Theory of Justice: Rawls and Robert Nozick
Introduction
Justice is the one of the important ideals of state. The meaning given to the word
justice has been different in different times. Justice is a good sought by all. But when
anybody does injustice, he justifies it, so justice is a very necessary element for a good
society.
Justice is derived from Latin term Justitia, which means joining or fitting, the idea
of justice or tie. Primarily, the joining or fitting implied in the idea of justice is that
between man and man in an organized system of human relation. Barker, however,
extends the meaning of justice by including in it an idea of joining or fitting between
value and value in a general synthesis of values. Since the French Revolution, the modern
liberal society recognizes liberty, Equality, and Fraternity as three supreme values
necessary for a just system of human relations.
The value of justice is universal irrespective of time and place. It means it natural
quality of living world. But this principle is not applied in dealing with social relations.
The sense of justice develops as per reasons (human consciousness) develops. As justice
is a reasoned solution to the problems of conflicting claims in the society.
Dimensions of justice
The term justice includes as, a whole, fulfilling all dimensions of it. One
dimension is incomplete justice. Its dimensions may be many but important among them
are legal justice, political justice and socio-economic justice.
(1) Legal justice
It is broadly applied in two contexts
(a) Justice according to law- Here we do not question the validity of law but focus on
the principle of administration of justice according to prevalent law
(b) Law according to justice- Here we examine the substance of the law itself to
ensure that it confirms the requirement of justice.
Former is applied in UK and latter in USA. India has adopted the combination of
both forms. In A.K. Gopalan case it was held that court has to follow procedure
established by law but, Maneka Gandhi case onwards it was held by S.C that due process
is required to do justice.
A good law is known by its efficiency in attaining its purpose, whatever the
purpose may be. In this sense, the problem of justice has nothing to with the purpose of
law; it is solely concerned with the efficacy of the law. Justice in totalitarian societies
may be distorted not because of bad laws, but because of the power given to judges to
disregard fixed rules.
India follows rule of law. Everyone is under Rule of law. So it insures justice here.
Law and Justice –Law is a means to an end and justice is that end. But in an actuality, law
and justice are distant neighbors, sometimes even strangely hostile. If law shoots down
justice, the people shoot down the law and the lawlessness paralyses, development,
disrupts order and retards progress.
(2) Political Justice-It refers to the transformation of political institutions, political
process and political rights according to current conceptions of justice. This means, in the
first place, the establishment of democratic institutions in the political life of the
community so that the institutions represent and take care of the interest of the people,
not of any privileged class. Thus, representative institutions- the legislature and
executive-should be constituted on the principle of universal adult franchise, while the
independence of judiciary should be protected and maintained. Political justice implies a
full guarantee of the liberty of thought and expression especially the right to criticize the
government and its policies. It provides freedom to form association, to organize peaceful
protest against harmful measures.
Socio Economic Justice
The term socio economic justice comprehends two important elements: “Social
Justice” and Economic justice. There combination into socio economic justice is
significant because social life of the community cannot be transformed according to the
principle of justice unless its economic relations are suitably transformed.
Economic justice is used in the sense that there is no exploitation of employee in
the hands of employer and everyone has a minimum requirement, fulfillment of basic
need. Social justice is used more comprehensively so as to include economic justice as
also to restore the dignity of human beings who have lost it due to a lower economic,
educational and cultural status.
This involves a deliberate action by government to bring socio-economic justice by
(1) Election process to be free from money, muscle and mafia.
(2) Educational institution and courts should be in excess of every class of
people.
(3) Special safeguard for minorities and backward class people.
(4) The right to property is subordinate to common good and the pattern of
production of goods and services tends to sub-serve the social needs
John Rawls Theory of Justice
In his celebrated work “The Theory of Justice “he pointed out that a good society
is characterized by a number of virtues. Justice is the first virtue of a good society. There
should be justice even at the cost of social advancement otherwise there is moral
degradation of society.
Problem of Distribution
According to Rawls, the problem of justice consists in ensuring a just distribution
of “Primary Goods” which includes rights and liberties, power and opportunity, income
and wealth, means of self respect and so on. Rawls has described his theory as the theory
of Pure Procedural Justice. It means that once certain principles of justice are
unanimously accepted, the distribution resulting from their application will be necessarily
just.
John Rawls is a follower of social contract theory as found in Locke, Rousseau
and Kant. But in Rawls social contract the guiding idea is that the principles of justice for
the basic structure of the society are the object of the original agreement. They are the
principles that free and rational persons concerned to further their own interest would
accept in an initial position of equality as defining the fundamental term of their
association. These principles are to regulate all further agreements, they specify the kinds
of social cooperation that can be entered into and forms of government that can be
established. This way of regarding the principles of justice shall be called as fairness.
In justice as fairness the original position of equality corresponds the state of
nature in the traditional theory of social contract. It is understood as a purely hypothetical
situation characterized so as to lead to a certain conception of justice.
Among the essential feature of the situation is that no one knows his place in the
society, his class position or social status, nor does anyone know his fortune in the
distribution of the natural assets and abilities, his intelligence, strength and the like.
Rawls assumes that the parties do not know their con caption of the good or their special
psychological properties. The principles of justice are chosen behind a veil of ignorance.
This ensures that no one is advantaged or disadvantaged in the choice of principles by the
outcome of natural chance or the contingency of social circumstances. Since all are
similarly situated and no one is able to design principles to favour his particular
condition, the principles of justice are a result of fair agreement or bargain.
This explains propriety of the name “justice as fairness”. Justice as fairness
begins, as Rawls have said with one of the most general of all choices which persons
might make together, namely, with the choice of the first principles of conceptions of
justice which is to regulate all subsequent criticism and reform of institutions. Then
having chosen a conception of justice, we can suppose that they are to chose a
constitution and a legislature to enact laws and so on, all in accordance with the
principles of justice initially agreed upon. Assuming that the original position does
determine a set of principles (that is, that a particular conception of justice would be
chosen), it will then be true that whenever social institutions satisfy these principles those
engaged in them can say to one another that they are cooperating on terms to which they
would agree if they were free and equal persons whose relations with respect to one
another were fair.
`No society can, of course, be a scheme of cooperation which men enter
voluntarily in literal sense, each person finds himself placed at birth in some particular
position in sum particular society, and the nature of this position materially affects his life
prospects. Yet a society satisfying the principles of justice as fairness comes as close as a
society can to being a voluntarily scheme, for it meets the principles which free and equal
persons would assent to under circumstances that are faire. In this sense its members are
autonomous and the obligations they recognize self-imposed.
One feature of justice as fairness is to think of the parties in the initial situation is
to think of the parties in initial situation as rational and mutually disinterested. This does
not mean that the parties are egoists, that in, individuals with only certain kinds of
interests say in wealth, prestige, and domination. But they are conceived as not taking an
interest in one another’s interests.
Once the principles of justice are thought of arising from an original agreement in
a situation of equality it is an open question whether the principal utility would be
acknowledged. Off hand it hardly seems likely that the person, who views themselves as
equals, entitles to press their claims upon one another, would agree to a principle which
may require lesser life prospects for some simple for the sake of a greater sum of
advantages enjoyed by others. Since each desires to protect his interests, his capacity to
advance his conception of the good, no one has a reason to acquiesce in an enduring loss
for himself in order to bring about a greater net balance of satisfaction. In absence of
strong and lasting benevolent impulses, a rational men would not accept a basic structure
merely because it maximized the algebraic sum of advantages irrespective of its
permanent effect on his own basic rights and interests. Thus, it seems that the principle of
utility is incompatible with the conception of social cooperation among equals for mutual
advantage. It appears to be inconsistent with the idea of reciprocity implicit in the notion
of a well-ordered society.
Justice as fairness is not a complete contract theory. For it is clear that the
contractarian idea can be extended to the choice of more or less an entire ethical system,
that is, to a system including principles for all the virtues and not only for justice.
CRITICAL EVALUATION OF RAWL’S THEORY OF JUSTICE
● MARXIST – According to this, despite of its egalitarian inclination
Rawl’s is basically a supporter of capitalist order. He does not want to
dismantle or destroy the base of capitalism. He also supports private
property and market economy but justice can never be achieved in
capitalism. Macpherson describes Rawls as a spokesman of capitalism.
The method adopted by Rawls is deontology. Deontology does not believe
in any presumptions. But according to Marxist theory no theory of justice
can be formulated by those individuals who are ignorant of
socio-economic realities and their own place in society.
● LIBERTARIAN – Rawls theory of justice will ultimately devoid or
deprive the individual of his liberty. Emphasis on difference principle will
increase the scope for the greater role of state. According to Nozick,
Rawls theory of justice will lead to establishment of ‘taxation state’. In
such a state individual will be deprived forcefully of their fruits of labor,
this will lead to partial enslavement of the individual. Individual will
become means instead of becoming the end. This is against Kantian ethics,
in which every individual is considered as end in itself. Nozick claims that
Rawls derives inspiration from Kant but in actual practice he violates
Kantian ethics.
● COMMUNATARIAN – According to these like Michael Walzer, Rawls
claims to formulate a theory of justice with universal application. But
according to communitarian no universal theory is possible as justice is
culture bound.
● FEMINIST – like Sussan Miller Okin, Rawls can be criticized on two
grounds: -
1) He uses male term of references, but feminist believes language also is
biased in the favor of male hence they support gender neutral language.
2) Rawls like other philosopher who believes in male domination accepts
private/public dichotomy or in other words the difference between
personal sphere (family) & public sphere(society). Rawls also talks of
justice only in public sphere and not in private.
But according to feminist there is exploitation, subordination, injustice in
private sphere also which Rawls has not stated.
LIBERTARIAN PERSPECTIVE (POLITICALJUSTICE):
Liberty of the individual is the central problem to solving problem of justice by
libertarian thinkers. They focus on formal liberty and insist on minimal role of the state in
the economic activities of individuals. It is largely opposed to the idea of welfare state.
They say that the individual property collected by men’s entrepreneur should not be
redistributed by state. Such idea is chiefly represented by Nozick’s theory of justice
Nozick sought to advance an alternative to Rawls’s theory of justice. If Rawls is
known as a left liberal or egalitarian liberal, Nozick may be called a right liberal or
committed to laissez-fire night watchman state.
Nozick defines justice in terms of entitlement, which means the claim of
individual which are accepted by the system. In all society individuals make claim on
various economic and political resources. The main emphasis on the theory is to show
which claims are to be treated as entitlement or just claims and which claim are to be
rejected or unjust claim the main concern of Nozick is also to deal with question of who
gets whom? He insists on a realistic approach which should account for the differently
modes of acquisition of goods and entitlement of different individuals to own those
goods. He identified three sources through which individuals acquire various goods, these
are:
(i) Their selves include their bodies, brain cells, etc. They have absolute right
over them.
(ii) The natural world like land water resources, minerals etc.
(iii) The things people make by applying themselves to the natural world- like all
agricultural and industrial products etc.
Entitlement to bits of the natural world and the products of their labour should be
based on the principles of justice. Nozick identifies three principles on which their
entitlements would conform to justice. These three ways according to Nozick are
justified: -
● Initial acquisition – If a person uses his labor on previously unowned thing ,
then it legitimately belongs to individual but Nozick makes one exception to
initial acquisition. If individual claim on previously unowned things worsens
the situation of other members of society, then it is unjust. Nozick called it as
Lockean proviso. Examples 1) if Will Chamberlain perform very well & earns
legitimately then it does not worsen others life.
2) If a doctor makes a medicine for cancer and sells it at very high cost then it
is legitimate. It is just because he used his talent to make. If some are not able
to buy and die then it is not worsening because earlier also people were
dying.
3) If oasis in a desert is unowned and many people used it but if someone comes
uses his labor and claims his own and does not allow others then others situation
is worsened. It is unjust.
● Voluntary transfer If the previous owner voluntarily eliminates himself from
the object in the process of market exchange or gift, then the object
legitimately belongs to the person who receives it. On this point Nozick
becomes a clear supporter of autonomous market society, he criticizes the
system of progressive taxation because it is an example of involuntary transfer
therefore states claim for progressive taxation is unjust and it will lead to
enslavement.
● Rectification – according to Nozick all those previous ownership or
entitlements or transfers which were not based above two principles should be
rectified and corrected and the object should be given to legitimate owner
based on first two principles. According to Nozick, above three modes of
entitlement are just all other modes are unjust. It practically implies, all social
action in the favor of disadvantaged section based on progressive taxation is
against the norms of justice. If anybody has; made medicine to cure deadly
diseases, he may ask exorbitant charges for it. But if there is a single source of
water, which is needed by all human beings, nobody has right to take it into
his control.
CRITICISM OF ROBERT NOZICK’S THEORY OF JUSTICE
(i) It is not a complete theory of justice because it ignores need principle both
merit and need are essential component of justice what is merit is subjective
question.
(ii) It ignores the positive role played by welfare state.
(iii) Progressive taxation today is considered as positive thing.
(iv) Nozick’s theory in practice is inapplicable, particularly the rectification
principle. For example, it would lead to conflict (like World War third)
MAR XIST CONCERN WITH JUSTICE (SOCIAL JUSTICE):
Marx looks problem of justice in the relation of production and possession of
means of production in the hands of minority haves and exploitation of majority have
knots in the hands of former. Marx did not seek any reform in the level of incomes and
wages within the capitalist system itself, but he wanted to transform the entire mode of
production and property relations.
Marx rebuked those socialists who become complacent after raising the demand
of fair distribution within the existing system. In Marxian framework of social analysis
morality is regarded as part of super structure and it is argued that historical changes in
basic, viz. the mode of production result in corresponding changes in the criteria of right
and wrong, just and unjust. Then, how can we determine any enduring principles of
justice? Finally, according to Marx, the communist’s society which will be evolved after
the dissolution of capitalism will be free from the conditions involving scarcity and
conflict; hence the state and its judicial apparatus will no longer be required in that
society.
In spite of his adherence to moral relativism Marx has shown the way to set up a
social system where the ideology of false consciousness emanating from prevailing mode
of production will disappear, hence it would be morally superior system. Marx firmly
believed in freedom and humanism. Marxism attacks those conditions of dominance and
dependence, which are the glaring examples of social injustice.
FEMINIST CONCERN WITH JUSTICE (GENDER JUSTICE):
Men or women, whoever talks about women’s right may be said feminist. Women
constitutes half of the world’s population, perform nearly two third of its work hours,
receives one tenth of the world’s income, and owns less than one hundredth of the worlds
property.
Feminist theory and movement urge that women’s situation and the inequalities
between men and women should be treated as central political issue to bring justice. If
injustice against women has existed since earliest times, why has it come to the forefront
only in recent times? It may be recalled that at the early stages of social organization,
biological differences between men and women necessitated a division of labour, which
suited both of them. But now with the development of civilization and technologies
women are equally eligible to perform all works except little work. Mary Wollstonecraft
argued that women are, like men, rational individuals and that as such, they should have
equal rights.
John Stuart Mill in his The Subjection of Women sought to demonstrate that
women were in no way inferior to men in their talents, and pleaded to give them full legal
and political rights. Worldwide concern for gender justice was expressed in Shuman
Development Report 1995 issued by the United Nations Development Programme
(UNDP).
In nutshell, feminist perspective on justice calls for securing overall development
of women, including improvement of their health and education as well as giving them
adequate share in economic and political power.
Men’s mindset has to be changed to bring justice for women as abuses are given
in the name of women. When sex is performed with or without consent of women and
other person comes to knowledge there is disrespect of women. On Women’s Day (8th
March) one girl (Radhika) of reputed university situated in capital of India is being killed
shows that few wrong men vitiate a good atmosphere. Further housewife work should be
counted as job like other salaried job.
JUSTICE DELAYED IS JUSTICE DENIED:
Speedy trial and efficient judiciary are vital for good health and credibility of any
justice delivery system, and ipso facto, to any liberal democratic order. India has fewer 15
judges per million people, a figure that comprises very poorly with countries such as
Canada (about 75 per million) and United States (104 per million). In 2002 the Supreme
Court had directed the center that the judge population ratio be raised to 50 per million in
the phased manner.
As former Chief Justice of India M.N.Venkatachaliah pointed out recently, the
disillusionment with the judicial system has led to dangerous increase in Jan Adalat or
Kangaroo Courts in; many parts of the Country. It is time for the country to take a serious
and comprehensive look at the entire legal system with special attention to talking the
problem of backlog. Too much time has gone by and too little has been done to sort out a
problem that undermines the right of litigants and accused, damages the credibility of the
judiciary, and weakens the very basis of the democratic order.
‘Justice hurried is justice worried’, so we have to make balance between to
concepts.
DISABILITY AND PROBLEM OF JUSTICE:
We all are disabling for some or more time in our life. Children and adults with
mental impairments are citizens. Any decent society must address their need for care,
education, self-respect and friendship.
The failure to deal adequately with the need of citizens with impairments and
disabilities is a serious flaw in modern theories that conceive of basic political principles
as a result of contract for mutual advantage. This flaw goes deep, affecting their adequacy
as accounts of human justice more generally.
A just society we might think would also look at the other side of the problem the
burden on people who provide care for dependents. These people need many things:
recognition that what are they doing is work, assistance, both human and financial;
opportunities for rewarding employment and for participation in social and political life.
This issue is closely connected with issues for gender justice, since women provide most
care for dependents.
Disable person given opportunities, which make them able and employing such
people on suitable work, which they efficiently perform, may be good citizens as equally
as able persons.
CONCLUSION
Reaching to the solution of problem of justice is a very difficult task. Justice is
such an element that when it seems to be done, people get satisfaction. Various ideologies
have their own perception to reach on the principle of justice. As individualism and
libertarianism prefer liberty of thought and conduct on equality while Marxism prefer
socio economic equality. As per socialism without socio economic, political equality will
not achieve purpose of justice. Feminist demand equal rights for women in all walks of
life.
But any ism is not perfect. It is titled as a particular worldview. Any kind of ism
restricts you. So, to reach on the solution to the problem of justice we need to make a
balance among various ideologies. We have to make balance between equality and
liberty.
Justice is a dynamic concept. So, if one principle or reservation was adopted at
one time may be changed later for achieving at justice. Combination of merits must be
adopted.
The question of justice arises under two conditions:
(a) In a scarcity situation where goods, services, opportunities etc, are too
scare to satisfy all demands; and
(b) In an open society where allocation of various benefits is not tied to fixed
status of various individuals but they are free to demand a faire share on
some reasonable ground. In an open society, we may consider two major
criteria of allocation:
(i) Allocation according to need
(ii) Allocation according to desert, merit and ability.
In a scarcity situation it is impossible to meet everybody’s need. If we resort to an
equal distribution of social advantages for the purposes of equal satisfaction of
everybody’s need irrespective of their contribution, then no incentive will be left to work
hard. The result will be less production and a lesser availability of goods and services, etc
for distribution and a general impoverishment of society.
In doing justice, one has to observe the whole aspect and circumstances so that
one can reach on just solution. Solution to the problem of justice lies in making balance
among various concerns of ideologies, values and interest
REFERENCES
● John Rawls, A Theory of Justice. (1976).
● Robert Nozick Anarchy, State and Utopia (1974).
● Aggarwal Nomita, Jurisprudence (Legal Theory) CLP 2005.
● Mahajan Dr. V.D., Jurisprudence and Legal Theory, EBC 2010.
