Qn. 1. What is the concept of justice in modern political theory?

How is it related to liberty and

Answer: Justice, the existence of proper balance, is the first value of social institutions. Justice has
been a contested concept in social and political thought. In modern political theory, concept of
justice has swerved (mainly) towards ‘social justice’ (and ‘distributive justice’). Social justice is the
arrangement of terms of membership of a social group. Social justice defines the framework within
which applications of distributive justice arise. Distributive justice is determination of allocation of
benefits and burdens within that social group. Other modern conceptions of justice include
restorative justice, liberal justice and egalitarian justice. Liberty is the absence of impediments and
degree of capacity to do something. Equality is equal consideration in decision-making, even-handed
treatment, equality in distribution and outcome.

‘Conception of justice’, has been contested rigorously. Earliest (classical) theories sought
conformations of individual to existing social order. Confucius – he labelled virtue and ethics as the
standards of justice, which could harmonise individual and social life. For him, justice gave the
standards of governance and punishment of evil. For Gautam Buddha, justice is: ‘every good
thought, word, and deed deserve fair reward and every evil one its proper punishment’, including
defying evil laws. Greek philosopher Plato’s model, in ‘The Republic’. Divine command theorists
argue that justice issues from God. Aristotelian justice upholds virtue as the basic standard of justice.
17th century theorists (like John Locke) argued for the theory of natural law. Social-contract thinkers
advocated that justice is derived from the mutual agreement of everyone concerned.

In modern times, justice aims to transform society to fulfil certain human values, i.e. reform existing
social order to attain social justice. Egalitarian theorists argued that justice can only exist with
equality, i.e. with equality of outcomes. For liberals, justice is equality of opportunity. Theories of
retributive justice are concerned with punishment for wrongdoing. Restorative justice (or ‘reparative
justice’) is an approach, that focuses on restoring what is good, and focuses on the needs of victims
and offenders. Modern theorists who see ‘law as justice’, hold that in any modern civic state, human
behaviours and relationships (personal, social, and institutional) gain legitimacy only in the forms of
rights, duties, and institutional responsibilities shaped by positive laws - i.e. any persuasive theory of
justice would spring from the legitimate, valid, and enforceable standards of law.

19th century utilitarian thinkers (including Jeremy Bentham, John Stuart Mill) argued that justice is
what has the best consequences. Property rights theorists (like Robert Nozick) taking a deontological
view of distributive justice, propound that property rights-based justice maximizes the overall
wealth of an economic system. Immanuel Kant viewed justice as resolving conflicts between
reasoning versus empiricism and individuality versus state regulation. John Rawls, through his social
contract argument, argues that that justice is a form of fairness (especially distributive justice).
Communitarian and contextualist Michael Sandel, criticising Rawls, understood justice as what
people think is justice, and why. Amartya Sen’s (in ‘Idea of Justice’, 2009) theory of justice aims to
“clarify how we can proceed to address questions of enhancing justice and removing injustice, rather
than to offer resolutions of questions about the nature of perfect justice.” (Hilary Putnam considers
his, the most important contribution since Rawlsʼs). Scholar Melian Stawell thinks that, deliberations
about justice, in modern times, can be divided into - the justice of retribution, and the justice of
distribution.
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Distributive justice flows from social justice. Theories of distributive justice concern ‘what is
distributed, between whom they are to be distributed, and what is the proper distribution’. In other
words, distributive justice is determination of logical criteria for the allocation of benefits and
burdens such as goods, services, opportunities, benefits, power, honours, obligations etc., especially
in a scarcity situation. The particular emphasis in ‘social justice’ is on the foundational character of
justice in social life: invitation has been to move from conception of justice to the design of
constitutions, to critical perspectives on economic organisation, to theories of civil disobedience
(Oxford Dictionary of Politics). D. D. Raphael, in ‘Problems of Political Philosophy’ (1976) has traced
social justice to “issue from the mouth of reformers”.

Relation of justice to liberty and equality is analysed further. Ernest Barker, in ’Principles of Social
and Political Theory’ (1951) has shown that justice represents a synthesis of the principles of liberty,
equality and fraternity. He believes justice reconciles their contradictions, shaping them into
universal principles of governance. The ‘French Declaration of Rights of Man and the Citizen’ (1789)
reads “Men are born and remain free and equal.” Liberty would not be just until it extends equally to
each citizen. Equality ensures justice by restraining the liberty of one from becoming threat to
another – i.e. equality becomes necessary to contradict the threat of absolute liberty. Liberal
theories of justice believe in equality of consequences whereas egalitarian theories of justice believe
in equality of outcomes. The intention is to make sure that each individual gets a fair share in the
advantages accruing from organised social life.

The foundation of classical liberalism stems from John Locke’s ‘Second Treatise of Government’.
Hence, he is known as the father of liberalism. He built on Thomas Hobbes’ radical conception of
equality (everyone is equal in rights and the ability to survive in the state of nature). Locke believes
that all men are born free and share equal rights to life, liberty and property. Locke’s conception of
natural rights heavily influenced the United States Constitution (Justice Thomas). Building on Locke,
Libertarian Robert Nozick forwards his entitlement theory of justice in ‘Anarchy, State and Utopia’
(1974). It states that people are represented as ends in themselves and equals (as Kant claimed)
though different people may own (i.e. be entitled to) different amounts of property. Nozick’s theory
has three principles of justice – justice in acquisition; justice in transfer and justice as rectification of
injustice. Austrian philosopher F. A. Hayek attacks social justice, and placed liberty above every other
political ideal, in ‘Law, Legislation and Liberty: The Mirage of Social Justice’ (1976).

Harvard scholar and American lawyer Randy E. Barnett in ‘The Structure of Liberty: Justice and the
Rule of Law’ (Oxford, 2000) gives his liberal conception of justice. For him, ‘justice’ is respect for the
rights of individuals and associations. These rights include: (1) Personal rights and property rights –
which specifies a right to acquire, possess, use, and dispose of scarce physical resources—including
their own bodies. While most property rights are freely alienable, the right to one's person is
inalienable. (2) The right of first possession – which specifies that property rights to unowned
resources are acquired by being the first to establish control over them. (3) The right of freedom of
contract – which specifies that a rightholder's consent is both necessary (freedom from contract)
and sufficient (freedom to contract) to transfer alienable property rights.

American philosopher John Rawls developed an egalitarian theory of justice that embodies the
Kantian conception of equality and offers an alternative to utilitarianism. Rawls’ theory of “justice as
fairness” offers a forceful theoretical counterweight to Locke’s classical liberalism. Rawls goes on to
suggest that, “the most obvious injustice of the system of natural liberty (such as Locke’s) is that it
permits distributive shares to be improperly influenced by (arbitrary) factors.” Rawls’ thought
experiment puts man in the ‘original position’, behind a ‘veil of ignorance’, to rationally decide
unbiased principles of justice. Rawls produced two principles – liberty and equality. Liberty principle

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ensures basic liberties of man, while equality principle consists of ‘equality of opportunity’ and the
‘difference principle’ (favouring the disadvantaged). Libertarian Nozick, communitarian Sandel etc.,
have criticised Rawls.

Egalitarian principles of justice may include equality before law, equal legal personality of each
individual, equal voting rights (one man, one vote) etc. Marxist theory of justice, though not formally
considered egalitarian, opposed liberal values and pursued equality in society (communism).

Concluding remarks: As political scientist Melian Stawell believes: there has never been a word,
whose content has altered more than that of "justice." Justice seeks to transform those social
conditions which obstruct the weaker sections from enjoying substantive freedom and equality. As
Ernest Barker holds – justice is the thread which runs through the values of liberty, equality and
fraternity and makes them parts of an integrated whole.

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Qn. 2. Consider: “…we believe that as a matter of principle, each member of society has an
inviolability founded on justice.” (Rawls) (1999/I/4c/30)

Answer: The statement about man having “an inviolability founded on justice” was made by
American political philosopher John Rawls, to uphold the sanctity of human dignity, and criticize
utilitarian view of justice. It is his de-ontological principle of human dignity. Utilitarians, pursue utility
or the greatest good of the greatest numbers.

Harvard professor and social-contract philosopher Rawls, in pursuit of social justice, propounded his
‘A Theory of Justice’ (1971). Here, he quotes that “justice is the first virtue of social institutions, as
truth is of systems of thought. A theory, however elegant and economical, must be rejected or
revised if it is untrue; like-wise laws and institutions no matter how efficient and well-arranged must
be reformed or abolished if they are unjust. Each person possesses an inviolability founded on
justice that even the welfare of society as a whole cannot override.” So, justice being the first virtue
of the social institution, must consider human dignity as the ultimate ideal. Rawls points out that
utilitarian principles may well be arbitrary and are independent of (and thus not governed by) a
conception of the right.

Further, Rawlsian justice “does not allow that the sacrifices imposed on a few are outweighed by the
larger sum of advantages enjoyed by many.” Put bluntly, Rawls rejects utilitarian form of justice. He
sees utilitarian distribution as non-fulfilment of distributive and social justice. And he finishes his
argument by saying that: “in a just society, the liberties of equal citizenship are taken as settled; the
rights secured by justice are not subject to political bargaining or to the calculus of social interests.”
Here, political bargaining refers to the disproportionate weightage attached to the “greater good”.
Utilitarians (such as Bentham) tend to subordinate individual to the collectivity (teleological or goal-
oriented justice). Although some utilitarians like J. S. Mill accorded primacy to moral worth of a
policy (to restore dignity of individual), it is Rawls, who overwhelmingly reinforced this idea.

Rawls’ thought experiment puts man in the ‘original position’, behind a ‘veil of ignorance’, to
rationally decide unbiased principles of justice. Rawls produced two principles – liberty and equality.
Liberty principle ensures basic liberties of man, while equality principle consists of ‘equality of
opportunity’ and the ‘difference principle’ (favouring the disadvantaged). The ‘difference principle’

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can be said to a direct counter to core utilitarianism, by seeking disproportionate advantage to the
worst off in society.

Rawls attempted to show the inadequacy of the “maximization of the good” in society. Social justice
dictates that society must structure its institutions to provide the maximum satisfaction for all.
Rawls’ theory is an important perspective to the contested concept of justice.

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