Law and Justice Research Paper

Abstract Justice is the quality of being fair or just. This is not an exhaustive definition of justice. Different philosophers have defined justice in different ways. Justice is a concept that provides balance between law and morality. Rawls proposition for law and justice has been accepted by world judicial fraternity as a landmark vision to understand the system. Similarly it has earned a good amount of criticism which shows the basic strength of the thought.

As such: Rawls theories of Justice has to be checked and rechecked not because it is best but because it will provide us a starting point to understand this whole world of law and justice. In this paper an attempt has been made to understand and analyze Rawls theory of justice. This work has been done to distinguish the concept of justice as propounded by utilitarian’s (Aristotle[1] and Benthem[2]) vis-a-vis Rawls. Finally an analysis is done to examine how well the concept of justice given by Rawls is relevant in India, a multilayered pluralistic society. Introduction: Justice is defined as the quality of being just or fair.

Justice is used to mean what is appropriate, deserved, right, fair , justice is said to be achieved when an unjust act is redressed and the victim feels whole again. [3] Justice also means the wrongdoer is held liable for his behavior. Aristotle puts forward that in its general sense justice is an inclusive term equivalent to righteousness. According to Aristotle justice with which we are concerned has two branches: distributive and corrective[4]. Distributive justice takes into consideration the merits of the parties; corrective justice is concerned only with restoring a balance which has been disturbed[5].

The distribution is a question not of equality, but of right proportion; and this applies to retribution[6]. The situation of bringing back to original position is corrective form of justice whereas distributive principle refers to share of that equal number of groups should enjoy equal amount of happiness. Thus distributive principle tells about how the goods are to be divided. Work has been focused on two theories of justice – utilitarianism theory[7] by Aristotle and contractual theory of justice developed by John Rawls. In this work the two theories have been subjected to scrutiny.

Utilitarianism is an aggregative theory. Utilitarianism was described by Bentham as “the greatest happiness or greatest felicity principle. “[8] It tells us to perform those actions among the options available which produces the greatest sum of happiness for greater number of people . They feel that by this the course of justice is achieved. But Rawls puts forward a different theory, distributive theory of justice- Rawls and Distributive Justice Unlike Benthem Rawls does not believe in maximum happiness for maximum number of people.

According to him justice is actually done when even less privileged class gets happiness and justness. His theory is more focused for deprived class of people. Rawls develops the principles of justice through the use of an entirely and deliberately artificial device which he calls the Original position in which everyone decides principles of justice under a veil of ignorance. The concept of justice for which Rawls argues demands: i) The maximization of liberty, subject only to constraints as are essential for the production of liberty itself[9].

ii) Equality for all both in the basic liberties of social life and also in distribution of all other forms of social goods, subject only to the exception that inequalities may be permitted if they produce greatest possible benefit for the well off in a given scheme of inequality (“the difference principle”) iii) “fair equality of opportunity ” and the elimination of all inequalities of opportunity based on birth or wealth[10] Rawls vs. Utilitarianism The basic principles and theories of both Rawls and utilitarian have been discussed.

Thus there exists must difference between the principle of two. Rawls theory differs from utilitarian in three significant ways: Firstly, utilitarian can accept inequalities, social arrangements in which social benefit at the expense of others is obtained. Rawls claim that the principle “greatest happiness for greatest number of people” is unjust. He comes up with the principle of fair equality and “The Difference Principle”. Secondly, utilitarian appears to compromise on the extent of liberty whereas Rawls at his “original position” theory sees complete liberty.

Thirdly, Rawls concept of benefit is different and is wide from Utilitarian’s proposition. Within the concept of Rawls is liberty, opportunity, income, wealth and the foremost is the base of self respect. Theses provide more avenues to exercise autonomy and choice where as utilitarian’s are concerned with welfare, and have lesser choice with individuals. Rawls conducts thought experiment to find out a mutually acceptable principle of justice. He creates a hypothetical concept of “veil of ignorance” wherein individuals are supposed to be incapable of deciding any special interest.

They would be ignorant of their own views on the “good life”. He asserts that this principle would be chosen by persons reasoning about justice in a situation in which they lack specific knowledge about themselves and their social position. Otherwise this makes them partial to one arrangement of distribution over another. Thus constrained, the parties draw up the principles neither by using moral reasoning, nor by effecting compromises between competing moral stands. They would choose a society that would be fair to all because they’d have to live with their choice. So, a

fair society is one that any rational, self-interested person behind the veil of ignorance would want to join. Complete ignorance as assumed by Rawls is absent in practical world. But then for the purpose of study this assumption provides a good ground and level of ignorance can be taken into account through intelligent approach. Lets us assume a situation to portray Rawls’ theory of ignorance. In order to get complete justice the person delivering justice should be under veil of ignorance. It seems this situation can be thought in Indian context as keeping judges in isolation.

(It’s all a hypothetical situation). For this an experiment can be conducted. Judges should be kept in a total isolation. No one should be around them. All needs of his life are fulfilled and he himself does not have to bother for that. For going from residence to court instead of providing a vehicle a tunnel should be dug, connecting residence to court. He should not be allowed to directly see lawyers perhaps a digital mechanism can be used. Whole hearing takes place in digital manner. Judge does not get to see anybody- lawyer, accused and victim. Then judgement is delivered.

It seems that by this method much biasness in judgement can be reduce and society and law will move closer to justice. In contradiction to utilitarian principle i. e. maximum happiness for maximum number of people, Rawls principle favors the least advantaged member of society. Rawls suggest that a free society should be judged by how well the least well-off class does. The justice sensitivity of a society has to be judged by the fact how the society treats its disabled, minors, handicapped, old, infirm and so on… who are less privileged in the society.

How well their well-being and happiness is identified, protected and taken care of is the justice index of a particular society. Thus according to Rawls real justice is done when justice is actually done to least well off class. It seems very true in current scenario. It is weak people who generally need justice and approach court of justice. Well off class can resort to some second means also for readdressing the harm done such as negotiation and arbitration but least well off class are left at mercy and are real seekers of justice.

First a remedy should be given to them and then to well off classes. Justice actually should not only be done but also seem to be done. Rawls offers far-sighted guidelines for life and politics in a multicultural, diverse society. [11] Justice as fairness Rawls’s theory, however, differs from traditional theories like John Locke’s[12] or Thomas Hobbes’s[13]. This is because Rawls makes it very clear that his model is a hypothetical model used for the purposes of generating conclusions specific to the concept of justice and nothing else. Rawls calls this principle as “justice as fairness.

” Fairness is said to be achieved when all citizens are treated equal in the society in the eyes of law and each one gets equal opportunity to succeed in their field. Rawls imagines a hypothetical situation in which no one has any arbitrary advantage over anyone else. He calls this situation as state of “the original position. ” Rawls’s original position creates a hypothetical state of equality that prevents decision-makers from favoring a person in the decision. Thus original position forms a neutral theory. This theory of “original position” forms a very good tool to achieve justice in society.

The original position supports two principles which would regulate the distribution of social and economic advantages across society. The first principle states that, “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others. ” The second principle states that, Social and economic qualities are to be arranged so that they are both reasonably expected to be to everyone’s advantage and attached to positions and offices open to all…”[14] Thus Rawls has focused on upliftment of deprived and under privileged class. By doing so we can do social good in the society.

He further states that by doing so a certain minimum level of well being can be established in society. And least well off class will also get liberty and would contribute to gain more liberty. Indian constitution gives special privilege to under privileged. Article 15 (4) and Article 16 (4) of our Constitution makes special provision for deprived (socially and economically backward) class of justice. Even India believes in distributive form of justice. In India the upshot of the majority opinion is that concept of equality is something more than having equal chance and enables the underprivileged groups to have fair share by having equal chance and enables the state to give favored treatment to underprivileged groups for achieving real equality by reference to perceived social needs.

This approach ultimately promotes ‘actual’ equality, equality in fact and results, and enables state to develop and adopt new strategy to bring under privileged at par with the rest of the society by providing all possible opportunities and incentives to those groups. This situation is called as “the original position” . Taken special care of the fact that in the eye of law “everyone should be treated equal”.

In front of our Indian court of justice all from Prime minster to the beggar are same and all are classified under one group i. e. a reasonable prudent person. Article 14 of Indian Constitution provides for “Equality before law. ” Thus it prohibits any distinction between equals. Indian constitution gives special privilege to under privileged. Article 15 (4) and Article 16 (4) of our Constitution makes special provision for deprived (socially and economically backward) class of justice. Even India believes in distributive form of justice.

In India the upshot of the majority opinion is that concept of equality is something more than having equal chance and enables the underprivileged groups to have fair share by having equal chance and enables the state to give favored treatment to underprivileged groups for achieving real equality by reference to perceived social needs. Rawls explains that, No one knows his or her place in society; no one knows her or his class position or social status; no one knows what abilities or handicaps he or she will have; and no one knows her or his conception of the good or his or her psychological tendencies.

[15] These conditions create a “veil of ignorance. ” People cannot know their status in society. This ensures that whatever the rules are picked, they will apply equally to everyone and neither favor nor disadvantage anyone. Perfect equality would be an outcome of this veil of ignorance. This principle will cause everyone to be similarly situated and no one will be able to design any principles to favor any particular condition, this would provide justice. The original position and the veil of ignorance are supposed to ensures a level playing field where everyone has an equal chance

to win. The Veil of Ignorance and original position Rawls’ idea relates to how a just society can be formed. But it seems a very theoretical idea and cannot be easily applied in a society where each person is biased and is carried away by natural desires and temptations. In our Indian system judges assumed to deliver justice are also guided by their own likings and disliking, their decision clearly shows an influence of their background. But in reality no tool can regulate flow of biased human mind and create a situation of veil of ignorance.

Thus it seems a little impossible to achieve this kind of society. But if by some method we achieve this situation our society will tend to reach at least near to justice. Words like partiality and dishonesty will find no position in society in context with court of law and justice. There will be fairness and happiness and hence a satisfaction. The difference principle The difference principle[16] allows distribution of goods to be inequal only when thses inequalities benefit the least well off class of society.

The first principle determines basic natural rights that we must retain such as the political liberties to vote or run for office, to own property and to have free speech and so on in order to constitute our self as a just society[17]. The ability of human to flourish as productive autonomous creatures depends upon these liberties and has to be protected as part of sine qua none for the basic existence. The second principle (the difference principle) describes the fair distribution of income and wealth and the fair design of organizations.

Everyone would have the same chance to work, build wealth, and govern in public office without the prerequisite of wealth or power. The only prerequisite would be knowledge and skill. Equal share and equal approach for opportunities available is one of the cardinal principle of justice. Here it is to be noted that Rawls sees that economic barrier is the main source of injustice. So, to remove injustice economic inequality should be eradicated. Rawls has identified one of key cause of injustice. Due to lack of money people are deprived of basic education. Its mostly education that builds citizens and hence nation.

Learned people are the need of society. So they take a better position contrary to less well off class. Now learned and illiterate cannot be kept on same footing. As they are discriminated it is said injustice is done. Thus at the end it is economic strength that becomes a cause of injustice. The wealth of an economy is not a fixed, differs from one period to the next. More wealth can be produced . The most common way of producing more wealth is to have a system where those who are more productive earn greater incomes. This principle has inspired Rawls and its reflection can be seen in the Difference Principle promulgated by him.

Rawls states that, While the distribution of wealth and income need not be equal, it must be to everyone’s advantage, and at the same time, positions of authority must be accessible to all. [18] Protecting the basic rights of individuals as well as ensuring that they have a chance to compete fairly for jobs and public offices promotes advances in all the areas that contribute to human flourishing. Fair play in a state is important to its stability. Thus, fairness, in the form of the two principles, ensures that people have the chance to create a life for themselves if they are willing to work for it.

No citizen would have a legitimate reason to criticize or undermine the social institutions or rules that support such circumstances. According to Rawls, the rational person (which is the type of person that he assumes is involved in the original position) would be a supportive and law-abiding citizen. A society filled with such persons would be stable. Rawls claims that his model is based on reason and impartiality. Rawls speaks about “deliberative democracy”. In this form of democracy government action should be explained by government to the public. He prohibits naked preferences. He denies any preference according to whim.

He has pin-pointed four characteristics of “deliberative democracy” delivering justice. a) A transparent reason based decision, not always committed to status quo neutrality[19] b) Participatory democracy-inclusive approach focused towards previously excluded (Rawls concept of justice)[20]. Participatory democracy ensures participation of deprived. People who has been excluded on account of race, gender, sexual orientation and so on. This principle is committed to the wellbeing of deprived. A committed citizenry having least bias helps actively in propagating social welfare and rights of the poor.

c) A commitment to agreement[21] the goal is agreement among equal citizens through deliberation concerning public-regarding reasons, not conclusion which note the different perspectives of “disagreeable people”[22] Through all this what Rawls want to achieve finally is political equality. He is not inclining to bring economic equality but he wants to achieve political equality and rule out poverty and discrimination, and require rough equality of opportunity. So, equality cannot be captured by the overly simplistic approach of making everyone have the same material goods, education and job.

Natural talent creates difference; work ethic creates difference. It seems a very good example of application of all principle given by Rawl’s in our society is present. This is law which has been recently introduced in India- RTI (Right to Information Act). This is an attempt to introduce fairness and transparency in the system which Rawls’ had said can be achieved through the principle of veil of ignorance and original position. Although Indian society is not employing the hypothetical concept given by Rawls but is trying to establish a situation what Rawls says should be established in order to achieve complete justice.

Under this act all citizens are treated equal and can access all information required from government. On discrimination can be done. Thus it satisfies Justice and Fairness system. Rich and poor both people can get equal amount of information under RTI. From here an analogy can be drawn if we cannot establish a situation of veil of ignorance a situation where each one is aware of what is their status and what is going on around them and where there is no veil on any information and all pros and cons have been put publically then a system of Justice can be achieved.

Rawls focuses on major defect of utilitarianism. He foresees the situation that will prevail due to utilitarianism principle. The principle of utility can create a situation where individuals who are disadvantaged as compared to others in different aspects such as ability to attain primary social goods might suffer even greater disadvantages. Moreover, individuals who already have advantages over others in their ability to attain primary social goods may gain even greater advantages.

Rawls doesnot agree with this redistribution of rights and opportunities which produces greater happiness for greater number of people. Rawls thinks that all there is to political justification is that reasonable people would agree in the conditions he specifies. Rawls puts forward that the principle of efficiency may be applied to the method by which basic rights and duties are assigned and to the method by which social or economic inequalities are structured. This assignment of right and duties should be so assigned that there is no more any method of replacement.

This distribution should be such that it does not prove to be more advantageous for particular individual or a particular group and depriving the other group. The method by which rights and duties are assigned may be described as fair and impartial if it cannot be made any fairer to any particular individual without simultaneously making it less fair to another individual. Lets look at two extremes regarding distributive justice, where distributive justice is simply a theory about how the “goodies” of society (wealth, rights, liberties, and opportunities) are divided up.

A: Everyone takes what he wants, by force if necessary. B: Everyone gets exactly the same share Would we reject A because it wold have the result that the distribution of “goodies” takes brute strength and willingness to resort to violence? That is not fair. Would we reject B because effort, hard work, and valuable contributions seem to go unrewarded? Locke’s Theory of distributive justice – a theory about property is this: “Everyone is entitled to that with he mixes his labors, provided that it doesn’t already belong to someone else, and provides that he leaves good and enough for others.

” On this Rawls says …is it fair that people get what they deserve: that they are rewarded for good things they are responsible for and that they are punished for bad things they are responsible for. Thus according to Rawls can we say that, we think a fair society would be one in which: – effort and work are rewarded – people have an equal opportunity to succeed – individuals have equal rights and liberties – people have a good chance of leading the kind of life they think is best for them. Principle of efficiency.

According to Rawls, principles of justice for social institutions is achieved when the principle of efficiency and the difference principle are mutually compatible. Rawls argues that the term ‘justice as fairness’ does not imply that justice and fairness are identical, but that the principles of justice are agreed to under fair conditions by individuals who are in a situation of equality[23]. ‘Justice as fairness’ also implies that the principles of justice apply equally to all individuals. [24] The principles of justice can be taken to means include fairness.

Beacause of this principle each one is bound by the duty to keep promises and the duty to offer mutual aid to each other and to accord mutual respect. These duties are not to cause unnecessary suffering rather are duties to uphold justice. To achieve fairness and justice each individual should follow it. There will be inequalities, but we are morally obligated to improve the worst off unless it would make everyone worse off. In business this guarantees an efficient use of resources and competitive markets free of price-fixing and monopolies.

This concept somewhere preserves the Utilitarian belief in “net benefits”. Focusing more on justice Rawls describes three types of teleological theories of justice: 1) the classical principle of utility, 2) the average principle of utility, and 3) perfectionism According to the classical principle of utility, the best actions produce the greatest amount of utility for the greatest number of individuals. According to the average principle of utility, the best actions maximize the average utility which may be enjoyed by each individual.

According to perfectionism, the best actions maximize human achievement (e. g. in the arts and sciences) or maximize the attainment of some desired goal. [25] An example is the division of cake between between a number men, where, assuming that a fair division is taken to be equal division, we have a method (the man who cuts is to take the last piece) which is guaranteed to produce the desired result. [26]

Rawls emphasizes that the theory of justice as fairness, equal liberty for all individuals is not merely a means to an end but is a principle of justice which must be satisfied before other political interests are satisfied. Rawls wishes to maintain that social justice is pure procedural in character which has no independent criteria for judging, for instance, whether a given allocation of money resource to a person is just or unjust . Rather, such an allocation is just if it has arisen through the operation of fair procedures and unjust otherwise. He frames an institutional framework which he believes will realize ‘background justice’. Thus Rawls avoids personal touch or judgement to be made after an event has occurred only once.

Rawls goes to state that- If a number of person engage in a series of fair bets, the distribution of cash after the last bet is fair, or atleast not unfair, whatever this distribution is. [27] Conclusion The only thing that appears from Rawls theory is that justice cannot be exchanged, replaced, compared and it cannot be justice to a few or injustice for a few. Justice must be inclusive, determined and decisive. The theory of justice as fairness is a method to achieve an egalitarian society.

Summing up I can just conclude that the concern of Rawls about those excluded and not allowing justice to be exchanged with comforts and not conceding the net value concept are really strong characteristics of his theory. Article 14 of Indian Constitution (Equality before Law) and Article 21 takes care of theory put forward by Rawls and thus law tries to provide a fair justice. In spite of there being some hypothetical assumptions such as “original position”, complete freedom from bias etc, which do not really exist, the overall theory can be a good starting point for a practical social order.

In fact all theories have some assumptions (ideals) and practice there on has to be realistic. But it seems the ultimate real work in form of law can be chiseled out using Rawls principle to meet justice. ———————– [1] Aristotle (384 BC – 322 BC) was a Greek philosopher, a student of Plato and teacher of Alexander the Great [2] Jeremy Bentham ( 15 February 1748 – 6 June 1832) was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law and a political radical whose ideas influenced the development of welfarism.

He is best known for his advocacy of utilitarianism [3]Marillyn shadow ,What is Justice, 2008 Edition [4] Nicholmacean Ethics, Book V, paras 3:1131a-4;1132b [5] Arthur Mee And J. A. Hammerton , The World’s Greatest Book, 381 [6] Ibid 81 [7] Ibid 131 [8] AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION, Jeremy Bentham, 1789 (“printed” in 1780, “first published” in 1789, “corrected by the Author” in 1823. ) See Chapter I: Of the Principle of Utility. For Bentham on animals, see Ch. XVII Note 122.

[9] In political Liberalism “a fully adequate scheme of equal basic liberties” replaces “the most extensive total system” of A theory of Justice [10] Rawls does not espouse egalitarianism, rather qualified egalitarianism [11] See. Amartya Sen, Inequalities Reexamined (Cambridge, MA: Harvard University Press, 1992) 81 [12] John Locke, widely known as the Father of Liberalism, was an English philosopher. [13] Thomas Hobbes was an English philosopher. His book Leviathan established the foundation for most of Western political philosophy from the perspective of social contract theory.

Hobbes was a champion of absolutism for the sovereign but he also developed some of the fundamentals of European liberal thought: the right of the individual; the natural equality of all men; the artificial character of the political order (which led to the later distinction between civil society and the state); the view that all legitimate political power must be “representative” and based on the consent of the people; and a liberal interpretation of law which leaves people free to do whatever the law does not explicitly forbid.

[14] Rawls 1971, p. 406 [15] Rawls 1971, p. 454 [16] supra [17] Jhon Rawls, Theory of Justice, chapter V, p. 182 [18] Rawls 1971, p. 406 [19] Ibid. ,pp 133-141 [20] Ibid. ’pp 135-136 [21] Op. cit. , n. 8, p. 137 [22] Cf. C. Eisgruber (1990) 43 Stanford L. R. 275 [23] See www. angelfire. com -John Rawls, A Theory of Justice Cambridge Harvard University Press, 1971 [24] Ibid p. 11 [25] Ibid [26] See Rawls,op. cit. , p. 85 [27] Rawls, op. cit . , p. 86.