Seminar 5 Justice

8/11/2019 Seminar 5 Justice

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GPR 601:JURISPRUDENCE LAW

LL.M 2009/2010

SEMINAR [V]

PRESENTED BY:

STEPHEN JALANGCATHERINE !INYA

PHYLLIS MUTUAPAUL MUSYIMIJASPER MBIU!IEDWIN LIBENDI


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Follow justice and justice alone, so that you may live and posses theland the lord your god is giving you.1

INTRDUCTIN

Many people throughout history have explored Justice and have attempted to

defne it. Below are a ew o the more interesting defnitions o Justice:

Justice is a quality relating to [men in society! not in solitude."#

"Justice is a name or certain classes o moral rules which concern

the essentials o human well$%eing more nearly! and are thereore o

more a%solute o%ligation that any other rules or the guidance o lie."& Justice requires that the %asic structures o society %e arranged

so as to %eneft the least advantaged.'

"Justice is the relationship that allows all lie to (ourish according

to its nature and a%ility.") Bi%lical Justice: the *ustice o a community is measured %y its

treatment o the powerless in society. Justice and equity require...a

preerential option or the poor. +he dignity o the human person!

reali,ed in community with others! is the criterion against which all

aspects o economic lie must %e measured.-

Behind the concept o *ustice lies the notion o %alance! that people get what is

right! air and appropriate. Justice also includes the notion o upholding the law!

as in the wor o police! *udges and the court. Justice is also oten used to

descri%e the appropriateness o punishments or crimes.

/ll races and religions include a defnition o *ustice in their codes o law and

conduct. Justice is! in act! the glue that holds societies together. 0ociologists

consider codes o *ustice one o the principal actors in descri%ing an organi,edsociety. 1ow cultures defne *ustice di2ers. +he ancient 3ree philosopher 4lato!

1Deuteronomy 16:20 Todays New International Version Bible2Hobbes

3John tuart !ills4John "awls

5Byron #lumley

6Bisho$%s #astoral &etter


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or example! defned *ustice as the proper and harmonious relationship %etween

the warring parts o a person or city. / man in his right place and time! woring

towards the proper goals! was said to %e *ust. +his is quite unlie our modern$

day perception o one who is *ust %eing one who treats people airly.

5ther concepts o *ustice throughout history include:

J"#$%&' (# ( )%*%+' &,--(+): Justice commanded %y a 6eity! as

in the Mosaic law o an eye or an eye.

J"#$%&' (# -"$"( (''-'+$: Justice as a social contract! or

when one person agrees to give up or do something in exchange or

something else. +his defnition includes the notion o %eing air and

%alanced.

D%#$%"$%*' "#$%&': 6istri%utive *ustice may also %e defned as

getting what one deserves.

S"#$(+$%*' and3,&')"( "#$%&'.

4rocedural or ormal *ustice is concerned with the criteria or air decision maing

processes. +he concept o procedural *ustice is equivalent to ideas o 4)"'

3,&'##5 or the 4"' , (75. +he promulgation! enorcement and

administration o laws is *ust only i all citi,ens are treated equally %y the law.

0u%stantive *ustice reers to the content o law! policies or social organi,ations!

not only the ormal procedures %y which they are developed and applied.

Justice itsel is a term used in various senses7 and the senses in which in*ustice

is used vary correspondingly. 8n*ustice includes law$%reaing! grasping and

unairness. 3rasping is taing too much o what is good only7 unairness is

concerned with %oth what is good and what is in*urious. But in the legal sense!

whatever the law lays down is assumed to %e *ust. 9aw! however! covers the

whole feld o virtuous action as it a2ects our neigh%ours! so that in this generalsense *ustice is an inclusive term equivalent to righteousness.

8n the 0tate! as such! *ustice is o%tained rom the law and its administrators7

*ustice is the virtue o the magistrate. 0ince he has nothing to gain or lose

himsel! it has %een supposed that *ustice is anothers good! not our own. 8n the


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amily! *ustice does not come in! as you cannot %e un*ust to yoursel! you cannot

%e un*ust to your household. 8n the 0tate! what is *ust is fxed partly %y the

nature o things! partly %y law or convention.

/s to individual acts! in*ury may arise rom a miscalculation! or rom an

incalcula%le accident7 it %ecomes a wrong when it was intentional %ut not

premeditated! an in*ustice when premeditated. /n act prima acie un*ust is not

so i done with the ree consent o the person in*ured.

;hat we must call equity may %e opposed to *ustice %ut only in the legal sense

o that term. 8t is *ustice reed rom the errors incidental to the particular case!

or which the law cannot provide. 8n*ustice! again! is ound in sel$in*ury or

suicide7 which the law penalises! not %ecause the individual there%y treats

himsel un*ustly! %ut %ecause he does an in*ustice to the community. 8t is only %y

metaphor that a man may %e called un*ust to himsel! an expression which

means that the relation %etween one part o him and another part o him is

analogous to the un*ust relation %etween persons.

Many! many other philosophers descri%e codes o *ustice.


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having entered into a contract agreeing to its rules and patterns! or at any rate

%eing presumed to have done so.

@ontractarian theories were usually com%ined with the idea o >natural rights?.

+he *ustice o a society and its laws is assessed %y whether it respects or

inringes people?s natural rights.

8n 1o%%es? perspective or instance the >social contract? is essentially the lesser

o several evils! representing a ind o rough %ut necessary *ustice. ;ithout

regulation in a state o nature! people would compete with each other to such

an extent that they would inevita%ly inringe each others? interests! with the

result that lie would %e nasty! %rutish and short. +he only way out o this >war o

all against all? is or people to agree to a social contract esta%lishing a sovereignwith the power to control con(ict. +he inringement o natural rights *ustifed the

withdrawal o consent.

8n a nutshell! Justice is action in accordance with the requirements o some law.

;hether these rules %e grounded in human consensus or societal norms! they

are supposed to ensure that all mem%ers o society receive air treatment.

8ssues o *ustice arise in several di2erent spheres and play a signifcant role in

causing! perpetuating! and addressing con(ict. Just institutions tend to instill asense o sta%ility! well$%eing! and satisaction among society mem%ers! while

perceived in*usticescan lead to dissatisaction! re%ellion! or revolution.

Aach o the di2erent spheres expresses the principles o *ustice and airnessin

its own way! resulting in di2erent types and concepts o *ustice: distri%utive!

procedural! retri%utive! and restorative. +hese types o *ustice have important

implications or socio$economic! political! civil! and criminal *ustice at %oth the

national and international level.

T'$E" )F -"T#CE

1. D%#$%"$%*' "#$%&'
http://www.beyondintractability.org/essay/address_injustice/http://www.beyondintractability.org/essay/principles_of_justice/http://www.beyondintractability.org/essay/address_injustice/http://www.beyondintractability.org/essay/principles_of_justice/


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6istri%utive *ustice! also nown as economic justice! is a%out fairness in what

people receive! rom goods to attention. 6istri%utive *ustice is concerned with

giving all mem%ers o society a "air share" o the %enefts and resources

availa%le. 1owever! while everyone might agree that wealth should %e

distri%uted airly! there is much disagreement a%out what counts as a "air

share." 0ome possi%le criteria o distri%ution are equity! equality! and need.

Aquity means that ones rewards should %e equal to ones

contri%utions to the society7

Aquality is a undamental principle which means that everyone gets

the same amount! regardless o their input.

6istri%ution on the %asis o need means that people who need more

will get more! while people who need less will get less.


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8 people %elieve procedures to %e air! they will %e more liely to accept

outcomes! even ones that they do not lie. 8mplementing air procedures is

central to many dispute resolution procedures! including negotiation! mediation!

ar%itration! and ad*udication.

8 people %elieve that a air process was used in deciding what is to %e

distri%uted! then they may well accept an im%alance in what they receive in

comparison to others. 8 they see %oth procedural and distri%utive in*ustice!

they will liely see restorative andDor retri%utive *ustice.

8. RESTRATIVE JUSTICE

+he frst thing that the %etrayed person may see rom the %etrayer is some

orm o restitution! putting things %ac as they should %e.

+he simplest orm o restitution is a straightorward apology. =estoration

means putting things %ac as they were! so it may include some act o

contrition to demonstrate one is truly sorry. +his may include action and even

extra payment to the o2ended party.

=estorative *ustice is also nown as corrective justice.

1owever! %ecause there is a tendency to slip rom retri%utive *ustice to an

emphasis on revenge! some suggest that restorative *usticeprocesses are more

e2ective. ;hile a retri%utive *ustice approach conceives o transgressions as

crimes against the state or nation! restorative *ustice ocuses on violations as

crimes against individuals. 8t is concerned with healing victims wounds!

restoring o2enders to law$a%iding lives! and repairing harm done to

interpersonal relationships and the community.

Eictims tae an active role in directing the exchange that taes place! as well as

defning the responsi%ilities and o%ligations o o2enders. 52enders are

encouraged to understand the harm they have caused their victims and tae
http://www.beyondintractability.org/essay/negotiation/http://www.beyondintractability.org/essay/mediation/http://www.beyondintractability.org/essay/arbitration/http://www.beyondintractability.org/essay/adjudication/http://www.beyondintractability.org/essay/restorative_justice/http://www.beyondintractability.org/essay/victimhood/http://www.beyondintractability.org/essay/negotiation/http://www.beyondintractability.org/essay/mediation/http://www.beyondintractability.org/essay/arbitration/http://www.beyondintractability.org/essay/adjudication/http://www.beyondintractability.org/essay/restorative_justice/http://www.beyondintractability.org/essay/victimhood/


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responsi%ility or it. =estorative *ustice aims to strengthen the community and

prevent similar harms rom happening in the uture. /t the national level! such

processes are oten carried out through victim$o2ender mediation programs!

while at the international level restorative *ustice is oten a matter o instituting

truth and reconciliation commissions.

. RETRIBUTIVE JUSTICE

=estoration may well not %e enough or the %etrayed person and they may

see revenge o some sort! where%y they can eel the satisaction o seeing theother person su2er in the way that they have su2ered.

=evenge can %e many times more severe than reparation as the hurt party

sees to mae the other person su2er in return.

=etri%utive *usticeappeals to the notion o "*ust dessert" $$ the idea that people

deserve to %e treated in the same way they treat others. 8t is a retroactive

approach that *ustifes punishment as a response to past in*ustice or

wrongdoing. +he central idea is that the o2ender has gained unair advantages

through his or her %ehavior! and that punishment will set this im%alance

straight. 8n other words! those who do not play %y the rules should %e %rought to

*ustice and deserve to su2er penalties or their transgressions. =etri%utive

*ustice plays a central role in legal proceedings! responding to violations o

international lawand human rights! and war crimes ad*udication.

JUSTICE AND LAW

WHAT IS THE RELATINSHIP BETWEEN JUSTICE AND LAW

8n essence! there are three ma*or con(icting views a%out *ustice and law. Justice

may %e perceived to %e something inherent in law! or law may %e contrasted

with *ustice or *ustice may %e a measure or testing law.
http://www.beyondintractability.org/essay/truth_commissions/http://www.beyondintractability.org/essay/retributive_justice/http://www.beyondintractability.org/essay/international_law/http://www.beyondintractability.org/essay/human_rights_protect/http://www.beyondintractability.org/essay/int_war_crime_tribunals/http://www.beyondintractability.org/essay/truth_commissions/http://www.beyondintractability.org/essay/retributive_justice/http://www.beyondintractability.org/essay/international_law/http://www.beyondintractability.org/essay/human_rights_protect/http://www.beyondintractability.org/essay/int_war_crime_tribunals/


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JUSTICE AS INHERENT IN LAW

+he frst view sees *ustice as no more or less than what the current authority

says it is. +here are no universal principles %y which *ustice or in*ustice can %e

defned other than the way in which the government has made its laws. +hus! in

di2erent societies and under di2erent authorities! *ustice is di2erent. 8n this view!

the idea that there is some sort o universal ideal or natural law is oten seen as

*ust an argument %y those who do not lie the laws o the government in power.

procedural? and

>ormal? *ustice inherent in it. 1ere are a ew examples o >procedural? and

>ormal? *ustice:

aC +he air hearing requirement under the constitution.

%C +he rule against retrogressive application o the law.

cC Fo one shall %e a *udge in his own cause.

dC Justice must not only %e done %ut must %e seen to %e done rule

against %iasC.

+his conception o the relationship %etween law and *ustice is closely related to

legal reasoning and rule o law. /s regards legal reasoning! it is the case that it

ought to exclude personal %ias. 5n the other hand! questions o procedural

*ustice and ormal *ustice are integral components o rule o law. +he ollowing

has %een said o the rule o law:

0tripped o all technicalities it means that government in all its actions is

%ound %y rules fxed and announced %eorehand. =ules which mae it

possi%le to oresee with air certainty how the authority will use its


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coercive power in given circumstances and to plan one?s individual a2airs

on the %asis o this nowledge.G

/nother commentator has argued that =ule o 9aw o%tains when the ollowing

aspects are present: aC +here are meaningul and enorcea%le laws implying

transparency! airness predicta%ility in decisions!%C ;hen there are enorcea%le

contracts so that there is promotion o %usiness and commerce! cC ;hen there

is %asic security which translates to personal security and protection o property

and lastlydC ;hen there is access to *ustice which in e2ect ensures concrete

saeguards against a%use o power.H

;LAW< IN CNTRAST WITH ;JUSTICElaw and >*ustice?. +his claim grapples

with the notion whose veracity may %e contestedC that legal rules! however

good in themselves! may nonetheless lead to in*ustice in particular cases. 8n

other words! laws cannot %e *ust in all cases and to all people. +he argument in

support o this claim is that the nature o some o the situations in which

individuals conront the law are so unique that they cannot %e captured %y any

rule %ut can %e captured %y this particular sense o *ustice. 8n terms o this

conception! there is simply no rule that can do *ustice and hence the conception

o *ustice appealed to is intuitive.

+his conception o *ustice is what =oscoe 4ound called >executive *ustice?

contrasting it with >*ustice according to the law.? /ccording to 4ound! executive

justicerelies on >trained intuition? and is particularly important where *udgment

relates to human conduct and moral issues. 1e cites examples where it is

applied in /nglo$/merican legal system to include equita%le remedies! general

standards e.g. reasona%lenessC! use o the *ury and assessors! *udicial latitude in

fnding the law! inormal methods o *udicial administration! sentencing and

administrative tri%unal. / perect example is where a magistrate in the @ity

7 H.A Hayek, The Road to Serfdom (London, 1944) p. 548Maria Dakolias (23), The role of the Judiciary for Economic and Social Development:A spee!" #o #"e $%

&'di!iaries represen#a#ies deliered a# *"e Ha+'e, *"e e#"erlands on oe-er 14, 23.


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@ourt convicts and *ust >cautions? a pregnant woman accused o spitting in the

pavements. /pplication: ;hat criteria does the *udge use in sentencing persons

convicted o manslaughter so that one gets a lie sentence and another wals

away with a paltry H monthsI

JUSTICE AS A MEASURE = LAW

+he third view argues that there is a natural ideal o *ustice that law aspires to

that can %e used as criteria to measure whether laws are *ust or not. +his school

o thought is traditionally descri%ed as people who support the concept o

natural law or natural *ustice. +he assumption is that there is an ideal o *ustice

that can %e discovered and %e held up as criteria with which to evaluate current

legal arrangements.

;hen *ustice is used as a measure o the law! the assumption is that law either

does or could conorm to *ustice. 8n this sense! *ustice is a su%stantive moral

criterion. +he main premise is that law ought to allocate rights! duties and

resources in a certain way! and i it does not! it is un*ust. 9aw may %e

condemned as (outing su%stantive *ustice in two respects:

aC =emedial or commutativeC *ustice

%C 6istri%utive or socialC *ustice.

REMEDIAL >R CMMUTATIVE? JUSTICE:@1ere! law is *ust where it a2ords

remedies or! and only or! all true wrongs %y one man to another. rules o *ust conduct.? 8t is *ust law

that punishes raud. 8t is *ust law that punishes murder and excuses use o orce

in sel deense. /pplication: 8s it un*ust law that provides or equal punishment

or a person who steals shs. KLD and one who steals shs. K BillionI 8s it *ust

law that punishes same sex relationships %etween two consenting partiesI 5n

what %asis does such law punish the two individualsI

0u%stantial remedial *ustice seems to %e the %asis o the principle that there is

no wrong without remedy. 8n other words! it is what is meant %y a *udge who


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appeals to >*ustice? as a ground or laying down some new rule. 8t is assumed

that such and such conduct is o%viously wrong and such and such redress

o%viously the right remedy.

DISTRIBUTIVE >R SCIAL? JUSTICE:@+his is mainly maniested in de%ating

merits o a proposed %ill or critici,ing legislation or in the case o enya at

presentC analy,ing the harmoni,ed drat constitution in terms o *ustice. Justice

o the law is dependent on how it! along with other social arrangements!

allocates all the good things o lie$such as wealth! power and li%erty. +he *ustice

appealed to in this case as well as in analy,ing tax! welare or planning lawC is

>social? *ustice rather than >remedial *ustice.? /pplication: 1ow *ust is the

harmoni,ed drat constitution o enyaI

"CE$T#C#"( T)!%*" C)+CE$T#)+" )F "-/"T!+T#&E -"T#CE

/ccording to /l =oss! invoing *ustice in a discussion is same as %anging on a

ta%le as it is a mere emotional out%urst which turns one?s demand into an

a%solute supposition. /s such! invoing *usticeN maes it impossi%le to have

rational discussion as in e2ect one says nothing that can %e argued or or

against. 1owever! the question is! given /l?s argument what are we to la%el the

moral criteria marshaled in political controversy a%out the merit or demerit o

law! which is traditionally called >*ustice?I

INTRDUCTIN T LIBERALISM

9i%eralism eatures a strong %elie in equality and in a government role in

reducing racial! class! and gender inequalities. @lassical li%eralism is a

philosophy that emerged in Aurope and empowered the individual and asserted

the rights o the individual against the hereditary privilege! and the religious

privilege o the clergy.

/ll 9i%erals agree on the primacy o individual reedom and individual choice.

+his is what distinguishes 9i%eralism rom! or example! 0ocialism! @ommunism

and other %rands o Fationalism. But some 9i%erals argue in avour o the core

9i%eral values $$individual reedom and individual choice.


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;riters ollowing one line o 9i%eral thought hold that individual reedom is

"3od$given" or corresponds to an original principle! a "law o nature!" rom

which concrete action can %e derived %y purely logical reasoning. Fatural law

doctrine is central to this conception o 9i%eralism which is maniested in the

wors o John 9oce! +homas 1o%%es! and the philosophers o the


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throughout his lie! restating the theory in Political LiberalismKOO&C! The Law of

PeoplesKOOOC! andJustice as Fairness#LLKC.

John =awls %. KO#K! d. #LL#C was an /merican political philosopher in the li%eral

tradition. 1is theory o justice as fairness envisions a society o ree citi,ens

holding equal %asic rights cooperating within an egalitarian economic system.

1is account opolitical liberalismaddresses the legitimate use o political power

in a democracy! aiming to show how enduring unity may %e achieved despite the

diversity o worldviews that ree institutions allow. 1is writings on the law of

peoplesextend these theories to li%eral oreign policy! with the goal o imagining

how a peaceul and tolerant international order might %e possi%le.

JUSTICE AS =AIRNESS

R(7#5undamental claim is that >*ustice as airness can %e defned %y two %asic

principles.


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=awls claims that those in the 5riginal 4osition would all adopt a maximin

strategy which would maximise the position o the least well$o2.

They are the principles that rational an# free persons concerne# to further

their own interests woul# accept in an initial position of equality as

#e&nin the fun#amentals of the terms of their association

1owever people in the original position are deemed to have certain inormation

a%out social organi,ation and human motivation in general! which animates their

%argaining. +hey now that there are particular >primary %asic goods? such as

rights and li%erties! opportunities! powers! selrespect! income and wealth! that

help anyone to ulfll their specifc content.

8t is important to eep in mind that the agreement that stems rom the original

position is %oth hypotheticaland ahistorical. 8t is hypothetical in the sense that

the principles to %e derived are what the parties would! under certain

legitimating conditions! agree to! not what they have agreed to. 8n other words!

=awls sees to persuade us through argument that the principles o *ustice that

he derives are in act what we woul#agree upon i we were in the hypothetical

situation o the original position and that those principles have moral weight as

a result o that. 8t is ahistorical in the sense that it is not supposed that the

agreement has ever! or indeed could actually %e entered into as a matter o

act.

THE RLE = JUSTICE

=awls argues that*ustice is the frst virtue o social institutions. 9aws and

institutions no matter how ePcient and well$arranged must %e reormed or

a%olished i they are un*ust.

4rinciples o *ustice provide a way o assigning rights and duties in the %asic

institutions o society and defne the appropriate distri%ution o the %enefts and

%urdens o social co$operation.

/ society is well$ordered when it is not only designed to advance the good o its

mem%ers %ut when it is also e2ectively regulated %y a pu%lic conception o

*ustice. +hat is it is a society which KC everyone accepts and nows that the


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others accept the same principles o *ustice! and #C the %asic social institutions

generally satisy and are generally nown to satisy these principles.

THE SUBJECT = JUSTICE

+he primary su%*ect o *ustice is the %asic structure o society! or more exactly!

the way in which the ma*or social institutions the political constitution and the

principal economic and social arrangementsC distri%ute undamental rights and

duties and determine the division o advantages rom social cooperation. +he

intuitive notion here is that this structure contains various social positions and

that men are %orn into di2erent expectations o lie determined! in part! %y the

political system as well as the economic and social circumstances. 8n this way

the institutions o society avor certain starting places over others. +hese areespecially deep inequalities. +hey a2ect men?s initial chances in lie7 yet they

cannot possi%ly %e *ustifed %y an appeal to the notions o merit or desert. 8t is

these inequalities! presuma%ly inevita%le in the %asic structure o any society! to

which the principles o social *ustice must in the frst instance apply. +hese

principles then regulate the choice o political constitution and the main

elements o the economic and social system.

LIMITATINS

1. +hese principles may not wor or the rules and practices o private

associations or or those less comprehensive social groups. +hey may not

irrelevant or the various inormal conventions and customs o everyday

lie7 they may not elucidate the *ustice! or perhaps %etter! the airness o

voluntary cooperative arrangements or procedures or maing contractual

arrangements. +he conditions or the law o nations may require di2erent

principles arrived at in a somewhat di2erent way. 8 shall %e satisfed i it is

possi%le to ormulate a reasona%le conception o *ustice or the %asic

structure o society conceived or the time %eing as a closed system

isolated rom other societies.

2.


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institutions. +hus =awls considers primarily what he calls strict compliance

as opposed to partial compliance theory.

PRINCIPLES = JUSTICE

=awls claims that the parties in the original position would adopt two such

principles! which would then govern the assignment o rights and duties and

regulate the distri%ution o social and economic advantages across society.

THE =IRST PRINCIPLE = JUSTICE

'ach person has an equal riht to the most extensive system of equal basic

liberties compatible with a similar system of liberties for all

+he %asic li%erties o citi,ens are! roughly speaing! political li%erty i.e.! to vote

and run or oPceC! reedom o speech and assem%ly! li%erty o conscience!reedom o personal property7 and reedom rom ar%itrary arrest. 8t is a matter

o some de%ate whether reedom o contract can %e inerred to %e included

among these %asic li%erties.

+he frst principle is more or less a%solute! and may not %e violated! even or

the sae o the second principle! a%ove an unspecifed %ut low level o economic

development i.e. the frst principle is! under most conditions! lexically prior to

the second principleC. 1owever! %ecause various %asic li%erties may con(ict! it

may %e necessary to trade them o2 against each other or the sae o o%taining

the largest possi%le system o rights.

THE SECND PRINCIPLE = JUSTICE

0ocial and economic inequalities are to %e arranged so that

aC +hey are to %e o the greatest %eneft to the least$advantaged mem%ers

o society (the #i)erence principle*$%C O+ces an# positions must be open to everyone un#er con#itions ofair

equality o opportunity

=awls claim in aC is that departures rom equality o a list o what he calls

primary goods Q things which a rational man wants whatever else he wants Q


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are *ustifed only to the extent that they improve the lot o those who are worst$

o2 under that distri%ution in comparison with the previous! equal! distri%ution.

1is position is at least in some sense egalitarian! with a proviso that equality is

not to %e achieved %y worsening the position o the least advantaged. /n

important consequence here! however! is those inequalities can actually %e *ust

on =awlss view! as long as they are to the %eneft o the least well o2. 1is

argument or this position rests heavily on the claim that morally ar%itrary

actors or example! the amily were %orn intoC shouldnt determine our lie

chances or opportunities. =awls is also eying on an intuition that we do not

deserve in%orn talents! thus we are not entitled to all the %enefts we could

possi%ly receive rom them! meaning that at least one o the criteria which could

provide an alternative to equality in assessing the *ustice o distri%utions is

eliminated.

+he stipulation in %C is lexically prior to that in aC.


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=awls?s li%eral$egalitarian conception o *ustice has %een su%*ected to a rigorous

li%ertarian critique %y his late colleague! =o%ert Fo,ic. 8n his %oo! /narchy!

0tate and Rtopia KOG'C! Fo,ic draws a distinction %etween end$stateN and

patterningN conceptions o *ustice on the one hand and historicalN and

entitlement$%ased conceptions o *ustice on the other. +he ormer types o

*ustices call or social reconstruction or patterning %y the state in the name o

some end$stage goal. =awls?s conception o *ustice is! according to Fo,ic! such

an end$state and patterning conception! which %y undermining the li%erty rights

o the individuals is unair or un*ust to them. 8nstead o prescri%ing any end$

state or patterning principles o distri%ution! Fo,ic loos or *ustice or in*ustice

in the history o the acquisition o the titles to our property holdings.

/ccording to him! the individual has a%solute li%erty rights! including the right to

own property and exchange it in the maret! regardless o the end$states or

pattern o distri%ution it may lead to. +his entitlement theory o *ustice! however!

includes a principle o rectifcatory *ustice! which is meant to correct past

in*ustices! i any! in the acquisition or transer o property. 8t can %e seen that

Fo,oc?s li%ertarian conception o *ustice is a deense o ree$maret capitalism.

;hile it is eloquent on the deense o individual rights rom state intererence! it

is silent on the undermining o individual reedom and equality %y very rich

people or corporations.

RBERT NIC!was %orn in Broolyn! Few Sor in KO&H! and he taught at

1arvard Rniversity until his death in January #LL#. 1e was a thiner o the

prodigious sort who gains a reputation or %rilliance within his chosen feld while

still in graduate school. +he frst and most amous %oo! Anarchy, tate, an#

-topia KOG'C! is an ingenious deense o li%ertarianism. +he said %oo was in

response to =awls? theory o *ustice. +he main pro*ect o the %oo was to deend

an minimalist state >>a night watchman state??C! deending it on one side against

anarchist who %elieve that state power over individuals can never %e *ustifed!

and on the other side against theorist lie =awls who advocate an interventionist

state that will redistri%ute wealth! help the poor and the lieO.

9/rian /i0, %%D$$ *H$ AD *$:* 2D$D* +14


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Anarchy, tate, an# -topia is! together with =awlss A Theory of Justice!

generally regarded as one o the two great classics o twentieth$century analytic

political philosophy. 8ndeed! these two wors essentially revived the discipline o

political philosophy within the analytic school! whose practitioners had! until

=awls and Fo,ic came along! largely neglected it. Fo,ics %oo also revived

interest in the notion o rights as %eing central to political theory! and it did so in

the service o another idea that had %een long neglected within academic

political thought! namely li%ertarianism.

#/E%T!%#!+#"(0(#+#(! "T!TE

9i%ertarianism is a political philosophy holding that the role o the state in

society ought to %e severely limited! confned essentially to police protection!

national deense! and the administration o courts o law! with all other tass

commonly perormed %y modern governments $ education! social insurance!

welare! and so orth $ taen over %y religious %odies! charities! and other private

institutions operating in a ree maret. Many li%ertarians appeal! in deending

their position! to economic and sociological considerations $ the %enefts o

maret competition! the inherent mechanisms inclining state %ureaucracies

toward incompetence and inePciency! the poor record o governmental

attempts to deal with specifc pro%lems lie poverty and pollution! and so orth.

Fo,ic endorses such arguments! %ut his main deense o li%ertarianism is a

moralone! his view %eing that whatever its practical %enefts! the strongest

reason to advocate a li%ertarian society is simply that such advocacy ollows

rom a serious respect or individual rightsKL.

Fo,ic revives claim long associated with John 9oce and 1er%ert 0pencer that

minimal state limited to the narrow unction o protection against orce ! thet !

raud! enorcement o contracts and so on ! is *ustifed 7and that the minimal

state is inspiring as well as right according to which economic goods arise

already encum%ered with rightul claim to ownership.NKK

1$D;AD i!k 1938?22)11M.D.A


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SEL=@WNERSHIP INDIVIDUAL RIGHT AND MINIMAL STATE

Fo,ic taes his position to ollow rom a %asic moral principle associated with

8mmanuel ant and enshrined in ants second ormulation o his amous

@ategorical 8mperative: "/ct so that you treat humanity! whether in your ownperson or in that o another! always as an end and never as a means only." +he

idea here is that a human %eing! as a rational agent endowed with sel$

awareness! ree will! and the possi%ility o ormulating a plan o lie! has an

inherent dignity and cannot properly %e treated as a mere thin! or use#against

his will as an instrument or resource in the way an inanimate o%*ect might %e.

8n line with this! Fo,ic also descri%es individual human %eings as self.owners

though it isnt clear whether he regards this as a restatement o ant?s

principle! a consequence o it! or an entirely independent ideaC. +he thesis o

sel$ownership! a notion that goes %ac in political philosophy at least to John

9oce! is *ust the claim that individuals own themselves $ their %odies! talents

and a%ilities! la%or! and %y extension the ruits or products o their exercise o

their talents! a%ilities and la%or. +hey have all the prerogatives with respect to

themselves that a slaveholder claims with respect to his slaves. But the thesis o

sel$ownership would in act rule out slavery as illegitimate! since each

individual! as a sel$owner! cannot properly %e owned %y anyone else. 8ndeed!

many li%ertarians would argue that unless one accepts the thesis o sel$

ownership! one has no way o explaining whyslavery is evil. /ter all! it cannot

%e merely %ecause slaveholders oten treat their slaves %adly! since a ind$

hearted slaveholder would still %e a slaveholder! and thus morally %lameworthy!

or that. +he reason slavery is immoral must %e %ecause it involves a ind o

stealing $ the stealing o a person rom himsel.C

But i individuals are inviola%le ends$in$themselves as ant descri%es themC and

sel$owners! it ollows! Fo,ic says! that they have certain rihts! in particular

and here again ollowing 9oceC rights to their lives! li%erty! and the ruits o

their la%or. +o own something! ater all! *ust is to have a right to it! or! more

accurately! to possess the %undle o rights $ rights to possess something! to

dispose o it! to determine what may %e done with it! etc. $ that constitute


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ownership7 and thus to own onesel is to have such rights to the various

elements that mae up ones sel. +hese rights unction! Fo,ic says! as si#e.

constraintson the actions o others7 they set limits on how others may! morally

speaing! treat a person. 0o! or example! since you own yoursel! and thus have

a right to yoursel! others are constrained morally not to ill or maim you since

this would involve destroying or damaging your propertyC! or to idnap you or

orci%ly remove one o your %odily organs or transplantation in someone else

since this would involve stealing your propertyC. +hey are also constrained not

to orce you against your will to wor or anothers purposes! even i those

purposes are good ones.


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does nothing else. 8n particular! such a state cannot regulate what citi,ens eat!

drin! or smoe since this would interere with their right to use their sel$owned

%odies as they see ftC! cannot control what they pu%lish or read since this would

interere with their right to use the property theyve acquired with their sel$

owned la%or $ e.g. printing presses and paper $ as they wishC! cannot administer

mandatory social insurance schemes or pu%lic education since this would

interere with citi,ens rights to use the ruits o their la%or as they desire! in that

some citi,ens might decide that they would rather put their money into private

education and private retirement plansC! and cannot regulate economic lie in

general via minimum wage and rent control laws and the lie since such actions

are not only economically suspect $ tending to produce %ad unintended

consequences lie unemployment and housing shortages $ %ut violate citi,ens

rights to charge whatever they want to or the use o their own propertyC.

NIC! ARGUMENTS AGAINST PATTERNED DISTRIBUTIN

Fo,ic %oo! >Anarchy, tate, an# -topia KOG'CN challenges the whole concept

o distri%ution. +here is no such meaningul concept as the goods o society %ut

only the goods o particular individuals and society has no prima acie right to

shuTe those around %etween individualsN. Fo,ic orces to as not how

distri%ution can %e other than equal =awls?s premiseC! %ut why should there %e

distri%ution at all.K&

Fo,ic points out that any sort o >patterned distri%ution? e.g. *ustice requires

that everyone to have equal amount or that the distri%ution o goods %e

according to need! merit intelligence! a%ility! and e2ort etcC will %e vulnera%le: it

will liely %e regularly and continually disrupted %y the voluntary independent

choices o an individuals. 1e uses the example o star athlete! woring ater

hours! which many people will pay to see rom whatever wealth they have. +his

type o transaction along with gits! %equests! and private contractual

agreements will all serve to undermine whatever >>*ust?? patterns has %een set.

/nd how can anyone complain a%out resulting distri%ution ! which was caused

%y the voluntary actions o people dealing with their own resources as they see

13id


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ftIC0omeone who %elieves that *ustice requires a patterned distri%ution will then

%e let with two equally unpleasant options: or%id all voluntary independent

actions that a2ect peoples? holdings! or impose regular! intrusive redistri%utive

taxes. K'

JUSTICE IN HLDING

Fo,ic?s alternative approach is not so much *ust reCdistri%ution ?? %ut *ustice

in holdingsN. /ccording to him there are two ways in which one can *ustly own

something as enumerated %elow:

P%+&%3' , J"#$ A&"%#%$%,+: / person can acquire an o%*ect consistently with

the principles o *ust acquisition the appropriation o unheld things e.g. claiming

and woring unclaimed landC

P%+&%3' , J"#$ T(+#': / person can acquire a thing in accordance with

principle o *ust transer rom someone else who was hersel entitled to own the

thing i.e. a voluntary transaction ! whether %y exchange or git ! with no raud !

duress or the lie.CFo one is entitled to own anything where the ownership

cannot %e traced %y the perhaps repeatedC application o one or %oth principles.

+his Fo,ic reers to as an historicalN principle o *ustice! to %e contrasted with

end resultN or end stateN principles. ;hat ollows rom Fo,ic?s analysis is that

society Dgovernment has no right to redistri%ute goods! violating people?s *ust

claims to the o%*ect they own! or some general %eneft. 1owever society does

have aright Qand pro%a%ly the duty$to redistri%ute goods to correct some prior

in*ustice in holding.

CRITICISM = NIC!5S APPRACH

+here are many questions and criticism leveled against Fo,ic theory o *ustice.

i!k, Anar!"y, #a#e and %#opiap. 149


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naUve in the extreme! points to the ree operation o the maret! voluntary

association and private philanthropy.

+he central (aw in Fo,ic?s arguments is the a%stractness o the individualism

they presupposeN +he individuals who conduct Fo,ic?s thought experiment areneutered in the sense that they are de$psychologies! taen out o their culture

and environment .Fo,ic assumes that it is possi%le to isolate people in this way!

whereas in reality people are constituted %y the societies into which they are

sociali,ed and live. 9ues rightly o%serves o this a%stract individualism that is a

distorting lens which satisfes the intellect while simpliy the world.N 1e

continues with remars which this section may conclude :N Fo,ic?s world not

only excludes the ever growing role o the state within contemporary

capitalism 7it is also radically pre$sociological! without social structure ! or racialor cultural determinants o! constraint upon ! the voluntary acts and exchanges

o its component individuals??K)

MICHAEL SANDEL CMMUNITARIANISM AND CIVIC REPUBLICANISM

@ommunitarianism %egan in the upper reaches o /nglo$/merican academia in

the orm o a critical reaction to John =awls landmar KOGK %oo! Theory o

ustice >R(7# 191?. 6rawing primarily upon the insights o /ristotle and

1egel! political philosophers such as /lasdair Mac8ntyre! Michael 0andel! @harles+aylor and Michael ;al,er disputed =awls assumption that the principal tas o

government is to secure and distri%ute airly the li%erties and economic

resources individuals need to lead reely chosen lives. +hese critics o li%eral

theory never did identiy themselves with the communitarian movement the

communitarian la%el was pinned on them %y others! usually criticsC7 much less

o2er a grand communitarian theory as a systematic alternative to li%eralism.

8n this article we shall particularly loo at the critique o =awls+heory o Justice

KOGKC in his 9i%eralism and the 9imits o Justice KOH#C %y Michael J. 0andel .

Michael J. 0andel was %orn on +hursday March )! KO)& is a political philosopher

and a proessor at 1arvard Rniversity. 1is %oos include 6emocracy?s

6iscontent! 4u%lic 4hilosophy: Assays on Morality in 4olitics! +he @ase against

15er L%@$
http://en.wikipedia.org/wiki/John_Rawlshttp://en.wikipedia.org/wiki/Theory_of_Justicehttp://en.wikipedia.org/wiki/Political_philosophyhttp://en.wikipedia.org/wiki/Harvard_Universityhttp://en.wikipedia.org/wiki/John_Rawlshttp://en.wikipedia.org/wiki/Theory_of_Justicehttp://en.wikipedia.org/wiki/Political_philosophyhttp://en.wikipedia.org/wiki/Harvard_University


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4erection: Athics in the /ge o 3enetic Angineering,and! most recently,Justice:

;hat?s the =ight +hing to 6oI 1is writings have %een translated into eleven

oreign languages and have appeared in +he /tlantic!+he Few =epu%lic, and

the Few Sor +imes.

0andel has lectured widely in Forth /merica! Aurope! @hina! Japan! orea! 8ndia!

/ustralia! and Few Vealand! on topics including democracy! li%eralism!

%ioethics! glo%ali,ation! and *ustice.

@ommunitarians argue that the li%eral view o *ustice where li%eralism is to %e

understood %roadly as any approach which emphasi,es individualism and

individual rights against the stateC is valid only to the extent that the li%eral

view o individuals is correct7 cut$o2 people who have no connections with one

another! who co$operate only to the extent that it is useul in achieving each

individual?s short$term or long term goals. @ommunitarians contest this view o

persons.

9i%erals and li%ertarians ground their theories o *ustice on an analysis which

treats people as essentially atomistic7 in this view! an individual is

essentiallay!*ust a metaphysical will! an a%ility to choose any orm o good! any

set o values and an a%ility to step %ac rom such choices! evaluate them! andperhaps decide to modiy them.

0andel argues that it does not re(ect real lie! at any level. ;e come into the

world as part o a amily! a community! an ethnic and religious group among

others and this is an essential part o our identity at all stages o our lives. ;hat

ollows thisI 0andel suggests that *usticeDethics should centre on! or at least

tae into account! our connections7 our responsi%ilities as mem%ers o our

communities! citi,ens o a country etc.

0andel is suspicious o the view o individuals o the view o individuals that

underlies =awls? analysis! and is particularly clear in the original positionN.


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to 8mmanuel ant.


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right is universally tight$or all people! and or all times. 5ne should not

overstate the disagreements here7 ;al,er is willing to spea o a core morality

di2erently ela%orated in di2erently ela%orated in di2erent cultureN however! or

;al,er! critical de%ate occurs within the thicerN culturally$%ased moralities.

+he hope that minimalism! grounded and expanded! might serve the cause o

a universal critique is a alse hopeN or wal,er! questions o *ustice! and

responses to those question will! and should! %e de%ated within the context o a

particular community and a particular tradition.

@ommunitarianism is a near relation to an approach to political theory nown as

repu%licanismN or civic repu%licanismN not to %e conused with the

=epu%licanismN political parties in the R0 and elsewhereC.+he connection may

%e only indirect! in the sense that one approach does not logically ollow rom

the other! %ut %oth are responses to and reactions against the same views and

attitudes7 that is! %oth oppose or question the emphasis on individuals and

individual interests at the heart o conventional theories o law and *ustice. @ivil

repu%licanisms is the idea that civic virtue!the participation in pu%lic! political

lie! is an important value that should %e empasised./ccordinging to this

approach! one o the tass o government is to mae the citi,enry more virtuous

and encourage participation in the pu%lic good.

@ivic repu%licanism has not a ro%ust theory o the pu%lic good! and our duties!

as citi,ens or oPcials! to serve that pu%lic good! which places it as the

diametrical opposite o pu%lic choice theory. 4u%lic choice theory argues! claims!

or assumes that there is no such thing as the pu%lic goodor at least the pu%lic

goodN is rarely sought and even more rarely reali,edC7rather! there is opnly!or

mostly! the con(icting claims o di2erent individuals and interest group.

=EMINIST APPRACH T JUSTICE


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ignored altogether! and when pro%lems o women are considered! they are

depicted %y reerence to! and in contrast with a standard ashiona%le or

treatment o males.

+hey argue that any adequate theory o *ustice must include women?s

perspectives equally with men?s and that the amily which is the linchpin o the

gender structure! must %e *ust i we are to have a *ust society.

0usan 5in! a strong proponent o the eminist theory defnes gender as the

deeply entrenched institutionali,ation o sexual di2erence and that it is largely

socially produced.

0he lays criticism to the traditionalD conventional philosophiesDtheories o *ustice7

+hat not enough emphasis has %een put %y those who have written a%out *ustice

on the implications o how the worplace is structured or amily lie! or amily

lie or the wor place. +hat some have treated the amily as %eing %eyond

considerations o *ustice.

+hey also argue that most theories have tended to %e unair against women on

the gendered distri%ution o la%ourDroles.

1owever! 5in?s criticism o traditional political theories is not that the toolsD

concepts o rights and *ustice are incorrect! %ut that they have not %een applied

to the issues o gender and the amily. +hereore her argument is not that it is

un*ust or women to wor in the home rather than see wage wor! %ut that it is

un*ust to have legal or social norms that state that women can or should only

wor in the home.

%+5# &%$%&%#- , R(75#>+heory o Justice? is how =awls assumes the amily

is *ust through psychological actors i.e. morality o authority! morality o

association and morality o principles. 1e does not recogni,e the possi%ility that

the amily is not *ust and i they are not *ust! how one individual is supposed to

develop a sense o *ustice.

+he morality o authority is the frst stage in moral development. 8n this stage!

=awls assumes that teaching morals to children is a condition o human lie.


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5in argues that this is an assumption and people oten do not %elieve they

have the duty or condition to teach morals. 0he insists that =awls does not

explain or *ustiy the grounds or his assumption that amilies are *ust.

5in chooses to apply one o John =awl?s leading theories o distri%utive *ustice

to the issue o gender and the amily. +hat since the woman is always

disadvantaged in the amily! then she should %e compensated rom the more

endowed.

Martha due?! those who are less fnancially independent

may %e disadvantaged.

%+5# ("-'+$ , inclusion o women into li%ertarian political

theories results in an o%viously unaccepta%le consequence and! hence a


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reutation o li%ertarianism. ;hen we attempt to modiy li%ertarian

theories to include women?s perspectives in men?s! we would include their

unique role in reproduction. +his would result in a morally repugnant

conclusion that people are exclusively owned %y their mothers. +his is

%ecause li%ertarians argue or Antitlement to one?s product: +hat one

owns what one produces.

5in?s recommendation or shared parenting will remain *ust that7 a

wish: 0he argues that %oth parents would share parenting responsi%ilities!

%oth economic support and direct care! equally. 0he does though

apparently assume that! upon divorce! there will %e a sole custodial

parent.

CNCLUSIN

8n my view! 5in?s perception is clouded %y the thought that women have %een

disadvantaged in society and thereore i we applied her perception o *ustice!

then the menD%oy child would su2er the same disadvantage she %elieves women

are undergoing.

THER RE=ERENCES

/$ Blac?s 9aw 6ictionary.HthAdition! Bryan /. 3arner

0$ +oday?s Few 8nternational Eersion Bi%le

1$ Maiese! Michelle. "+ypes o Justice." 2eyon# %ntractability. Ads. 3uy

Burgess and 1eidi Burgess. @on(ict =esearch @onsortium! Rniversity o

@olorado! Boulder. 4osted: July #LL&

Whttp:DDwww.%eyondintracta%ility.orgDessayDtypesXoX*usticeD Y.

3$ 8ntroduction to *urisprudence and legal theory commentary and materials

e#ite# by James Penner, 4avi# chi) an# 5ichar# 6obles

7$ Barry! B.! KOO)!Justice as %mpartiality5xord: @larendon 4ressC

8$ 9onow, James$ 0::1$ !;hich %s the Fairest One of All< A Positive Analysis

of Justice Theories$! Journal of 'conomic Literature 3/, no$ 3= pae //>>

?$ John =awls!A Theory of Justicerevised edn! 5xord: 5R4! KOOOC! p. &
http://www.beyondintractability.org/essay/types_of_justice/http://www.beyondintractability.org/essay/types_of_justice/


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Seminar 5 Justice

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Transcript of Seminar 5 Justice