II) DEPENDENCY THEORIES OF JUSTICES
This theory may be discussed under two heads, viz.:
1. The dependence of justice on law; and
2. The dependence of justice on society.
The dependence of justice on law
According to the positive law theory of justice, the justice and injustice are
dependent on positive law. The proposition that justice depends on law is
defended by Hobbes and he describes what conditions would be like in a situation
where no law existed. In such a situation there would be no common power, no
organized society capable of issuing commands and enforcing them, and men
would live in what he calls “the state of nature”. Where there are no social rules,
men would oppose each other only as individuals and men as individuals seek
their own advantage they are enthusiastic for gain, safety and reputation. But men
are so equal in power that no one enjoys a clear advantage, also no one is safe or
secure, the life of all is “solitary, poor, nasty, brutish and short”. Hence, the state
or nature amounts to a state of war, and such a war is of every man against every
man.
In the state of nature, there is no common power able to make laws and
enforce them. There is also no justice or injustice. Hobbes writes that before the
names of just and unjust can have place, there must be some coercive power to
compel men equally tome performance of their covenants.
The dependence of justice upon the existence of a superior is supported by
this counterfactual argument: “If we could suppose a great multitude of men to
consent in the observation of justice without a common power to keep them all in
awe, we might as well suppose all mankind to do the same; and then there neither
would be nor need to be any civil government or common wealth at all.”
What is wanting is a common power. This is obtained through the
establishment of a commonwealth, or a civil society or state and which Hobbes
calls “Leviathan”, to emphasize the power. This leviathan comes into being b the
social contract, or the common agreement of men to abandon the sate of nature.
According to Hobbes, there is a “covenant of every man with every man in such a
manner as if every man should say to every man, “ I authorize and give up my
right of governing myself to this man or to this assembly of men, on this condition
that you give up your right to him and authorize all his actions in like manner”.
There is coercive power to compel men equally to the performance of their
covenants and hence occasion for justice.
Without a superior coercive power there is not only no ground for private
contract, there is also no ground, strictly speaking, for property. According to
Hobbes, every man has right to everything. But this is tantamount to having no
rights at all. Hence, there is no basis on which a man can claim anything as his
own by right. There is no mine and thine, no property, all men having right to all
things. Therefore, where there is no common wealth, there is nothing unjust.
If we think of men existing in a condition where they are utterly without
law, than there can be no question of justice or injustice. In other words, justice
and injustice depend upon law, and hence are the work of civil society and
relative to it. Without society there is no justice. In different ideas of justices.
According to Kelsen, the basic norm of a society determines what is just and
unjust. A man is if his behavior conforms to the norms of a social order. But
every society believes that its order is just. Justice is relative to a given society
and to the kind of constitution it had. A democratic society has democratic
justice and a communist society has communist justice.
THE DEPENDENCE OF JUSTICE ON SOCIETY.
According to Social Good Theory of Justice, justice and injustice are not
exclusively dependent on positive law. The Social Good Theory disagrees with
Positive Law and agrees with the Natural Right Theory. The heart of Social Good
Theory lies in the claim that all questions of justice must ultimately be decided in
terms of social utility. All theories agree that justice is a social norm that applies
to men in their relations with one another. The Social Goods Theory goes still
further and asserts that origin and basis of justice lies in the good society, i.e., in a
good greater than and individual or private good. Social Good authors may differ
about the social good and its determination, but all would agree that what is just is
ultimately decided only by determining what is good for society and whenever a
course of action runs counter to that good, it is unjust. There is no law, no right
that falls outside these criteria. All laws and rights are just or unjust as they
conform to the Social Good and promote it. Justice as a norm tests ultimately
upon the Social Good.
According to the Social Good Theory, justice is based entirely on society.
It arises in the course of men striving to work out a common life, and, if it were
possible for men to live apart from society, there would be no justice and no
morality at all. It is evolved by them through their efforts to meet the demands of
living together. It maintains that society is logically prior to law as well as
justice. The theory holds that, while it may make sense to speak of justice where
there is no organized government and no positive law, justice makes of sense
apart from the good of society. This theory places emphasis upon the social
situation of man and its needs and not upon man as such in any social situation.
An individual is in no way naturally just. He is made lust by and in society and
all the rights and rules of justice are entirely made by and conferred by society.
Followers of Social Good Theory assert the dependence of justice upon
society in different ways. According to Flume, justice is an “artificial virtue”.
Unlike benevolence or the feeling of sympathy we have for our fellowmen justice
is not a ‘simple original instinct’ or an ‘innate idea’ or an ‘instinct originally
implanted in our nature’. So flume claims that justice is an ‘artificial’ and not a
‘natural virtue’.
Mill accomplishes the same purpose by tracing the origin of justice to a
social feeling. He says that there are two essential ingredients in the sentiment of
justice, the desire to punish a person who has done harm, and the knowledge or
belief that there is some definite individual or individuals to whom harm has been
done.
Sidwick claims that natural right provides no stands for man’s social
relations. He asserts that justice is held to prescribe the fulfillment of all such
expectations as arise naturally and normally out or relations voluntary or
involuntary amongst human beings.
According to Roscoe Pound, justice is not an individual virtue, nor an
ideal relation among men, but such an adjustment of relations and ordering of
conduct as will make the goods of existence go round as far as possible with the
least friction and waste.
The assertion that justice is entirely dependent on society carries the denial
that there is any such thing as a natural right having its basis in man as man. The
Social Good Theory thus denies that nature or the natural as such provides a basis
of justice.
Individual liberty may be claimed as a requirement of justice by any of the
three basic theories. They differ not in the claim but in the reason they offer for
it. The Social Good position makes it need of society, or a means for insuring a
better society. The positive law theory holds that it is an option that has been
written into law, while the Natural Right Theory maintains that it is a right due to
man as man.
This theory may be discussed under two heads, viz.:
1. The dependence of justice on law; and
2. The dependence of justice on society.
The dependence of justice on law
According to the positive law theory of justice, the justice and injustice are
dependent on positive law. The proposition that justice depends on law is
defended by Hobbes and he describes what conditions would be like in a situation
where no law existed. In such a situation there would be no common power, no
organized society capable of issuing commands and enforcing them, and men
would live in what he calls “the state of nature”. Where there are no social rules,
men would oppose each other only as individuals and men as individuals seek
their own advantage they are enthusiastic for gain, safety and reputation. But men
are so equal in power that no one enjoys a clear advantage, also no one is safe or
secure, the life of all is “solitary, poor, nasty, brutish and short”. Hence, the state
or nature amounts to a state of war, and such a war is of every man against every
man.
In the state of nature, there is no common power able to make laws and
enforce them. There is also no justice or injustice. Hobbes writes that before the
names of just and unjust can have place, there must be some coercive power to
compel men equally tome performance of their covenants.
The dependence of justice upon the existence of a superior is supported by
this counterfactual argument: “If we could suppose a great multitude of men to
consent in the observation of justice without a common power to keep them all in
awe, we might as well suppose all mankind to do the same; and then there neither
would be nor need to be any civil government or common wealth at all.”
What is wanting is a common power. This is obtained through the
establishment of a commonwealth, or a civil society or state and which Hobbes
calls “Leviathan”, to emphasize the power. This leviathan comes into being b the
social contract, or the common agreement of men to abandon the sate of nature.
According to Hobbes, there is a “covenant of every man with every man in such a
manner as if every man should say to every man, “ I authorize and give up my
right of governing myself to this man or to this assembly of men, on this condition
that you give up your right to him and authorize all his actions in like manner”.
There is coercive power to compel men equally to the performance of their
covenants and hence occasion for justice.
Without a superior coercive power there is not only no ground for private
contract, there is also no ground, strictly speaking, for property. According to
Hobbes, every man has right to everything. But this is tantamount to having no
rights at all. Hence, there is no basis on which a man can claim anything as his
own by right. There is no mine and thine, no property, all men having right to all
things. Therefore, where there is no common wealth, there is nothing unjust.
If we think of men existing in a condition where they are utterly without
law, than there can be no question of justice or injustice. In other words, justice
and injustice depend upon law, and hence are the work of civil society and
relative to it. Without society there is no justice. In different ideas of justices.
According to Kelsen, the basic norm of a society determines what is just and
unjust. A man is if his behavior conforms to the norms of a social order. But
every society believes that its order is just. Justice is relative to a given society
and to the kind of constitution it had. A democratic society has democratic
justice and a communist society has communist justice.
THE DEPENDENCE OF JUSTICE ON SOCIETY.
According to Social Good Theory of Justice, justice and injustice are not
exclusively dependent on positive law. The Social Good Theory disagrees with
Positive Law and agrees with the Natural Right Theory. The heart of Social Good
Theory lies in the claim that all questions of justice must ultimately be decided in
terms of social utility. All theories agree that justice is a social norm that applies
to men in their relations with one another. The Social Goods Theory goes still
further and asserts that origin and basis of justice lies in the good society, i.e., in a
good greater than and individual or private good. Social Good authors may differ
about the social good and its determination, but all would agree that what is just is
ultimately decided only by determining what is good for society and whenever a
course of action runs counter to that good, it is unjust. There is no law, no right
that falls outside these criteria. All laws and rights are just or unjust as they
conform to the Social Good and promote it. Justice as a norm tests ultimately
upon the Social Good.
According to the Social Good Theory, justice is based entirely on society.
It arises in the course of men striving to work out a common life, and, if it were
possible for men to live apart from society, there would be no justice and no
morality at all. It is evolved by them through their efforts to meet the demands of
living together. It maintains that society is logically prior to law as well as
justice. The theory holds that, while it may make sense to speak of justice where
there is no organized government and no positive law, justice makes of sense
apart from the good of society. This theory places emphasis upon the social
situation of man and its needs and not upon man as such in any social situation.
An individual is in no way naturally just. He is made lust by and in society and
all the rights and rules of justice are entirely made by and conferred by society.
Followers of Social Good Theory assert the dependence of justice upon
society in different ways. According to Flume, justice is an “artificial virtue”.
Unlike benevolence or the feeling of sympathy we have for our fellowmen justice
is not a ‘simple original instinct’ or an ‘innate idea’ or an ‘instinct originally
implanted in our nature’. So flume claims that justice is an ‘artificial’ and not a
‘natural virtue’.
Mill accomplishes the same purpose by tracing the origin of justice to a
social feeling. He says that there are two essential ingredients in the sentiment of
justice, the desire to punish a person who has done harm, and the knowledge or
belief that there is some definite individual or individuals to whom harm has been
done.
Sidwick claims that natural right provides no stands for man’s social
relations. He asserts that justice is held to prescribe the fulfillment of all such
expectations as arise naturally and normally out or relations voluntary or
involuntary amongst human beings.
According to Roscoe Pound, justice is not an individual virtue, nor an
ideal relation among men, but such an adjustment of relations and ordering of
conduct as will make the goods of existence go round as far as possible with the
least friction and waste.
The assertion that justice is entirely dependent on society carries the denial
that there is any such thing as a natural right having its basis in man as man. The
Social Good Theory thus denies that nature or the natural as such provides a basis
of justice.
Individual liberty may be claimed as a requirement of justice by any of the
three basic theories. They differ not in the claim but in the reason they offer for
it. The Social Good position makes it need of society, or a means for insuring a
better society. The positive law theory holds that it is an option that has been
written into law, while the Natural Right Theory maintains that it is a right due to
man as man.
