They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association. These principles are to regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established.²

WHAT IS JUSTICE?

Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethics.³ Justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion. Justice has traditionally been associated with concepts of fate, reincarnation or Divine Providence, i.e. with a life in accordance with the cosmic plan. The association of justice with fairness has thus been historically and culturally rare and is perhaps chiefly a modern innovation [in western societies].

Importance of Justice

In the words of Prof. Sidgwick, “In determining a nation’s rank in political civilisation, no test is more decisive than the degree in which justice as defined by the law is actually realised in its judicial administration.” Lord Bryce writes, “There is no better test of the excellence of a government than the efficiency of its judicial system.” George Washington said, “Administration of justice is the firmest pillar of government. Law exists to bind together the community. It is sovereign and cannot be violated with impunity.” Salmond and Roscoe Pound have emphasized the importance of justice in their definitions of law. They have defined law in the terms of justice. According to Salmond, “Law may be defined as the body of principles recognised or enforced by public and regular tribunals in the administration of justice.” Blackstone wrote, “Justice is not derived from the king as his free gift but he is the steward of the public to dispense it to whom it is due. He is not the spring but the reservoir from whence right and equity are conducted by a thousand channels to every individual.”

Justice according to Law

In modern times, what is given by the courts to the people is not what can really be called justice but merely justice according to the law. Judges are not legislators and it is not their duty to correct the defective provisions of law. Their only function is to administer the law of the country. They are not expected to ignore the law of the country. It is rightly said that “in modern State, the administration of justice according to law is commonly taken to imply recognition of fixed rules.”

A few illustrations may be given to show what we understand by justice is according to law. A creditor has to realise some money from a debtor. However, he files a suit after the lapse of 3 years. Equity may be on his side, but his suit must fail on account of the law of limitation which demands that a suit must be filed within 3 years. Likewise, a person may have actually committed a murder. He may confess his guilt before the police officer who is an honest man. However, he does not make a confession before a magistrate. If he is convicted on the basis of his confession before the police officer, his conviction has to be set aside as it is opposed to the law of the country. Even if a guilty person escapes, judges are not bothered about it. They do not play and are not expected to play the role of legislators. If the law is defective, it is the duty of the people to demand from their legislators to alter the same. However, so long as a particular law is on the statute book, the same has to be enforced unmindful of the consequences.

Law may be blind and therefore justice becomes blind, but there is no help for it. Judges are expected to give justice according to the law of the country and not according to what they consider to be just under the circumstances.⁴

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 offense had on the victim.

Distributive justice is directed at the proper allocation of things — wealth, power, reward, respect — among different people.

Oppressive Law exercises an authoritarian approach to legislation that is "totally unrelated to justice", a tyrannical interpretation of 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. One thread all of these theories have in common is that they are theorizing about what constitutes a proper or right relationship. On this take of things, justice is the philosophy of right relationships.⁵

RELATION BETWEEN LAW AND JUSTICE

The terms most frequently used by lawyers in the praise or condemnation of law or its administration are the words ‘just’ and ‘unjust’ and very often they write as if the ideas of justice and morality were coextensive. They are indeed very good reasons why justice should have the most prominent place in the criticism of legal arrangements yet it is important to see that it is a distinct segment of morality and that laws and the administration of laws may have or lack excellences of different kinds. Very little reflection on some common types of moral judgments is enough to show this special character of justice. A man guilty of gross cruelty to his child would often be judged to have done something morally wrong, bad or even wicked or to have disregarded his moral obligation or duty towards his child. But it would be strange to criticize his conduct as unjust. This is not because the word ‘unjust’ is too weak in condemnatory force, but because the point of moral criticism in terms of justice or injustice is usually different from, and more specific than, the other types of general moral criticism which are appropriate in this particular case and are expressed by words like ‘wrong’, ‘bad’ or ‘wicked’. ‘Unjust’ would become appropriate if the man had arbitrarily selected one of his children for severer punishment than those given to others guilty of the same fault, or if he had punished the child for some offence without taking steps to see that he really was the wrongdoer. That just and unjust are more specific forms of moral criticism than good and bad or right and wrong, is plain from the fact that we might intelligibly claim that a law was good because it was just or that it was bad because it was unjust, but not that it was just because good or unjust because bad.

The distinctive features of justice and their special connection with law begin to emerge if it is observed that most of the criticisms made in terms of just and unjust could almost equally well be conveyed by the words ‘fair’ and ‘unfair’. Fairness is plainly not coextensive with morality in general; references to it are mainly relevant in two situations in social life. One is when we are concerned not with a single individual’s conduct but with the way in which classes of individuals are treated when some burden or benefit falls to be distributed among them. Hence what is typically fair or unfair is a ‘share’. The second situation is when some injury has been done and compensation or redress is claimed. These are not the only contexts where appraisals in terms of justice or fairness are made. We speak not only of distributions or compensations as just or fair but also of a judge as just or unjust; a trial as fair or unfair; and a person as justly or unjustly convicted. These are derivative applications of the notion of justice which are explicable once the primary application of justice to matters of distribution and compensation is understood.

The general principle latent in these diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality. This is something to be respected in the vicissitudes of social life when burdens or benefits fall to be distributed; it is also something to be restored when it is disturbed. Hence justice is traditionally thought of as maintaining or restoring a balance or proportion, and its leading precept is often formulated as ‘Treat like cases alike’; though we need to add to the latter’ and ‘treat different cases differently’. So, when, in the name of justice, we protest against a law forbidding coloured people the use of the public parks, the point of such criticism is that such a law is bad, because in distributing the benefits of public amenities among the population it discriminates between persons who are, in all relevant respects, alike. Conversely, if a law is praised as just because it withdraws from some special section some privilege or immunity, e.g. in taxation the guiding thought is that there is no such relevant difference between the privileged class and the rest of the community as to entitle them to the special treatment. These simple examples are, however, enough to show that, though ‘Treat like cases alike and different cases differently’ is a central element in the idea of justice, it is by itself incomplete and, until supplemented, cannot afford any determinate guide to conduct. This is so because any set of human beings will resemble each other in some respects and differ from each other in others and, until it is established what resemblance and differences are relevant, ‘Treat like cases alike’ must remain an empty form. Without this further supplement we cannot proceed to criticize laws or other social arrangements as unjust.

There is therefore a certain complexity in the structure of the idea of justice. We may say that it consists of two parts: a uniform or constant feature, summarized in the precept ‘Treat like cases alike’ and a shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. But this determination is far complicated when justice is concerned because the shifting standard of relevant resemblance between different cases incorporated in it not only varies with the type of subject to which it is applied, but may often be open to challenge even in relation to a single type of subject.

In certain cases, indeed, the resemblances and differences between human beings which are relevant for the criticism of legal arrangements as just or unjust are quite obvious. This is pre-eminently the case when we are concerned not with the justice or injustice of the law but of its application in particular cases. For here the relevant resemblances and differences between individuals are determined by the law itself. To say that the law against murder is justly applied is to say that it is impartially applied to all those and only those who are alike in having done what the law forbids. Consistently with this, the procedural standards such as ‘audi alteram partem’ i.e. ‘let no one be the judge in his own case’ and the principles of Natural Justice are thought of as requirements of justice.

The connection between this aspect of administration of justice and the very notion of proceeding by rule is obviously very close. Indeed, it might be said that to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied is different cases is the same general rule, without prejudice, interest or caprice. This close connection between justice in the administration of the law and the very notion of a rule has tempted some famous thinkers to identify justice with conformity to law. In particular cases, not administration but the laws themselves are often criticized as just or unjust. There is no absurdity in conceding that an unjust law forbidding the access of coloured persons to the parks has been justly administered when only those persons genuinely guilty of breaking the law were punished under it after a fair trial.

When we turn from the justice or injustice of the administration of the law to the criticism of the law itself in these terms, it is plain that the law itself cannot now determine what resemblances and differences among individuals the law must recognize if its rules are to treat like cases alike and so be just. Here accordingly there is much room for doubt and dispute. Fundamental differences, in general moral and political outlook, may lead to irreconcilable differences and disagreement as to what characteristics of human beings are to be taken as relevant for the criticism of law as unjust.

Indeed so deeply embedded in modern man is the principle that prima facie human beings are entitled to be treated alike but almost universally where the laws do discriminate by reference to such matters as race and colour. If such discriminations are attacked they are often defended by the assertion that the class discriminated against lack, or have not yet developed, certain essential human attributes; or it may be said that, regrettable though it is, the demands of justice requiring their equal treatment must be overridden in order to preserve something held to be of greater value, which would be jeopardized if such discriminations were not made. Here comes the concept of social justice. Very few social changes or laws are agreeable to or advance the welfare of all individuals alike. Only laws which provide for the most elementary needs, such as police protection or roads come near to this. In most cases the law provides benefits for one class of the population only at the cost of depriving others of what they prefer. Compulsory school education for all may mean not only loss of liberty for those who wish to educate their children privately, but may be financed only at the cost of reducing or sacrificing capital investment in industry or old-age pensions or free medical services. When a choice has been made between such competing alternatives it may be defended as proper on the ground that it was for the ‘public good’ or the ‘common good’.⁶

THEORIES OF JUSTICE

ARISTOTLE AND THE THEORY OF JUSTICE

According to Aristotle, Distributive Justice means: “Injustice arises when equals are treated unequally and also when unequals are treated equally”. Aristotle contrasted “distributive justice” from “corrective justice”. According to Aristotle, “distributive justice” is a distribution of goods and honours to each according to his place in the community; it conceives equal treatment of those equal before the law.

The “corrective justice” is the measure of the technical principles which govern the administration of law. In regulating legal relations, corrective justice imposes an obligation that uniform and general standards should be laid to measure the standards of redressing the violations of the law notwithstanding what the position of the individual is.

EGALITARIANISM

According to the egalitarian, justice can only exist within the coordinates of equality. This basic view can be elaborated in many different ways, according to what goods are to be distributed—wealth, respect, opportunity—and what they are to be distributed equally between—individuals, families, nations, races, species. Commonly held egalitarian positions include demands for equality of opportunity and for equality of outcome. It affirms that freedom and justice without equality are hollow and that equality itself is the highest justice.

At a cultural level, egalitarian theories have developed in sophistication and acceptance during the past two hundred years. Among the notable broadly egalitarian philosophies are socialism, communism, anarchism, left-libertarianism, and progressivism, all of which propound economic, political, and legal egalitarianism, respectively. Several egalitarian ideas enjoy wide support among intellectuals and in the general populations of many countries. Whether any of these ideas have been significantly implemented in practice, however, remains a controversial question. One argument is that liberalism provides democracy with the experience of civic reformism. Without it, democracy loses any tie argumentative or practical to a coherent design of public policy endeavoring to provide the resources for the realization of democratic citizenship.⁷

UTILITARIANISM

A society, according to Utilitarianism, is just to the extent that its laws and institutions are such as to promote the greatest overall or average happiness of its members.

How do we determine the aggregate, or overall, happiness of the members of a society? This would seem to present a real problem. For happiness is not, like temperature or weight, directly measurable by any means that we have available. So utilitarians must approach the matter indirectly. The traditional idea at this point is to rely upon (a) a theory of the human good (i.e., of what is good for human beings, of what is required for them to flourish) and (b) an account of the social conditions and forms of organization essential to the realization of that good.

People, of course, do not agree on what kind of life would be the most desirable. Intellectuals, artists, ministers, politicians, corporate bureaucrats, financiers, soldiers, athletes, salespersons, workers: all these different types of people, and more besides, will certainly not agree completely on what is a happy, satisfying, or desirable life. Very likely they will disagree on some quite important points.

So what does all this do for Utilitarianism?

(A) The theory of the human good, the general conditions essential to a happy or desirable life. The Utilitarian may plausibly claim to be trying to promote the overall happiness of people in his society, therefore, when he tries to improve such things as rate of employment, per capita income, distribution of wealth and opportunity, the amount of leisure, general availability and level of education, poverty rates, social mobility, and the like. The justification for thinking these things relevant should be pretty plain. They are measures of the amount and the distribution of the means and opportunities by which people can realize their various conception of a desirable life. With these things clearly in mind the Utilitarian is in a position to argue about item

(B) The sorts of social arrangements that will deliver the means and opportunities for people to achieve their conception of a desirable life.

John Stuart Mill, one of the three most important 19th century Utilitarians (the other two were Jeremy Bentham and Henry Sidgwick), argued that freedom or liberty, both political and economic, were indispensable requisites for happiness. Basing his view upon much the same interpretation of human beings and human life as Aristotle, Mill argued that democracy and the basic political liberties--freedom of speech (and the press), of assembly, of worship--were essential to the happiness of rational end-choosers; for without them they would be prevented from effectively pursuing their own conception of a good and satisfying life. Similarly he argued that some degree of economic prosperity--wealth--was indispensable to having a realistic chance of living such a life, of realizing one's ends.

So, according to Utilitarianism, the just society should be so organized in its institutions--its government, its laws, and its economy--that as many people as possible shall have the means and opportunity to achieve their chosen conception of a desirable life. To reform the institutions of one's society toward this goal, in the utilitarian view, is to pursue greater justice.

Some of the institutions that utilitarians have championed over the years are:

(1) A public education system open to all and funded by public money, i.e., taxes.

(2) A competitive, "free" market economy. In the 19th century utilitarians often argued for a laissez faire capitalist economy. More recently some of them have argued for a "mixed" economy, i.e., a state regulated market system. Mill, interestingly, argued at the beginning of the 19th century for an unregulated capitalist economy, but at the end argued for a socialist economy (which is not the same thing as a "mixed economy").

(3) The protection of the sorts of liberties that were guaranteed in the United States by the Bill of Rights in our Constitution.

(4) Democratic forms of government generally.⁸

JUSTICE AS FAIRNESS: JOHN RAWLS

One of the most interesting modern attempts to defend the principles of justice is found in John Rawls’s theory of justice as now reformulated in political liberalism.

The conception of justice for which Rawls argues demands:

1. The maximization of liberty subject only to such constraints as are essential for the protection of liberty itself.⁹

2. Equality for all, both in the basic liberties of social life and also in distribution in all other forms of social goods subject only to the exception that inequalities may be permitted if they produce the greatest possible benefit for those least well off in a given scheme of inequality (“the difference principle”) and

3. Fair equality of opportunity and elimination of all inequalities of opportunities based on birth or wealth.¹⁰

His ‘magnum opus’, ‘A Theory of Justice’ is now regarded as one of the primary texts in political philosophy. His work in political philosophy dubbed ‘Rawlsianism’, takes as its starting point the argument that “most reasonable principles of justice are those everyone would accept and agree to from a fair position”.

His theory is known as “Justice as Fairness”, from which Rawls derives his two famous principles of Justice:

1. Liberty Principle

2. Difference Principle

Rawls and the First Principle of Justice:

“First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty 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. However, Rawls says: “Liberties not on the list, for example, the right to own certain kinds of property (e.g. means of production) and freedom from contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of first principle”.

The first principle may not be violated, even for the sake of the second principle, above an unspecified but low level of economic development. However, because various 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. 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 satisfy its requirements.

Rawls and the Second Principle of Justice:

Social and economic inequalities are to be arranged so that:

a) They are to be of the greatest benefit to the least-advantaged members of society (the difference principle).

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 he wants’ – are justified only to the extent that they improve the 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’ 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 (e.g. the family one is born into) shouldn’t determine one’s life chances or opportunities. Rawls is also keying on an intuition that a person does not morally deserve their inborn talents; thus, that one is not entitled to all the benefits that they could receive from them; 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 the reasonable opportunity to acquire the skills on which merit is assessed. It may be thought 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.

Rawls’s theory differs from utilitarianism in three significant ways. First utilitarians can accept inequalities, social arrangements in which some benefit at the expense of others, provided the benefits (or pleasures) exceed the costs (or pains), so that the outcome is the maximization of overall welfare level (“the greatest happiness of the greatest number”). This may be thought unjust.¹¹ Secondly, while utilitarians defend liberty and political rights, they have no objections to limiting liberty or restricting political rights, provided doing so promote greater well being. Rawls’s first principle (the equal maximum liberty principle) means that there are some rights, freedom of speech and association, the right to vote and stand for public office, liberty of conscience and freedom of thought, freedom of the person and the right to hold personal property, freedom from arbitrary arrest, which every system must respect. These are rights that may not be sacrificed to increase the aggregate welfare level. Thirdly, Rawls’s conception of benefits is different from utilitarianism, which is concerned with welfare. Rawls, by contrast, defines benefits in terms of “primary goods”: liberty and opportunity, income and wealth and the basis of self respect. These need not be considered desirable in themselves, but they give persons the opportunities rationally to further their own autonomy.¹² Rawls does not stipulate how primary goods should be used by individuals: he implies that they may use them as they choose, provided in doing so they do not undermine just situations.¹³

JUSTICE AS ENTITLEMENT: NOZICK

Robert Nozick’s Anarchy, State and Utopia¹⁴ is one of the most provocative essays in political philosophy in recent times. In it he revives the claim long associated with John Locke¹⁵ and Herbert Spencer¹⁶ that a “minimal state limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified; and that the minimal state is inspiring as well as right.”¹⁷ He develops a conception of justice which he calls “Entitlement Theory”¹⁸, according to which economic goods arise already encumbered with rightful claims to their ownership. Philosophies which espouse distributivism (or worse re distributivism) are misconceived. Nozick extols the virtues of 18^th century individualism and 19^th century capitalism¹⁹ and it may be thought to have captured the character of the Thatcher-Reagan era. Even so, it came as a profound shock to many.

First, Nozick seeks to justify the minimal state against the individualist anarchist who holds that “when the state monopolizes the use of force in a territory and punishes others who violate its monopoly, and when the state provides protection for everyone by forcing some to purchase protection to others, it violates moral side constraints on how individuals may be treated”, thus concluding that the state itself is “intrinsically immoral.”²⁰ To Nozick what is attractive in this scenario is that the state “grows by an invisible-hand process and by morally permissible means, without anybody’s rights being violated.”²¹

Nozick then proceeds to defend the minimal state against arguments for a more extensive state. First, that the state is necessary, or is the best instrument, to achieve distributive justice. Against this Nozick puts forward his “entitlement theory” of justice: Under this a person’s holdings are just if acquired through just original acquisition or just transfer, or through the rectification of injustices in the first two senses. He claims that “if each person’s holdings are just, then the total set (distribution) of holding is just.”²² In the light of this, Nozick concludes that no state is justified in applying a principle or principles which aim at some end-results and specify some patterned distribution. The “entitlement theory” by contrast is “historical”²³ and so is unlikely to upset any pattern. Nozick then sets out to attack the case for state action to promote equality.²⁴ In his view the state should confine itself to enforcing contracts, prohibiting thefts and taking such other measures to ensure holdings to those entitled to them.

In the final part of the book, Nozick offers a speculative Utopia, “a system of diverse communities, organized along different lines and perhaps encouraging different types of characters, and different patterns of abilities and skills.”²⁵ The only possible framework for such a system is the minimal state which “best realizes the utopian aspirations of untold dreamers and visionaries.”²⁶ He concludes that such a state “treats us as inviolate individuals, who may not be used in certain ways by others as means or tools or instruments or resources: it treats us as persons having individual rights with the dignity that it constitutes…. It allows us, individually and with whom we choose, to choose our life and realize our ends…aided by the voluntary cooperation of other individuals possessing the same dignity.”²⁷

Nozick’s book challenges²⁸ the whole concept of distribution. There is “no such meaningful concept as the goods of society but only the goods of particular individuals.”²⁹ Nozick forces to ask not how distribution can be other than equal (Rawls’s premise), but why should there be distribution at all. This is clearly an important question for all concerned with social and economic justice.

Nozick’s principle argument against distributionist theories of justice rests on their failure, as he sees it, to cohere with his ideal of individual liberty. The right to property is an expression of the right to liberty. But for Nozick the right to liberty is defined by reference to the right to property. If, as Nozick says, property rights derive from the right to liberty, and if it is the case that large-scale property accumulation has negative effects on liberty, then the right to liberty would, contrary to Nozick’s thesis, demand redistributive theories of justice. Nozick’s error – a not uncommon one – is to assume that it is possible to “define the conditions of freedom for single individuals prior to considering the conditions of freedom for all individuals.”³⁰

JUSTICE AS RIGHTS: RONALD DWORKIN

For both Rawls and Nozick, there is a clear relationship between justice and rights but it is Ronald Dworkin who can be said most clearly to ground justice in rights.

In one sense there is nothing new in this: the idea that political morality and social choice were to be governed by considerations of the rights of individuals as its heritage in the writings of Locke³¹ and Kant³² as well as in the literature and constitutions of the American and French revolutions. The emphasis has not gone unchallenged. Bentham was a trenchant critic, particularly of natural rights.³³ So was Marx.³⁴ Today, one of the central conflicts in legal, moral and political philosophy is between those who espouse rights-based theories and those, utilitarians in particular, who put forward those goal-based theories.³⁵

The distinction is easy enough to state. A requirement is rights-based when generated by a concern for some individual interest, and goal-based when propagated by the desire to further something taken to be of interest to the community as a whole.³⁶ The rights-based approach does not deny that the interest of a particular individual is not also shared by others (in the case of human rights, all) in the community, but it would claim that the interest of each individual qua individual is sufficient to generate the moral requirement. It is part of the philosophy of those who espouse rights-based theories to insist on the pre-eminence of rights. Rights are valuable commodities³⁷, important moral coinage.³⁸

To Dworkin rights are “trumps”.³⁹ They are grounded in a principle of equal concern and respect. So for a judge to make a mistake about a legal right is “a matter of injustice”.⁴⁰ Further, the whole institution of rights rests on the conviction that “the invasion of a relatively important right” is a “grave injustice”.⁴¹ Dworkin sees rights as trumps over some background justification for political decisions that state a goal for the community as a whole.

There are, Dworkin notes⁴², two distinct senses in which a community may be said to be better off as a whole despite the fact that certain of its members are distinctly worse off. It may be better off in a utilitarian sense (the average or collective level of welfare in the community is improved even though the welfare of some falls), or in an ideal sense (because “it is more just, or in some way closer to an ideal society, whether or not average welfare is improved”). For example, a policy of affirmative action might be pursued to reduce social tensions or to make the community more equal and therefore more just.⁴³

In addition, Dworkin offers a substantive explanation of the values underlying certain rights. He sees rights as safeguards inserted into political and legal morality to prevent the “corruption”⁴⁴ of the “egalitarian character of welfarist calculations”⁴⁵ by the introduction of “external preferences”⁴⁶ majority preferences should count but only where these preferences are based on “personal” preferences (what they want to happen to others). Utilitarianism, Dworkin argues, assigns critical weight to external preferences: it is, accordingly, not egalitarian since it will “not respect the right of everyone to be treated with equal concern and respect”⁴⁷

Rights-based moral theories have been contrasted with the consequentialist ones (of which utilitarianism is the paradigm). Hare expresses surprise that critics of utilitarianism, some of whom like Dworkin lay great weight on the “right to equal concern and respect”, should “object when utilitarians show this equal concern by giving equal weight to the equal interests of everybody, a precept which leads straight to Bentham’s formula and to utilitarianism itself”.⁴⁸ The problem with this view is that although there may be utilitarian reasons for respecting justified legal rights, these reasons are not the same as the moral force of such rights, because they neither exclude direct utilitarian arguments against exercising rights not those for interfering with them.^{49, 50}

ST. THOMAS AQUINAS AND THEORY OF JUSTICE

His concept of justice was to co-relate positive law with the law of God as he believed that ig justice is taken away, the kingdoms are reduced to robberies. Justice has been defined by St. Thomas Aquinas as, “habit whereby a man renders to each one his due by a constant and perpetual will”.

Justice is the steady and lasting willingness to give to others what they are entitled to. Aquinas works with this Roman Law definition and with Aristotle's division of justice into (i) distributive (good judgment about how to divide up and parcel out beneficial or burdensome wholes or sets in a way that is fair because guided by appropriate criteria) and (ii) what Aquinas calls commutative justice (good judgment going far wider than Aristotle's “corrective” justice, and concerned with all other kinds of dealings between persons). His prioritizing of the concept of right (jus), conceived as something that belongs to another, brings him to the brink of articulating a concept of human rights, a concept certainly implicit in his thesis that there are precepts of justice each imposing, on me and my communities, a duty to everyone without discrimination. For his definition of justice immediately entails that correlative to such duties of justice there must be rights that belong to everyone indifferent. Many duties of justice are positive (affirmative duties to give, do, etc.), and Aquinas treats the duties of relieving poverty both under justice and under love (of neighbor, for God's sake). The duties in either case are essentially the same, and Aquinas' understanding of them strongly affects his understanding of justified private property rights, which are valid because needed for prosperity and development, but are subject to a duty to distribute, directly or indirectly, one's superflua – that is, everything beyond what one needs to keep oneself and one's family in the state of life appropriate to one's (and their) vocation(s). For the natural resources of the world are “by nature” common; that is, reason's principles do not identify anyone as having a prior claim to them other than under some customary or other socially posited scheme for division and appropriation of such resources, and such schemes could not be morally authoritative unless they acknowledged some such duty to distribute one's superflua.⁵¹

St. Thomas here explains that justice is a virtue even though just acts are the fulfillment of commands and hence of obligations. Thomas deals with supererogation. It does seem that we can have supererogation, relatively speaking, in that we might sometimes go beyond the strict demands of justice in our dealings with one another. But one might also claim that there can be no true supererogation, absolutely speaking, in a moral theory according to which we are ultimately commanded to love one another as Christ has loved us. In any case, St. Thomas later notes that (natural) mercy and liberality are traced back to justice as potential parts and in that sense fall under justice.

St. Thomas deals with justice insofar as it is a general virtue, i.e., insofar as it is a virtue which underlies any good action that affects our relations with others. When one puts it this broadly, it is evident that general justice provides an end, the common good, that can motivate even acts of temperance and fortitude. That is, when acts of temperance and fortitude are directed to the common good, they become, as it were, acts of (general) justice as well, much as such acts can be turned into acts of charity if they are motivated by the (general) virtue of charity. For all such actions can at least make one a more fit member of the community and so, if this motive is at least in the background, then all such actions can be thought of as being just and, indeed, as acts of justice, even though, strictly speaking, general justice is best thought of, like charity, as causing or motivating such actions.. St. Thomas calls general justice 'legal justice' (justitia legalis), the virtue of a good citizen or of a good member of a community.

St. Thomas clarifies the nature of this legal justice, claiming that it is general insofar as it is a cause of all the acts of the other virtues (prudence, temperance, fortitude, and particular justice) insofar as it orders them toward the common good. He uses an analogy: "Just as charity can be called a general virtue to the extent that it orders the acts of all the virtues to the divine good, so, too, legal justice can be called a general virtue to the extent that it orders the acts of all the virtues to (its own end) the common good." It is principally in the sovereign and secondarily in the subjects of the sovereign.

St. Thomas also deals with justice insofar as it is a particular virtue, i.e., insofar as it specifies general justice with respect to our particular relations with particular individuals as parts of a political community and with respect to particular goods.

St. Thomas divides justice into commutative justice, which deals with the relations between individuals within a given community, and distributive justice, which deals with the relation of the community as a whole to individuals. St. Thomas's conception of the individual and the community self-consciously steers between individualism, which recognizes only commutative justice and thinks of the common good as a mere compilation of private goods and the role of the sovereign as simply to prevent private individuals from harming one another in pursuit of their independently conceived private goods, and collectivism , which recognizes only distributive justice and thinks of the individual's private good as wholly exhausted by the public common good insofar as this public good is determined by those in authority ⁵²

CICERO AND THEORY OF JUSTICE

Marcus Tullius Cicero, a Roman orator equated justice with a universal natural law principle of divine origin and accordingly justice means equality of men in terms of discovering the divine truth. Justice is an essential condition for human welfare and freedom. According to Cicero there are three types of governments

1. Monarchy

2. Aristocracy

3. Democracy

Cicero says that the law is a means of achieving just government. Men are slaves of law to achieve freedom. Freedom means freedom from arbitrariness and power should not be abused.

Cicero on Justice

Justice is the crowning glory of the virtues.

Justice consists in doing no injury to men…

Justice is the set and constant purpose which gives every man his due.

The foundations of justice are that no one should suffer wrong; then, that the public good be promoted.

…justice must be observed even to the lowest.

Justice does not descend from its pinnacle.

Justice extorts no reward, no kind of price; she is sought…for her own sake.

Extreme justice is extreme injustice.

If our lives are endangered by plots or violence…any and every method of protecting ourselves is morally right.⁵³

Cicero’s doctrine of justice is that justice is good in and of itself and not for any consequential advantages. Justice is good in and of itself because it is, along with the other virtues, constitutive of a genuinely human life. It is not good for its consequential advantages because there are no consequences which, taken in abstraction from it and the other virtues, could possibly be considered advantageous. It is never the case, contrary to what consequentialists think, either that justice could be instrumental to such presumed advantages or that it could be subordinated to them. Justice is not for the sake of any further outcome. It is already by itself the best outcome. To commit an injustice for the sake of saving lives (and killing the one is certainly an injustice, since it is the deliberate choice to inflict on that one an undue harm) is to suppose that justice is not in itself the best outcome but that more lives saved is.⁵⁴

CONCLUSION:

We have reviewed various theories of justice. The reformulation of Utilitarianism we saw comes from John Rawls, who did not present it as a version of Utilitarianism at all. He presented it as a first approximation to a quite distinct conception of justice from Utilitarianism, a conception that he calls "Justice as Fairness." It is one of the most interesting modern attempts to defend principles of justice. One cannot think about justice, without taking a position in Rawls’s Theory of Justice.

In a world where people are interconnected but they disagree, institutions are required to instantiate ideals of justice. These institutions may be justified by their approximate instantiation of justice, or they may be deeply unjust when compared with ideal standards — consider the institution of slavery. Justice is an ideal the world fails to live up to, sometimes despite good intentions, sometimes disastrously. The question of institutive justice raises issues of legitimacy, procedure, codification and interpretation, which are considered by legal theorists and by philosophers of law.

Another definition of justice is an independent investigation of truth. In a court room, lawyers, the judge and the jury are supposed to be independently investigating the truth of an alleged crime. In physics, a group of physicists examine data and theoretical concepts to consult on what might be the truth or reality of a phenomenon.

REFERENCE:

1. H.L.A. Hart, ‘The Concept of Law’, Oxford, The Clarendon Press, (1961), pp. 155-159.

2. John Rawls, ‘A Theory of Justice’, Universal Law Publishing Co. Pvt. Ltd., (2000), pp. 3-7.

3. Konow, James, ‘Which Is the Fairest One of All? A Positive Analysis of Justice Theories’, Journal of Economic Literature 41, Vol. 4, p. 1188, (2003).

4. V.D. Mahajan, ‘Jurisprudence & Legal Theory’, Eastern Book Company, Lucknow, 5^th Ed., (2010), pp. 115-118.

5. http://en.wikipedia.org/wiki/Justice, accessed on 4^th September, 2011 at 3:45 P.M.

6. H.L.A. Hart, ‘The Concept of Law’, Oxford University Press, 2^nd Ed., (2010), pp. 157-167.

7. http://en.wikipedia.org/wiki/Justice, accessed on 4^th September, 2011 at 3:45 P.M.

8. http://lilt.ilstu.edu/pefranc/3-ts%20of%20justice.htm, accessed on 7^th September, 2011 at 6:34 P.M.

9. In Political Liberalism, “a fully adequate scheme of equal basic liberties” replaces “the most extensive total system” of A Theory of Justice (see p. 291)

10. Rawls does not espouse egalitarianism, rather qualified it.

11. See D. Lyons, ‘The Forms and Limits of Utilitarianism’ (1965) D. Miller, pp.30-40.

12. On the relationship between rights and autonomy, See D Richards (1981) 92 Ethics 3.

13. John Rawls, ‘A Theory of Justice’, Universal Law Publishing Co. Pvt. Ltd., (2000), pp. 11-17.

14. Published in 1974, it is said to be the “locus classicus of contemporary libertarian argument on behalf of a minimal state” [B. Fried (1995) 24 Philosophy and Public Affairs 226].

15. Ante, 148.

16. Post, 661.

17. Op. Cit., n. 3, p. ix.

18. Ibid, pp. 149-182.

19. It seems obvious to 19^th century critiques of abstract individualism and most 20^th century social science. Its principle method is “state of nature” theory, drawing substantive political conclusions from how abstractly conceived “rational” individuals, removed from any specific social context, would behave in imagined situations. See S. Lukes, ‘State of Nature’ in Essays in Social Theory’, (1977), Chap. 11.

20. Op. Cit., n. 3, p. 51. On moral side constraints see Ibid, pp. 28-35.

21. Ibid, p. 119.

22. Ibid, p. 153.

23. “Whether a distribution is just depends upon how it came about” (Ibid)

24. He is particularly critical of B. Williams’ well known article ‘The Idea of Equality’, Ibid in (eds.) P. Laslett and W.G. Runciman, ‘Philosophy, Politics and Society’, (1962), p. 110.

25. Op. Cit., n. 3, p. 317.

26. Ibid, p. 333.

27. Ibid, pp. 333-334.

28. And has provoked a wide range of critical comment, e.g. J. Paul, ‘Reading Nozick’ (1981), J. Wolff, ‘Robert Nozick’ (1991), T. Campbell, ‘Justice’ (2^nd ed., 2001), Chap. 3.

29. Per C. Fried, (1983) 1 (1) Soc. Phil. and Policy 45, 49.

30. Rawls’s method (the “original position” and “veil of ignorance”), ante, 525, is different, but the principles which emerge may be subject to similar criticisms.

31. Ante, 112. See further K.M. Mclure, ‘Judging Rights’ (1996).

32. Ante, 118. A modern parallel is A. Gewirth, ‘Reason and Morality’ (1977).

33. Which he called “nonsense upon stilts”. A contemporary critic is M.A. Glendon, ‘Rights Talk’, (1991).

34. T.D. Campbell, ‘The Left and Rights’, (1983), pp. 92-102.

35. See H.L.A. Hart, in (ed.) A. Ryan, ‘The Idea of Freedom’ (1979).

36. See R. Dworkin, ‘Taking Rights Seriously’ (1978).

37. R. Wasserstrom, (1964) 61 J Philosophy 628, 629.

38. Buchanan, ‘What’s So Special About Rights?’, (1984) 2 (1) Social Policy and Philosophy 61.

39. Op. Cit., n. 25, p. ix.

40. Ibid, p. 130.

41. Ibid, p. 199.

42. Op. Cit., n. 25, p. 232.

43. This is discussed post, 545.

44. Op. Cit., n. 25, p. 235.

45. J. Waldron, ‘Theories of Rights’, (1984), p. 17.

46. Op. Cit., n. 25, p. 234.

47. Ibid, p.275.

48. D. Lyons, ‘Utility and Rights” in Nomos (1982), vol. xxiv, p. 139.

49. R. Hare, ‘Moral Thinking’, (1981).

50. M.D.A. Freeman, ‘Lloyd’s Introduction to Jurisprudence’, London Sweet & Maxwell Ltd., 7^th ed., (2001), pp. 534-547.

51. http://plato.stanford.edu/entries/aquinas-moral-political/#Jus, accessed on 17^th September, 2011 at 3:17 P.M.

52. http://www.nd.edu/~afreddos/courses/453/justice.htm, accessed on 17^th September, 2011 at 4:40 P.M.

53. http://blog.mises.org/2917/cicero-on-justice-law-and-liberty/, accessed on 16^th September, 2011 at 5:23 P.M.

54. http://www.aristotelophile.com/Books/Articles/pdf_6.pdf, accessed on 15^th September, 2011 at 6:34 P.M.

Received on 27.11.2012

Modified on 12.01.2013

Accepted on 20.01.2013

Research J. Humanities and Social Sciences. 4(2): April-June, 2013, 151-160