UNIT – IV
CONCEPT OF JUSTICE
The cardinal question as to what is justice is difficult to define. The jurists are
confronted with the problem of offering a precise definition of the term ‘justice’ on
account of three essential difficulties.
First, the term ‘justice’ is assigned different meaning by different people at
different times and different places. Not only this, its implications vary from man to man
on account of their varying interpretations.
Second, the idea of justice is a dynamic affair. As such, implications change with
the passage of time. Thus, what was justice in the past may be injustice in the present
and vice versa; it is also possible that the justice of today becomes injustice of tomorrow
and vice versa.
Third, a further difficulty arises in reconciling the abstract notion of justice with
its practical manifestations. For instance, one may talk of divine justice or moral justice,
but it will not be comfortable to any set of standards, and for this reason not capable of
practical application.
Here it is pertinent to quote Harold Potter, “most men think that they understand
the meaning of justice, but in fact, their notions prove to be vogue”.
Arnold Breacht writes that while dealing with the problem of offering a precise
definition of the term ‘justice’, we should keep this paramount fact in our mind that ‘not
only do different individuals hold various ideas about the ideal state of affairs, they
would consider really just every individual is capable of several such ideas. Our ideas
and feelings of justice may be two fold or three fold or even more fold in accordance with
different systems of values to which we respond positively at different times, or even
simultaneously. Justice in the light of personal ideas is, or at least may be, a barrel with
several bottoms. In order to solve this predicament; Arnold Brecht divides justice into
two categories:-
1. Traditional justice – it accepts the fundamental institutions, which constitute
the basis of our daily life. In so far as these institutions have been established
by the positive law (written constitution, legislation, judicial precedents and
the like), the traditional idea of justice is positivistic.
2. Trans justice – it detaches itself from the existing institutions, either in whole
or in part, and criticizes them according to principles which are taken from a
trans-traditional scheme or evaluation. This may again be done in dependence
on group ideas that are accepted and carried on by the individual in some
condition of submission or example ideas of a party or merely in deference to
the opinions of a strong personality, a friend, the husband or wife, or the
priest.
The problem of the meaning of justice is notorious for its treachery. In fact, it is difficult
to imagine a man who has not at one time or the other discussed whether a given course
of action is just or not. Grammatically, the word ‘justice’ has been used as adjective,
adverb, noun, verb or auxiliary in compounds with other words. The varied use of the
word ‘justice’ has made it a subject of extensive controversy.
Karl Popper declares that word ‘justice’ is used in various senses and to ask for its
meaning is to raise an ‘important verbal question to which no definite answer can be
given’. In general parlance the term ‘justice’ is synonymous with the term ‘fair play’,
‘just’, ‘right’, ‘proper’, ‘sound’, ‘just’ and ‘reasonable’ and ‘ natural justice’.
The term ‘Justice’ has two aspects, namely, abstract justice and concrete justice. In the
abstract sense, justice means a course of conduct both legal and oral which tends to
augment the human welfare and human happiness. In its absolute terms, it is a standard
according to which the other values of life are judged and weighed. Whereas concrete
justice is a term which is purely legal in its contents and used to define justice available
in courts of law. The term connotes the actual justice which is available to the members
of the society in a given set of social order bound by limits set in by legislative
enactments.
The term ‘justice’, therefore, is a highly elastic term and any attempt to lay down a
definition which may be true in all times is a difficult task. What we are seeking: is the
justice to which law in the making should conform. The concept of justice in that sense
is far more ‘subtle and indefinite than…mere obedience of a rule’.
The jurists of positive law theory of justice hold that question of justice arises only in
connection with law and that law is not independent of justice. The position of positive
law theory regarding the nature of justice is characterized by six propositions:-
(i) Justice and injustices are dependent on positive law;
(ii) Law itself is independent of justice;
(iii) Justice consists in conformity to positive law;
(iv) Justice apart from legality, is merely a subjective norm;
(v) Justice is obligatory ultimately only because of legal and political
(vi) The virtue of justice is identical with obedience.
The Social Good theory of justice is identified by the following six propositions, namely,
1. Justice and injustices are not exclusively dependent on positive law;
2. Justice provides a criterion for the goodness of a law;
3. Justice derives exclusively from society and consists ultimately in promoting the
social good;
4. Justice is an objective norm for human actins;
5. Justice imposes a moral duty based on the social good and is not primarily
dependent on legal sanctions and
6. Justice is a distinct virtue, disposing on to act for the social good and is similar to
benevolence.
John Rawls finds it useful to analyze justice in terms of an explicit contract. He claims to
drive two fundamental principles of justice (i) Each person participating in the political
and social system or affected by it has an equal right to the most extensive liberty
compatible with a like liberty for all; and (ii) inequalities (as defined and permitted by the
pattern of distribution of rights and duties) are arbitrary unless it is reasonable to expect
that they will work out for every ones advantage and provided that the positions and
offices to which they attach or from which they may be gained, are open to all. John
Rawls gives importance to distinction between justice and fairness. According to him,
the “primary subject of justice is the basic structure of society”.
Thus, justice is a large subject with many topics and sub-topics that have vast range
of significance. With so many diverse and divergent uses it is no cause for wonder that
justice has become a subject of extensive controversy. It is not justice itself but theories
about justice that constitutes the object of investigation.
Justice is a social norm. It is relational as involving many, it applies to man in
association, and it is norm for regulating their actions towards each other. Justice is
probative. Society has more than one norm. There are norms of manners, of decency, of
taste, of grammar, each of which provides a rule or guide for men in their association
with one another. Justice is obligatory. All the theories of justice agree that justice
sanctions; and
involves in some way a norm or standard of what ought to be done. However, they differ
about the nature and ground of the norm and how and why it obliges. But none deny that
justice imposes an obligation. Thus under the diversity of language, it is clear that each is
asserting that justice is a social norm that is both approbative and obligatory.
RELATION BETWEEN LAW AND JUSTICE
As it is difficult to define justice in absolute terms, so is difficult to say whether there can
be justice without law? John Salmond defined justice in terms of established legal rules
and procedure. Justice as such cannot be achieved without or outside the rules of law,
rather it can be achieved only within the four walls of law. Salmond further says that the
purpose of law is to secure justice according to the law of the land. In other words, the
phrase ‘justice’ according to law’ is used by him in the sense that decisions of the courts
of law with respect to disputes should be based on legal principles and the judges should
apply established rules and principles of law in the administration of justice. Mat on the
country, says that justice can be administered without law. He says all that the judge
requires is authority to settle all disputes that come before him. It means judges can
decide a dispute without law but according to their hunches discretion or whims
irrespective of the merits of the situation. However, this type of justice cannot be
described legal justice but may be called as executive justice or flat or arbitrary justice.
Every legal system is oriented towards certain purposes which it seeks to
implement in this sense, every legal system is of necessity devoid of ideological content.
The ‘justice’ of a given legal system may be a laissez faire economy or the public
ownership of all product enterprise, it may be a Parliamentary multiparty system of a
one-party state, the systems may be built upon the ideology of separation of powers or on
the subordination of administration and the judiciary to the will of the legislator. It may
aspire to be equality of all citizens, or to a hierarchical structure of superior arid inferior
citizens; it may implement the supremacy of international over national law of the
inverse. According to Aristotle, the definition of distribute justice means ‘injustice arises
when equals are treated unequally, and also when unequal are treated equally”. It is
compatible with legal system that discriminate between free man and slaves, between
blacks and whites, between nationals and foreigners between rich and poor, between men
and women. For all of these are “class concepts” groups which the legal order may
consider as being equal or unequal in relation to each other. There is a procedural
residuum in the notion of a “equality for equals” which makes it more than a meaningless
formula. It implies a minimum machinery of justice, some procedure for the
determination of treatment as equal or unequal in a particular case. This carries the
implication of a third party procedure and thus some minimum concept of “due process”.
Perelman in his “Idea of Justice” has demonstrated that the only factor common to
various conceptions of justice was “formal justice”. This consists in equality of treatment
for all the members of one and the same essential category. The only requirement is that
it should not be arbitrary but should just itself should flow from a normative system. But,
the only claim one could rightfully make would consist in eliminating, arbitrary save
what is implied in affirming the values at the base of the system. This approach is
similar to Aristotle’s concept of distributive justice and to the philosophy of relativism as
developed by Max Weber, Gustav, Radburck, Kelsen and others.
Thus, “justice” as a generally valid concept is formal in the sense that it is the
goal to which every legal order aspires as a “purposeful enterprise” and procedural in the
sense that the Aristotellian notion of “equity for equals’ implies a minimum machinery
of justice and third party determination.
Thus, law may be regarded as consisting partly of legal phenomena and partly of
legal norms in mutual correlation. Observing the law as it functions in a society, a large
number of human actions are interpreted as a coherent whole of meaning and motivation
by means of legal norms as the scheme of interpretation. The concept “valid law” can be
explained and defined in principle in the same manner as the concept “valid norms” in
any game. Thus, “valid law” means the abstract set of normative ideas which serve as a
scheme of interpretation for the phenomena of law in action, which again means that
these norms are effectively foil and followed because they are experienced and felt to be
society binding.
…
CONCEPT OF JUSTICE
The cardinal question as to what is justice is difficult to define. The jurists are
confronted with the problem of offering a precise definition of the term ‘justice’ on
account of three essential difficulties.
First, the term ‘justice’ is assigned different meaning by different people at
different times and different places. Not only this, its implications vary from man to man
on account of their varying interpretations.
Second, the idea of justice is a dynamic affair. As such, implications change with
the passage of time. Thus, what was justice in the past may be injustice in the present
and vice versa; it is also possible that the justice of today becomes injustice of tomorrow
and vice versa.
Third, a further difficulty arises in reconciling the abstract notion of justice with
its practical manifestations. For instance, one may talk of divine justice or moral justice,
but it will not be comfortable to any set of standards, and for this reason not capable of
practical application.
Here it is pertinent to quote Harold Potter, “most men think that they understand
the meaning of justice, but in fact, their notions prove to be vogue”.
Arnold Breacht writes that while dealing with the problem of offering a precise
definition of the term ‘justice’, we should keep this paramount fact in our mind that ‘not
only do different individuals hold various ideas about the ideal state of affairs, they
would consider really just every individual is capable of several such ideas. Our ideas
and feelings of justice may be two fold or three fold or even more fold in accordance with
different systems of values to which we respond positively at different times, or even
simultaneously. Justice in the light of personal ideas is, or at least may be, a barrel with
several bottoms. In order to solve this predicament; Arnold Brecht divides justice into
two categories:-
1. Traditional justice – it accepts the fundamental institutions, which constitute
the basis of our daily life. In so far as these institutions have been established
by the positive law (written constitution, legislation, judicial precedents and
the like), the traditional idea of justice is positivistic.
2. Trans justice – it detaches itself from the existing institutions, either in whole
or in part, and criticizes them according to principles which are taken from a
trans-traditional scheme or evaluation. This may again be done in dependence
on group ideas that are accepted and carried on by the individual in some
condition of submission or example ideas of a party or merely in deference to
the opinions of a strong personality, a friend, the husband or wife, or the
priest.
The problem of the meaning of justice is notorious for its treachery. In fact, it is difficult
to imagine a man who has not at one time or the other discussed whether a given course
of action is just or not. Grammatically, the word ‘justice’ has been used as adjective,
adverb, noun, verb or auxiliary in compounds with other words. The varied use of the
word ‘justice’ has made it a subject of extensive controversy.
Karl Popper declares that word ‘justice’ is used in various senses and to ask for its
meaning is to raise an ‘important verbal question to which no definite answer can be
given’. In general parlance the term ‘justice’ is synonymous with the term ‘fair play’,
‘just’, ‘right’, ‘proper’, ‘sound’, ‘just’ and ‘reasonable’ and ‘ natural justice’.
The term ‘Justice’ has two aspects, namely, abstract justice and concrete justice. In the
abstract sense, justice means a course of conduct both legal and oral which tends to
augment the human welfare and human happiness. In its absolute terms, it is a standard
according to which the other values of life are judged and weighed. Whereas concrete
justice is a term which is purely legal in its contents and used to define justice available
in courts of law. The term connotes the actual justice which is available to the members
of the society in a given set of social order bound by limits set in by legislative
enactments.
The term ‘justice’, therefore, is a highly elastic term and any attempt to lay down a
definition which may be true in all times is a difficult task. What we are seeking: is the
justice to which law in the making should conform. The concept of justice in that sense
is far more ‘subtle and indefinite than…mere obedience of a rule’.
The jurists of positive law theory of justice hold that question of justice arises only in
connection with law and that law is not independent of justice. The position of positive
law theory regarding the nature of justice is characterized by six propositions:-
(i) Justice and injustices are dependent on positive law;
(ii) Law itself is independent of justice;
(iii) Justice consists in conformity to positive law;
(iv) Justice apart from legality, is merely a subjective norm;
(v) Justice is obligatory ultimately only because of legal and political
(vi) The virtue of justice is identical with obedience.
The Social Good theory of justice is identified by the following six propositions, namely,
1. Justice and injustices are not exclusively dependent on positive law;
2. Justice provides a criterion for the goodness of a law;
3. Justice derives exclusively from society and consists ultimately in promoting the
social good;
4. Justice is an objective norm for human actins;
5. Justice imposes a moral duty based on the social good and is not primarily
dependent on legal sanctions and
6. Justice is a distinct virtue, disposing on to act for the social good and is similar to
benevolence.
John Rawls finds it useful to analyze justice in terms of an explicit contract. He claims to
drive two fundamental principles of justice (i) Each person participating in the political
and social system or affected by it has an equal right to the most extensive liberty
compatible with a like liberty for all; and (ii) inequalities (as defined and permitted by the
pattern of distribution of rights and duties) are arbitrary unless it is reasonable to expect
that they will work out for every ones advantage and provided that the positions and
offices to which they attach or from which they may be gained, are open to all. John
Rawls gives importance to distinction between justice and fairness. According to him,
the “primary subject of justice is the basic structure of society”.
Thus, justice is a large subject with many topics and sub-topics that have vast range
of significance. With so many diverse and divergent uses it is no cause for wonder that
justice has become a subject of extensive controversy. It is not justice itself but theories
about justice that constitutes the object of investigation.
Justice is a social norm. It is relational as involving many, it applies to man in
association, and it is norm for regulating their actions towards each other. Justice is
probative. Society has more than one norm. There are norms of manners, of decency, of
taste, of grammar, each of which provides a rule or guide for men in their association
with one another. Justice is obligatory. All the theories of justice agree that justice
sanctions; and
involves in some way a norm or standard of what ought to be done. However, they differ
about the nature and ground of the norm and how and why it obliges. But none deny that
justice imposes an obligation. Thus under the diversity of language, it is clear that each is
asserting that justice is a social norm that is both approbative and obligatory.
RELATION BETWEEN LAW AND JUSTICE
As it is difficult to define justice in absolute terms, so is difficult to say whether there can
be justice without law? John Salmond defined justice in terms of established legal rules
and procedure. Justice as such cannot be achieved without or outside the rules of law,
rather it can be achieved only within the four walls of law. Salmond further says that the
purpose of law is to secure justice according to the law of the land. In other words, the
phrase ‘justice’ according to law’ is used by him in the sense that decisions of the courts
of law with respect to disputes should be based on legal principles and the judges should
apply established rules and principles of law in the administration of justice. Mat on the
country, says that justice can be administered without law. He says all that the judge
requires is authority to settle all disputes that come before him. It means judges can
decide a dispute without law but according to their hunches discretion or whims
irrespective of the merits of the situation. However, this type of justice cannot be
described legal justice but may be called as executive justice or flat or arbitrary justice.
Every legal system is oriented towards certain purposes which it seeks to
implement in this sense, every legal system is of necessity devoid of ideological content.
The ‘justice’ of a given legal system may be a laissez faire economy or the public
ownership of all product enterprise, it may be a Parliamentary multiparty system of a
one-party state, the systems may be built upon the ideology of separation of powers or on
the subordination of administration and the judiciary to the will of the legislator. It may
aspire to be equality of all citizens, or to a hierarchical structure of superior arid inferior
citizens; it may implement the supremacy of international over national law of the
inverse. According to Aristotle, the definition of distribute justice means ‘injustice arises
when equals are treated unequally, and also when unequal are treated equally”. It is
compatible with legal system that discriminate between free man and slaves, between
blacks and whites, between nationals and foreigners between rich and poor, between men
and women. For all of these are “class concepts” groups which the legal order may
consider as being equal or unequal in relation to each other. There is a procedural
residuum in the notion of a “equality for equals” which makes it more than a meaningless
formula. It implies a minimum machinery of justice, some procedure for the
determination of treatment as equal or unequal in a particular case. This carries the
implication of a third party procedure and thus some minimum concept of “due process”.
Perelman in his “Idea of Justice” has demonstrated that the only factor common to
various conceptions of justice was “formal justice”. This consists in equality of treatment
for all the members of one and the same essential category. The only requirement is that
it should not be arbitrary but should just itself should flow from a normative system. But,
the only claim one could rightfully make would consist in eliminating, arbitrary save
what is implied in affirming the values at the base of the system. This approach is
similar to Aristotle’s concept of distributive justice and to the philosophy of relativism as
developed by Max Weber, Gustav, Radburck, Kelsen and others.
Thus, “justice” as a generally valid concept is formal in the sense that it is the
goal to which every legal order aspires as a “purposeful enterprise” and procedural in the
sense that the Aristotellian notion of “equity for equals’ implies a minimum machinery
of justice and third party determination.
Thus, law may be regarded as consisting partly of legal phenomena and partly of
legal norms in mutual correlation. Observing the law as it functions in a society, a large
number of human actions are interpreted as a coherent whole of meaning and motivation
by means of legal norms as the scheme of interpretation. The concept “valid law” can be
explained and defined in principle in the same manner as the concept “valid norms” in
any game. Thus, “valid law” means the abstract set of normative ideas which serve as a
scheme of interpretation for the phenomena of law in action, which again means that
these norms are effectively foil and followed because they are experienced and felt to be
society binding.
…
