Concept of Justice and its Different Facets

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THE CONCEPT OF JUSTICE AND ITS DIFFERENT

FACETS

SUBMITTED BY:

KUMAR SPANDAN

ROLL NO.-19

LL.M-TRIMESTER I

SUBMITTED TO:

DR.DIPAKDAS

ASSOCIATE PROFESSOR

SUBJECT:LAW AND JUSTICE IN A GLOBALIZING WORLD

HIDAYATULLAHNATIONAL LAW UNIVERSITY,

NAYA RAIPUR,C.G.


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DECLARATION

I, Kumar Spandan, student of LL.M. 1stTrimester of Hidayatullah National Law University,

Raipur hereby declare that the project work entitled Concept of Justice and its Di ff erent

Facets submitted to the Hidayatullah National Law University, Raipur is a record of

an original work done by me under the guidance of Dr. Dipak Das, of Hidayatullah National

Law University, Raipur. In the process of making it I have referred certain books and articles

from internet sources. It would not have been possible to complete my project as a student

without the help of such materials.

DATE: (Kumar Spandan)

Roll No - 19


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ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound, greatest indebtedness and

gratitude and my sincerest of thanks to Dr. Dipak Das, Associate Prof. in Law at Hidayatullah

National Law University, Raipur, for his valuable guidance, sound and strong advices and for

his cordial attitude during the course of my studies and in making this paper possible. I do not

hesitate to say that it was under his expert supervision which helped in shaping this project and

making it possible. It is through his patient guidance that I have been able to accomplish my

task.

I would also like to express my deepest thanks to the library staff for their constant cooperation

and providing me with the books and other materials as and when required for this research

paper.


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TABLE OF CONTENTS

____________________________________________________________Pages

DECLARATION... i

ACKNOWLEDGEMENT. ii

TABLE OF CONTENTS.....iii

1. INTRODUCTION... 1

1.1.

Objectives of Research. 2

1.2.Chapterization.. 2

1.3.Limitation & Scope... 3

2. ORIGIN AND DEVELOPMENT OF THE CONCEPT OF JUSTICE....... 4

2.1.Concept of Justice in Ancient India...... 5

2.2.

Concept of Justice in Ancient Greece... 5

2.2.1. Plato....... 5

2.2.2.

Aristotle..... 7

2.3.

Medieval Christianity....... 8

2.3.1.

Aurelius Augustine........ 8

2.3.2.

Thomas Aquinas........ 9

2.4.Modern Concepts of Justice........ 10

2.4.1. Immanuel Kant........ 10

2.4.2. John Stuart Mill.... 11

2.5.Contemporary Concepts of Justice.. 12

2.5.1.

John Rawls... 13


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2.5.2. Robert Nozick.. 15

2.5.3. Ronald Dworkin... 16

2.5.4. Michael Sandel.... 17

3. DIFFERENT FACETS OF JUSTICE... 18

3.1.Distributive Justice..... 18

3.1.1. Importance of Distributive Justice... 20

3.2.

Procedural Justice... 21

3.3.Retributive Justice.. 23

3.4.Restorative Justice.. 26

3.5.Social Justice.. 27

3.6.Political Justice... 28

CONCLUSION.... 30

BIBLIOGRAPHY.... 31


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INTRODUCTION &RESEARCH METHODOLOGY

Justice is rooted and grounded in the fundamental instincts of humanity.

- Woodrow Wilson

Justice is one of the most important legal, moral and political concepts. The word comes

from the Latin justitia, meaning right or law. The Oxford English Dictionarydefines the

just person as one who typically does what is morally right and is disposed to giving

everyone his or her due, offering the word fair as a synonym.Since the dawn of human

civilization, in the whole range of our legal, political and moral theory, the notion of justice

has always occupied a central place. Ever since the birth of human society justice has been one

of the most important quest of human endeavour. Fiat Justitia Ruat Caelum- let heavens fell,

justice has to be done, became the main pre-occupation of many religious, political morals

and legal philosophers of all ages. Although any attempt to define the term precisely,

scientifically and exhaustively has presented a baffling problem to scholars of all hues.

Consequently on account of its multidimensionality, its nature and meaning has always been a

dynamic affair. From the time of Plato down to the present day no consensus and no satisfactory

definition of justice could emerge due to its abstract, universal and all pervasive

characteristics. 1 Most thinkers have elucidated justice in terms of some simple rules or

symmetry; some of them, however, looked for the key to the concept of justice elsewhere and

have construed it in terms of rules, or merit or utility or liberty or equality.

For Plato, justice is a virtue establishing rational order, with each part performing its

appropriate role and not interfering with the proper functioning of other parts. Aristotle says

justice consists in what is lawful and fair, with fairness involving equitable distributions and

the correction of what is inequitable. For Augustine, the cardinal virtue of justice requires that

we try to give all people their due; for Aquinas, justice is that rational mean between opposite

sorts of injustice, involving proportional distributions and reciprocal transactions. Hobbes

believed justice is an artificial virtue, necessary for civil society, a function of the voluntary

agreements of the social contract; for Hume, justice essentially serves public utility by

protecting property (broadly understood). For Kant, it is a virtue whereby we respect others

freedom, autonomy, and dignity by not interfering with their voluntary actions, so long as those

1J.R. Lucas, On Justice, The Clarendon Press (London, 1980) p. 1-2


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do not violate others rights; Mill said justice is a collective name for the most important social

utilities, which are conducive to fostering and protecting human liberty. Rawls analysed justice

in terms of maximum equal liberty regarding basic rights and duties for all members of society,

with socio-economic inequalities requiring moral justification in terms of equal opportunity

and beneficial results for all; and various post-Rawlsian philosophers develop alternative

conceptions. Justice has, in consequence, been much misunderstood and in practice much

neglected. In all the normative disciplines which directly or indirectly govern action in regard

to others -whether it be law or political philosophy, ethics or religion, justice constitutes a

central value.2

1.1 OBJECTIVES OF RESEARCH

The following are the objectives of this research paper:

To trace the origin and evolution of the concept of justice

To discuss the different facets of justice

1.2 CHAPTERIZATION

This research paper has been divided into 4 chapters.

Chapter 1: I ntroduction & Research M ethodology This chapter provides an

introduction to the concept of justice and explains the methodology followed in the

research paper.

Chapter 2: Origin & Evolution of the Concept of JusticeThis chapter discusses the

origin and development of the concept of justice by referring to the definitions given

by different jurists of different era.

Chapter 3: D if ferent Facets of JusticeThis chapter deals with the different facets of

justice such as distributive justice, social justice, etc.

Chapter 4: Conclusion This chapter enumerates the concluding thoughts of the

researcher.

2Chaim Perelman, The Idea of Justice and the Problem of Argument, Humanities Press (New York, 1963)


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1.3 SCOPE AND LIMITATION

The researcher has limited the scope of the study to only describing the different theories

of justice and its various facets.


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ORIGIN AND EVOLUTION OF THE CONCEPT OF JUSTICE

There is wide divergence in the prevalent notions of justice. Philosophers like Plato1 and

Aristotle2 regard justice as a supreme virtue, the source of all others and encompassing within

itself the whole of morality. For Kant3 and Rawls4 justice is a very important aspect of human

existence, the first virtue of society. Hume and Marx and Engels denigrate the concept of

justice; and for them it is unnecessary if not entirely irrelevant. Nonetheless, the very charge

of inadequacy or redundancy or superfluity against justice presupposes its meaningfulness and

worth otherwise, all the charges would be irrelevant.3

Common usage continues to treat justice, despite all its inadequacies and limitations, as

denoting some of the greatest human needs. Man's longing for justice is explained as the activeprocess of preventing or remedying what would arouse the sense of injustice. This

consciousness of injustice arises in society in the context of a prevailing system of human

relationship. The origin of justice therefore, is traced to man's consciousness of injustice in

society and consequently to his urge for change in the situation towards a better and desirable

one. In other words man's craving for what is good and what ought to be is the perennial

experience that gives rise to the concern for justice.

Justice presupposes the existence of conflict and it is called upon to harmonise antinomies.

The problem of justice arises only if the possibility of a conflict is admitted between claims of

individuals in a society. In completely harmonized order, free from all sorts of conflict, justice

is redundant. It is only in the realm of moral that the synthesis and perfect harmony between

personal and transpersonal values is possible, but in actual world they are in intense conflict.

And it is precisely this hiatus between the harmony of the moral ideal and the disharmony of

reality .that gives rise to the problem of justice.4Justice harmonises the conflicting interests

and tends to bring out a balance. Justice in its true and proper sense is a principle ofcoordination between subjective beings and the idea of justice only manifests and can manifest

itself in relation to persons but not between objects of any kind. 5Justice and injustice are

meaningful and relevant only in context of a society i.e., justice and civil society can be said to

3L.L. Cahn (Ed.), Confronting Injustice, Victor Gollancz (1967) p. 3854Georges Gourvich, Encyclopeadia of Social Sciences, p. 513.5Del Vecchio, Giorgio, "Equality and Inequality in Relation to Justice" (1966). Natural Law Forum. Paper 116.


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go together.6Hence, justice primarily, is a social concept which has its origin in man's life in

society.

2.1 CONCEPT OF JUSTICE IN ANCIENT INDIA

Ancient Indian concept of justice is based on 'Dharma'. 'Dharma' is a Sanskrit expression

of the widest import. There is no corresponding word in any other language. It has a wide

variety of meanings. A few of them would enable us to understand the range of that expression.

For instance, the word 'Dharma' is used to mean Justice (Nyaya), what is right in a given

circumstance, moral values of life, pious or righteous conduct, being helpful to living beings,

giving charity or alms, natural qualities or characteristics or properties of living beings and

things, duty, law and usage or custom having force of law.7

2.2 CONCEPT OF JUSTICE IN ANCIENT GREECE

For all their originality, even Platos and Aristotles philosophies did not emerge in a

vacuum. As far back in ancient Greek literature as Homer, the concept of dikaion, used to

describe a just person, was important. From this emerged the general concept of dikaiosune,

or justice, as a virtue that might be applied to a political society.

2.2.1

PlatoPlato, an ancient Greek philosopher was one who put in writings all the thought of

Socrates. In the Republic, he examined then current views on justice and criticised them as

inadequate. According to Plato, in an imaginary conversation with Socrates, Cephalusdefined

Justice as honesty in need and deed. He seems to imply that justice is identical with telling

the truth and paying back what one has received from anyone. Socrates however argued that

telling the truth and returning another mans property are not always just. This is because,

according to him, many a time what belongs to one might be harmful to him. It is also clearthat telling the truth is not always just; although in majority of the cases, it is just. Take as an

example a hypothetical situation in which Mr. A goes to Mr. B's house to kill Mr. C who

killed his brother D on a highway. Mr. C is actually hiding in Mr. Bs house. It will not be

fair for Mr. B to/let Mr, A know that Mr. C is in his house. Also because only few can determine

what is good or harmful to them, Socrates, suggests that the society can better be ruled by

6John Rawls, A Theory of Justice. Oxford: Clarendon Press, 1972, p. 97M.Rama Jois,Legal and Constitutional History of India-Ancient Leagal, Judicial and Constitutional

System, Universal Law Publishing Co. ,New Delhi, Reprint 2010, p.3


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philosophers in a communist way. This kind of communism would imply the abolition of

private property and family. In paraphrasing Plato, Leo Straus says to the extent to which

there is a connection between private property and family, we would even be compelled to

demand the abolition of the family or the introduction of absolute communism, that is, of

communism not only regarding progeny but regarding women and children.

In his further quest for the meaning of justice, Socrates engaged in another dialectic

argument with Polemarchus the son of Cephalus. Cephalus was quoted as saying that justice

must be salutary to the receiver and at the same time consist in giving to each what belongs to

him. This is contradictory because what belongs to somebody might be harmful to him. In any

case. It is controversial because it is sometimes difficult to define what is harmful and what is

not. It is left for one to decide on what is harmful to one, Polemarchus attempted to improveCephalus definition of justice by defining it as consisting in helping ones friends and

harming ones enemies. This concept of justice is parochial and isolated, for according to Leo

Straus; Justice thus understood would seem to be unqualifiedly good for the giver and for

those receivers who are good to the giver. Again if justice consists in giving to others what

belongs to them, then, a just man must know only what belongs to those with whom he has any

dealings, Again if the just man must give to his friends what is good for them, he himself must

judge; he himself must be able correctly to distinguish friends from enemies; he himself must

know what is good for each of his friends. According to Socrates, justice, following this line

of reasoning, must therefore consist in knowledge of a higher order. But Polemarchus has failed

to prove his case. A just man, according to Socrates will help a just man rather than his friends

and will harm no one. Justice must be an art comparable to medicine, the art which knows and

produces what is good for human bodies". But justice according to Polemarchus consists in

helping ones friends and fellow citizens and harming one's enemies. Socrates was trying to

give a more universal conception of justice.

Thrasymarchus was another person in the Republic who had discussion with Socrates on

the question of justice. He defined justice asthe interest of the stronger. ln this sense, the just

is synonymous with the lawful or the legal, that is what the customs or laws of the city

prescribe. This thought is what is now known as legal positivism. Thrasymarchus view can

hardly he upheld because, according to Socrates, the rulers, just like the subjects, can make

mistakes. To Socrates, a just city will be an association where everyone is just. The city will

be construed in such a way that every man will have one job.


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After constructively criticising the various views on justice, Socrates draws an important

parallel between the city and the individual. According to him justice can be detected more

easily in the city than in the human individual because, the former is larger, than the later. The

parallel between the city and the human individual is based on certain abs traction from the

human body". The three virtues in the individual psyche are wisdom, courage and moderation

while those of the political state are the money-makers, the warriors and the rulers. Justice

achieves harmony and maintains equilibrium on both set of virtues. To achieve these things,

reason must rule with the psyche and each element specialises in a task. Critics have argued

that the Republic does not portray Plato as a liberal democrat. Of course, there is no doubt

about that. He is rather a communist, hut not in the sense of Marx. Marxist communism and

fascism are incompatible with the rule of philosophers, whereas the scheme of the Republic

stands or falls by the rule of Philosophers. Christian Communism also differs from Platonic

Communism for the same reason. All in all, the justice which Plato envisaged in the Republic

might not after all be a reality because man is not always propelled by reason. Fascist,

totalitarian and authoritarian regimes in contemporary times at least attest to what would

become of Platos Republic.

2.2.2 Aristotle

Aristotle regarded justice as a particular virtue and one most necessary to a state of welfare.

According to him just means lawful and fair, and unjust means both unlawful and unfair. He

tries to analyse the concept at the level of particular act or decision. He made a distinction

between distributive and rectificatory justice. Distributive justice is shown in the distribution

of honour or money or such assets as are divisible among the members of the community".

Rectificatory justice rectifies and corrects the condition of transaction, while distributive justice

is based on geometrical proportion, that is treating equals equally and unequals unequally (as

shown by the principle of assignment according to merit). Rectificatory justice remedies aninequitable division between two parties by means of arithmetical progression. Here the parties

are regarded as equals and the question asked is whether one has committed and the other

suffered an injustice. In Aristotle, what is just on the rectificatory sense is the mean between

loss and gain. Proportional reciprocation is the basis of all fair exchange. Proportional

reciprocation and equality go together. According to him, if proportional equality is first

established and then reciprocation takes place the stated requirement will be achieved; but

otherwise the transaction is not equal and breaks down. The Concept of Justice is not restricted

to the economic sphere alone. It is also applicable to other spheres, like the political sphere.


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Aristotles analysis of justice includes also political justice which obtains between those

which share a life for the satisfaction of the needs as persons, free and equal either

arithmetically or proportionately". There are two kinds of justice, one natural and the other

legal. The natural justice is that which has the same validity everywhere and does not depend

upon acceptance; the legal is that which in the first place can take one form or another

indifferently, but which once laid down is decisive".

The contribution of Aristotle to the meaning of Justice is very illuminating. His analysis

encompasses various senses of Justice, like the distributive, the rectificatory,the natural and

the legal justice. In a sense Aristotle is a natural law theorist and in another sense he is a

positivist. As a positivist, political and legal experiences have shown that not all laws are just.

An act can be legal but unjust. Again his conception of justice in the distributive sense. that isin accordance with merit, has the implication of justifying slavery. We have various views

about merit. There is the oligarchic whose criterion is wealth or good family and the aristocratic

view which is based on excellence. In a society which is oligarchic there will be the

stratification of the society which invariably justifies slavery. Slavery is an unjust act and slaves

are unjustly treated.

2.3 MEDIEVAL CHRISTIANITY

When Christian thinkers sought to develop their own philosophies in the middle ages, they

found precious basic building-blocks in ancient thought. This included such important post-

Aristotelians as the enormously influential Roman eclectic Cicero, such prominent Stoics as

Marcus Aurelius (a Roman emperor) and Epictetus (a Greek slave of the Romans), and neo-

Platonists like Plotinus. But the two dominant paths that medieval philosophy would follow

for its roughly thousand year history had been blazed by Plato and Aristotle. More specifically,

Augustine uses Platonic (and neo-Platonic) philosophy to the extent that he can reconcile it

with Christian thought; Aquinas, many centuries later, develops a great synthesis of Christian

thought (including that of Augustine) and Aristotelian philosophy.

2.3.1 Aurelius Augustine

Aurelius Augustine was born and raised in the Roman province of North Africa; during

his life, he experienced the injustices, the corruption, and the erosion of the Roman Empire.

This personal experience, in dialectical tension with the ideals of Christianity, provided him

with a dramatic backdrop for his religious axiology. Philosophically, he was greatly influenced


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by such neo-Platonists as Plotinus. His Christian Platonism is evident in his philosophical

dialogue On Free Choice of the Will, in which he embraces Platos view of four central moral

virtues. These are prudence, fortitude or courage, temperance, and justice. His conception of

justice is the familiar one of the virtue by which all people are given their due. But this is

connected to something new and distinctly Christianthe distinction between the temporal

law, such as the law of the state, and the eternal, divine law of God. The eternal law establishes

the order of Gods divine providence. And, since all temporal or human law must be consistent

with Gods eternal law, Augustine can draw the striking conclusion that, strictly speaking, an

unjust law is no law at all, an oxymoron. Thus a civil law of the state that violates Gods

eternal law is not morally binding and can be legitimately disobeyed in good conscience. This

was to have a profound and ongoing influence on Christian ethics.

2.3.2 Thomas Aquinas

As Augustine is arguably the greatest Christian Platonist, so Thomas Aquinas, from what

is now Italy, is the greatest Christian Aristotelian. Nevertheless, as we shall see, his theory of

justice is also quite compatible with Augustines. Aquinas discusses the same four cardinal

moral virtues, including that of justice, in his masterpiece, the multi-volume Summa

Theologica. No more a socio-political egalitarian than Plato, Aristotle, or Augustine, he

analyzes it as calling for proportional equality, or equity, rather than any sort of strict numerical

equality, and as a function of natural right rather than of positive law. Natural right ultimately

stems from the eternal, immutable will of God, who created the world and governs it with

divine providence. Natural justice must always take precedence over the contingent

agreements of our human conventions. Human law must never contravene natural law, which

is reasons way of understanding Gods eternal law. He offers us an Aristotelian definition,

maintaining that justice is a habit whereby a man renders to each one his due by a constant

and perpetual will. As a follower of Aristotle, he defines concepts in terms of genus andspecies. In this case, the general category to which justice belongs is that it is a moral habit of

a virtuous character. What specifically distinguishes it from other moral virtues is that by

justice, a person is consistently committed to respecting the rights of others over time. Strictly

speaking, the virtue of justice always concerns interpersonal relations, so that it is only

metaphorically that we can speak of a person being just to himself. In addition to legal justice,

whereby a person is committed to serving the common good of the entire community, there

is particular justice, which requires that we treat individuals in certain ways. Justice is a

rational mean between the vicious extremes of deficiency and excess, having to do with our


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external actions regarding others. Like many of his predecessors, Aquinas considers justice to

be preeminent among the moral virtues. He agrees with Aristotle in analysing particular justice

into two types, which he calls distributive and commutative; the former governs the

proportional distribution of common goods, while the latter concerns the reciprocal dealings

between individuals in their voluntary transactions.

2.4 MODERN CONCEPTS OF JUSTICE

2.4.1 Immanuel Kant

Immanuel Kant, an eighteenth-century German professor from East Prussia, found his

rationalistic philosophical convictions profoundly challenged by Humes formidable

scepticism, as well as being fascinated by the ideas of Rousseau. Even though he was not

convinced by it, Kant was sufficiently disturbed by it that he committed decades to trying to

answer it, creating a revolutionary new philosophical system in order to do so. This system

includes, but is far from limited to, a vast, extensive practical philosophy, comprising many

books and essays, including a theory of justice. It is well known that this practical philosophy

including both his ethical theory and socio-political philosophyis the most renowned

example of deontology. Whereas teleological or consequentialist theories (such as those of

Hobbes and Hume) see what is right as a function of and relative to good ends, a deontological

theory such as Kants sees what is right as independent of what we conceive to be good and,

thus, as potentially absolute. Justice categorically requires a respect for the right, regardless of

inconvenient or uncomfortable circumstances and regardless of desirable and undesirable

consequences.

Kant argues for a single fundamental principle of all duty, which he calls the categorical

imperative, because it tells us what, as persons, we ought to do, unconditionally. It is a test

we can use to help us rationally to distinguish between right and wrong; and he offers three

different formulations of it which he considers three different ways of saying the same thing:

(a) the first is a formula of universalizability, that we should try to do only what we could

reasonably will should become a universal law; (b) the second is a formula of respect for all

persons, that we should try always to act in such a way as to respect all persons, ourselves and

all others, as intrinsically valuable ends in themselves and never treat any persons merely as

instrumental means to other ends; and (c) the third is a principle of autonomy, that we, as

morally autonomous rational agents, should try to act in such a way that we could be reasonably


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legislating for a (hypothetical) moral republic of all persons. For the dignity of all persons,

rendering them intrinsically valuable and worthy of respect, is a function of their capacity for

moral autonomy. In his Metaphysics of Morals, Kant develops his ethical system, beyond

this foundation, into a doctrine of right and a doctrine of virtue. The former comprises strict

duties of justice, while the latter comprises broader duties of merit. For Kant, justice is

inextricably bound up with obligations with which we can rightly be required to comply. To

say that we have duties of justice to other persons is to indicate that they have rights, against

us, that we should perform those dutiesso that duties of justice and rights are correlative.

According to Kant, there is only one innate human right possessed by all persons; that is

the right freely to do what one wills, so long as that is compatible with the freedom of everyone

else in accordance with a universal law. Thus one persons right freely to act cannot extendto infringing on the freedom of others or the violation of their rights. This leads to Kants

ultimate universal principle of justice, which is itself a categorical imperative: Every action

is just that in itself or in its maxim is such that the freedom of the will of each can coexist

together with the freedom of everyone in accordance with a universal law. Although the use

of coercive force against other persons involves an attempt to restrict their freedom, this is not

necessarily unjust, if it is used to counteract their unjust abuse of freedomfor example, in

self-defence or punishment or even war. Kant approvingly invokes three ancient rules of

justice: (1) we should be honest in our dealings with others; (2) we should avoid being unjust

towards others even if that requires our trying to avoid them altogether; and (3) if we cannot

avoid associating with others, we should at least try to respect their rights.

2.4.2 John Stuart Mill

Whereas Kant was the first great deontologist, Mill subscribed to the already established

tradition of utilitarianism. Although earlier British thinkers were proto-utilitarians,

incorporating elements of the theory into their own worldviews, the movement, as such, is

usually thought to stem from the publication of Jeremy Benthams Introduction to the

Principles of Morals and Legislation in 1789. He there proposes the principle of utility,

which he also later calls the greatest happiness principle, as the desirable basis for individual

and collective decision-making: By the principle of utility is meant that principle which

approves or disapproves of every action whatsoever, according to the tendency which it appears

to have to augment or diminish the happiness of the party whose interest is in question. That

single sentence establishes the ultimate criterion for utilitarian reasoning and the root of a great


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movement. A famous lawyer named John Austin, under whom Mill studied, wrote a book of

jurisprudence based on Benthams principle of general utility.

Mill acknowledges that concern about a possible conflict between utility and justice has

always been one of the strongest obstacles to the acceptance of utilitarianism. If permanently

enslaving a minority could produce overwhelming happiness for a majority (he was personally

opposed to slavery as an unconscionable violation of human liberty), then, given that utility is

the value that trumps all others, why shouldnt the injustice of slavery be accepted as a

necessary means to a socially desirable end, the former, however unfortunate, being thus

justified? Mill thinks that the key to solving this alleged problem is that of conceptual analysis,

that if we properly understand what utility and justice are all about, we shall be able to see

that no genuine conflict between them is possible. We have already discerned what the formerconcept means and now need to elucidate the latter. Mill lays out five dimensions of justice as

we use the term: (1) respecting others legal rights is considered just, while violating them

is unjust; (2) respecting the moral right someone has to something is just, while violating it

is unjust; (3) it is considered just to give a person what he deserves and unjust to deny it; (4)

it is thought unjust to break faith with another, while keeping faith with others is just; and

(5) in some circumstances, it is deemed unjust to be partial in ones judgments and just to be

impartial. People commonly associate all of these with justice, and they do seem to represent

legitimate aspects of the virtue. Mill thinks all this boils down to the idea that justice is a term

for certain moral requirements, which, regarded collectively, stand higher in the scale of social

utility, being more obligatory than any others. But this means that justice, properly

understood, is a name for the most important of social utilities. Therefore there purportedly

cannot be any genuine conflict between utility and justice. If there ever were circumstances in

which slavery were truly useful to humanity, then presumably it would be just; the reason it is

unjust is that it violates utility. The main goal here is to reduce justice to social utility, in such

a way as to rule out, by definition, any ultimate conflict between the two. Thus, the social role

played by our sense of justice is allegedly that it serves the common good.8

2.5 CONTEMPORARY CONCEPTS OF JUSTICE

According to Kelson the longing for justice is men's eternal longing for happiness. It is

happiness that man cannot find alone, as an isolated individual and hence seeks in society.

8Wayne Morrison. JurisprudenceFrom the Greeks to post modernism, Lawman (India) Pvt. Ltd., New Delhi,

p. 384


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Justice is social happiness guaranteed by social order. The idea of attaining the just society is

deeply problematic in modernity. In Nietzschean terms a settled conception of justice is

difficult for the modern because the modern knows too much as a result finds pluralism and

perspectivism in short, pragmatism towards truth. We are an historical epoch that knows the

inevitability of change over stability whatever its theories of justice, late modernity is doomed

to dynamic as opposed to static justice.

From its founding, American political thought had an enduring focus on justice. One of

Americas greatest philosophers, John Rawls, addresses this ideal with a greater emphasis on

equality than do most of his European predecessors.

2.5.1 John Rawls

Rawls burst into prominence in 1958 with the publication of his game-changing paper, Justice

as Fairness. Though it was not his first important publication, it revived the social contract

theory that had been languishing in the wake of Humes critique and its denigration by

utilitarians and pragmatists, though it was a Kantian version of it that Rawls advocated. This

led to a greatly developed book version, A Theory of Justice, published in 1971, arguably the

most important book of American philosophy published in the second half of the last century.

Rawls makes it clear that his theory, which he calls justice as fairness, assumes a Kantian

view of persons as free and equal, morally autonomous, rational agents, who are not

necessarily egoists. He also makes it clear early on that he means to present his theory as a

preferable alternative to that of utilitarians. He asks us to imagine persons in a hypothetical

initial situation which he calls the original position (corresponding to the state ofnature

or natural condition of Hobbes, but clearly not presented as any sort of historical or pre -

historical fact). This is strikingly characterized by what Rawls calls the veil of ignorance, a

device designed to minimize the influence of selfish bias in attempting to determine what

would be just. If you must decide on what sort of society you could commit yourself to

accepting as a permanent member and were not allowed to factor in specific knowledge about

yourselfsuch as your gender, race, ethnic identity, level of intelligence, physical strength,

quickness and stamina, and so forththen you would presumably exercise the rational choice

to make the society as fair for everyone as possible, lest you find yourself at the bottom of that

society for the rest of your life. In such a purely hypothetical situation, Rawls believes that

we would rationally adopt two basic principles of justice for our society: the first requires

equality in the assignment of basic rights and duties, while the second holds that social and


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economic inequalities, for example inequalities of wealth and authority, are just only if they

result in compensating benefits for everyone, and in particular for the least advantaged

members of society. Here we see Rawls conceiving of justice, the primary social virtue, as

requiring equal basic liberties for all citizens and a presumption of equality even regarding

socio-economic goods. He emphasizes the point that these principles rule out as unjust the

utilitarian justification of disadvantages for some on account of greater advantages for others,

since that would be rationally unacceptable to one operating under the veil of ignorance. Like

Kant, Rawls is opposed to the teleological or consequentialist gambit of defining the right

(including the just) in terms of maximizing the good; he rather, like Kant, the deontologist,

is committed to a priority of the right over the good. Justice is not reducible to utility or

pragmatic desirability. We should notice that the first principle of justice, which requires

maximum equality of rights and duties for all members of society, is prior in serial or lexical

order to the second, which specifies how socio-economic inequalities can be justified9. Again,

this is anti-utilitarian, in that no increase in socio-economic benefits for anyone can ever justify

anything less than maximum equality of rights and duties for all. Thus, for example, if

enslaving a few members of society generated vastly more benefits for the majority than

liabilities for them, such a bargain would be categorically ruled out as unjust.

Rawls 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 bases of self-respect. These need not be considered

desirable in themselves but they give persons the opportunities rationally to further their own

autonomy. The above discussion has revealed that Rawls seems to lay down a contractarian

theory of justice in which participation in the understanding of justice as fairness makes a type

of government called constitutional democracy. The model which Rawls proposes as satisfying

has two principles of justice. It is a constitutional democracy in which the government regulates

a free economy in a certain way. More fully, if law and government act effectively to keep

market competitive, resources fully employed, property and wealth widely distributed overtime

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.10

9John Rawls,A Theory of Justice, Cambridge, Harvard University Press, 1971, pp. 12-26, 31, 42-4310Rawls: Distributive Justice in peterlaslett & W.G. Runciman (ed.) Philosophy, Politics & Society III Series,

Oxford, 1967 p. 71


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The idea of distributive justice in Rawls theory in simple terms requires that the courts

should take a liberal view of the premises of law and so interpret them as to distribute benefits

to the largest number of people so that the harsh effects of the technicalities of law are contained

within the narrowest limits.11

Thus, Rawls believes that a fully satisfying existential life requires justice. But an obvious

problem arises: how are we to require whether the arrangements of any particular social

ordering are just or unjust? Rawls intellectual predecessors are Kant (who provides among

other things the idea of the primacy of the right over the good and the regulatory idea of the

social contract) and John Stuart Mill (who provides the spirit of tolerance). Rawls thus chooses

the right over the goodKant wins over the Bentham.12

In nutshell, Rawls is trying to balance the need for growth in wealth, with respect for the

least well off in the society. Whilst the general aim of utilitarian justice is to maximize social

wealth. Rawls holds his basic principles of justice based also upon a deontological respect for

autonomy as checks upon such maximization.13

2.5.2 Robert Nozick

Nozick, who was a departmental colleague of Rawls at Harvard, was one of the first and

remains one of the most famous critics of Rawlss liberal theory of justice. Both arefundamentally committed to individual liberty. But as a libertarian, Nozick is opposed to

compromising individual liberty in order to promote socio-economic equality and advocates a

minimal state as the only sort that can be socially just. In Anarchy, State, and Utopia

(1974), especially in its famous chapter on Distributive Justice, while praising Rawlss first

book as the most important work in political and moral philosophy since that of Mill, Nozick

argues for what he calls an entitlement conception of justice in terms of three principles of

just holdings. First, anyone who justly acquires any holding is rightly entitled to keep and use

it. Second, anyone who acquires any holding by means of a just transfer of property is rightly

entitled to keep and use it. It is only through some combination of these two approaches that

anyone is rightly entitled to any holding. But some people acquire holdings unjustlye.g., by

theft or fraud or forceso that there are illegitimate holdings. So, third, justice can require the

rectification of unjust past acquisitions. These three principles of just holdingsthe principle

11Benzamin Cardozo: The nature of Judicial Process, Yale Univ. press, pp. 149-5212Supran.8, pp. 392-39313Ibid, p. 396


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of acquisition of holdings, the principle of transfer of holdings, and the principle of rectification

of the violations of the first two principlesconstitute the core of Nozicks libertarian

entitlement theory of justice. People should be entitled to use their own property as they see

fit, so long as they are entitled to it. On this view, any pattern of distribution, such as Rawlss

difference principle, that would force people to give up any holdings to which they are entitled

in order to give it to someone else (i.e., a redistribution of wealth) is unjust. Thus, for Nozick,

any state, such as ours or one Rawls would favour, that is more extensive than a minimal

state and redistributes wealth by taxing those who are relatively well off to benefit the

disadvantaged necessarily violates peoples rights14

In this context, Prof. Hart has rightly observed that with the arrival of right based theories

from thinkers like Robert Nozick and R. Dworkin, it may be that the epoch which Benthamopened is now closing: certainly among American political and legal philosophers.

Utilitarianism is on the defensive, if not on the run, in the face of theories of justice which in

many ways resemble the doctrine of unalienable rights of man, and there are important

conceptual connections between law and morality obscured by the positivistic tradition.15

2.5.3 Ronald Dworkin

For both Rawls and Nozick, there is clear relationship between justice and rights, but it

is Ronald Dworkin who can be said most clearly to ground justice in rights. To Dworkin rights

are trumps. 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. Further, the whole institution of

rights rests on the convictin that the invasion of relatively important right is a grave injustice.

Dworkin sees rights as safeguards inserted into political and legal morality to prevent the

conception of the equalitarian character of welfarist calculations by the introduction of external

preferences.16Utilitarianism, Dworkin argues assigns critical weight to external preferences: it

is accordingly not equalitarian since it will not respect the right of every one to be treated with

equal concern and respect.17

In view of above right and goal based dichotomy pertaining to the notion of justice, it

is submitted that if the weakness of utilitarian theories lies in their readiness to sacrifice

14Robert Nozick,Anarchy, State, and Utopia, New York: Basic Books, 1974, p. 14915H.L.A. Hart.Essays on Bentham, Jurisprudence and Political Theory,Clarondan Press, Oxford, 1982, p. 5316Ronald Dworkin, Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977, p. 2817Quoted byLLoyds Introduction to Jurisprudence, p. 543


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individual rights on the altar of maximizing happiness that of right based moral theories are

also experiencing great difficulties in producing arguments for the existence of rights.

2.5.4 Michael Sandel

Communitarian Jurists like Michael Sandel has observed: "For liberals of the Kantian type

such as Rawls, the priority of the right over the good means not only that one cannot sacrifice

individual rights in the name of the general good, but also that principles of justice cannot be

derived from a particular conception of the good light." 18 This is a cardinal principle of

liberalism, according to which there cannot be a sole conception of eudemonia, i.e., of

happiness.

Sandel, as a communitarian, argues that the well-being of a community takes precedence

over individual liberty and over the socio-economic welfare of its members. While

acknowledging that Rawls is not so narrowly individualistic as to rule out the value of

building social community, in Liberalism and the Limits of Justice, he maintains that the

individualism of persons in the original position is such that a sense of community is not a

basic constituent of their identify as such, so that community is bound to remain secondary

and derivative in the Rawlsian theory. To deny that community values help constitute ones

personal identity is to render impossible any pre-existing interpersonal good from which a

sense of right can be derived. Thus, for Sandel, Rawlss myopic theory of human nature gives

him no basis for any pre-political natural rights. So his conception of justice based on this

impoverished view must fail to reflect the shared self-understandings of who they are as

members of community that must undergird the basic structure of political society. Through

the interpersonal relationships of community, we establish more or less enduring attachments

and commitments that help define who we are, as well asthe values that will help characterize

our sense of justice as a common good that cannot be properly understood by individuals

detached from community. Thus justice must determine what is right as serving the goods we

embrace in a social contextas members of this family or community or nation or people, as

bearers of this history, as sons and daughters of that revolution, as citizens of this republic

rather than as abstract individuals.19

18Michael J. Sandel,Liberalism and the Limits of Justice,New York: Cambridge University Press, 1982, p. 17919Ibid, pp. 172-174


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3

DIFFERENT FACETS OF JUSTICE

The discussion in the previous chapter of various approaches about the notion of justice

has clearly revealed that there exists an irresoluble pluralism of ideologies. Which implies that

Justice is a multifaceted concept. Justice is action in accordance with the requirements of some

law. Whether these rules be grounded in human consensus or societal norms, they are supposed

to ensure that all members of society receive fair treatment. Issues of justice arise in several

different spheres and play a significant role in causing, perpetuating, and addressing conflict.

Just institutions tend to instill a sense of stability, well-being, and satisfaction among society

members, while perceived injustices can lead to dissatisfaction, rebellion, or revolution. Each

of the different spheres expresses the principles of justice and fairness in its own way, resulting

in different types and facets of justice. These types of justice have important implications for

socio-economic, political, civil, and criminal justice at both the national and international level.

3.1 DISTRIBUTIVE JUSTICE

In modern society, if we take the view, that all its problem of distribution, then the

recourse is left open to justice and nothing else. Justice then demands equality in the

distribution of advantages or burdens as such. These advantages or burdens which are to be

distributed are of numerous kinds for instance, wages, property, power (political i.e., right to

vote, right to participation and proportional representation etc. honour, dignity, taxes

punishment, individual and social performances or rights and duties as allocated and

apportioned by the legal or political system. In all cases justice demands equitable distribution.

According toAristotleJustice is of two kinds. One is Distributive Justice (DJ) and the

other is Corrective Justice (CJ). Distributive Justice works to ensure a fair division of social

benefits and burdens amongst the members of a community. This concept of justice has been

universally accepted by almost all philosophers. In fact, it was in accordance with this concept

that Bentham asserted that so far as right to vote is concerned, each should count for one and

no one for more than one.20As, the notion of Distributive Justice was initially formulated by

Aristotle the idea being of proportionate equality. In distributing such things as honours and

offices the state must take account of the differences in individuals. It is as unjust to treat

unequals equally as to treat equal unequally.21The problem of DJ, therefore, is to decide what

20P.J. Fitzgerald, Salmod on Jurisprudence, (12th ed.), (1966), p. 61.21Sobhanlal Datta Gupta, Justice and the Political Order in India, (1979), p. 1.


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differences are relevant, for Aristotle, the criterion of these differences was merit. As Aristotle

points out in Politics, Justice is relative to persons, and a just distribution is one in which the

relative values of things given correspond to those of the persons receiving a point which has

already been made in the Ethics.22The object of CJ is to restore the equilibrium in a society

which is disturbed by another. For example, if A wrongfully seizes Bs property, CJ acts to

restore the status quo by compelling A to make restitution. Justice in its distributive aspect

serves to secure, and in its corrective aspect to redress, the balance of benefits and burdens in

a society.23

Distributive justice is concerned with the fair allocation of resources among diverse

members of a community. Fair allocation typically takes into account the total amount of goods

to be distributed, the distributing procedure, and the pattern of distribution that results. InGlobal Distributive Justice, Armstrong distinguishes between distributive justice generally and

principles of distributive justice.24Armstrong defines distributive justice as the ways that the

benefits and burdens of our lives are shared between members of a society or community.

Principles of distributive justice tell us how these benefits and burdens ought to be shared or

distributed.25

Because societies have a limited amount of wealth and resources, the question of how

those benefits ought to be distributed frequently arises. The common answer is that public

assets should be distributed in a reasonable manner so that each individual receives a "fair

share." Various principles might determine of how goods are distributed. Equality, equity, and

need are among the most common criteria.26If equality is regarded as the ultimate criterion

determining who gets what, goods will be distributed equally among all persons. In other words

each person will get the same amount. However, due to differences in levels of need, this will

not result in an equal outcome. Another possibility is to proceed according to a principle of

equity, and distribute benefits in proportion to the individuals' contribution. Thus, those whomake a greater productive contribution to their group deserve to receive more benefits. Thus,

in theory, people who work harder in more valuable jobs should earn more money. This sort

of distribution is typically associated with an economic system where there is equal opportunity

22Aristotle, Politics, trans. Ernest Barker, (Oxford: Clarendon Press), 1948, p. 17723Supra, n. 2024Chris Armstrong, Global Distributive Justice: An Introduction(Cambridge University Press, 2012)25Nicolas Rescher,Fairness: Theory & Practice of Distributive Justice(Transaction Publishers, 2002).26Robert T. Buttram, Robert Folger, and B.H. Sheppard, "Equity, Equality and Need: Three Faces of Social

Justice,"In Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker

and Morton Deutsch (San Francisco, Jossey-Bass Inc. Publishers, 1995), p. 261.


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to compete. In competitive systems, wealth or goods might also be distributed according to

effort or ability. Or, goods might be distributed according to need, so that an equal outcome

results. Those who need more of a benefit or resource will receive more, as occurs when

colleges offer needs-based scholarships, or states provide welfare payments to the poor. Some

suggest a system of competition that includes safety nets for those who cannot compete. This

sort of system combines the principle of equity with that of need. It attempts to reward people

for their productivity at the same time that it ensures their basic needs are met. Finally, we

might distribute resources according to social utility, or what is in the best interests of society

as a whole. This is the argument that is frequently made by high-paid executives, who not only

argue that they deserve their high salaries because of their contributions to their businesses, but

they also argue that they are the "job creators," thus paying them highly benefits society as a

whole. Others, however, think taxing them highly and using the income to provide services to

the less fortunate would be of greater overall benefit to the society.

3.1.1 Importance of Distributive Justice

According to the theory of relative deprivation, a sense of injustice is aroused when

individuals come to believe that their outcome is not in balance with the outcomes received by

people like them in similar situations.27When people have a sense that they are at an unfair

disadvantage relative to others, or that they have not received their "fair share," they may wish

to challenge the system that has given rise to this state of affairs. This is especially likely to

happen if a person or groups' fundamental needs are not being met, or if there are large

discrepancies between the "haves" and the "have-nots."

Societies in which resources are distributed unfairly can become quite prone to social

unrest. For example, "since the colonial period, unfair land distribution and the prevailing

agricultural economic system have been the prime causes of armed and civil resistance in

Guatemala." 28 While national and international elites enjoy largely unrestricted access to

communal lands expropriated from the Maya, the majority of Guatemalans live in poverty, on

farms smaller than those required to feed the average family. This sort of land distribution

violates principles of equality, equity, and need, and therefore generates conflict.

27Morton Deutsch, "Justice and Conflict."In The Handbook of Conflict Resolution: Theory and Practice, ed. M.Deutsch and P.T. Coleman (San Francisco, Jossey-Bass Inc. Publishers, 2000), p. 4328Murga, Gustavo Palma. "Promised the Earth: Agrarian Reform in the Guatemalan Socio-Economic Agreement"

(1997).


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Redistribution of benefits can sometimes help to relieve tensions and allow for a more

stable society. However, redistribution always has losers, and they often initiate a conflict of

their own. Although always challenging, to the extent that re-distribution can be enacted by the

government through what is widely perceived to be a legitimate decision making process,

success is more likely to be achieved. If the redistribution process is seen as illegitimate,

renewed conflict is a more likely outcome. Balancing out gross inequalities of wealth might

also be part of compensatory justice after periods of war. During periods of post-war

adjustment and peacebuilding efforts, long-term economic policy must aim to achieve equity,

or balance in the distribution of income and wealth. Issues of distributive justice are in this way

central to any peacebuilding or reconstruction program. Such efforts to ensure a just

distribution of benefits following conflict are typically accompanied by democratization efforts

to ensure a more balanced distribution of power as well.

3.2 PROCEDURAL JUSTICE

The notion that fair procedures are the best guarantee for fair outcomes is a popular one.

Procedural justice is concerned with making and implementing decisions according to fair

processes. People feel affirmed if the procedures that are adopted treat them with respect and

dignity, making it easier to accept even outcomes they do not like. 29 But what makes

procedures fair? First, there is an emphasis on consistency. Fair procedures should guarantee

that like cases are treated alike. Any distinctions "should reflect genuine aspects of personal

identity rather than extraneous features of the differentiating mechanism itself." 30Second,

those carrying out the procedures must be impartial and neutral. Unbiased decision- makers

must carry out the procedures to reach a fair and accurate conclusion. Those involved should

believe that the intentions of third-party authorities are benevolent, that they want to treat

people fairly and take the viewpoint and needs of interested parties into account.31If people

trust the third party, they are more likely to view the decision-making process as fair. Third,

those directly affected by the decisions should have a voice and representation in the process.

Having representation affirms the status of group members and inspires trust in the decision-

making system. This is especially important for weaker parties whose voices often go unheard.

Finally, the processes that are implemented should be transparent. Decisions should be reached

29supra, n. 27, p. 4530Robert T. Buttram, Robert Folger, and B.H. Sheppard. "Equity, Equality and Need: Three Faces of Social

Justice,"in Conflict, Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker

and Morton Deutsch (San Francisco: Jossey-Bass Inc. Publishers, 1995), p. 272.31Ibid, p. 273


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through open procedures, without secrecy or deception. Many believe that procedural justice

is not enough. Reaching fair outcomes is far more important than implementing fair processes.

Others maintain that insofar as fair procedures are likely to "translate" into fair outcomes, they

are of central importance.32

Fair procedures tend to inspire feelings of loyalty to one's group, legitimize the authority

of leaders, and help to ensure voluntary compliance with the rules.33This is true in a variety of

settings, from the work place, to political organizations, to legal contexts. Issues of procedural

justice thus arise in the making of many different types of decisions. In the context of legal

proceedings, procedural justice has to do with ensuring that a fair trial takes place. The

application of law is supposed to ensure impartiality, consistency, and transparency. In order

to ensure that retributive justice is served and that offenders receive fair punishments, judges,and juries must be unbiased and even-handed in their sentencing.34In the realm of distributive

justice, implementing fair procedures is a matter of setting down rules that everyone should

follow in acquiring and transferring goods. Many believe that following certain rules of

allocation will lead to the fairest distribution of wealth.

There is also an important relationship between justice-based principles and negotiation.

Fair processes yield reliable information that can be used in the decision-making process.

Participants must agree beforehand to the processes of dialogue or exchange that are being

used, and be given an equal voice in any decisions that are made. Fair rules of collaboration

are central to successful mediation or negotiation processes, insofar as they are the best tools

for reaching a decision acceptable to all parties. Fair procedures of negotiation or legal

proceedings are also central to the legitimacy of decisions reached. In those cases where parties

feel forced to accept the results of a decision-making process they think was unfair, there may

be a backlash effect.

In A Theory of Justice, John Rawls distinguishes three very general and abstract kinds

of procedural justice: (1) perfect procedural justice, (2) imperfect procedural justice, and (3)

pure procedural justice. Consider perfect procedural justice first. There are two characteristic

features of perfect procedural justice. First, there is an independent criterion of what is a fair

32William Nelson. "The Very Idea of Pure Procedural Justice,"Ethics, vol. 90, no. 4 (July 1980): p. 506.33Tom R. Tyler and Maura A. Belliveau. "Tradeoffs in Justice Principles: Definitions of Fairness," in Conflict,Cooperation, and Justice: Essays Inspired by the Work of Morton Deutsch, eds. B.B. Bunker and Morton Deutsch

(San Francisco: Jossey-Bass Inc. Publishers, 1995), p. 297.34Jeffrey A. Jenkins. The American Courts: A Procedural Approach, (Jones & Bartlett Publishers, 2011)


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division, a criterion defined separately from and prior to the procedure which is to be followed.

And second, it is possible to devise a procedure that is sure to give that desired outcome.35In

the case of imperfect procedural justice, the first characteristic, an independent criterion for

fairness of outcome, is present, but the second, a procedure that guarantees that outcome, is

not. Imperfect procedural justice is exemplified by a criminal trial. The desired outcome is that

the defendant should be declared guilty if and only if he has committed the offense with which

he is charged. The trial procedure is framed to search for and to establish the truth in this regard.

But it seems impossible to design the legal rules so that they always lead to the correct result.

The theory of trials examines which procedures and rules of evidence, and the like, are best

calculated to achieve this purpose consistent with the other ends of the law. Different

arrangements for hearing cases may reasonably be expected in different circumstances to yield

the right results, not always but at least most of the time.36Pure procedural justice obtains when

there is no independent criterion for the right result: instead there is a correct or fair procedure

such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has

been properly followed. This situation is illustrated by gambling. If a number of persons engage

in a series of fair bets, the distribution of cash after the last bet is fair, or at least not unfair,

whatever this distribution is.37Pure procedural justice rejects an underlying assumption of both

perfect and imperfect procedural justice--the assumption that there is an independent criterion

for what constitutes the correct outcome. There are not criteria for the correct outcome except

for an ideal (or actual) set of procedures.

3.3 RETRIBUTIVE JUSTICE

Retributive justice is a theory of justice that considers punishment, if proportionate, to

be the best response to crime. When an offender breaks the law, justice requires that they forfeit

something in return. Retribution should be distinguished from vengeance. Unlike revenge,

retribution is only at wrongs, has inherent limits, is not personal, involves no pleasure at the

suffering of others, and employs procedural standards.38Central to retributive justice are the

notions of merit and desert. We think that people should receive what they deserve. This means

that people who work hard deserve the fruits of their labor, while those who break the rules

deserve to be punished. In addition, people deserve to be treated in the same way that they

35supra, n. 936Ibid.37Ibid.38 Nozick, Robert,Philosophical Explanations. Cambridge, MA: Harvard University Press (1981). pp. 366368.


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voluntarily choose to treat others.39If you behave well, you are entitled to good treatment from

others. Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a

society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal

citizen must do their part in this system of reciprocal restraint. An individual who seeks the

benefits of living under the rule of law without being willing to make the necessary sacrifices

of self-restraint is a free rider. He or she has helped themselves to unfair advantages, and the

state needs to prevent this to preserve the rule of law. 40

In cases of wrongdoing, someone who merits certain benefits has lost them, while

someone who does not deserve those benefits has gained them. Punishment "removes the

undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by the

offense."41

It is suffered as a debt that the wrongdoer owes their fellow citizens. Retributivejustice in this way aims to restore both victim and offender to their appropriate positions

relative to each other. Retributive justice is in this way backward-looking. Punishment is

warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that

have been broken and balance the scales of justice.42

Protracted conflicts often involve violence or cruelty suffered by innocent civilians. In

some cases, this violence is carried out systematically, in the form of genocide, ethnic

cleansing, enslavement, or systematic racial discrimination. In other cases, rapes, murders, and

acts of torture may be carried out more haphazardly. In those cases where the parties involved

are "at war," such actions violate the war convention and the rules ofjus in bello. They are war

crimes. But even when a war has not been officially declared, these cruel acts of murder and

torture constitute human rights violations, prohibited by international law. Many believe that

those who perpetrate such war crimes, or crimes against humanity, should be brought to justice.

This is typically accomplished through international courts or tribunals that carry out war

crimes adjudication. Retributive justice is a matter of giving those who violate human rightslaw and commit crimes against humanity their "just deserts." Punishment is thought to reinforce

the rules of international law and to deny those who have violated those rules any unfair

39Rachels, James. "Punishment and Desert." InEthics in Practice, ed. Hugh LaFollette, (Malden, Massachusetts:

Blackwell Publishers, 1997), p. 46640Murphy, Jeffrie G.Retribution Reconsidered(Norwell, Massachusetts: Kluwer Academic Publishers, 1992), p.

23.41Cragg, Wesley. The Practice of Punishment: Towards a Theory of Restorative Justice (New York, Routledge,

1992), p. 15.42supra, n. 34


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advantages. Together with restorative justice, retribution is concerned with restoring victims

and offenders to their rightful position.

However, there is a dangerous tendency to slip from retributive justice to an emphasis on

revenge. Vengeance is a matter of retaliation, of getting even with those who have hurt us. It

can also serve to teach wrongdoers how it feels to be treated in certain ways. Like retribution,

revenge is a response to wrongs committed against innocent victims and reflects the

proportionality of the scales of justice. But revenge focuses on the personal hurt involved and

typically involves anger, hatred, bitterness, and resentment. Such emotions are potentially quite

destructive. Because these intense feelings often lead people to over-react, resulting

punishments can be excessive and cause further antagonism. In addition, punishments dictated

by revenge do not satisfy principles of proportionality or consistency. This is because revengeleads to punishments that vary according to the degree of anger provoked. Wrongs that do not

provoke anger will receive no response. Acts that provoke a great deal of anger will, on the

other hand, provoke an overly intense response and lead to reciprocal acts of violence. For

example, resentment about past injustice can "motivate people who otherwise live peaceably

to engage in torture and slaughter of neighbours identified as members of groups who

committed past atrocities."43Devastating inter-group violence in the form of mass killings can

result.

Retributive justice requires that the punishment fit the crime and that like cases be treated

alike. Wrongdoers deserve blame and punishment in direct proportion to the harm inflicted.

Retribution can therefore be seen as vengeance curbed by outside intervention and the

principles of proportionality and individual rights.44Indeed, one way to avoid the escalation of

violence is "to transfer the responsibilities for apportioning blame and punishment from victims

to public bodies acting according to the rule of law."45 It is commonly thought that formal

institutions with trained judiciaries are best equipped to carry out just retribution. Suchinstitutions can effectively bring offenders to justice by giving them the punishment they

deserve.

43Martha Minow,Between Vengeance and Forgiveness(Boston, Massachusetts: Beacon Press, 1998), p. 11.44Ibid, p. 1145Ibid, pp. 11-12


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3.4 RESTORATIVE JUSTICE

Restorative justice is concerned with healing victims' wounds, restoring offenders to law-

abiding lives, and repairing harm done to interpersonal relationships and the community. It

seeks to involve all stakeholders and provide opportunities for those most affected by the crimeto be directly involved in the process of responding to the harm caused. A central premise of

restorative justice is that victims, offenders, and the affected communities are all key

stakeholders in the restorative process.46Victims include not only those directly affected by

the offense, but also family members and members of the affected community. The safety,

support, and needs of these victims are the starting points for any restorative justice process.

Thus a primary objective is to attend to victims' needs: material, financial, emotional, and

social.47Addressing these needs and the needs of the community is necessary if public demands

for severe punishment are to be quelled. This requires the assumption that crimes or violations

are committed against real individuals, rather than against the state. Restorative justice,

therefore, advocates restitution to the victim by the offender rather than retribution by the state

against the offender. Instead of continuing and escalating the cycle of violence, it tries to restore

relationships and stop the violence.48

A restorative justice process also aims to empower victims to participate effectively in

dialogue or mediation with offenders. Victims take an active role in directing the exchange thattakes place, as well as defining the responsibilities and obligations of offenders. Offenders are

likewise encouraged to participate in this exchange, to understand the harm they have caused

to victims, and to take active responsibility for it. This means making efforts on their parts to

set things right, to make amends for their violations, by committing to certain obligations, that

may come in the form of reparations, restitution, or community work. While fulfilling these

obligations may be experienced as painful, the goal is not revenge, but restoration of healthy

relationships between individuals and within communities that have been most affected by the

crime.

46Howard Zehr and H. Mika. "Fundamental Concepts of Restorative Justice." In Contemporary Justice Review:

Issues in Criminal, Social, and Restorative Justice, Volume 1, Issue 1 (1997), pp. 47-56.47Tony F. Marshall. "Restorative Justice: An Overview," (Home Office Research Development and Statistics

Directorate, 1999)48Peggy Hutchison and Harmon Wray. "What is Restorative Justice?" (New World Outlook, 1999)


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Restorative justice is a forward-looking, preventive response that strives to understand

crime in its social context. It challenges us to examine the root causes of violence and crime in

order that these cycles might be broken.49This approach is based on the assumption that crime

has its origins in social conditions, and recognizes that offenders themselves have often

suffered harm. Therefore, communities must both take some responsibility for remedying those

conditions that contribute to crime and also work to promote healing.50

Healing is crucial not just for victims, but also for offenders. Both the rehabilitation of

offenders and their integration into the community are vital aspects of restorative justice.

Offenders are treated respectfully and their needs are addressed. Removing them from the

community, or imposing any other severe restrictions, is a last resort. It is thought that the best

way to prevent re-offending is re-integration.51

The justice process in this way strengthens thecommunity and promotes changes that will prevent similar harms from happening in the future.

It is generally thought that restorative justice should be integrated with legal justice as a

complementary process that improves the quality, effectiveness, and efficiency of justice as a

whole.52Because they focus on the needs of the victim, the offender, and the community,

restorative processes can help to determine how the law should be applied most fairly.

3.5 SOCIAL JUSTICE

The Concept of Social Justice is Replete with multifarious connotations. It is equated with a

welfare state. It is considered to be analogous to an egalitarian society. It is treated to be an

incident of the Rule of Law. It is co-extensive with Social welfare. Because Social Justice is

supposed to dwell mainly in the abolition of all sorts of inequalities which are the concomitants

of all sorts of inequalities of wealth and opportunity, race, caste, religion, distinction and title.

The Declaration of American Independence 1776 discovered it into the man inalienable rights

of equality life and liberty. The French Declaration of Rights of man 1789 discovered it into

the natural imprescriptibly and inalienable rights of man. Such Rights are regarded to be natural

because all men are equally endowed with rights by equal war.53

Democratic Socialism aims to end poverty ignorance, disease and inequality of

opportunity. Socialistic concept of society should be implemented in the True spirit of the

49Ibid.50supra, n. 4751supra, n. 4652supra, n. 4753R.G.Chaturvadi Natural and Social JusticeSecond Edition 1975, Law book Company Allahabad. p. 469.


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constitution thus the principal aim of socialism is to eliminate inequality of income status ,and

standards of life, and to provide a decent standard of life to the working people.54

The concept of social-economic Justice is a living concept and gives substance to the rule

of law and meaning and significance to the ideal of a welfare State. The Indian constitution is

an illustration of the forces at work in socio-economic Jurisprudence. It sets out the Directive

principles of State Policy fundamental to the governance of the country and spells out a social

order in which Justice, Social, economic and political, shall inform all the Institutions of

National life.55

Social Justice is concerned not in the narrow focus of what is just for the individual alone,

but what is just for the society whole.56Social Justice takes within its sweep the objective of

removing all inequalities and affording equal opportunities to all citizens in social affairs as

well as economic activities. The term Justice without doubt means Justice to the deprived

and weaker sections of society bringing an egalitarian order under which opportunities are

afforded to the weaker sections of society. Social justice assigns rights and duties in the

institutions of society, which enables people to receive the basic benefits and burdens of

cooperation.57 The relevant institutions can include education, health care, social security,

labour rights, as well as a broader system of public services, progressive taxation and regulation

of markets, to ensure fair distribution of wealth, equal opportunity, equality of outcome, and

no gross social injustice.

3.6 POLITICAL JUSTICE

Political justice refers to the use of the judicial process for the purpose of gaining (or

upholding or enlarging) or limiting (or destroying) political power or influence. It may

accompany or confirm political or military action, or it may be a substitute for such action.

Political justice usually involves the courts, which may be invoked either by public officials

or, in those societies which permit open competition for political power, by private individuals.

The party invoking the judicial arm must present its demands in a form susceptible of legal

determination. This partys allegations in regard to facts must be open to incrimination and

54Dr. Mayuri Pandya Social Justice: A Dream or RealtyAIR 2009 May Journal p.79 p.255S. K.K .Gupta, Minimum BonusA search for social justice,ILI Journal, vol .25 (1983) p. 39056Loretta Capeheart, Dragon Milovanovic, Social Justice: Theories, Issues and Movements, Rutgers UniversityPress, 2007, p. 257supra, n. 9, p. 4, "the principles of social justice: they provide a way of assigning rights and duties in the basic

institutions of society and they define the appropriate distribution of benefits and burdens of social co-operation."


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proof under the specific legal system involved. These allegations may relate to intrinsically

political acts or to common crimes in which the criminal is charged with political motivation,

for example, bank robbery to finance revolutionary activity. Those bringing the case may reap

propaganda benefits from the political stature of a person implicated in offenses of a non-

political and even technical nature, for example, violation of foreign exchange regulations.58

58Otto Kirchheimer, "Political Justice." International Encyclopedia of the Social Sciences. 1968. Retrieved

September 30, 2015 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045000963.html


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4

CONCLUSION

"The process of definition always requires some reflection and care, and is

sometimes of considerable difficulty. But there is no case where the difficulty is

greater, or the result more disputed than when we try to define justice".

- Henry Sidgwick

To start writing on the concept of justice is to invite, to my mind, a serious risk. The reason

is quite simple. In the realm of political philosophy it is the discussion of this concept that has

generated perhaps the worst, and on occasions quite loud and violent, controversies. In fact,

while philosophers from the time of Plato down to the present day have spared no efforts in

clarifying the concept, our experience, however, has not been a very happy one. The moral

philosophers, have somehow made the issue more complex and debatable, leaving behind a

trail of confusion. Thus, it is a very vague and ambiguous concept, having its abstract, universal

and all-pervasive characteristics.

Law and justice are two distinct concepts. Justice is the legitimate end of law. According

to Salmond, right or justice comes first in the order of logical conceptions and law comes

second and is derivative.59Thus, from St. Thomas Aquinas to Salmond many philosophers and

jurist considered justice as a goal of law. It must, therefore, necessarily precede law because

people thought of law as they wanted justice.60Justice as a force of civic equilibrium presented

a much simpler problem to the ancient static society than the modern dynamic world.

Justice means giving one what is due to him. For justice consists precisely in not singling

persons out for special treatment in the absence of significant differences, but in treating like

cases alike and meeting out fair and equal treatment to all.As a principle of law, justice

delimits and harmonises the conflicting interests and claims in the social life of a man. The

result of law is justice, therefore, conflict amelioration is the laws basic function.61Thus, law

is an integrated mechanism.62The function of law is the orderly resolution of disputes which

ultimately leads to justice. Hence, the main function of law is justice, which further leads to

social change. Justice is politically and legally directed mechanism so as to balance the

59Glanville Williams, Salmond on Jurisprudence, (11th ed.), p. 61.60S.M.N. Raina, Law, Judges and Justice, (1979), p. II.61C.J. Friedrich, Constitutional Government and Democracy, (rev. ed.), (New York: Blaisdell), (1950), p. 102.62T. Persons, The Law and Social Control, in W.M. Evan (ed.), Law and Sociology, (New York: The Free Press

of Glencoe), (1963), pp. 56, 58.


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conflicting interests of people concerned and to eliminate social, economic, and political

inequalities existing in all societies.

Justice lies in the domain of morality and the instinct for justice is a part of human nature.63

Justice is essentially a social virtue and the question of justice mainly in the context of one

persons conduct in relation to other. The purpose of justice is to maintain or restore an

equilibrium in human affairs. 64 Thus, C.K. Allen acknowledges that it is the concept of

harmony, balance or reconcillation of interests that has been the dominant theme in the

treatment of justice from Aristotle to Roscoe Pound. He feels that in a modern democracy it is

the function of justice to blend the different tones of society into a satisfying wholeness through

the very differences of parts.65

63Sir Cerleton Kemp Allen,Aspects of Justice, (1958), p. 5.64Ibid, p. 1465Ibid, p. 16-17


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BIBLIOGRAPHY

Books

1.

Aristotle,Politics, trans. Ernest Barker, (Oxford: Clarendon Press), 1948,

2.

Benzamin Cardozo, The nature of Judicial Process, Yale Univ. press, 1921

3. C.J. Friedrich, Constitutional Government and Democracy, (rev. ed.), (New York:

Blaisdell), (1950),

4. Chaim Perelman, The Idea of Justice and the Problem of Argument, Humanities Press

(New York, 1963)

5.

Chris Armstrong, Global Distributive Justice: An Introduction (Cambridge University

Press, 2012)

Documents

Concept of Justice and its Different Facets