distributing to each person his or her due share of rights and duties, rewards and punishments.
The Roman Emperor Justinian, stated some of the precepts of justice (in Latin) as alterum non laedere (not to harm or injured others); and suum cuique tribuere (to allocate to each what is due to him or her). Justinian's precepts of justice were derived from the Greek philosopher, Aristotle, who had defined justice as the treating of equals equally and of unequals unequally in proportion to their inequalities. He had also distinguished three types of justice, namely, distributive justice, corrective justice and commutative justice (i.e. the justice of equivalence in the exchange of different kinds of goods).
Types of Justice
The types of justice are discussed below
Procedural Justice
Procedural or formal justice refers to the manner in which decisions or outcomes are achieved, as opposed to the content of the decision themselves. In other words, procedural justice refers to justice as fairness or impartiality of the processes and procedures through which a law or policy or decision is arrived at and applied.
John Rawls' principles of just distribution of social primary goods claims that this is a theory of 'pure procedural justice'. By pure procedural justice, he means that the justice of his distributive principle is founded on justice-as-fairness of the procedure through which they have been arrived and that they have no independent or antecedent criteria of justice or fairness but were lacking procedural justice as fairness. There would have been principles of imperfect procedural justice.
Legal systems can claim to be just in precisely the same way in which they operate according to an established set of rules designed to ensure a just outcome. In short, justice is 'seen to be done'.
These procedural rules can however take one of two forms that it must be impartially followed or consistently applied in order to generate an unbiased decision. In the case of what John Rawls called 'pure procedural justice' the question of justice is solely determined by the application of just procedures, as with the example of a running race or a lottery. In a court of law, on the other hand, there is prior knowledge of what would constitute a just outcome and in which case the justice of the procedure consists of their tendency to produce that outcome.
Substantive Justice
It refers to justice or fairness of the content or outcome of law, policies, decisions, etc. Needs-based justice is seen as substantive justice. Like all normative principles, the idea of substantive justice is subjective, at heart, it is a matter of opinion. Notion of justice therefore vary from individual to individual, from group to group, from society to society, and from period to period.
Indeed, the decline of religion and traditional values, and the growth of both social and geographical mobility, has encouraged the development of moral pluralism. Ethical and cultural diversity make it impossible to make any firm or authoritative judgements about the moral conduct of law, or to establish reliable criteria for distinguishing just laws from unjust ones.
The legal principles created by Parliament and the courts need to be regarded as 'just'. The moral and cultural values of the society in which the law is created are especially influential in determining whether the law is regarded as just. For instance, whether the laws on abortion or drugs are regarded as just will largely depend on the attitudes that are prevalent in that society.
Distributive Justice
John Rawls A Theory of Justice published in 1971 is an analytical study of justice in contemporary political theory. which is widely read, discussed and debated.
Its relevance is due to the questions that Rawls has raised that are directly linked to the present day issues like equitable distribution of resources among the people. particularly of those which he considers as primary goods.
The book A Theory of Justice has three parts in it, i.e. part one theory, part two institutions and part three ends.
The first part of the book has been talked about widely among the political thinkers. It has Rawls' core ideas on justice. Rawls regards his own theory of justice to be deontological as for him the right is prior to and independent of the good, and he defines what is good within the boundary of right.
Justice for him is the virtue of social conduct and institutions. Therefore, his focus is on justice in the institutions, not on the virtue of individuals. His whole focus is on the social structure and not on the individual. A Just society for him is that society whose basic structure is just.
Principles of Justice
Rawls argues that self interested rational persons behind the veil of ignorance would choose general principles of Justice to structure the society in the real world. These principles are
Principle of Equal Liberty - Each person has an equal right to the most extensive liberties compatible with similar liberties for all.
Difference Principle - Social and Economic inequalities should be arranged so that they both became the greatest benefit to the least advantaged persons and are attached to offices and positions open to all under conditions of equality of opportunity.
The order of these two principles is fixed in the sense that for the sake of difference principle the principle of equality cannot be sacrificed. In other words, there is an order of priority. How Rawls arrives at these two principles is an interesting question. Here, he invokes the contractarian theory. These principles are arrived at as a result of participation and contract.
Veil of Ignorance
Rawls assumes a hypothetical situation which he calls 'original position'. Another teresting thing to be noted is that anybody can, at any point of time enter into this original position.
The original position is a condition where individuals act freely, rationally and equally. In other words, men in the original position are free, rational and equal. He brings in another notion of 'veil of ignorance', i.e while participating in determining the principles of justice, they are behind the veil of ignorance. The contractors deliberating the basic structure of the society have no knowledge of the following
• Specific desires and inclinations, wants and preferences
• Substantive conception of good
• Skills and abilities
• Period of history, race, nationality or gender
This lack of knowledge about their own status makes them impartially choose the principles of justice. Further, Rawls says that they are rational, half a sense of justice and possess the elementary knowledge of Economics and Psychology.
Both factors, when combined, i.e. their lack of knowledge about some aspects and knowledge about some other aspects, create a condition where anyone's choice can be everyone's choice because personal preferences are completely absent. Since, they are unaware of the differences, there is universal consensus. Thus, the principles of justice become universal.
At any point of time, anywhere, a just society is one where these two principles are applied in the distribution of resources which Rawls call 'primary goods'.
Rawls makes a distinction between the natural primary goods and the social primary goods. The natural primary goods include health, vigor, intelligence and imagination and so on which cannot be distributed but the social primary goods like rights, liberties, opportunities, powers, income, wealth, self-respect can be distributed.
The social primary goods need to be distributed according to the second principle of justice, i.e. to improve least advantaged members of society.
Criticism
The critics agrue that this theory is purely a procedural theory of justice. The main assumption that there exists something that can be distributed is also questioned. One of the main critics is Robert Nozick, who believes that everything belongs to somebody or the other and confiscating that from him is injustice.
The 'luck egalitarians' (view about distributive Justice) criticise it on the ground that Rawls puts natural abilites into collective assets, but they are not collective assets, they are the entitlement of individuals.
Separating ones talents from oneself amounts to disrespecting the individual dignity. Finally, it is alleged that the Rawlsian theory provides a patterned social existence, but that is not the reality. Thus, to his critics, Rawls' theory looks utopian.
Justice as Entitlement
Robert Nozick, in his book Anarchy, State and Utopia, questioned the basic assumptions of the distributive theory of justice of Rawls. As a counter theory, he gives an unpatterned theory of entitlement.
He gives the three principles which some theorists have called the three theories of entitlement.
The three principles of entitlement are
(i) Just Acquisition of Holdings - A person who acquires a holding in accordance with the principle of justice on acquisition is entitled to that holding. Anything acquired with one's effort belongs to him.
(ii) Just Transfer of Holdings - A person who acquires a holding, in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding. It gives the holder the right to transfer the holdings as per his own voluntary decision and that makes it just transfer. Thus, theft, dupe, fraud or even taxation become unjust because all these are involuntary. On the other hand, the transactions, barters and contracts where transfer take place based on one's voluntary ement amounts to just transfer.
(iii) Rectification of Injustice - No one is entitled to a holding except by applications of (i) and (ii).
The first-two principles question the assumption of Rawls that the resources need to be distributed on the bases of two principles which men have agreed upon in the original position behind the veil of ignorance. According to Nozick, only that can be distributed, which has not followed the just principle and the just holdings are entitlement of the person, therefore, cannot be put into the common kitty for distribution.
The principle to be followed in redistribution is based on the history of entitlement, only when distribution is unjust the principle of redistribution apply. Robert Nozick's theory of justice has come under attack by the egalitarians.
Communitarian Perspective of Justice: Michael Walzer
Michael Walzer in his work Spheres of Justice gave an inclusive theory of justice, as it deals with different spheres where the question of justice arises. Walzer wrote in the beginning of 'Spheres of Justice'
"I want to argue that the principles of justice are themselves pluralistic in form; that different social goods ought to be distributed for different reasons, in accordance with different procedures, by different agents, and that all these differences derives from different understandings of the social good themselves the inevitable product of historical and cultural particularism".
Walzer claims his theory of justice as relativistic and pluralistic. The need for a good and distribution of goods differ from one sphere to another, from community to community, and from society to society.
A universal distributive theory of justice, therefore is neither possible nor justifiable according to Walzer, as a communitarian thinker. Walzer holds that human-self is not autonomous and independent, but related and embedded. It is the community that shapes the self and hence, conception of Justice. In a nutshell, society and social meanings, occupy a central place in Walzer's theory of Justice.
Feminist Conception of Justice
Susan Moller Okin has added the question of gender to the contemporary debate on justice. Thus, she has expanded the sphere of debate by bringing two issues; one is gender and the other is justice in the family. In her book, Justice, Gender and the Family, she considers three things
(i) Firstly, she is critical of the existing liberal theories of justice as gender and family are not given due consideration. By being blind to the gender issues, it completely ignores 'difference'.
(ii) Secondly, as a result of such attitude gendered society is created where women do not get justice, and injustice is created.
(iii) Thirdly, she makes certain policy proposals to address this type of injustice.
Okin holds firmly that the tradition, socialisation and role fixation are gendered in the sense that there is inequality in status of rights and the legal system furthers it by being blind gender differences. She calls this to institutionalisation of sex differences as the gender system. Her main objection against the liberal tradition is that the gender system has remained outside the sphere of justice.
It has never been included, as women are relegated to the household from the time of Aristotle and the tradition continues. Thus, along with the household women were also not considered the subjects of justice. She writes from 'Plato to Freud' many political philosophers like Bodin, Rousseau. Kant, Hegel and Bentham have either in brief or in detail hold the same view and she looks into how the contemporary theories of justice have looked at gender.
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