Dec 02, 2023
Dec 02, 2023
Workshop # 17
In our world of growing inequalities and injustices the blindfold over the eyes of Lady Justitia must be removed to enable her to fathom hidden human intentions and reestablish a healthy connection between narrow interpretations of the law and broader demands for universal justice. Objectivity and impartiality cannot be achieved by neglecting identity, money, power and human weakness which gnaw at the roots of justice. Law itself is born in violence and gains legitimacy after getting inserted in a sovereign institution. Even just institutions are subject to the vagaries of human behavior and the partisan interests of a ‘contractarian’ state. Justice therefore gets separated from law and functions as justness only for those within the system. From this point of view, the ideas of Gustavo Gutierrez based on human solidarity are more important than John Rawls’ conception of contractarian laws and communitarian fairness. The contractarian mode of justice, once developed by Hobbes and later pursued by Locke, Rousseau and Kant, is not fair to all. We have to develop governmental institutions, private organizations and an enlightened public opinion to endorse these ideas and see that they are implemented in favor of the poor and the dispossessed. It would not do to quibble with definitions and justifications of legality but unravel real intentions and ensure justice for all. The emphasis on broader forms of social, economic and political justice arising from the use of legal institutions (nyaya) rather than just procedure, rules and institutions (niti), and endorsed by governments and influential organizations, may bring about some kind of global justice and reduce global conflicts.
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
We owe a lot of our ideas of justice to the early Greek philosophers like Plato and Diogenes of Sinope. In Plato’s Dialogues the young Sophist Thrasymachus argues that justice implies what the strong decide for the welfare of the weak. Socrates contradicts this statement and then elaborates upon his conception of the just state embodying the four great virtues of courage, wisdom, temperance and justice. In the Republic justice is seen as a virtue inherent in both the individual and society. Everything ethical falls in the category of justice. The ethical component in justice has remained as the hallmark of any legal system often tempered by, logic, human behavior and the way institutions are constructed. Rational justification of legal decisions has always been central to western jurisprudence.
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.
We conceive of the enlightenment project as a typically western phenomenon without knowing that Indian thought has always laid special emphasis on the concepts of reason, justice and liberty. The conception of justice in the non-western world is much older. It is not that only the western tradition has evolved strategies of scientific rationality, but other non-western traditions like the Indian have laid special emphasis on the significance of rational argument and tolerance.
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
Both Rawls and Sen differ in the ways they conceptualize the notion of justice. Rawls campaigns for just institutions, while Sen sees human behavior and narrow interpretation of laws compromising the execution of global justice. Rawls presents a historicist and pragmatic analysis of justice in The Law of Peoples where he establishes some general principles. He assumes that peoples are free and independent and therefore they ought to respect human rights and not intervene in the affairs of other societies. This could bring about a realistic utopia—“Our hope for the future of our society rests on the belief that the social world allows a reasonably just constitutional democracy existing as a member of a reasonably just Society of Peoples” (Rawls, 2001 11). The non-interventionist conception of justice may not be wholly compatible with an increased global interdependence.
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 method was neither utilitarian nor tradition-based. He wanted to move away from the Anglo Saxon political philosophy and find a method of justice that was “systematic alternative to utilitarianism.” He argued that utilitarianism cannot guarantee “basic rights and liberties” of citizens on a “free and equal” basis, a condition on which all democratic institutions rest (Rawls, 1971 xi-xii). For him justice involved “no natural rights of private property in the means of production” and no “natural right to worker-owned and-managed firms” (Rawls, 1971 xvi).
Rawls began with an original position by stating that we are all rational and self-interested persons but stand behind a ‘veil of ignorance’ if we are not aware of our sex, race, physical shortcomings, generation, and social class. We want to select things that are advantageous in an enlightened manner. But being rational we are aware of the possible situations we may find ourselves in, the impact of human psychology and the influence of human nature. If we are enlightened and self aware we would eschew categories of race, gender or sexual orientation and establish fair non-discriminatory principles to adminster justice. We would like to find a fair and equitable distribution of resources for all generations both present and future.
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.’
Ideal conceptions of justice are hard to implement. Models in daily life are not measured against an ideal but against each other. Justice therefore is always a comparative on-going process, not an ideal. We wish to make the world a better place not an ideal place. Rawls places greater importance on setting up just institutions but does not think much about actual practices and human behavior which influence these practices. This becomes more difficult when we deal with international organizations which are structurally weaker than nation states. So, global justice is rather difficult to realize.
Many other thinkers like Martha Nussbaum have expanded upon the ideas of Rawls by arguing about the need for “gender justice” especially for women in the third world regions of the world based on an ethical and egalitarian legal model. Nussbaum explains that only when government institutions support opportunities can the principle of equal liberty for the downtrodden succeed. Nussbaum concludes in Women and Human Development that “Women’s unequal failure to attain a higher level of capability, at which the choice of central human functions really open to them, is therefore a problem of justice” (Nussbaum, 2000 298). In fact Nussbaum takes her cue from the ‘difference principle’ of Rawls which allows inequalities in the distribution of goods insofar as these inequalities benefit the oppressed members of a given society. Again Nussbaum points out that the difference principle can work if both citizens and governments are committed to these ideals.
Derrida’s Force of Law
In his essay “Force of Law” Jacques Derrida draws a connection between law and justice. Derrida builds his argument by pointing out that law possesses a rather mystical foundation and gets its legitimacy through an act of violence (Derrida, 2002 239). Once law is inserted in the social order it begins to wield sovereign power—“law is always an authorized force” (Derrida 2002 223). Though law is evaluated on principles of justice, it is not authorized by justice. Justice gives birth to law in a violent and invasive fashion without allowing it to be autonomous. Since justice cannot provide a legitimate ground for law it makes law unstable. Therefore law betrays justice. In our world there is no such thing as a ‘just 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 A Theology of Liberation and On Job, the Peruvian theologian Gustavo Gutierrez elaborates on the conception of solidarity. In the first book Gutierrez explains how Christian theology attempts to “abolish injustice” and build a “new society.” The theology must be “verified by its participation to remove exploitation of the “exploited social classes.” An “authentic theology of liberation” includes the voices of the oppressed people and empowers them to express themselves “directly and creatively” in society. He further argues that all political, social and revolutionary theologies are useless if they do not “liberate humankind from everything that dehumanizes it and prevents it from living according to the will of the Father” (Gutierrez 1988 174).
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).
When we say we are called to establish solidarity with the poor then we are expected to change our sense of subjectivity. The poor are neither asked to conform to the laws of the nation nor to our conception of justice. The demands of the poor are extra-legal or extra-constitutional. The appeal of the poor goes beyond the domains of the legal framework and enters agape or God’s love for mankind, especially the poor and disinherited. How do we understand our response and responsibilities to the other? Do we create a new legal system or destabilize the political order? Gutierrez believes that liberation of mankind is always renewing and changing itself as there are always those whom the law does not encompass and who demand our sense of justice. Justice therefore should always be in a state of self-questioning and laws in a state of revision if we look at those who suffer and need our help.
Derrida, Jacques. Acts of Religion. New York: Routledge, 2002.
Gutierrez, Gustaro. A Theology of Liberation: History, Politics, and Salvation. Trans Sister Caridad Inda and John Eagleson. New York: Orbis Books, 1988..
Gutierrez, Gustaro. On Job: God-Talk and the Suffering of the Innocent. Trans Matthew J. O’ Connell. New York: Orbis Books, 1987.
Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge University Press, 2000.
Rawls, John. A Theory of Justice. Harvard: Harvard University Press, 1971.
Rawls, John. The Law of Peoples. Harvard: Harvard University Press, 2001.
Sen Amartya. The Idea of Justice. Harvard: Harvard University Press, 2009.
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