Qn. 24. What is the concept of justice in modern political theory? How is it related to liberty and equality? (1994/I/2/60)
Justice is the existence of proper balance and is the foremost value of social institutions. Justice has been a contested concept in social and political thought. In modern political theory, concept of justice has swerved (mainly) towards ‘social justice’ (and ‘distributive justice’). Social justice is the arrangement of terms of membership of a social group. Social justice defines the framework within which applications of distributive justice arise. Distributive justice is determination of allocation of benefits and burdens within that social group. Other modern conceptions of justice include restorative justice, liberal justice and egalitarian justice. Liberty is the absence of impediments and degree of capacity to do something. Equality is equal consideration in decision-making, even-handed treatment, equality in distribution and outcome.
‘Conception of justice’, has been contested rigorously. Earliest (classical) theories sought conformations of individual to existing social order. For instance, Confucius labelled virtue and ethics as the standards of justice, which could harmonise individual and social life. For him, justice gave the standards of governance and punishment of evil. For Gautam Buddha, justice is: ‘every good thought, word, and deed deserve fair reward and every evil one its proper punishment’, including defying evil laws. Divine command theorists argue that justice issues from God. Aristotelian justice upholds virtue as the basic standard of justice. 17th century theorists (like John Locke) argued for the theory of natural law. Social-contract thinkers advocated that justice is derived from the mutual agreement of everyone concerned.
In modern times, justice aims to transform society to fulfil certain human values, i.e. reform existing social order to attain social justice. Egalitarian theorists argued that justice can only exist with equality, i.e. with equality of outcomes. For liberals, justice is equality of opportunity. Theories of retributive justice are concerned with punishment for wrongdoing. Restorative justice (or ‘reparative justice’) is an approach, that focuses on restoring what is good, and focuses on the needs of victims and offenders. Modern theorists who see ‘law as justice’, hold that in any modern civic state, human behaviours and relationships (personal, social, and institutional) gain legitimacy only in the forms of rights, duties, and institutional responsibilities shaped by positive laws - i.e. any persuasive theory of justice would spring from the legitimate, valid, and enforceable standards of law.
19th century utilitarian thinkers such as Jeremy Bentham, John Stuart Mill argued that justice is what has the best consequences. Property rights theorists like Robert Nozick taking a deontological view of distributive justice, propound that property rights-based justice maximises the overall wealth of an economic system. Immanuel Kant viewed justice as resolving conflicts between reasoning versus empiricism and individuality versus state regulation. John Rawls, through his social contract argument, argues that that justice is a form of fairness (especially distributive justice).
Communitarian and contextualist Michael Sandel, criticising Rawls, understood justice as what people think is justice, and why. Amartya Sen’s (The ‘Idea of Justice’, 2009) theory of justice aims to “clarify how we can proceed to address questions of enhancing justice and removing injustice, rather than to offer resolutions of questions about the nature of perfect justice.” Hilary Putnam considers Sen’s question, the most important contribution since Rawlsʼs. Scholar Melian Stawell thinks that, deliberations about justice, in modern times, can be divided into - the justice of retribution, and the justice of distribution.
Distributive justice flows from social justice. Theories of distributive justice concern ‘what is distributed, between whom they are to be distributed, and what is the proper distribution’. In other words, distributive justice is determination of logical criteria for the allocation of benefits and burdens such as goods, services, opportunities, benefits, power, honours, obligations etc., especially in a scarcity situation. The particular emphasis in ‘social justice’ is on the foundational character of justice in social life: invitation has been to move from conception of justice to the design of constitutions, to critical perspectives on economic organisation, to theories of civil disobedience. D. D. Raphael, in ‘Problems of Political Philosophy’ (1976) has traced social justice to “issue from the mouth of reformers”.
Relation of justice to liberty and equality is analysed further. Ernest Barker, in ’Principles of Social and Political Theory’ (1951) has shown that justice represents a synthesis of the principles of liberty, equality and fraternity. He believes justice reconciles their contradictions, shaping them into universal principles of governance. According to the ‘French Declaration of Rights of Man and the Citizen’ (1789) “Men are born and remain free and equal.” Liberty would not be just until it extends equally to each citizen. Equality ensures justice by restraining the liberty of one from becoming threat to another – i.e. equality becomes necessary to contradict the threat of absolute liberty. Liberal theories of justice believe in equality of consequences whereas egalitarian theories of justice believe in equality of outcomes. The intention is to make sure that each individual gets a fair share in the advantages accruing from organised social life.
The foundation of classical liberalism stems from John Locke’s ‘Second Treatise of Government’. Hence, he is known as the father of liberalism. He built on Thomas Hobbes’ radical conception of equality i.e., everyone is equal in rights and the ability to survive in the state of nature. Locke believes that all men are born free and share equal rights to life, liberty and property. Locke’s conception of natural rights heavily influenced the United States Constitution. Building on Locke, Libertarian Robert Nozick forwards his entitlement theory of justice in ‘Anarchy, State and Utopia’ (1974). It states that people are represented as ends in themselves and equals (as Kant claimed) though different people may own (i.e. be entitled to) different amounts of property. Nozick’s theory has three principles of justice –
- Justice in acquisition;
- Justice in transfer and
- Justice as rectification of injustice.
F. A. Hayek attacks social justice, and placed liberty above every other political ideal, in ‘Law, Legislation and Liberty: The Mirage of Social Justice’ (1976). Randy E. Barnett in ‘The Structure of Liberty: Justice and the Rule of Law’ gives his liberal conception of justice. For him, ‘justice’ is respect for the rights of individuals and associations. These rights include:
- Personal rights and property rights – which specifies a right to acquire, possess, use, and dispose of scarce physical resources—including their own bodies. While most property rights are freely alienable, the right to one's person is inalienable.
- The right of first possession – which specifies that property rights to unowned resources are acquired by being the first to establish control over them.
- The right of freedom of contract – which specifies that a right-holder's consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights.
American philosopher John Rawls developed an egalitarian theory of justice that embodies the Kantian conception of equality and offers an alternative to utilitarianism. Rawls’ theory of “justice as fairness” offers a forceful theoretical counterweight to Locke’s classical liberalism. Rawls goes on to suggest that, “the most obvious injustice of the system of natural liberty (such as Locke’s) is that it permits distributive shares to be improperly influenced by (arbitrary) factors.” Rawls’ thought experiment puts man in the ‘original position’, behind a ‘veil of ignorance’, to rationally decide unbiased principles of justice. Rawls produced two principles – liberty and equality. Liberty principle ensures basic liberties of man, while equality principle consists of ‘equality of opportunity’ and the ‘difference principle’ (favouring the disadvantaged). Libertarian Nozick, communitarian Sandel etc., have criticised Rawls.
Egalitarian principles of justice may include equality before law, equal legal personality of each individual, equal voting rights (one man, one vote) etc. Marxist theory of justice, though not formally considered egalitarian, opposed liberal values and pursued equality in society (communism).
Concluding remarks: As political scientist Melian Stawell believes: there has never been a word, whose content has altered more than that of "justice." Justice seeks to transform those social conditions which obstruct the weaker sections from enjoying substantive freedom and equality. As Ernest Barker holds – justice is the thread which runs through the values of liberty, equality and fraternity and makes them parts of an integrated whole. Even B R Ambedkar emphasised the inevitable existence of the trinity of liberty, equality and fraternity.