AMITY LAW SCHOOL

LLM 2019-20

GLOBALISATION AND NATURAL JUSTICE

DELIVERY SYSTEM

SUBMITTED TO- SUBMITTED BY-

PROF. ASHU MAHARISHI IRAM PEERZADA
ABSTRACT

Man is a rational animal, what is just and unjust is written in him by nature itself. With the
growth of civilization, the problem of harmonizing the social, associational, economic and
political relations between governed and government and individuals inter se became more
complex. The want of establishing orderly and peaceful society continuously constrained men to
be in search of higher norms, which can effectively regulate the human behavior and ensure
justice to the deserved.

By changing fringes and de-territorializing conduct, globalization brings up a large group of

issues and concerns crucial to law. The effect of Globalization is being seen positive or negative
contingent on the social, political and financial substances of the different nations of the world
whether categorized as developed or developing nations. It affects the trajectories of
development of countries creating social inequalities and widening the gap between poor and
rich nations. Globalization additionally brings social change and influences the rule of law of the
nations in a critical manner. Numerous reporters contend that international law and national law
are never again satisfactory classifications for the totality of "law" today, and offer a variety of
new ideas such as transnational law, global law, global legal pluralism, etc., to help us
understand law in the global space. The development of the "global society" also referred to as
"globalization" brings about fundamental changes not only in the economy, in society, and in
politics but also in the law and delivery of natural justice.
 Globalization and Natural Justice Delivery System

Globalization- origin and meaning

The origins of globalization can be traced more or less deep in history, though there are rather
diverse views as regards the exact starting point.1 Yet, it is clear that it is very productive to
search for the origins of globalization in the depths of history. It is no coincidence at all that the
growing interest in globalization has promoted interest in the trend often denoted as ‘historical
dimension of globalization’. Among such movements it is most worth noting Global History
whose heart and novelty is history of globalization. We contend that in a certain sense almost the
whole World History can be regarded as a history of movement toward the increasing size of
social systems, their integration, and globalization in general.

According to different authors, globalization has been going on since the first movement of
people out of Africa into other parts of the world, or since the 3rd millennium BC or since the so-
called Axial Age in the 1st millennium BC, or only from the Great Geographical Discoveries, or
in the 19th century, or after the year 1945, or only since the late 1980s. Each of these dates has
its own sense. It is quite reasonable to discuss the problem in the context of whether one can
speak about globalization before the start of the Great Geographical Discoveries, as a result of
which the idea of the Earth as a globe exceeded the limits of the opinion of a group of scientists
and became practical knowledge.

There are quite a few periodizations of the history of globalization. The most widespread type is
represented by trinomial periodizations-

1. Archaic globalization (1492–1800)

2. Early modern globalization (1800–2000)
3. Modern globalization (2000 – present)

Definition-

"Globalisation can be thought of as a process (or set of processes) which embodies a

transformation of the spatial organisation of social relations and transactions."2

"Globalisation refers to all those processes by which the peoples of the world are incorporated
into a single world society, global society."3

1
Some scholars say that it started already in the Stone Age, some others maintain that it began in the 3rd
millennium BCE; there also such datings as the Axial Age of the 1st millennium BCE, the Great Geographic
Discoveries period, the 19th century, 1945, or even the late 1980s.
2
David Held, 1999
3
Martin Albrow, 1990
"Globalisation can be defined as the intensification of worldwide social relations which link
distant localities in such a way that local happenings are shaped by events occurring many miles
away and vice versa."4

"The characteristics of the globalisation trend include the internationalising of production, the
new international division of labour, new migratory movements from South to North, the new
competitive environment that accelerates these processes, and the internationalising of the state ,
making states into agencies of the globalizing world."5

Globalization is loosely defined as "integration and democratization of the world's culture,

economy and infrastructure through trans-national investment, rapid proliferation of
communication and information technologies, and the impact of free-market forces on local,
regional and national economies.

Globalization is embedded in our institutions – domestic and international, public and private, by
virtue of legal arrangements (legislation, agency regulations, contracts, etc.) that draw global
‘forces’ into everyday life, and vice versa. It is not a unilinear process or geography but a
dynamic relation across multiple regimes of public and private ordering.

Understanding the relationship of globalization to law requires analysis of the interactions of

markets, rights and bodies of law at all levels of government, domestic and international, as well
as diverse processes of governance that involve norm creation, enforcement, and adjudication by
state and non state actors alike.6 Moreover, globalization is neither external and superior to
national states, nor primarily state centered. The essence of globalization is its denationalizing
effect. Thus it has been said that, “Globalization may be defined as the process of
denationalization of clusters of political, economic, and social activities”

Globalization includes global and regional institutions such as the WTO and the European
Union, but globalization is also a domestic phenomenon, driven by private actors and local law.

Natural justice- origin, meaning, principles

Natural Justice-

Rules of natural justice have developed with the growth of civilization. It is not the creation of
Constitution or mankind. It originated along with human history. Natural justice rules are not
codified laws.

4
Anthony Giddens, 1990
5
Robert Cox, 1994
6
Calliess and Zumbansen, 2010; Halliday and Carruthers, 2009
Justice is of two types namely Legal Justice and Natural Justice. Legal justice refers to justice
governed by the law of the state and natural justice refers to moral justice and is governed by the
Laws of Equity, ethics, culture, rationality, religion and fairness.

Numerous theories are propounded to explain what justice is

 Divine command theory (i.e. what is justice is commanded by God through the Holy
Scriptures like the Bible, the Koran and the Gita etc.)
 Natural Law theory (Justice is pure reason unaffected by self-interest and prejudices.
Justice requires according to individuals or groups what they actually deserve, merit, or
are entitled to)
 Social contract theory (this tradition argued that justice is derived from the mutual
agreement of everyone concerned)
 Distributive theory (justice is all about proper distribution of rights, wealth, power, status
and liabilities).

Apart from these above mentioned theories there are many other theories explaining meaning
and significance of ‘justice’. However, to date, no theory embraces all core elements of ‘justice’.
Consequently, no theory completely uncovers all the facets of ‘justice’.

According to Kelsen’s Pure Theory of Law, “the longing for justice is men's eternal longing for
happiness. It is happiness that man cannot find alone, as an isolated individual and hence seeks in
society. Justice is social happiness guaranteed by social order.

Also the seminal contributions to legal knowledge were made by John Rawls Theory of Justice,
1972 , who sets out two basic principles of justice which the legal order should satisfy. They are:

i. Each person is to have an equal right to the most extensive basic liberty compatible with
a similar liberty for others;
ii. Social and economic inequalities are to be arranged so that they are to be of the greatest
benefit to the least advantaged members of society, consistent with the difference
principle and offices and positions must be open to everyone under conditions of fair
equality of opportunity.

In general, ‘justice’ means and includes inter-alia that

i. there shall be fair and equitable treatment of all individuals under the law
ii. Fairness in protecting rights and in punishing deviant actions/omissions
iii. to render every man his due
iv. everyone’s life and property should be protected by law
v. fair and equitable distribution of liberties and liabilities
 vi. harmonization of social and political interest of an individual without compromising with
capabilities of future generation to reach higher levels in individual, associational,
national and international spheres.

The most significant amongst various types of justice are natural and legal justice. The word
‘Natural Justice’ manifests justice according to one’s own conscience. It is derived from the
Roman concept ‘jus naturale’ and ‘Lex natural’ (Greek) which meant principle of natural law,
natural justice, eternal law, natural equity or good conscience.

Origin and Development of ‘Natural Justice’

India: It is said that principles of natural justice are of very ancient origin and were known to the
Greek and Romans. Later on, the principles of natural justice were strengthened by judges of
common law courts in England. After Independence, the same common law traditions were
continued in law courts of India. However, these lofty ideals of justice were not alien, and are not
only proclaimed but well adhered by the judges in ancient India.

Rules of natural justice have developed with the growth of civilization, and the content thereof is
often considered as a proper measure of the level of civilization and rule of law prevailing in the
community.7

According to Aristotle, law inspired by reason is the natural law and whenever the general
preposition of legal law is found to work hardship to a particular case, equity must be applied to
mitigate and rectify the harshness. It’s the natural law that provides the frame work of principles
and it is left to the legal law to supply flesh and blood to the legal system. The underlying object
of natural justice is not only to secure justice, but also to prevent miscarriage of justice, thus
ensuring that fundamental liberties and rights of citizens are well-protected.8

Lord Evershed, in Vionet v. Barrett9 remarked, “Natural Justice is the natural sense of what is
right and wrong.” But, Natural justice has meant different things to different peoples at different
times. In its widest sense, it was formerly used as a synonym for natural law. It has been used to
mean that reasons must be given for judicial decisions; that a body deciding an issue must only
act on evidence of probative value. In plain, ‘natural justice’ represents the principles and
procedures that govern the adjudication of disputes between persons or organizations, that the
adjudication should be unbiased and given in good faith, and that each party should have equal
access to the court/tribunal/authority and should be aware of arguments and documents adduced
by the other.

In modern jurisprudence natural justice is construed to include following three procedural

safeguards, which are the quintessence of justice.

7
K.I.Shepard v. Union of India (1987) 4 SCC 431 , 448, per R.N. Misra J
8
H. D. Pithawalla, “ Administrative Law” 79 (C. Jamnadas & Co., Mumbai, 1st edn., 2012)
9
(1885 (55) LJRD 39)
 1) Nemo debet esse judex in propria causa- No one should be made a judge in his own
cause, popularly known as the rule against bias.
2) Audi alteram partem- No one shall be condemned unheard or let the other side be heard
as well or both parties shall be heard before taking a decision, popularly known as the
rule of the fair hearing.
3) Reasoned decision/ Speaking order - Every decision must be based on reason.

Natural justice has meant many things to many writers, lawyers and systems of law. It is used
interchangeably with divine law, viz.

 “jus gentium”,the common law of England,

 “Due process” of the U.S.,
 “Dharma” of India and
 “Proportionality” of the civil law system.

NATURAL JUSTICE IN THE CONSTITUTION OF INDIA:

The principles of natural justice have enriched law and constitutions the world over. Though the
Indian Constitution does not use the expression natural justice, the concept of natural justice
divested of all its metaphysical and theological trapping pervades the whole scheme of the
constitution. The concept of social and economic justice, in the preamble of the constitution, is
the concept of fairness in social and economic activities of society, which is the basis of natural
justice. Art.311 of the Constitution contains all the principles of natural justice without using the
expression as such. The duty to act fairly is a part of fair procedure, envisaged under Art.14 and
Art.21. Every activity of a public authority or those under public duty or obligation must be
informed by reason and guided by public interest. The principles of natural justice are firmly
grounded in Articles 14 and 21 of the constitution.

EFFECTIVENES OF NATURAL JUSTICE DELIVERY SYSTEM IN GLOBALISING

ERA

New Types of Criminality in globalization and related legal issues-

German jurist Savigny says that the law is the spirit of community, which means that the
provisions of the law must meet the needs of the community and address its problems.

The change in the norms and customs of the people lead to changed needs and problems. As for
the nature of the crime, the phenomenon of globalization has reflected its impact in the field of
organized crimes and made crimes with extra serious nature. The phenomenon of crime has
globally expanded due to globalization, which create a legal crisis that need to be addressed. This
crisis has made the credibility and effectiveness of the law in an awkward position, which
requires concerted efforts not only on the legal level, but the economic and even moral to
mitigate the negative aspects of globalization. it has been proven that a crime can be considered
as globally problematic issue, especially when it occurs across frontiers, needs no actors and has
an accentuating nature all over global nations.

Criminal Jurisdiction in the age of globalization -

Virtually every criminal justice system today overlaps, interacts, and intermingles with other
criminal justice systems. The traditional model of a single nation-state possessing exclusive
authority to criminally sanction those within its borders is being challenged from below by sub-
state demands for communal autonomy and from above by international and global assertions of
criminal jurisdiction. It is no surprise that control over criminal justice has become a significant
jurisdictional battleground between nation-states and their sub-state and supra-state challengers,
for criminal jurisdiction is still considered the sine qua non of state sovereignty. International
criminal law is a field just now coming into its own, but it is not a new phenomenon. At its
beginnings, international criminal law consisted of particular substantive crimes deemed so
damaging to world order as to allow for the suspension of the usual territorial model of criminal
jurisdiction.

Globalization and human rights - legal issues

The impact of Globalization is being viewed positive or negative depending upon the social,
political and economic realities of the various countries of the world whether categorized as
developed or developing nations. It affects the trajectories of development of countries creating
social inequalities and widening the gap between poor and rich nations. The discourse of human
rights has widely influenced under the orbit of globalization. Human rights violations of
vulnerable groups particularly the minorities and deprived sections are at debate on national and
international forums. Although the universal application of human rights norms are desired
globally but ironically, the issues related to protection of human rights are highly intolerable and
complicated on regular basis. The new challenges are coming up with new faces of conflicts
within families, groups, institutions and states too. In this sense, the protection of human rights is
becoming so challenging for law as well as state. In modern context, global community is
considering protection of human rights as very much foundational and central. Throughout the
discourse of demands of human rights, law has to perform very proactive role in various
directions.

The legal relationship between globalization and human rights can be analyzed from the
perspective of economic regulation as well as that of human rights law, examining first whether
international economic law sufficiently supports or takes into account human rights concerns,
then considering the extent to which human rights law takes into account globalization and
economic interests. In respect to both inquiries, the fundamental question is whether a human
rights system premised on state responsibility to respect and ensure human rights can be effective
in a globalized world.
Opponents of globalization see it as a threat to human rights in several ways. First, local
decision-making and democratic participation are undermined when multinational companies,
the World Bank, and the IMF set national economic and social policies. Second, unrestricted
market forces threaten economic, social, and cultural rights such as the right to health, especially
when structural adjustment policies reduce public expenditures for health and education. Third,
accumulations of power and wealth in the hands of foreign multinational companies increase
unemployment, poverty, and the marginalization of vulnerable groups.

Globalization is leading to greater problems of state capacity to comply with human rights
obligations, particularly economic, social, and cultural rights, such as trade union freedoms, the
right to work, and the right to social security. It also may have a disproportionate effect on
minorities. Globalization is a particular issue for women, because they often bear a
disproportionate burden of poverty, which may be exacerbated by economic restructuring,
deregulation, and privatization.10 Certain human rights are particularly threatened by
globalization. Respect for private life needs protection against personal data collection. Cultural
and linguistic rights can also suffer under global assault, but the evidence seems contradictory.
There is no doubt that globalization facilitates the transfer of cultural manifestations and cultural
property.11

Certain examples can be traced down the lane where gross human rights violations are occurring
and authorities, national and international, are silent in the era of globalization. For example, the
communication blackout and curfew in the state of J&K after abrogation of article 370 and 35A
by the Indian government. Similar scenarios can be seen in war struck Syria, Palestine, Iraq,
Afghanistan etc.

CONCLUSION
If global community is emerging, at least in a limited form, then we need a global public law to
structure it. This is the transformative challenge for international law and legal theory today: to
move from the public law of inter-state relations, to the public law of a global community of
persons. Irrespective of the pace of global development in terms of economy and polity, until and
unless we thrive for achieving speedy justice delivery system, with at least an inculcation of
following four elements: security, subsistence, liberty and voice, we will land up to on a severe
humanitarian crisis. Globalization is adaptive among all the countries of the world but ensuring
natural justice and to deliver it on a global platform still remains a challenge for the world
powers. No doubt the International law provides with procedure and remedies, there is still a lot
to achieve in the delivery process of natural justice. For good or ill, globalization has breached
natural and artificial barriers among nations, thus facilitating the exchange of commodities,

10
UNCTAD, World Investment Report 1994: Transnational Corporations, Employment and the Workplace 260
(1994)
11
A study by the UN Economic and Social Council (UNESCO) indicates that commerce in cultural property tripled
between 1980 and 1991 under the impulse of satellite communications, Internet, and videocassettes.
services, information and technology, and the adoption of social and cultural patterns. For sure, a
huge number of lawful issues have sprung, which keep on calling for creative legitimate
arrangements that could keep a pace with the confounding pace of progress. It profits all
accordingly, especially legal advisors and judges, to be aware of the job every one can play in
the consistently growing universe of the law for it is the standard of law that makes the
fulfillment of enduring harmony and concordance conceivable. It is the rule of law that
empowers us to save revered establishments which are the signs of civilised society. It is the rule
of law that engages us to do what we need to do now so our kids can make due in an inexorably
competitive world.
 BIBLIOGRAPHY
 Globalization: Legal Aspects by Alfred C. Aman Jr,
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 www.Reseachgate. Net
 legal Issues of Globalisation , www.legalservicesindia.com
 definitions.uslegal.com
 M P Jain: Indian Constitutional Law, 8th edition
 DD Basu: Introduction to the Constitution of India
 Principles of Natural Justice,
http://www.tnsja.tn.gov.in/article/Pri%20of%20Natural%20Jus%20by%20TSSJ.pdf
 https://www.academia.edu/