Unit-III

Justice
1. What do you understand by Justice? Discuss procedural and substantial justice.

2. Analyse Rawls Theory of Justice and his critics.

3. Discuss the nature and scope of National and Global Justice.

(For Rawls Theory of Justice as Fairness and its critics refer to ‘Social Justice in Place of
Opportunity’ by Andrew Mason in Richard Bellamy, and Andrew Mason (eds.), Political
Concepts, 2003; and for Global Justice refer to ‘Social Justice’ by Adams Swift in Adam
Swift, Political Philosophy: A Beginner’s Guide for Students and Politicians, 2001).
A commonly held belief is that justice is always impartial. In fact, impartiality and fairness
are understood as important aspects of justice. While justice is seen as an attribute of law,
we realise that all laws are not always just (Apartheid laws in Africa).
Justice, as a concept has evolved since the ancient period when Greek philosophers - Plato
and Aristotle believed in the notion of justice as a virtue of both individuals and societies
and explicated the true nature of justice as an essential principle for a just state. They believed
in the ideal of natural justice, which like temperance (self-control), wisdom and courage, is
one of the four principles of virtue (Plato). An Ideal State is an embodiment of Plato’s
understanding of justice where every individual would be true to his nature - some men as
philosophers and intellectuals and others as good workers, artisans and so on would fulfill their
duties diligently. Unlike the notion of hierarchy in Platonic concept of justice, Aristotle argued
that justice lies in incorporating concerns of equality proportionately and maintenance of
equilibrium in society (people should be treated equally based on their merits and receive what
they deserve).
New ways of thinking and understanding of justice emerged with gradual secularization
of life in Europe – from Renaissance to Industrial Revolution. Justice was no longer seen
as a religious principle based on traditional social practices and came to be located as an idea
within the secular framework of modern nation-sate. As a set of principles, it was to be upheld
by the state in order to make life and business well regulated.
An interesting debate on ‘what is justice’ in political theory is important. Justice is a distributive
concept more often understood in terms of distribution of goods and services and if such
distribution is justified. The basis of distribution is desert (deserve), need, merit. What is

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meritorious, deserving or needs to be rewarded is subjective as individual actions cannot be
isolated from society.
Theories of procedural justice work with the idea of individual entitlements without
taking the whole society into account. Demands for justice are satisfied when certain rules
are followed (equality of opportunity/absence of discrimination in laws (formal freedom)
– procedural justice) and the outcome is not evaluated (equality of outcome (effective
freedom) – is important in substantial justice – social justice).

Procedural Justice - Individuals are autonomous and rational beings who are responsible for
their actions and have entitlement that are individual in character. Individuals are independent
of their choices and state has no authority to interfere in the matters of individual interest. A
laissez-faire state should leave the individuals and market alone. Markets will make the best
use of resources and even when state intervenes it has little to do with justice. They believe in
the merits of a market economy and a set of goals to which the distribution pattern must
confirm.

Robert Nozick’s theory of justice defends individual liberty (Anarchy, State and Utopia,
1974). Individual’s property holdings are just if they are acquired/transferred with fairness and
there is no fraud/force/cheating involved to acquire property. Only if unfair practices have been
followed to acquire property state can rectify but in case no force or fraud is used to acquire
property then no redistribution of property is allowed and this alone can safeguard liberty.
No one’s position is worsened when fairness is upheld and acquisition and exchanges and
transfers are voluntary in nature. No one should appropriate the total supply of something
which is essential for life (like a water hole in a desert). Individual autonomy is ensured when
the role of the state is limited. Individuals will take initiative and use their rationality effectively
to create conditions to protect individual liberty. There should be no distribution of property
which alone can safeguard liberty.

Substantial Justice
While substantial justice is concerned about social justice which is a feature of society –
a just or unjust society and not what individuals get or do not get. State has to uphold
justice for certain sections of society - where inequalities are to be arranged so that they
benefit the worst-off. Society as a whole and not individual actions alone are evaluated.

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Debate - Unlike conventionalists who believe in procedural justice and argue in favour of
individuals as autonomous rational beings independent of choices and as responsible for
their actions, the supporters of substantial justice argue that what is merit and how much
is to be rewarded is a matter of subjective interpretation. They believe - as to what is
meritorious and desirable is always considered by society and not individuals and
individual actions cannot be separated from society.

John Rawls Theory of Justice as Fairness

John Rawls’ theory of justice presents defense of the idea of procedural justice which is
meticulous following the rules but if that creates unjust conditions then it becomes
important to control conditions that ensure that human beings would choose principles
that uphold distributive justice. Unlike entitlement theory of Nozick’s which makes equality
conspicuous by its absence, John Rawls argues that justice should be premised upon the
need for equality. Equal access to social goods is fairness which ensures justice. In other
words, inequality is to be so arranged that they benefit the worst-off.
Rawls believes that individuals are placed in what he calls ‘veil of ignorance’ where they are
abstracted from the socio-economic conditions and do not know who they are. This is the
original position in which they are not aware of the discrimination that exists such as class,
race, wealth etc. Each one has some conception of primary goods (liberty and opportunity,
wealth and income, and self-respect). It is only when the veil is removed that they would
discover the conception of good and would choose the principles of justice that would
maximise the position of the worst-off/the least advantaged. If any choice is presented to them,
they must opt for least disadvantage outcome.

The two principles of justice are subject to priority rules and are based on lexical order-

1. Each person is to have equal right to the most extensive liberty compatible with the
similar liberty of others (basic liberty - political liberty, freedom of speech and
expression, liberty of conscience, freedom of thought, right to assemble, right to hold
property, freedom from arbitrary arrest and seizure)
2. Socio-economic inequalities are to be arranged so that they are both
(a) To the benefit of the least advantaged (least advantaged in terms of income and
wealth) – this is the difference principle

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 (b) Attached to the offices and positions open to all under the conditions of fair
equality and opportunity (success in career should be open to all with the same
talents and abilities and everyone should have the same legal right of access to all
advantaged social positions regardless irrespective of their natural endowments/of
their initial place in the social system such as income, class etc.)

The above principles are subject to specific order and priority rules where the 1st must
come before the 2nd and in case of conflict the lexical order is that 2nd (b) – equal
opportunity) must be ranked before 2nd (a) – difference principle). This will avoid the risk
of individual liberty being compromised by liberty of others.
These principles stress (equality of) basic liberties and opportunities for self-advancement
over considerations of social welfare. The distribution of opportunities and goods in society
is then supposed to work to the advantage of all (especially the worst-off members of
society).
Rawls argues that the extrinsic rewards accruing to the successful advantageous positions
are adjusted in such a way that the inequalities in the distribution of rewards accrue to
are limited in accordance with the difference principle.
Lexical order is as follows:
1. equality of liberty
2. fair equality of opportunity
3. difference principle
In the pursuit of justice, systematic departures from the norms of equality would have to
be made to favour the deprived groups – compensatory discrimination (refer to the
debate in favour of affirmative action as fair). These departures are justified on the
grounds that guarantee against persistence of discrimination that are subtle and indirect
forms and that it would promote integration and better utilization of talents and a more
equitable distribution (centuries of deprivation faced by lower caste). Ban of
discriminatory practices are necessary commitments to egalitarianism.
Both the principles - ‘fair equality of opportunity’ and ‘difference principle’ are based
on intuitive arguments of Rawls as he argues that everyone can have an equal chance of
success as the morally arbitrary disadvantaged (those who are deprived because of social
circumstances) have received compensation. However, in his later works which are more

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reasonable and rational, he argues that equality of opportunity cannot be fully realized
in practice.

C B Macpherson (Democratic Theory: Essays in Retrieval, 1973) argues that despite Rawls’
initial commitment to equality, his theory of justice defends essentially a liberal democratic
capitalist welfare state that rationalized liberal beliefs and values. He believes in stability and
social unity which are provided by pluralist society where individuals are free and equal. This
is possible only in liberal democratic society with a welfare orientation. While Rawls argues
that differences between the entrepreneur and worker creates differences in expectations that
results in material wealth which benefits everyone, including the worst-off, Macpherson finds
this in conflict with equality. Macpherson argues that a class divided society based on income
and wealth will lead to inequality in power that will have adverse impact on individual liberty.

Communitarians criticise Rawlsian explanation of ‘veil of ignorance’ as this keeps the

individual out of the socio-economic and cultural context in which the individuals are
embedded. The notion of good is not the consequence of individual rationality and determinism
but are created and held together by the community.
Michael Walzer argues that caste system where purity and pollution are determined by birth,
construct individual’s choice and limits their freedom (Spheres of Justice: A Defense of
Pluralism and Equity, 1983). The access to land, water and education and a variety of goods
derive specific meanings that are socially constructed in a pluralist society and are embedded
in the community. Justice would constitute being true to these meanings and upholding the
principle of distribution. The meaning and values of social goods to be distributed are created
socially and different understandings would emerge because of diverse and particular histories
and culture. There is no universal principle on the basis of abstraction but access to social goods
need to be understood in the framework of a community.
Patriarchy constructs opportunities and choices for women when men dominate and consign
women a subordinate position.

Rawls theory of justice has been criticized for his priority principle (lexical order) as he
ranks the principle of ‘fair equality of opportunity’ above the ‘difference principle’ and
treats the former as an independent variable/plays an independent role. Critics argue that
people do not have the same chances of success despite the same talents and abilities. There is
a gap between Rawls theory and the intuitive understanding of empirical experiences.

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Rawls believes that access to advantaged social position is more important for securing self-
respect than making the worse off as well off as it is possible for them to be in terms of their
share of wealth and income. If some places were not open on a fair basis to all, those kept
out would be right in feeling unjustly treated even though they benefited from the greater
efforts of those who were allowed to hold them. They would be deprived of not only of the
external rewards of wealth and privilege but also from experiencing the realization of
self.
Andrew Mason criticises Rawls as the above argument does not justify why the principle of
equality of opportunity should be ranked above the difference principle (Andrew Mason,
‘Social Justice in Place of Opportunity’ in Richard Bellamy, and Andrew Mason (eds), Political
Concepts, 2003). Mason believe that freedom of occupation could be treated as a basic liberty,
to be protected by the first principle of justice -the principle of liberty. Access to advantaged
social position could be added to the list of primary goods that the difference principle is
supposed to cover (wealth and income). According to Rawls, the difference principle covers
distribution of wealth and income but does not extend to cover opportunity (if opportunity is
regarded as a chance of occupying a social advantaged position that enables self-realization)
as a separate primary good. Rawls ranks equality of opportunity higher than wealth and income
and gives the former an independent role. Since equality of opportunity permits access to
positions affected by natural endowments (talents and abilities, part of which are due to genetic
inheritance) which Rawls also accepts as morally arbitrary, he allows unequal natural
endowments to affect access to social advantaged position in such a way that the inequalities
due to the extrinsic rewards are adjusted so that inequalities in the distribution of these rewards
are limited in accordance with the difference principle. Therefore, people with lesser
endowments are rewarded or compensated which should be disallowed if ranking of equality
of opportunity is above the difference principle. If compensation is permitted than there is no
requirement of giving principle of equality of opportunity an independent role. The opportunity
to occupy the advantaged social position could be treated as primary good which along with
income and wealth is to be distributed by the difference principle.
Further, Rawls believes that people’s achievements are not only due to their own efforts but
also their fortunate circumstances such as supportive family into which they were born of their
inheritance of various talents. His conception of desert (deserve) is beyond one’s control such
as natural endowments and social circumstances. Therefore, there is inconsistency in Rawls
theory of justice discussed in ‘A Theory of Justice’, 1921, which he reformulates in his later

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work ‘Political Liberalism’, 1993, (in which principles of justice must not be defended by
appealing to comprehensive moral doctrines).

While Rawls is concerned with justice in the public sphere and family is in the private sphere,
Feminists argue that working of family is significant for any discussion on justice.
Susan Moller Okin believes that family and its working itself is constituted by the public
world of laws and institutions (Justice, Gender and the Family, 1989). Laws on property,
inheritance, divorce and adoption, and gendered division of labour have a direct bearing on
family. Rawls ignores the gendered inequalities in a family and feminists argue that no theory
of justice can remain silent on the injustices within a family. None of the qualities such as
nurturing, caring, cooperative and sympathy are represented in the original position discussed
by Rawls.
Catriona Mckinnon criticises that bifurcation of characters - all men are selfish, autonomous
and rational in the original position is a patriarchal perspective. Rawls emphasises on male
norms of moral reasoning – impersonality, rationality and universality while he is silent about
virtues like nobility, sacrifice, patience and nurture, in his conceptualization of ‘veil of
ignorance’

Amartya Sen criticizes Rawls theory of justice as it focuses on means of freedom and not
extent of freedom. He argues in favour of the capability-based approach wherein it is not access
to primary goods but the extent of capabilities with which each individual can convert access
to primary goods into lives they value living that would determine freedom and ultimately
uphold justice. Individuals with the same set of goods do not enjoy the same amount of liberty.
Primary goods are means to freedom and Sen argues that there are variations in people’s ability
(age, sex and genetic endowments) to convert resources to actual freedom. There is no
unanimity as to what is considered as valued way of life.

Marxists believe in the principle of from each according to his ability to each according to his
needs and not according to his contributions -in a communist society (Karl Marx, Critique of
the Gotha Programme, 1785). It is important to abolish private property which leads to
exploitation and alienation and therefore injustice. Pursuits of profits in a market driven society
is unjust and only fulfilment of genuine human needs and unalienated labour can be the basis
for justice.

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Justice will not be desirable in a classless and stateless society as there will be no conflicts, no
scarcity and no differential rewards. Critics fear that in the name of justice, state is empowered
to intervene which curtails people’s liberty.

Thus, there is no universal understanding of justice which is a political concept and needs to
be understood politically.

Scope of Justice – National and Global Justice

(Adams Swift, ‘Social Justice’ in Adam Swift, Political Philosophy: A Beginner’s Guide for
Students and Politicians, 2001)

It is important to understand justice beyond the national/domestic context. However, the

debate is regarding whether the principles of redistributive justice should be extended
beyond nations/ national boundaries and apply at the international level?
In the context of globalization, the inequalities between societies seem to be more
blatantly unjust than those within them. While affluent societies and MNCs reap huge
profits, millions are denied subsistence wages and millions starve to death because of lack of
adequate nutrition and health care. Do affluent societies organize things to benefit the least
advantaged members?
Problems of global poverty, global terrorism, sustainable development and climate change
need to be addressed in a larger context of violation of human rights (cite recent examples of
civil wars, genocide, massacres, racism, ethnic cleansing, atrocities based on class, caste, and
gender etc.)

Humanitarian approach believes in Universal Human Rights - Human Values cuts across
regional/territorial boundaries – geography and nationality. They argue that the
principles of social justice must be extended across borders in their scope to encompass
humanity as a whole. Therefore, it is humanity and not geography which should be the reason
for justice. In a globalized context there should be compliance with a global system of laws
that should contribute to our mutual advantage and are not subject to arbitrary inequalities.

Cosmopolitan citizenship and cosmopolitan perspective (relate beyond fellow nationals)

Cosmopolitans argue that we do not have particular duties towards those with whom one shares
identity based on history and cultures. Therefore, we do not owe more to our fellow citizens or

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nationals than to other human beings. Since countries have different histories and cultural
norms and each country makes its own principle of distributive justice, arguments which
suggest that global justice is important, do not propose applying the same distributive principles
to each individual human being. But it is important to make sure that collectives/people are
provided with just background conditions within which they can make choices and decide for
themselves.

There is an alternative perspective which argues that social justice and global justice are
different as members of a society do not have duties towards members of other societies.
The debate underlines the differences in a philosophical position and public opinion. Many
who reject cosmopolitanism argue that we still have some duties to help people all over the
world. They believe in fundamental equality and basic rights of human beings. However, they
argue that global redistribution is a matter of charity and not justice.

F. Hayek argues that inequalities do not really need justification in social justice and it is a
philosophical mistake unlike Rawls who justifies inequalities if they confirm to the principles
chosen in the ‘original position’ and ‘difference principle’ which holds that inequalities must
serve over time maximally to promote well-being of the least advantaged members of society.
R. Nozick argued that property rights could justify extreme inequalities. Hayek, Nozick and
Rawls reject the popular view that people deserve differently depending on their productive
contribution.

Reference
Adams Swift, ‘Social Justice’ in Adam Swift, Political Philosophy: A Beginner’s Guide for
Students and Politicians, 2001.
Andrew Mason, ‘Social Justice in Place of Opportunity’ in Richard Bellamy, and Andrew
Mason (eds), Political Concepts, 2003.
John Rawls, A Theory of Justice, 1921.