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Justice for All
|by Mukesh Williams|
Workshop # 17
Our notions of justice have always been based on the way we conceptualize the world we live in, the society we create, the laws we write, the identities we imagine, and the social relations we develop. Justice is therefore contingent on human behavior, group intentions, institutional laws and the ways we interpret such laws. Our modern conception of justice is based on the western idea of a universe governed by rational principle of fairness and communitarian ideals. Our laws are guided by the Magna Carta which promises fair and good laws, but between the conception and the creation fall the shadow. We need to constantly negotiate the divide between the laws we frame and the justice we deliver to others. Identifying injustice may involve reasoning but reason itself cannot fully explain the complexity of the tragedy.
Justice comes from the Latin justitia which means just. It can be defined as “the quality of being just; righteousness, equitableness, or moral rightness.” The ethical component in the word justice is rather high. In ethical terms justice implies “the principle of fairness that like cases should be treated alike” and also “a particular distribution of benefits and burdens fairly in accordance with a particular conception of what are to count as like cases.”
Lady Justitia is the Greek goddess of justice and personifies the moral component in the judicial process. She is usually sculpted as a matronly figure carrying a double-edged sword (symbolizing the coercive power of reason and justice) and scales (measuring the strength and weakness of a case) and covering herself with a blindfold (representing objectivity and blind impartiality). She can be seen in courthouses and edifices connected to justice. The representation of Justitia underscores the adage that justice may be done though the heavens may fall expressed in the Latin phrase fiat justitia ruat caelum. But this is easier said than done.
The concept of justice is rather slippery though it has been the subject of philosophical interrogation right from Plato and Aristotle. Justice invariably embodies the conceptions of dominant social groups relating to notions of self and society and the role individuals play in it. Today as nation states become weak and new nation states more muscular, we are once again witnessing a renewed interest in the conception of justice and the way it is administered. Also burgeoning globalization is transforming societies by making it both easy and difficult for peoples to cross borders. As we welcome these peoples we also close our borders to them. We now once more reconfigure and reinterpret fundamental rights enshrined in our constitutions against the concepts of communitarianism and particularism on the one hand and cosmopolitanism on the other. How far is the reach of justice? Are our ideas of justice only limited to specific nation states or go beyond to encompass the globe?
The Greeks and the Anglo-Saxons
Most of the logic employed in justifying one type of justice over another dates back to Rene Descartes, Adam Smith, John Stuart Mill and Karl Marx. In our own times Rawls, Amartya Sen, Martha Nussbaum and Gutierrez have pontificated on the concept of justice with some fundamental disagreements. Obviously we have thinkers like Hobbes, Locke, Rousseau, Kant and Rawls who are interested in establishing indices of just institutions, while there are other thinkers like Adam Smith, Wollstonecraft, Bentham and Marx who look at the realization of social justice as a byproduct of institutions and human behavior. It is rather idealistic to imagine that once ‘just’ institutions are established they will be able to function impartially and administer justice for all.
Adam Smith introduced the archetypal figure of the “impartial spectator” who constantly evaluates a scene to identify injustice. From this perspective democracy has more to do with decision-making through discussion and consensus rather than following specifically laid-down election procedures. Smith’s impartial eye can help us understand our practices, prejudices and predilections when exercising justice. From this point of view argument for and against capital punishment must interrogate their respective positions impartially. We, for example, need to take cognizance of where we live. If we live in advanced societies we owe an obligation to our less fortune brethren in other parts of the world. A more comprehensive understanding of justice would involve endorsing some of the ideas of Adam Smith and not of Emmanuel Kant.
The Sanskrit tradition of jurisprudence separates the concept of justice into correct behavior and institutions or niti and realized and actual justice or nyaya. Nyaya is both a religion and philosophy and aims at eradicating human suffering by understanding the world through four ingredients of knowledge—perception, inference, comparison and testimony. Though detached observation and logic are important in nyaya, it is more important to remove human suffering than to be logically correct. Both Manusmrti and The Bhagvad Gita elaborate on the concept of justice and many Indian emperors like Asoka and Akbar were quite tolerant of others. Obviously rational and secular ideas of fair play and contract are important ideas for the world but they are not exclusively western in nature.
Tolerance and acceptance are key components towards establishing an ideal theory of justice. Justice is not just reason-based arguments but includes individual and social behavior as well. Democracy is not only to do with national institutions but directly connected to global institutions and the concept of global justice. An independent media can play a significant role in promoting these ideas. Today our world involves concepts of universal human rights, human security and universal freedom promoted by various UN charters to which most nations are signatories. Though reason may be the central pillar of justice it cannot stand without human solidarity and justice for all.
Rawls and Sen on Justice
Rawls’ ideas on justice are also contained in A Theory of Justice which continues to remain influential even after its publication four decades ago. Rawls argues for basic liberties and distribution of social and economic goods to all in the spirit of Stuart Mill. He defines justice as fair play, contractual in nature and the creation of just institutions.
Over the centuries philosophers have argued the significance of different principles of distributive justice but it is rather difficult to decide a consensual principle of justice. We invariably use utilitarian traditions maximizing the satisfaction of the largest section of society, for example best grades for those who submit best quality assignments and largest quantity of work. Some traditions are racially unjust like the slave system and need rules of justice which can be applied to society in a just manner. But whether it is Greek concept of justice or Anglo-Saxon and Indian, the ethical component in its conceptualization is quite pronounced. Rawls too introduced a limited concept of ethical justice through his concept of ‘difference principle.’
Rawls however fails to address issues dealing with international aspects of justice by restricting its scope to redistributive social justice. Obviously greater inequalities exist amongst nations than within their societies. By this standard there are no global people and global social orders. The good point about Rawlsian argument is that he brings back the discussion of justice to solid substance which had once drifted away in the mid-twentieth century into an inquiry about language and meaning. Societies are not hermitically sealed entities as Rawls wants us to imagine, but more complex and interactive. The actions of one social group may impinge upon the other as issues connected to environmental pollution have revealed.
If justice is possible only within contractarian frameworks then those outside the contract such as future generations, foreigners and animals would be excluded. The case of Ukrainian national Lulila Stelmakh versus the Government of India highlights the contractual nature of the law. The Bombay High Court contended in November 2010 that a foreigner can be denied a working visa under certain conditions and he/she cannot be protected by the fundamental rights of the Indian Constitution as enshrined in Articles 21 and 14 which entitle Indian citizens the right to livelihood and right to equality.
Obviously there can be no single universal notion of justice, no ideal transcendent approach. But the need to ensure justice seems to be an emotional and a moral issue for many political philosophers. Amartya Sen states that, “It is sometimes claimed that justice is not a matter of reasoning at all; it is one of being appropriately sensitive and having the right nose for injustice” (Sen, 2009 4). There is always a plurality of positions and therefore no right answers to the concept of justice as pointed out by Sen in The Idea of Justice (Sen, 2009 6). Sen notes that some reasoning may always be involved in the “diagnosis of injustice,” but specific cases of injustice are far more “complex” and “subtle” than the evaluation of “an observable calamity” (Sen, 2009 4). The world is increasingly becoming an extended society, a global unity, whether we like it or not. Constitutional law can be interpreted either specifically or universally. When it is interpreted specifically it adversely affects the ‘other.’
Derrida’s Force of Law
If this is true the consequences are huge. There can be no one-to-one correspondence between law and justice and the notion of global liberation is compromised. Though the separation of law from justice breaks a relationship, it is a fractured relationship. We need to configure this relationship. Derrida argues that since law deals with universals it expresses itself in relationship with equality. Justice on the other hand interacts with the singular ‘other—what the other ask of me? Since ‘I do not ask from the other, the other asks from me’ justice expresses a relationship of inequality. I therefore oblige someone creating an aporia to decide. A space therefore exists between the demands of law and demands of justice. It is in this space that undecided actions lie. If justice is unequal and non-reciprocal then how do I understand my relationship to the law when I am called to do justice? Since law arises in violence it cannot assist the demands of the other. The appeal to the law, when the law itself comes into conflict with justice is a betrayal of justice, as justice occupies absolute authority.
Gutierrez on Solidarity
In his second book Gutierrez makes Job not just an archetypical figure of individual experience but the experiences of all mankind. The suffering of the innocent acquires the larger dimension of injustice on a global scale. The argument runs in the following manner: God has a “predilection for the poor” and divine love therefore cannot be confined to “categories of human justice.” God gives preferential treatment to the poor as they live in inhuman conditions. God’s love for the poor is not only universal but also agapeic (Gutierrez, 1987 94).
Workshop # 17
Act! Oh, Goddess of Justice! by G. Venkatesh
Advocacy by Dr. Raj Vatsya
Against All Odds by Shernaz Wadia
Animal Farm Again by T. A. Ramesh
Before The Bench by Kamal Wadhwa
Blind Justice Symbolism by Rajha Rajesuwari Subhramanium
Blind to Hypocrisy by Jayaprakash Raghavan Pillai
Can Justice Reach India’s Toiling Masses? by Dr. Uddipan Mukherjee
Coomaraswamy’s Last Stand by Kamal Wadhwa
Encounter by Shernaz Wadia
Give Humanity A Chance by Rupradha Mookerjee
Gizzards by Afanwi Stella
How Long, Oh Goddess of Justice! by Dr. Kumarendra Mallick
In A World of Big Lies... by N. S. Murty
In Defense of A Committed Judiciary by Kamal Wadhwa
In(Justice) by Ramesh Anand
Is Justice Blind? by Nikhil Sharda
Is Justice Humane? by Shibsankar Bagchi
Is the Statue of Lady Justice Relevant in India Today? by Ganesh Joshi
Just Justice by Dr. Madhavi Godavarthy
Justice Delayed: Justice Denied by Bharat B. Trivedi
Justice Delivered by Janaki Janar
Justice for All by Mukesh Williams
Justice in Adversarial System by Dr. Raj Vatsya
Justitia Versus Justice by Ramesh Anand
Lady Justice by Ramesh Anand
Lady Justice’s a Pretty Nice Girl by Dipankar Dasgupta
Lost is Our Humanity by Rupradha Mookerjee
Miss Justice, a Villanelle by Steve Talbert
Mother Justice by Prof. Siva Prasad Peddi
On Her Blindness by G Swaminathan
Order by Dr. Raj Vatsya
Reform or Perish by Rajinder Puri
Reforming India’s Judiciary by Rajinder Puri
Rejoice! by Pavalamani Pragasam
Righteousness is Divine ... by Deepak Yadav
Self-realization through Internal Justice by Prof. Siva Prasad Peddi
Shall We? (Tyburn) by Ramesh Anand
She Laughs at It! (Senryu) by Ramesh Anand
Strength of a Woman by Yogita Tripathi
The Lady Justice's Lament by Ramesh Anand
The Lady of Justice by Supriya Bhandari
The Origins Of Justice by Gaurang Bhatt, MD
The President's Pardon by Jayaprakash Raghavan Pillai
The Public Prosecutor by Kamal Wadhwa
The Social Base by Prof. Siva Prasad Peddi
Universal Justice (NONET) by Ramesh Anand
Whatsoever (Limerick) by Ramesh Anand
Who Am I? by Dr. Shirisha Dabiru
Why? by Pavalamani Pragasam
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