UNIT 6 JUSTICE
Structure
6.1 Introduction
6.2 The Idea of Justice
6.2.1 Procedural Justice and Substantive Justice
6.2.2 Needs, Rights and Deserts
6.3 Rawls’s Liberal-Egalitarian Principles of Social Justice
6.3.1 Critique of Utilitarianism
6.3.2 Rawls’s Liberal-Egalitarian Principles of Justice
6.3.3 The Social Contract Procedure
6.3.4 The Basic Structure of Society
6.4 Some Criticisms of Rawls’s Liberal-Egalitarian Conception of Justice
6.4.1 The Libertarian Critique
6.4.2 Some Marxist Criticisms
6.4.3 The Communitarian Critique
6.5 Summary
6.6 Exercises
6.1 INTRODUCTION
Justice is of central importance in political practice and theory. In defending or opposing laws,
public policies and administrative decisions of governments, appeals are made to notions of
justice. Justice is also invoked in social and political movements, civil disobedience and satyagraha
campaigns. Thus, the civil rights or civil liberties movements are essentially movements for
justice. So are the dalit, feminist and environmental movements.
While a decent or good society or polity must have several virtues, justice is, according to a
widespread view, the first of them. In the words of the leading contemporary moral and political
philosopher, John Rawls of Harvard University, “justice is the first virtue of social institutions.”
He made that statement in his book, A Theory of Justice, which was published in 1971. Some
two decades earlier, it was proclaimed in the Preamble of the Indian Constitution that the
Democratic Republic of India stood committed to securing to all its citizens “Justice, social,
economic and political.” It is noteworthy that the Preamble lists justice above the other moral-
political values of liberty, equality and fraternity.
Rawls’s book inaugurated what has been rightly called “a golden age in theorising about justice.”
Consequently, justice, as noted by Tom Campbell, is today “the central and commanding concept
of current mainstream normative political philosophy.” In his edited volume, entitled John Rawls
and the Agenda of Social Justice, B.N. Ray observes that Rawls’s book has renewed not
only scholarly interest, but also popular interest in justice.
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While there is a widespread agreement among ordinary peoples, politicians and philosophers
about the centrality of justice as a moral-political value, there is no such agreement among them
on its meaning and scope. On these, there are very major differences in the views of the liberal-
utilitarian, liberal-egalitarian (i.e., Rawlsian), libertarian, communitarian, Marxist and feminist
theorists. Of them, the liberal-egalitarian theory of social justice propounded by Rawls has come
to occupy a deservedly central position. Those who advanced alternative or competing theories
of justice feel compelled to present their worth or merit in comparison and contrast with Rawls’s
theory.
6.2 THE IDEA OF JUSTICE
The word “justice” is derived from the Latin words jungere (to bind, to tie together) and jus
(a bond or tie). As a bonding or joining idea, justice serves to organise people together into a
right or fair order of relationships by distributing to each person his or her due share of rights
and duties, rewards and punishments. The Roman Emperor, Justinian, stated some of the
precepts of justice (in Latin) as alterum non laedere (not to harm or injure others); and suum
cuique tribuere (to allocate to each what is due to him or her). Justinian’s precepts of justice
were derived from the Greek philosopher, Aristotle, who had defined justice as the treating of
equals equally and of unequals unequally in proportion to their inequalities. He had also distinguished
three types of justice, namely, distributive justice, corrective justice and commutative justice (i.e.
the justice of equivalence in the exchange of different kinds of goods).
As a moral-political value, justice is inter-linked with such other moral-political values as liberty,
equality and fraternity. What makes a society or state just in a basic sense is its right or fair
ordering of human relations by giving to each person her or his due rights and duties as well
as due rewards and punishments. Justice does this by bringing about adjustments between the
principles of liberty, equality, co-operation, etc. Traditionally, then, the principle of justice was
taken to be a principle which balances or reconciles the principles of liberty, equality, etc. Such
a balancing or reconciling is done with reference to some ultimate value, e.g., the value of the
greatest happiness of the greatest number or the value of the freedom and equality of all the
members of a society. In this context, it may be noted in passing that it is the balancing or
reconciling nature of justice, which is represented in the figure of personified justice, who holds
a balance in her hands.
6.2.1 Procedural Justice and Substantive Justice
In discussions of justice, a distinction is drawn between procedural justice and substantive
justice. The former refers to justice or fairness or impartiality of the processes and procedures
through which a law or policy or decision is arrived at and applied. Substantive justice refers
to justice or fairness of the content or outcome of laws, policies, decisions, etc.
Principles of procedural justice have traditionally been based on the idea of formal equality of
persons, i.e., their equality as human beings or as subjects of the rule of law, irrespective of
their differences in gender, religion, race, caste, wealth, etc. Often, rights-based justice is seen
as procedural justice, whereas needs-based justice is seen as substantive justice.
John Rawls, whose principles of just distribution of social primary goods we shall consider
below, claims that his is a theory of “pure procedural justice.” By pure procedural justice, he
means that the justice of his distributive principles is founded on justice-as-fairness of the
procedure through which they have been arrived at and that they have no independent or
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antecedent criteria of justice or fairness. If those principles had such independent or antecedent
criteria of justice or fairness but were lacking procedural justice or fairness, they would have
been principles of imperfect procedural justice. As we shall see below, Rawls’s libertarian critic,
Robert Nozick, maintains that the former’s theory is actually not a procedural theory, but a set
of principles of “end-state” or “patterned” justice.
6.2.2 Needs, Rights and Deserts
A passing reference has been made above to rights-based and needs-based conceptions of
justice. What they mean and how they differ from deserts-based justice is indicated below.
The most famous formulation of a needs-based justice is Marx’s principle of communism: “From
each according to his ability, to each according to his needs.” Generally, socialists subscribe to
one or another version of needs-based, egalitarian justice. They differentiate needs, especially
basic material needs, from wants, preferences or desires. The former are taken to be objective
and universal, whereas the latter are seen to be culture-related and market-related. According
to Abraham Maslow, there is a hierarchy of human needs, ranging from our most basic needs
for fresh air, water, food, shelter to our needs for safety, love, self-esteem and self-realisation.
Obviously, needs-based justice calls for egalitarian distribution of resources within and across
countries.
Rights-based conceptions of justice differ from egalitarian, needs-based justice. According to
classical liberalism (Locke and Hume), the main function of the state was to protect the
negative liberty rights of the individuals. The welfare-state or egalitarian liberals stress the
positive freedom or welfare rights of the citizens. The present-day libertarians (e.g. Nozick),
who are heirs to classical liberalism, espouse an entitlement-centred, non-egalitarian conception
of social justice.
Deserts-based conceptions of justice are occasionally referred to as “natural justice.” It is a
tough and non-egalitarian version of rights-based justice. It emphasises the idea of the natural
deserts or innate worth of the individuals, which are assumed to constitute the basis of a God-
given, natural, unalterable order of things. Edmund Burke and Herbert Spencer upheld these
ideas. Spencer maintained that each individual should get “the benefits and the evils of his own
nature and consequent conduct.” These ideas serve to give a conservative, social-darwinian
defense of free- market capitalism.
6.3 RAWLS’S LIBERAL-EGALITARIAN PRINCIPLES OF
SOCIAL JUSTICE
6.3.1 Critique of Utilitarianism
Rawls’s principles of social justice are a corrective to the liberal-utilitarian principle of the
greatest happiness of the greatest number. What then are his objections to utilitarianism?
Rawls recognises that liberal utilitarianism marked a progressive, welfare-oriented departure
from classical liberalism’s preoccupation with individualistic rights. Yet, utilitarianism is, in Rawls’s
view, a morally flawed theory of justice. Its moral flaw is that it justifies or condones the
sacrificing of the good of some individuals for the sake of the happiness of the greatest number.
For the utilitarians, the criterion of justice in a society is the aggregate sum of utility or happiness
or welfare it produces, and not the well-being or welfare of each member of the society.
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In his critique of, and alternative to utilitarianism, Rawls derives inspiration from Immanuel
Kant’s moral idea of the freedom and equality of every human being. According to Kant, every
human being is to be treated as an end in himself or herself and not as means to the ends of
others. It is this liberal-egalitarian moral principle, which is violated by utilitarianism and which
Rawls reinstates in his theory of social justice. Both in his method or procedure of arriving at
the principles of distributive or social justice and, consequently, in the content or substance of
those principles, Rawls tries to give centrality to the moral principle of the freedom and equality
of every person.
6.3.2 Rawls’s Liberal-Egalitarian Principles of Justice
According to Rawls, a stable, reasonably well-off society is “a cooperative venture for mutual
advantage.” Along with cooperation, there is also conflict among its members regarding their
share of the burdens and benefits of social living. The purpose of principles of social justice is
to ensure that the distribution of the benefits and burdens of society is just or fair to all its
members. The basic institutions of society should, according to Rawls, be so constructed as to
ensure the continuous distribution of “social primary goods” to all the members of society in a
fair or just manner. “Social primary goods” are goods, which are distributed by the basic
structure of a society. They include rights and liberties, powers and opportunities, and income
and wealth. Rawls argues that the distribution of these social primary goods among the members
of a society is just, if that distribution is made in accordance with the following principles of
justice:
Principle 1 (Principle of Equal Basic Liberties)
Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties,
scheme which is compatible with the same scheme of liberties for all.
Principle 2
(2-i: Fair Equality of Opportunity; 2-ii: Difference Principle)
Social and economic inequalities are to satisfy two conditions : first, they are to be attached to
offices and positions open to all under conditions of fair equality of opportunity; and second, they
are to be to the greatest benefit of the least-advantaged members of society
These principles are listed here in the order of their lexical priority. By “lexical priority”, Rawls
means that the first principle must be fully satisfied before the next principle is applied. It means,
for instance, that “liberty can be restricted only for the sake of liberty”, and not, say, for the
sake of income or wealth. It must, however, be noted in this context that Rawls assumes that
society (his own society, in fact) to which his principles of social justice are to be applied is one
which is reasonably well-off and in which the basic material needs of all are provided for.
The main purpose of the rule of priority is to assign greater importance to equal basic liberties
than to other primary social goods. In “basic liberties,” Rawls includes freedom of conscience,
freedom of thought, freedom of the person along with the right to hold personal property,
freedom from arbitrary arrest and detention or, in other words, the freedom of the rule of law,
freedom of speech and assembly and political freedoms.
According to Rawls, these basic rights and liberties enable us to exercise and realise our “two
highest-order moral powers,” namely, (i) the capacity to understand, apply and act according to
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the principles of justice and (ii) the capacity to form, revise and pursue conceptions of the good.
In Rawls’s view, every member of a just society must be viewed as having these two moral
capacities. These make them free and equal citizens. The moral equality of citizens means that
“they each have, and view themselves as having, a right to equal respect and consideration in
determining the principles by which the basic arrangements of their society are to be regulated”.
The freedom of the citizens includes their freedom to realise their capacity to pursue their own
conception of the good life.
Since the distribution of social primary goods will have to respect the equality and freedom and
“fraternity” and welfare, etc. of all the members of society, it cannot strictly be an equal
distribution across the board. According to Rawls, once the basic material needs of the people
are met, their right to basic liberties is to be accorded priority over their right to the other social
primary goods, which are covered by the principle of equal opportunities and the difference
principle. While he is opposed to any unequal distribution of basic liberties, he assumes that
some inequalities in income and wealth are inevitable and perhaps not undesirable. Accordingly,
the main purpose of his second principle of social justice is to keep inequalities within the bounds
of justice-as-fairness. Obviously, the distinction between just or fair inequalities and unjust or
unfair inequalities is of crucial importance in Rawls’s theory of social justice.
Rawls thinks that excessive equality in income and wealth would destroy the economic incentives
required for greater creativity and productivity. This would be harmful to both the rich and the
poor. From the standpoint of the poor (as well as of the rich), justice does not require the
complete elimination of economic inequality. Rawls believes that certain inequalities, which
serve as incentives for the greater creativity and productivity of the talented and the gifted, are
not unjust if that greater creativity and productivity are integrated into a social-structural or
institutional arrangement for distribution to the benefit of all, especially the least advantaged
members of the society. He also thinks that giving advantage to the least advantaged would
invariably entail giving benefits to everyone else.
Rawls maintains that a society can so structure or re-structure its basic institutions as to make
inequalities in income and wealth yield maximum benefits to the least advantaged – maximum
in comparison to any reasonable, alternative social re-structuring. His Difference Principle is
meant not to replace inequality with equality in income and wealth, but to transform unfair or
unjust degrees or kinds of economic inequalities into a fair or just kind or degree by maximising
the benefits of the least advantaged. According to the Difference Principle, inequalities which
are advantageous to the better off but not to the least advantaged are unjust.
Rawls’s principle of fair equality of opportunity stipulates that the state should ensure fair
equality of opportunity in the educational, cultural and economic spheres as well as provide
unemployment and sickness benefits. These require an interventionist, welfare state to run or
aid schools, to regulate the economy, etc.
The principles of justice, which we have discussed so far, have been described by Rawls as
“special” formulations of a “general” conception of justice. This general conception is stated as:
All social primary goods – liberty and opportunity, income and wealth and the bases of self-
respect – are to be distributed equally, unless an unequal distribution of any or all of these goods
is to the advantage of the least favoured.
What Rawls means by this general conception of justice is that only those inequalities are unjust
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which, as in the case of utilitarianism, put some members or the society at a disadvantage.
This “general” conception of justice, however, does not differentiate between the different social
primary goods. It does not say, for instance, how to resolve the conflict, if any, between the
distribution of income and the distribution of liberty. It is to meet this difficulty that Rawls divides
the general conception into a “special conception” of the two principles, which we have discussed
above.
6.3.3 The Social Contract Procedure
So far, our focus has been on the content or substance of Rawls’s principles of social/distributive
justice. Let us now turn briefly to his method or procedure of argumentation in defense of those
principles. Why, according to Rawls, should we accept his principles, rather than some other
principles (say, the utilitarian or libertarian principles), as principles of just or fair distribution?
Briefly stated, Rawls’s response is that a social contract method or procedure of political
deliberation respects the Kantian liberal-egalitarian moral idea of the freedom and equality of
all persons and that an agreement or contract arrived at through such a method or procedure
is just or fair to all the parties to that contract. He, in fact, adopts such a procedure and argues
that all the contractors would agree to the above-mentioned general and special formulations
of the principles of distributive justice – principles, which he espouses and defends as the liberal-
democratic-egalitarian principles of social justice.
His social contract is hypothetical and not historical or actual. It is only meant to be a hypothetical
assembly or “original position” of “heads of families.” They hypothetically assemble (before the
formation or organisation of their society) in order to enter into an agreement or social contract
on the general principles of distributive justice, on the basis of which the institutions of their
society are to be constructed.
In order to ensure impartiality and fairness in their agreement or social contract and to incorporate
the moral idea of the freedom and equality of persons, Rawls postulates that the contractors
in his “original position” are under a “veil of ignorance” about their attributes, class, social status
or their own conceptions of the good. They, however, do have knowledge of the general
circumstances of justice such as the limited benevolence of people and the conflict of interests
over the limited amount of social primary goods. They also know that in the actual society in
which they would have to live, they may perhaps end up as the least advantaged members of
the society. Given the uncertainty about the actual position, which a contractor may come to
occupy in the actual society, it is rational for him or her (in the contracting situation, i.e. the
“original position”) to assume that he or she may end up in the least-advantaged position and,
accordingly, to choose a general principle of distribution that would give the best deal to the least
advantaged members of the society. Each contractor would, in other words, follow the “maximin
rule” of choice, which says that in an uncertain situation, one should choose so as to maximise
one’s minimum prospects.
Taken together, Rawls’s principles of social justice, ranked in the order of their lexical priority,
embody the liberal-egalitarian moral injunction of Kant; namely, that human beings are always
to be treated as ends in themselves and never as mere means to the ends of others. From this
perspective, it would be unjust to sacrifice the basic rights and liberties of some persons for the
sake of any majoritarian or utilitarian conceptions of the good. Unlike liberal-utilitarian justice,
Rawls’s liberal-egalitarian justice is marked by its concern for the equality and welfare of
everyone, including, especially, the least advantaged members of the society.
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6.3.4 The Basic Structure of Society
Rawls has persuasively shown that social justice is of crucial importance to social life and that
it should inform constitutions, laws, policies, legal processes, etc. In fact, according to him, the
primary subject of justice is the basic structure of society. His principles of social justice justifies,
and is justified by, liberal democracy, a regulated market economy and the liberal-egalitarian
welfare state. He states that for translating his Difference Principle into practice, the government
should have four branches, viz., i) an allocation branch “to keep the price system workably
competitive and to prevent the formation of unreasonable market power” ii) a stabilisation
branch to bring about “reasonably full employment” and, jointly with the allocation branch, to
maintain the efficiency of the market economy iii) a transfer branch to attend to “the claims
of need and an appropriate standard of life” and iv) a distribution branch “to preserve an
appropriate justice in distributive shares” by taxation measures and adjustments in property-
rights.
6. 4 SOME CRITICISMS OF THE RAWLSIAN CONCEPTION
OF JUSTICE
6.4.1 The Libertarian Critique
As mentioned above, Rawls’s liberal-egalitarian conception of social justice occupies a central
position within contemporary political philosophy. But it is not an unchallenged or unopposed
conception. Many political philosophers have criticised it and have advanced alternative conceptions
of justice. Some of these criticisms and alternatives are indicated below.
Rawls’s liberal-egalitarian conception of justice has been subjected to a rigorous libertarian
critique by his late colleague, Robert Nozick. In his book, Anarchy, State and Utopia (1974),
Nozick draws a distinction between “end-state” and “patterning” conceptions of justice on the
one hand and “historical” and entitlement-based conceptions of justice on the other. The former
types of justice call for social reconstruction or patterning by the state in the name of some end-
stage goal. Rawls’s conception of justice is, according to Nozick, such an end-state and patterning
conception, which by undermining the liberty rights of the individuals is unfair or unjust to them.
Instead of prescribing any end-state or patterning principles of distribution, Nozick looks for
justice or injustice in the history of the acquisition of the titles to our property holdings.
According to him, the individual has absolute liberty rights, including the right to own property
and exchange it in the market, regardless of the end-state or pattern of distribution it may lead
to. This entitlement theory of justice, however, includes a principle of rectificatory justice, which
is meant to correct past injustices, if any, in the acquisition or transfer of property. It can be
seen that Nozick’s libertarian conception of justice is a defense of free-market capitalism. While
it is eloquent on the defense of individual rights from state interference, it is silent on the
undermining of individual freedom and equality by very rich people or corporations.
6.4.2 Some Marxist Criticisms
Many Marxists criticise liberal egalitarians for their preoccupation with just or fair distributions
within the capitalist system and their failure to address its underlying or inherent exploitative or
alienating inequalities between the capitalists and the workers. The ideal communist society,
which Marxism seeks to bring about through the destruction of the system of private ownership
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of the means of production, is envisaged as a society in which there will be no scarcity, no limits
to human benevolence and no state. Since the scarcity of social primary goods and the limited
nature of human benevolence are the “circumstances of justice” for Rawls’s theory, their
(presumed) absence in the communist society makes any principles of fair or just distribution
irrelevant to such a society. Instead of any such juridical, superstructural distributive principle,
the higher form of community envisaged by communism will function according to the principle:
“From each according to his ability, to each according to his needs.” In the socialist phase,
which precedes and gives birth to the higher and final communist phase, a work-based or
contribution-based principle of distribution will prevail.
The collapse of Soviet communism and the growing pace of “liberalisation” in country after
country, each with its own pattern of inequalities, have served to cast doubts on the “realism”
of the traditional Marxist hope for the elimination of the “circumstances” of injustice and for
ushering in a society in which social or distributive justice is irrelevant. In fact, departing from
traditional Marxism, some contemporary Marxists interpret the extraction of surplus value from
the workers by the capitalists as a derived form of injustice, which, according to them, rests
on a prior and larger injustice in access to the means of production. In this way, the agenda
of liberal-egalitarian social justice that has been launched by Rawls seems to be having some
impact on Marxism.
6.4.3 The Communitarian Critique
The communitarian theorists criticise Rawls’s liberal-egalitarian conception of justice for its
emphasis on individual rights at the expense of the good of the community. In his book,
Liberalism and the Limits of Justice ( 1982), Michael Sandel, also of Harvard University,
criticises what he calls Rawls’s notion of disembodied or unencumbered self or subject, in
opposition to which he advances the notion of the situated self, i.e. the self or subject, who is
invariably a member of a community. While, for Rawls, the right is prior to the good and justice
is the first virtue of a society, for Sandel, justice is only a remedial virtue that is needed in an
individualistic society. For Sandel, moreover, the common good of the community is prior to the
rights of the individuals. Charles Taylor, who too is a leading communitarian political philosopher,
bemoans liberalism’s “atomistic” conception of the self. According to him, the well-being of the
individual depends on the good of his community and therefore, the recognition and protection
of the group or cultural rights of the community is not less important than the just distribution
of the freedom and equality rights to the individuals.
6.5 SUMMARY
In this unit, you have read about the idea and concept of justice. It is one of the important
concepts in Political Science as well as other social sciences. There are different types of
justice viz., procedural and substantive. One of the most pathbreaking works in the domain of
justice has been done by Jawn Rawls. It’s liberal – egalitarian conception of justice is basically
a critique of the utilitarian conception of justice. Of course, Rawls too has had his critics. Thus,
the marxists, libertarians and the communitarians have criticised the Rawlsian framework on
different grounds. Be that as it may, Rawls’s theory has its non-standing contemporary political
discourse.
6.6 EXERCISES
1. Briefly explain the concept and idea of Justice.
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