Two questions exist that make it necessary to understand the inequalities within a well-ordered society, namely what contingencies generate these inequalities and how the least advantaged need to be specified.
To Rawls, justice as fairness focuses on inequalities in citizens’ life-prospect—their prospects over a complete life (as specified by an appropriate index of primary goods)—as these prospects are affected by three kinds of contingencies: (a) their social class of origin: the class into which they are born and develop before the age of reason; (b) their native endowments (as opposed to their realized endowments); and their opportunities to develop these endowments as affected by their social class of origin; (c) their good or ill fortune, or good or bad luck, over the course of life (how they are affected by illness and accident; and say, by periods of involuntary unemployment and regional economic decline).
Even in a well-ordered society, then, our prospects over life are deeply affected by social, natural, and fortuitous contingencies, and by the way the basic structure, by setting up inequalities, uses those contingencies to meet certain social purposes (p. 55). Applying the simplest form of the difference principle, the least advantaged citizens are those who share with other citizens the basic equal liberties and fair opportunities but have the least income and wealth. Society uses income and wealth to specify this group; and the particular individuals who belong to it may change from one arrangement of the basic structure to another (p. 65).
By this measure, the inequality of women in regard to men seems arbitrary and a product of the social contract being corrupted by an authority unconcerned with social justice. The corruption allows such conditions to occur stem from a lack of greater moral authority in society. While an international court could be instrumental in stamping out corruption in lawless countries, there remain many social issues that make such judicial action impossible. It is thought by many that the principles of international justice cannot apply to a unit as small as the family, and therefore they cannot secure equal justice for marginalized peoples such as women and children.
However, the primary subject of justice is the basic structure of society understood as the arrangement of society’s main institutions into a unified system of social cooperation over time. Since wives are equally citizens with their husbands, they have all the same basic rights and liberties and fair opportunities as their husbands; and this, together with the correct application of the other principles of justice, should suffice to secure their equality and independence. As Rawls notes, “a long and historic injustice to women is that they have borne, and continue to bear, a disproportionate share of the task of raising, nurturing, and caring for their children. When they are even further disadvantaged by the law of divorce, this burden makes them highly vulnerable” (2001, p. 166).
To Rawls, while the aim of any potential international court is to provide equal justice to all, men and women alike, the nature of the inequality must be examined and correct. If the basis for women’s inequality in a country is due to their role as the bearer and main nurturer of children, the division of labor within the family must be equally divided. However, traditional, religiously-oriented roles have firmly entrenched the line of thought into society that men work, women raise children. The structure of the family is crucial in understanding the division of labor within society as a whole. Decided by centuries of religious indoctrination and social mores, the hierarchy within the family can be blamed for the many disparities that women face in public life, such as wage disparities and gender discrimination.
The fact that women make less money than men, even in the most progressive societies, may make it more economically sensible to raise children. For all intents and purposes, the perceived injustices towards women and a liberal conception of justice may have to allow for some traditional gendered division of labor within families, provided it is fully voluntary and does not result from or lead to injustice. This is perhaps the most difficult problem facing the international courts, as many people in countries around the world accept their oppression as a fact of life and tradition, with suffering not easily seen. As Rawls states: “one condition of a decent hierarchical society is that its legal system and social order do not violate human rights.
The procedure of consultation must be arranged to stop all such violations” (Rawls, 1999, p. 75). The subjectivity of what justice means has been and most likely will continue to be an obstacle to the establishment of an international justice system. Until all humans want such a system, there can be no truly objective and universally fair system of international justice. The establishment of international criminal law rests on the establishment of an international governing body that can distribute international justice. This organization needs to be modeled on former international bodies such as the UN, but it must also be granted authority to enforce its laws over sovereign nations.
The agreement by sovereign nations to join such a body is the only way that international criminals can meet international justice. There are many political, social, and moral issues that go along with the potential of creating an international court. Until governments agree to concede at least a level of their sovereignty to an international governing body, and people around the world demand that an organization be created to ensure justice for all, international criminal courts will remain disputed and difficult to create and maintain.
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