LAW & JUSTICE

The idea is to identify institutions that result in justice – establishing a just institution

Rawls – there is a particular hypothetical situation which if created would result in the choice of a
particular institution, and anything other than this institution may not be able to give you just
outcomes

A better method, some writers say, is to progressively create more justice – start with the most
egregious injustice

Most writers don’t talk about what the perfectly just world will be like, they talk about the path to
justice

AMARTYA SEN
institutional approach to justice does not explain what actually happens in society

 highlights that a lot of times just outcomes can be just irrespective of the way you think about
justice
 each conception of justice by itself is very sound, but taken along with competing claims can
be confusing
 people with two competing diametric views might converge in their outcome – on the other
hand, equally just claims which do not fall within your conception of justice get disregarded,
even though these are all normatively sound conceptions and arguments in their own ways,
but cannot account for differing claims and you always lose out on some facet of justice if
you stick to only one mechanism or institution of justice
 practices of injustice often converge and create more injustices

What is a better method of tackling this injustice

 Hobbes - this society must now be transformed and put in place an institution that is perfectly
just
 Rawls – veil of ignorance

Sen says this is not useful – just by saying that you will have a just institution, as society as it exists
is already unjust and a just institution cannot fix that – the best way is to progressively realise what is
the most egregious display of injustice and attack that first – no one is saying that you will end up
with a just society, but this is how you start
Examples:

 caste system – cannot be fixed by having an institution which says caste is unjust; rather need
to start with say untouchability, which is the most egregious display of injustice – caste
system unlike racism doesn’t create binaries, it creates a flowing chain of advantages and
disadvantages and to break out of a system such as that requires an argument of saying that
you will give your privileges up to someone below you in the system which gives you some
status – but in this system, untouchability is the most pernicious
 slavery becoming abolished didn’t make black people on par with whites – but there is value
to the abolition of slavery – it is a progressive realisation of rights by starting with the most
egregious forms of injustice
 justice to Sen enhances human capability – similar to Finnis’ integral human fulfilment
 For Sen, development facilitates complete realisation of human capability – justice is
connected to this development (economic, as well as others) – development helps realise a
situation where human beings can do what they are capable of them
 injustice in social institutions prevents people from realising their full capabilities – if
economic mobility is distributed according to social hierarchy, this means that irrespective of
your innate capability, this will prevent you from achieving your full potential – injustice
diminishes human capability – development is a pathway to achieve that justice and hence
unleashes full human capability
 the advantages you begin with do not diminish in an unjust society – the society start from a
position of unfairness/injustice and allows people to accumulate advantages
 Why do we create this hierarchy where manual labour is less deserving of financial reward
than skill-based labour – it is a system that perpetuates itself because the skill-set that is
required to do that skilled work is a function of how much money you have
 Formal equality in a place which is an unequal society, it loses effect – formal equality
cannot undo inequality that has been perpetuated
 Affirmative action – first step to undo discrimination – aims at broader effects of
representation – in a democratic society decision making should be representative of the
varied populace in order to ensure that policies are developed keeping diversity in mind,
affirmative action aims to this in the long term
 Necessity and implementation of affirmative action policy – Sen would agree with this –
because it aims to put people back in a position to achieve their human capabilities –
temporary situation of inequality to achieve long lasting equality
  Niti – justice in a narrower, institutional sense | Nyaya – widest possible conception of justice
– Sen says this wider understanding of nyaya is better than a rigid understanding of niti –
does that mean in any situation you should give greater weightage to justice than to rules and
principles?

REGINA V CAMBRIDGE
 judges say leave the decision to the people paying for this service
 if we say that she should be given this chance despite these other considerations that the
judges bring up, what is the rationale that would be based on?
o the purpose of this system was exactly this, but if it’s not serving the people that it
must serve, then the system breaks down – efficiency/utilitarianism is secondary
o this is a problem of her being born in a position of less access to resources – and if
health is a fundamental right, this is a factor which limits that – the NHS is meant to
undo this kind of inequality – irrespective of whether you can afford treatment or not,
the State will provide this to you
 a model based on just efficiency could be a case of transcendental conception of justice – you
are accepting the existing inequality and then distributing resources – in limited resources
you adopt efficiency as your model – this is a product of looking at justice institutionally
 this is what Sen refers to when he says that people in society and social institutions act
differently – all these conceptions of justice are valid, none of them purport to create injustice

RAWLS
(only the first reading)

Aristotle – justice is a situation which avoids other situations – negation of unjust situations – any
avoidance of pleo nexia (a situation where resources, assets and rights of people can be snatched by
others) is justice

Social contractualists –

 hypothetical of contract b/w govt and state

  if you are in a state of nature where every individual can exercise power to the widest extent
possible and you move from this to a social contract, there is a general understanding that you
are doing this because the social contract scenario is better
 limited rights, but guaranteed rights – in a state of nature you have the most extensive liberty,
but it is not guaranteed
 moving from state of nature to social contract, the value is implicit – this shift must have
happened according to some conception of justice with guaranteed but limited rights, uniform
laws, political system, etc
 social institutions – formalize rights that you only held in a nebulous form in the state of
nature, that is guaranteed and protected in social contract – perhaps we enter in a social
contract so that everyone is entitled to some protection from social institutions

Rawls – how would you assess what society has done post the contractual stage? How would you
assess the distribution of social institutions in society? How do you understand justice in society?

Sen takes a more individualistic form of justice | Rawls looks at it from the perspective of society

Rawls – assess justice in society, in social institutions and distribution of social institutions in terms
of fairness – understands justice on the anvil of fairness (Sen would look at it in terms of capability)

Original Position and Veil of Ignorance

 tells you how social institutions must be distributed – how do you understand if the current
distribution is fair/unfair –
 First principle – assume a time where you know you’re going to be a part of society but the
Veil of Ignorance makes you unaware of other things, like what your position in society is,
your own psychological propensities
 what you choose in this situation/position, with this partial unawareness of your own
position, will be the fair distribution of resources – a rational person will not choose a
position where you will be placed at a perpetual disadvantage
 a rational person will not choose the perpetual infringement of a right, for the greater good /
general welfare/comfort, because he does not know if it’s his right that’s going to be
infringed – utilitarian theory of fairness/justice is disproved
 Under the veil of ignorance everyone will be given free choice, and it is assumed that there
are certain things everyone will agree upon (for eg: liberty) – a rational being in this situation
would suppress their innate urge to maximize profits/personal utility without caring how it
affects other people – Finnis talks about something similar to this (“innate urges in need of
 moderation” – food, sex, wealth, power) – this is a model where pleo nexia is minimized to
protect yourself

First principle of justice – If placed under the veil of ignorance, and you are asked to choose, you
would choose a system that is compliant with the most extensive form of liberty and equality that
doesn’t infringe on the liberty and equality of others. Any model which deviates from this perfect
equality might affect you in an adverse manner, and therefore rationally you would not choose it.
This model of justice, according to Rawls is fairness.

 The purpose of building up this theory is not to show how a perfect institution is built, but
rather give you a tool to deal with and evaluate the current social institutions.
 Justice is one aspect of evaluating social institutions – other aspects might be utility,
efficiency – if these aspects compete you have to choose one – how would Rawls choose
under the veil of ignorance – in the case of Regina v Cambridge for example, you would say
that healthcare should be the most extensive right, with the most extensive resources
available

Rawls says that there must be equality and liberty to the greatest extent possible, but acknowledges
that there are skewed resources:

Second principle –

(a) When inequalities exist in the distribution of social institutions, the inequalities should be
distributed such that the most disadvantaged should be benefited by that inequality
(b) This must comply with the fact that all social institutions and public offices should be
distributed such that they secure an equality of opportunity

Applying the second principle to law, specifically affirmative action – society is unequal because of
the operation of social institutions, we acknowledge that this is a society that would not have been
chosen under the veil of ignorance, and so there are two things the govt can do:

 First, it can declare formal equality, but this is not enough.

 Second, as per Rawls second principle, you can derogate from the principle of formal equality
and create an inequality through law for the benefit of the disadvantaged – inequality can be
justified only under this test
REGINA V CAMBRIDGE

 In this scenario there is some inequality that exists – not everyone can afford healthcare
 NHS is modeled on efficiency
 For someone needing this kind of experimental treatment, can an inequality be created to her
benefit? – You can argue either way – there is no way to understand whether she is the most
disadvantaged, there’s no criteria on which to put her on this relative scale
 2(b) talks about equality of opportunity in distribution of goods – this may justify the creation
of temporary inequalities
 Being part of the most disadvantaged doesn’t place a greater burden on you to make the best
use of that equality of opportunity – this is a society where mediocrity is perfectly acceptable

Why does Sen call Rawls an institutional transcendent?

 Sen talks about a progressive, slow realization of justice, as opposed to an institutional

transcended approach which envisions a perfect society to move towards
 But Rawls is making room for the fact that societies may be unjust in his second principle –
and this is not an institutional principle
 But his first principle does look at the perfect society, the ideal institution, though he’s under
no false impression that such a society/institution exists
 Marxist conception of justice – only looks at economic distribution to achieve justice –
ignores other forms of inequalities/injustice that can overlap – Rawls is the first to understand
this overlap and account for all of it in his theory – by doing this he’s trying to make all these
identities and ascriptive traits irrelevant – both Dworkin and Rawls assume that you will be
able to have this faithful conversation with yourself and look beyond your immediate
interests
 But it is possibly transcendental, in this limited aspect, because he is still looking at an ideal
scenario, and assumes that the person under the veil of ignorance possesses some basic
understanding of how society works

Reflective equilibrium –