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Concept of Justice Difficulties in Defining Justice

Komal Parnami
Rajiv Gandhi National University of Law
Punjab, India

ABSTRACT:
Justice is one of the most important moral and political concepts with no agreed definition. Various philosophers
interpret the meaning of justice differently. The concept of justice without law perhaps is not incoherent, but it is
unavoidably vacuous. This paper analyses the concept of justice as defined by various philosophers and the difficulties in
defining justice. The idea of justice depends upon the specific situation and the prevailing laws.

I. INTRODUCTION
Justice is one of the most important moral and political concepts with no agreed definition. The word justice is
j The Oxford English Dictionary

1
The claim for justice gains meaning in specific circumstances and
cultural contexts. Justice is an evolutionary concept. The evolution of the meaning of justice from the ancient
Greek period to the modern day is interesting to know.

One of the earliest written definitions of justice is by Aristotle. unequal

justice. In the middle ages, justice was described as the foundation of the state by St. Augustine who believed
justice was created by the church.

According to Karl Marx, the idea of justice and its content varies with the economic interest of the ruling class.2
Justice according to Chaim Perelman is a virtue among others.
is not confined only
to respecting the law, but it also justifies a revolutionary concept of disobedience or defying law, if the law is
evil.3

Philosophers such as Kant, Mill, Rawls, Nozick have given their theories of justice. John Rawls propounds the
A Theory of Justice is one of the most important works of John Rawls. It offers
two principles of justice.4From a utilitarian perspective, justice is about designing rules and political institutions

1
https://www.iep.utm.edu/justwest/
2
https://shodhganga.inflibnet.ac.in/bitstream/10603/67805/6/06_chapter%202.pdf
3
Ronald Dworkin, A Matter of Principle, p. 104-118 Harvard University Press, 1985.
4
John Rawls, A Theory of Justice, Harvard University Press, 1971.
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that bring about the greatest happiness for the greatest number of people.5 There are multiple dimensions of
justice identified by Amartya Sen.

The interrelationship between justice and the law is complex. Legal and political theorists since the time of
Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law.
An example of the latter is when we speak of an "unjust law."6 When stated negatively, the concept of justice is
the avoidance of injustice.

There are problems in defining justice due to the individualistic nature of the concept. What might be just for
me in a particular situation might not be just for someone else in some other situation. There are no universal
principles by which justice or injustice can be defined other than the way in which the government has made its
laws.7 However, since law is the means to an end, the law itself should be a just law as a pre-requisite to use it
as a means of serving justice.8Despite being endlessly discoursed from the ancient times, the concept of justice
constantly appears to be one of the most stimulating as well as penetratingly controversial ideas.9

II. THE CONCEPT OF JUSTICE

To an ordinary person, justice may mean due punishment for a crime. To a philosopher, justice may mean
morality. To a lawyer, justice may mean the application of the rule of law.The concept of justice is not static; it
is an evolutionary concept. The meaning of justice in popular discourse is the idea of getting what one deserves,
fairness, moral righteousness and equality. T
broadly as one likes.

equals equally. It may also mean treating people unequally to recognise and correct past injustices. For
instance, if women or members of racial minorities have been historically excluded from certain relatively well-
paid occupations, there may be a justifiable case for employment equity measures giving suitable candidates
10
from the disadvantaged group preference in hiring. One common understanding of justice also equality in the
form of equal citizenship rights. The understanding of justice as moral righteousness means individual virtues
and ethical conduct.

In her exquisite novel To Kill a Mockingbird , Harper Lee familiarises the readers with justice through a vivid
description of injustice. Justice is one of the most important moral and political concepts with no agreed

5
https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-of-justice-in-the-context-of.pdf
6
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=facultyworkingpapers
7
https://www.abyssinialaw.com/blog-posts/item/1477-law-as-a-means-of-serving-justice
8
Ibid.
9
http://www.ritsumei.ac.jp/acd/cg/ir/college/bulletin/e-vol.13/01_Bhandari.pdf
10
https://fernwoodpublishing.ca/files/pursuingjustice.pdf
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definition. Both ancient, for example Aristotleand modern thinkers, for example Rawls see justice as a principle
to be embedded in all social institutions and as a necessary virtue of individuals in their interactions with
others.11

The most plausible candidate for a core definition comes from the Institutes of Justinian, a codification of

12
Conservative justice is s, or more
generally to fulfil the legitimate expectations they have acquired as a result of past practice, social conventions,
and so forth. In contrast to it, ideal justice gives us reason to change laws, practices and conventions quite
radically, thereby creating new entitlements and expectations.

When justice deals with the distribution of rights, goods etc. to the citizens, it is called distributive
justice.13Corrective justice implies making good the loss of a person to whom some wrong has been done. It
stands against injustice. Justice takes a comparative form when to determine the due of a person, we need to
know the claims of others. It takes a non comparative form when we know what is due to a person by knowing
only the facts regarding that person.

III. JUSTICE AS DEFINED BY VARIOUS PHILOSOPHERS

Justice was closely related to ethics in its Greek concept. According to Cephalus, justice means telling the truth
Polemarchus defines justice as giving what is due to every person insociety.Plato
believed in the natural inequality of men and therefore he advocated the class system. He divided people into
four categories, namely, the ruling class, the military class, the producing class and the craftsmen. For Plato,
justice is the fundamental virtue and a principle of non interference, which keeps within proper bounds the
14
It is a
principle of functional specialization.

According to Aristotle, justice is principally used to describe a conduct in agreement with law. He classified
justice into two categories: distributive justice and corrective justice. Aristotle powerfully argues that all lawful
and fair acts are just; all unlawful and unjust acts are unfair.15 But if there is conflict between fair and lawful
standards, what standards should the people and institutions choose? This question discounted by Aristotle in
analysing the concept of justice has opened a historically unsettled debate on the nature of law, morality, and
justice.
11
https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-of-justice-in-the-context-of.pdf
12
https://plato.stanford.edu/entries/justice/#JustMappConc
13
Aristotle, Nichomachean Ethics, Transt H. Rackham, Edn. 195, BKV.11 7
14
https://brewminate.com/the-concept-of-justice-in-greek-philosophy-plato-and-aristotle/
15
Aristotle, Nicomachean Ethics
D. Ross Transl. Kindle Edition, 2007)
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The classical Roman lawyers were influenced by the Greek philosophy. Cicero was a lawyer who advocated
that justice is a natural law which does not depend upon the consent of man.In the middle ages, St. Augustine
stated that justice is the foundation of the state. According to him, justice is not created bythe civil authority but
by the Church.Despite his Christian commitment to love and peace, Augustine is not a pacifist and can support
16
St. Aquinas conceded with Aristotle on the
concept of justice based on equality.

Justice according to Karl Marx depends on the modes of production and the relations of production.The idea
of justice and its content varies with the economic interest of the ruling class.The discussion about the concept
of justice will not be complete without reference to the ideas of philosophers of ancient India. The word
Manusmriti forms a very important part of hindu
jurisprudence. concept of justice is not confined only to respecting the law, but it also
justifies a revolutionary concept of disobedience or defying law, if the law is evil.17

Chaïm Perelmanis considered one of the greatest Law philosophers of the 20th century.18 According to him,
He gives six

sho
not presupposing equal treatment for all but

living according to the letter of law.

concept of justice signifies his idea of utility as it is legitimized in law.19

Stuart Mill, further explains concept of justice in considering that one can sacrifice his/her happiness
for the sake of virtue, which is better than happiness.20According to Immanuel Kant, any act which is good as
a means to something else, is a hypothetical imperative; whereas, any act that is self-sufficiently good in itself
and conforms to reason is a categorical imperative.21

16
Augustine, and F. R. Montgomery Hitchcock. 1922. St. Augustine's treatise on the City of God.
17
Ronald Dworkin, A Matter Of Principle, p. 104-118, Harvard
University Press, 1985.
18
http://www.scielo.br/pdf/bak/v9n1/en_03.pdf
19
http://www.ritsumei.ac.jp/acd/cg/ir/college/bulletin/e-vol.13/01_Bhandari.pdf
20
John Stuart Mill, Utilitarianism 36, Ebook, Gutenberg, 2004.
21
Immanuel Kant, The Philosophy Of Law: An Exposition Of The Fundamental Principles
Of Jurisprudence As The Science Of Right, Liberty Fund Inc., EBook, 2010.
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IV. JOHN RAWLS THEORY OF JUSTICE

influence of Rawls, but also represents a deep explication of the concept of justice. A Theory of Justice is one
of the most important works of John Rawls.

In his work Rawls offers two principles of justice. First: Each person is to have an equal right to the most
extensive total system of equal basic liberties compatible with a similar system of liberty for all. 22Second:
Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least
advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under
conditions of fair equality of opportunity.23

Contractual nature of justice was explored by Kant that influenced John Rawls.Rawls justice is concerned not
only
thought experiment by Rawls. Our usual opinions regarding what is just and what is unjust are informed by

family, and so on On the other hand, if we are under a veil of ignorance, the resulting society should be a fair
one.

According to Rawls,
erties Rawls has in mind are negative rights, like the freedom of thought.
The distribution of social goods can include education, food, and housing; which could be considered to be
positive rights.24

V. KINDS OF JUSTICE
Keeping in view the various definitions of justice, it may be classified into certain kinds, namely - natural
justice, economic justice social justice, political justice, legal justice.

Natural Justice: The expression "natural justice" means the innate quality of being fair, thereby meaning what
is right and what is wrong. Legal experts of earlier generations did not draw any distinction between "natural
justice" and "natural law". Natural justice was considered as that part of natural law which relates to the
administration of justice.25

Economic Justice: The concept of economic justice revolves around the idea of a socialist society. It evolves
equal economic values, opportunity and right for all and prohibition of economic discrimination between man

22
John Rawls, A Theory Of Justice, Cambridge, MA, The Belknap Press of Harvard University Press, 1971.
23
John Rawls, A Theory Of Justice, Cambridge, MA, The Belknap Press of Harvard University Press, 1971.
24
https://ethicalrealism.wordpress.com/2011/04/26/three-theories-of-justice/
25
https://shodhganga.inflibnet.ac.in/bitstream/10603/67805/6/06_chapter%202.pdf
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26
and woman in economic matters.

Political Justice: Political justice prevails in a society where everyone has equal political rights. The state
should establish political justiceby creating conditions under which all including the minorities find scope for
exercising their political rights in pursuance of a system of universal adult suffrage, rule of law.27

Social justice: An ideal definition of social justice may be, A set of ideas, values and social practices to ensure
that all persons and groups enjoy economic security, can participate effectively in democratic decision-making,
exercise mutual respect and caring for one another and live their lives in ways that protect and sustain the
natural environment for future generations.

VI. INTERRELATIONSHIP BETWEEN JUSTICE AND LAW

For the lawyer, the concept of justice is usually very black and white. It is understoodfrom a negative construct
.28Justice is not solely
about justice between the parties in a court case. It is also about justice to society. To the judge, justice is a
concept that really equates to an application of the rules to achieve an outcome.29

The concept of justice without law perhaps is not incoherent, but it is unavoidably vacuous. Justice is an ideal
form of interpersonal relationships. The ideal is expressed in various formulas: life, liberty and the pursuit of
happiness; liberty, equality and fraternity; from each according to his ability, to each according to his need; due
process and equal protection of the law, etc. As already classified by Aristotle, the concept of justice includes
distributive justice as well as commutative justice, a duality that roughly corresponds to the modem ideas of
substantive and procedural justice. When stated negatively, the concept of justice is the avoidance ofinjustice.

The process of seeking justice can begin with the person aggrieved, for example, in a statement of grievance or,
more formally in a legal complaint. In seeking justice, the next stage is in which the grievant presents the
complaint to someone who can exercise authority. In a constitutional regime, such a person is a judge or other
legally constituted official who should respond according to legal procedures and in accordance with prescribed
substantive legal standards.

A quest for justice in a constitutional regime in the real world entails an encounter with a real legal system,
staffed by judges who decide cases according to established procedure and in light of prescribed substantive
legal standards.30 "Justice" that is not embedded in a legal system is an idealized aspiration. The significant
questions about "justice" are encountered in concrete situations where real choices must be made. For example,
26
Ibid.
27
Ibid.
28
Amartya Sen, The Idea of Justice, The Belknap Press of Harvard University Press, 2009.
29
http://classic.austlii.edu.au/au/journals/VicJSchol/2014/12.pdf
30
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=3797&context=flr
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is an unborn child a "person" in the context of a wrongful death action, having in mind that the categorization
may be invoked in the context of abortion?31

VII. DIFFICULTIES IN DEFINING JUSTICE

There are problems in defining justice due to the individualistic nature of the concept. What might be just for
me in a particular situation might not be just for someone else in some other situation. There are no universal
principles by which justice or injustice can be defined other than the way in which the government has made its
laws.32

Various philosophers present their own understanding of the concept and idea of justice. There is no one
straightjacket approach for defining justice. The idea of justice depends upon the specific situation and the
prevailing laws. For example, differences in emphasis may be found across cultural divides. An emphasis on
socio-economic rights and distributive justice can be identified in the way that political power has been exerted
and legitimized in China over the past two millennia.33An emphasis on political rights, and the dimensions of
justice as recognition and equal participation, seems to dominate political thought in the US.34

VIII. CONCLUSION
Justice is an evolutionary concept. The meaning of justice in popular discourse is the idea of getting what one
deserves, fairness, moral righteousness and equality.
used in social science disciplines under the influence of Rawls, but also represents a deep explication of the
concept of justice. "Justice" that is not embedded in a legal system is an idealized aspiration. There are
problems in defining justice due to the individualistic nature of the concept.

31
Ibid.
32
https://www.abyssinialaw.com/blog-posts/item/1477-law-as-a-means-of-serving-justice
33
https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-of-justice-in-the-context-of.pdf
34
Ibid.
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 John Rawls
Theory of Justice

By Avery Kolers, University of Louisville

Objectives
1. procedural theory.
2. Present and explain the two principles of justice.
3. view of the relationship between individual and society, and his objections to
rights-based, utilitarian, and communitarian views.
4. of justice in contemporary
human societies, such as race, colonialism, health, migration, and the global environment.

Reading Assignment:
Rawls, John. A Theory of Justice. Cambridge, Mass: Belknap/Harvard University Press, 1971.

Commentary

John Rawls Theory of Justice (TJ) is the most important work of 20th century normative political
philosophy
theory in the field. A philosophical work is generally considered part of political philosophy when it
addresses systems through which power is contested and exercised or resources are produced and
distributed. A work of political philosophy is normative when it engages moral questions about these
issues for instance, how the exercise of power can be justified to those who are subject to it, or how
resources such as money and power should be distributed, or whether it is ever permissible to trade off
the lives and interests of some for the benefit of others. And finally, a work of normative political
thought is generally considered political philosophy as opposed to political thought when it abstracts
from the specific histories and institutional arrangements of particular locales, and attempts to isolate
its normative political questions as they might apply in any society, anywhere. Thus a political
philosopher might put the arguments of Aristotle, Hobbes, and Nussbaum into direct conversation as
though there were neither time nor space separating them. It was this tradition of debate normative
political philosophy Theory of Justice rejuvenated and reshaped upon its appearance in
1971.

Justification
During the 17th and 18th centuries, philosophers such as Thomas Hobbes, John Locke, and Jean-Jacques
Rousseau Natural Law using the image of a ocial contract to ask what

Information Classification: General

 might justify political rule and property rights over land and goods. Their strategy was to describe their
vision of a a world before government and imagine what we would agree to if we
found ourselves in such a world. For all its limitations, this tradition was revolutionary because it put
governments on notice that in order for their rule to be legitimate, they had to provide benefits to the
everyday citizen. Moreover, since each citizen was equally entitled to ask for such justification, the social
contract tradition implied a basic moral equality of all, recasting unequal social relations as artificial
rather than natural. Out of this tradition emerged theories of political and economic rights that are still
relevant and compelling today
pursuit of happi

Even so, for over a century before TJ, the social contract tradition had waned, and Utilitarians and
Intuitionists dominated normative political philosophy.
on direct appeals to moral considerations such as justice or equality (34). For instance, an intuitionistic
defense of socialism might argue that equality of condition was more important than getting what you
deserve; but a different intuitionist could equally well defend capitalism by arguing that individual
property rights outweigh appeals to the social good. Rawls worried that these sorts of debates were
futile because there was no external standard for
correct (39). Utilitarians, by contrast, evaluate actions and social institutions by asking whether they
maximize well-being for all affected. For instance, a utilitarian might endorse a policy of fast economic
growth basic interests in the short term. Rawls objected that
utilitarianism is too dismissive of the distinction between persons (27) sacrifice
a fun morning (by studying till noon) so you can quite different when
policymakers sacrifice your pleasure or even life so that others can have fun.

Against intuitionism, Rawls argued that progress in political philosophy could come, not from any great
new insight about the substance of justice, but from devising a fair procedure. To Rawls, the shift to a
procedural conception of justice brought numerous benefits, the first of which was that fair procedures
. It is typically easier to see that an
election, a lottery, or a coin-toss is fair than it is to determine which of the outcomes is better on its
merits. Indeed, the justice of giving power to the winner of the election, or money to the winner of the
lottery, is purely procedural: the outcomes are right just because they derive from a fair procedure (86).
So in TJ, Rawls proposes, not to simply offer a theory of justice, but to describe a fair procedure for
identifying or choosing principles of justice for the distribution of the benefits and burdens of social
cooperation, and then to let the substantive chips of justice fall, more or less, where they may (120). (He
does insist that or a logical deduction;
whatever comes out of his procedure must still be double-checked from the perspective of those who
are to live under the principles so chosen (499), as well as by reflecting on the system as a whole (579).)

Procedural justification has other benefits, too. First, a fair procedure makes it easier for everyone
losers included to live with the results. We can reconcile ourselves to unfavorable outcomes by
accepting that the procedure from which they arose was fair and legitimate. And second, by setting up,
not a static society that strictly distributes a fixed amount to each person or class, but rather a set of
economic and political procedures that play out across decades and generations (304), we can hope and
expect that over time, each of us, or each of our family lines, might take turns in all strata of society.

Information Classification: General

 The Veil of Ignorance and the Two Principles
What, then, was the procedure that Rawls thought we could all see would be fair? And what principles
did he think would emerge from this procedure?

Traditional social contract theories are procedural theories that imagine everyone in a state of nature
choosing a set of rules that would make it worthwhile for them to submit to governmental authority.
Rawls has two reasons for rejecting the traditional method. First, although he agrees that each person is
owed a justification for exercises of power over them, he thinks that we should not start from the false
idea that we were once in a state of nature without government, or would go back there if there were
no agreement. But second, any starting point other than this phony state of nature would lead us to
skew the rules in our favor: if I am in the religious or racial majority, I can make the minority pay for
tolerance; if I am independently wealthy, I can resist any demands for redistributive taxation.

To overcome this dilemma Rawls proposes that a fair procedure is one where each of us is
hypothetically ow enough about people and
societies to choose rationally about basic social systems, but know nothing particular about ourselves,
our own society, or even our place in history (120). So what we do know are general scientific and social
scientific facts about the nature of human beings and societies; we know that we live among humans in
a situation of that is, we can all survive and thrive, but we have to work for it
because . And we know that people tend to want things like
money, self-respect, social status, political and moral freedoms, and the opportunity to choose and
pursue their own life plan. What we know is anything particular about ourselves or the specific
society in which we live: whether we are rich or poor, able to perform physical labor or give birth, a
member of the majority ethnicity or of any religion, and so on. He calls this situation of not knowing
particulars , and proposes that justice is whatever principles for governing our
society we unanimously choose from behind this veil (136).

we do not have to time-travel back to

a past state of nature or move to an unsettled territory we can ask ourselves the question of basic
justice whenever that question arises. And since each of us is represented in the Original Position, we
are not going to accept a sacrifice of our own interests just to benefit someone else. On the other hand,
because we choose from under a veil of ignorance, everyone would reach the same conclusions about
what justice is. If everyone chooses from under a veil of ignorance, then each of us has the same
information and preferences, and all of us choose identically (139) and unanimity is achieved.

And what, then, do we unanimously choose? Rawls posits two principles of justice; the first has to do

distributed unequally. For Rawls, what is to be held equal is our basic liberties liberties that make
democracy and an open society possible such as speech, conscience, political participation, personal
liberty, and so on (61). Rawls thinks that none of us would be willing to give these up under any normal
circumstances, and nor would we be willing to have less of them than others.

But not everything is a basic liberty, and many things may be distributed unequally. For instance, jobs
and positions of privilege are inevitably unequally distributed, and Rawls also thinks it would make sense
to distribute goods like money unequally, provided the unequal distribution was good for everyone. The
question, though, is what kinds and degrees of inequality
answers this by saying that inequalities of jobs and social status are acceptable if they are distributed

Information Classification: General

 under conditions of fair equality of opportunity; and resulting inequalities of resources like income and
wealth are acceptable if they are distributed so as to achieve the greatest benefit to the least well-off.

What do these conditions mean? Most fundamentally, opportunities are equal when no one is
legally excluded from the job market or directly discriminated against; for instance, no rule forbids
women from working in important jobs (72). But this is insufficient if women tend to be hindered by
nonlegal social practices such as gendered childcare and homemaking responsibilities. Fair equality of
opportunity takes account of such inequalities that arise from social patterns. We can see that
opportunity meets this standard if, for instance, the likelihood that a young child will grow up to be
wealthy, or a CEO, or a parliamentarian, is no different whether that child is male or female, white or
Black, from a poor family or a rich family, and so on. If fair equality of opportunity exists, you would
expect a thorough re-sorting of people across income strata with every generation, with no patterns of
differential outcomes between any two salient social groups.

And what of these income strata? The second part of the second principle Difference
P allows (or more accurately, requires) socioeconomic inequalities just insofar as these
. This is a strange phrase; it sounds like the poorest
are at the same time the richest, which makes no sense. But what Rawls means by it is that the point of
inequality is to create, as the saying goes, a rising tide that lifts all boats (298); and in the Original
Position we would choose whatever would lift all boats the highest. This is what he means by
greatest benefit of the least advantaged if we compare all possible societies, the one
where the poorest are best-off compared to their counterparts in all other societies.
important to remember that this principle of inequality is the third-ranked idea, behind the equal basic
liberties principle and fair equality of opportunity. So although we would choose unequal outcomes in
exchange for increased wealth for everyone, we would not allow inequalities to grow to the point that
our children would suffer unequal opportunity or that our political and moral freedoms were
compromised.

final statement of the two principles is as follows:

First Principle

Each person is to have an equal right to the most extensive total system of equal basic liberties
compatible with a similar system of liberty for all.

Second Principle

Social and economic inequalities are to be arranged so that they are both:

(a) [Difference Principle] To the greatest benefit of the least advantaged, consistent
with the just savings principle, and
(b) Attached to offices and positions open to all under conditions of fair equality of
opportunity (302).

Shorthand: when in the Original Position, design a society with the assumption that your worst enemy is
going to place you in it (152).

Information Classification: General

 Individual and Society
To be more precise, in the Original Position you are not exactly designing a society; that is to be done by
constitution-writers, legislators, and the people (201). Instead, in the Original Position you are choosing
principles that you will then use to evaluate whether the your society is just (7). This
basic structure pervasive institutions like economic, political, and legal systems, as well as the standard
social forms like family units, gender norms, and whether racial or ethnic classifications exist or have any
impact on how our lives go sets the framework for social cooperation. So when we choose principles
of justice, we must bear in mind that the shape of the basic institutional structure has permanent and
unchosen effects on our life prospects. Income differentials do not occur in a vacuum; they are products
of those systems of distribution. For instance if, due to high stress, poor nutrition, inadequate schools,
and unavailable childcare, poor parents are typically less able to prepare their children for career
success, then the basic structure is enshrining intergenerational class hierarchies. Fair equality of
opportunity would require us to dismantle such intergenerational hierarchies, at least provided we
could do so without stunting the equal basic liberties.

In a just society, our market income and personal wealth and Rawls does think that justice requires
economic markets with personal property rights significantly reflect past free choices that we and
others have made. Many philosophers
Hayek, meritocracy think that the relationship between free
choice and market outcomes is what justifies our holdings: in their view,
things I own because I got them by using my own body in ways that neither coerced nor cheated others;
or as a reward for how hard I worked and how talented I am.

Rawls disagrees. W ,
what people who came before you have invested in you and others, and the plans and expectations that
people developed in light of a just system of interactions. Rawls sees what you deserve as what you may
legitimately expect, given such institutions. He agrees that we all have important interests in controlling
personal property and in being recognized for our meritorious efforts. But how we should accommodate
these interests, and how weighty they are relative to other interests, are outputs of the theory of
justice, not inputs. Market inequalities therefore have a function: to incentivize people to generate a
surplus that can produce benefits and ease burdens for all. Relatively rich people can be said to
deserve their high incomes only because those incomes are generated by responding effectively to this
incentive structure in a just society that is, a society that makes the worst-off as well-off as they can
be. And the scope of property rights but instead depends on what justice says about
which things can be owned, in what ways.

But if we are deeply shaped by the basic structure, and even our capacity to put forth meritorious effort
is partly due to those social institutions, does this mean that each of us is merely an avatar of the
society? Rawls may be said to be following Aristotle, John Stuart Mill, or arguably Kant in attempting to
strike a balance between viewing the society as productive of individuals, including even their
psychology, and viewing individuals as morally and rationally free and independent. If the natural rights
and equal opportunity theorists went too far in imagining individuals as independent, certain
communitarians go too far in the opposite direction. Rawls views each of us as independent enough to
form and revise our life plan and values, and thinks it is important that each of us be held responsible for

Information Classification: General

 these life plans and values. Moreover, his Original Position is designed so that
are sacrificed for the benefit of others. But he also views us as shaped by, and typically finding our
happiness in, collective endeavors and social systems. Moreover, how we develop our individual life
plans is answerable to the principles of justice; notwithstanding my liberty of conscience, I may not
create a religion based on enslavement or which forbids anyone from leaving the religious community;
notwithstanding my freedom to form and revise my conception of the good, I can be blamed and
punished if that conception of the good ights. For Rawls, the good society is
But the good society is
a freely affirmed cooperative arrangement unified by justice and enabling
us to .

-
A Theory of Justice has had major impacts in ethics and other areas of philosophy, and inspired a
renaissance of Kant scholarship and broadly Kantian methods through the entire discipline of
Philosophy. But of course its greatest impact was in political philosophy, a field that was reshaped and
reinvigorated arguably worldwide, but certainly in the Anglo-American tradition from the moment TJ
appeared. Many scholars began working within the new set of frameworks and questions that TJ
foregrounded. It was the lodestar of the field.

So it is puzzling, to say the least, that TJ virtually ignores all of the most urgent problems of social justice
in the world around it. How could the central work of normative political philosophy, the greatest
achievement of the theory of social justice to emerge from academic Philosophy in the West, say
virtually nothing about racial oppression, migration, international justice, gender, the environment, or
the legacies of colonialism and imperialism? brief chapters on civil
disobedience, just war, and intergenerational justice, it is hard to believe this work is a product of the
1960s.

Some of TJ limitations may be endemic to political philosophy, specifically in the liberal or

social-contract tradition for instance, the emphasis on individuals, law, and the methods and
assumptions of neoclassical economics and the consequent difficulty of addressing extralegal social
power, racial formation, gender norms, the , and so on. Other limits may be due to
rather than the more urgent task of - on
the assumption that you need to know what target to aim at in order to know which social changes
would move you towards rather than away from that target. And still other limitations may be due to
the demographics and social structure of the profession of philosophy at the time, namely, that it was
largely an in-club of financially comfortable white men at a handful of elite institutions who mostly read

A wide variety of these issues have been addressed in the philosophical literature of recent decades. A
concluding task for this review is to
philosophy, plus his philosophical methodology, did or could address these ignored questions. It is not
claimed that TJ ; debate in every area continues.

An early challenge to TJ had to do with international justice. Rawls imagined that the society in question
people enter only by birth and exit only by death, and the principles of
justice apply only within such societies and not beyond them. This seems to imply that Rawls has no
objection to staggering inequality across borders, or even colonial relations between states, just so long

Information Classification: General

 as there is a liberal democracy within each state. ( The Law
of Peoples did not do much to allay these concerns, but opened new lines of criticism.) Moreover,
scholars of migration have wondered how he could be so ignorant of the perennial fact that people
cross borders, particularly given that the US is widely seen as

Rawls would deny that his has to do with migration at all. Rather, it reflects

must choose institutions they would be willing to live with, come what may. Suppose you were in the
Original Position and you thoug f I come out on top , but if not, I
take a gamble, creating a society with higher peaks and lower valleys. But worse, you would then be
choosing not for yourself but for others: for those left behind or unable to leave. Thus although it makes

assumption was an attempt to ensure that principles of justice are self-imposed and hence freely
affirmed by each of us, and that we choose only something that we can live with. As for international or
global justice, many commentators have argued that notwithstanding what Rawls himself says in TJ or
later in Law of Peoples his methodology does justify a considerably more robust system of global
justice (e.g. Beitz). However, Rawls remained concerned to enable moral, political, and cultural diversity,
and worried that a uniform global basic structure would require a degree of socioeconomic and political
integration that would violate the equal basic liberties and fair equality of opportunity principles. He
thus e instead of affirming a uniform political and economic system
subject to the principles of justice.

Similarly, early critics such as Jane English raised the problem of intergenerational justice and the global
environment. To address this question Rawls prescribes that the Veil of Ignorance hide from us which
generation we are born into and how wealthy our society is. He thinks we would choose
principle requiring that each generation play its part in the multi-generational enterprise of achieving
and maintaining just institutions. In later work, Rawls revised this so
that we would know our generation but choose a principle that we would want all previous generations
to have followed. It is unclear whether either formulation of the just savings principle could achieve the
in order to produce determinate
results. Nor does either method enfranchise animals or the natural environment, thus ensuring that
. In addition to environmental challenges that arise due to the
finitude, other environmental challenges arise due to the inevitable unpredictability:
earthquakes, disasters, pandemics, and so on. In the Original Position we should know that such
disasters are an inevitable part of life on Earth, and we would presumably demand that just institutions
be structured for ethical disaster preparedness, mitigation, and burden-sharing. It is not clear, however,

Gender, Race, and Colonialism

One jarring
fathers owe to sons and what people in the Original Position would choose if they imagined themselves
as fathers. Further, in addressing the problem of just savings he recognizes that justice is a
multigenerational enterprise, but he never considers what those who enjoy more-just institutions owe
to the descendants of those who, in the past, were treated unjustly. These two gaps open out to major
questions about gender justice and racial justice both within and across generations.

Information Classification: General

 Numerous scholars, most famously Susan Moller Okin, have argued that, try as we might, it will be
between genders or within the family. One
way of seeing the problem is by noting that households have different numbers of people in them; some
adults live alone, others live in households of one or more other wage-earners and multiple children and
retirees, and so on. Is the degree of social inequality, then, to be measured across households, or across
individuals? Suppose distributive justice allows a maximum wealth difference of 5:1 between the richest
and the poorest individuals. But then, two rich people marry and found a family. Suddenly the rich
household has 10 times the wealth of the poorest individual. So the whole system is put off. But if the
permissible wealth differentials are between households, now the principles have nothing to say about
justice between spouses. Similar problems arise when we think of justice between overlapping
generations. So far, at least in modern societies, humans do not seem to have invented a social unit,
other than the family, in which children can be reared with the love and attention they need. Yet if in a
just society the social mores and habits inculcated in better-
competitive chances in the economy going forward, the sorting required for fair equality of opportunity
will be hindered, and class status will be heritable (74). The family is thus both required for justice, and
corrosive of it.

Now imagine a society that meets the standards of Rawlsian justice in the abstract, but women are
disproportionately at the low end while men are disproportionately at the high end of the distributive
scheme; or racial minorities disproportionately low and white people disproportionately high. Has
anything gone wrong ? Further, suppose that one reason for these
unequal outcomes is that young women or minorities in the education system tend to believe that they
are the most lucrative or powerful sectors, and hence form preferences to pursue
lower-status and lower-paying positions, leading to a sorting that seems both unjust and yet perfectly
voluntary.

Rawls suggests that, once out from under the Veil of Ignorance, we should be able to take any salient
social identity and check it for these kinds of systematic biases, and continually refine
achieve and maintain background justice (307). But it will be a
challenge to fix these problems; liberal principles have a hard time addressing social mores,
behavior patterns, and sedimented gender roles all the more so if we have not worked out the
intrafamilial justice issues mentioned above. Even deeper problems arise in the context of historic
injustices such as colonialism, slavery, segregation, and the legacy of periodic flareups of intercommunal
terrorism used to keep these systems in place. If property rights or social capital are in any way
heritable, should descendants of victims now be compensated by descendants of perpetrators? Could
a principle of intergenerational justice include a requirement to make whole, in some way, the past
victims of the unjust practices of the present state? And even more fundamentally: if we live in a settler-
colonial state, who should be choosing principles of justice for us the wrongfully displaced indigenous
peoples and their descendants, the colonizers and their descendants, or all together? Whichever answer
we give here, we seem to be choosing a side in a debate that is itself about justice, and so the theory of
justice presupposes prior principles of just territorial control or what it is for us all to be one people.

Other Applied Issues

principles articulate, if not fully sufficient conditions of justice, at least good shorthand starting points.
Consequently, the Original Position model with a Veil of Ignorance has become a very familiar and

Information Classification: General

 popular method of posing questions and framing theories in virtually every social context where
benefits and burdens are distributed, including health and health care (Daniels), the workplace (Arnold),
environmental justice (Bell), and racial justice (Shelby). Though the direct impact of Theory of Justice
may have waned, its indirect impacts continue to expand.

Questions for Self-Review

1.
situation. What makes the choice situation
2. a whole system of liberties
rather than any single liberty). If you think your basic rights are important, is the priority of
liberties sufficient to protect basic rights? What would be different if Rawls had made basic
rights primary instead?
3. Rawls remarked that his principles of justice can be said to capture the classic liberal ideals of
liberty, equality, and fraternity, with the Difference Principle specifically connecting to the ideal
of fraternity. How do the principles capture these ideals?
4. Cardiologists heart doctors have the highest median pay of any career in the United States.
Do they deserve their high pay? How would Rawls assess this question?
5. gy
be applied to this question?

Works Cited & Supplemental Reading

i Journal of Political Philosophy 20 #1 (2012), 94-118.

Beitz, Charles. Political Theory and International Relations, 2nd ed. Princeton: Princeton University Press,
1999.

Environmental Ethics 26 #3 (2004),

287-306.

Daniels, Norman. Just Health. New York: Cambridge University Press, 2007.

Philosophical Studies 31 #1 (1977), 91-104.

Mills, Charles W. Black Rights/White Wrongs. New York: Oxford University Press, 2017.

Okin, Susan Moller. Justice, Gender, and the Family. New York: Basic Books, 1991.

Rawls, John. Justice as Fairness: A Restatement, ed. Erin Kelly. Cambridge, Mass: Belknap Press/Harvard
University Press, 2001.

Rawls, John. The Law of Peoples. Cambridge, Mass: Harvard University Press, 1999.

Shelby, Tommie. Dark Ghettos: Injustice, Dissent, and Reform. Cambridge, Mass: Belknap Press/Harvard
University Press, 2018.

Information Classification: General

 ROBERT NOZICK’S ENTITLEMENT
THEORY OF JUSTICE: A CRITIQUE

Osita Gregory Nnajiofor*

&
Chinedu Stephen Ifeakor*
http://dx.doi.org/10.4314/og.v12i 1.8

Abstract
The burden of this paper is to critique Robert Nozick’s entitlement
theory of justice which was drafted as an argument against
traditional distribution theories. Nozick’s theory of justice claims
that whether a distribution is just or not depend entirely on how it
came about. By contrast, justice according to equality, need, desert
or Rawl’s Difference principle depends entirely on the “pattern” of
distribution. He objected to these patterned distribution due to their
deficiencies. To this he propounded the entitlement theory which is
primarily concerned with respecting people’s rights, especially, their
rights to property and their rights to self-ownership. Entitlement
theory of justice involves three ideas; justice in acquisition, justice in
transfer, and rectification of injustice. Most political philosophers
rejected Nozick’s entitlement perspective, for its shaky foundation
and lack of practical relevance. This paper therefore attempts to
inquire into Nozick’s theory to highlight some of the percieved
strenghts, defects, inconsistencies and hidden fallacies and to offer
some remedial solutions where necessary. We then conclude that
through affirmative action and his rectification criteria that his
philosophy is still relevant in our contemporary world.

Introduction
Robert Nozick is a Havard professor with wide-ranging
interest and one of the most influential political philosophers, along
with John Rawls, on the Anglo- American tradition (Fesser , 2003).
His first and most celebrated book, “Anarchy State and Utopia”
produced a revival of the discipline of social and political
philosophy in the analytic school. There has in the years been no
sustained and completely argued challenge to the prevailing
conception of social justice and the role of the state than with the
Nnajiofor & Ifeakor: Robert Nozick’s entitlement theory of justice…

arrival of Nozick’s work. In the light of his entitlement theory of

justice, Nozick was critical of John Rawl’s difference principle. As
for Rawl, his difference principle captures – the idea of a fair
distribution of the benefits and burdens of social co-operation.
Nozick challenges the view that the difference principle represent
fair terms of social co-operation on three grounds. First of all, the
idea that talents are somehow common property, diminishes the
“dignity and self-respect of autonomous being’’ because it
“attributes everything noteworthy about the person to certain sorts
of “external factor.” Secondly, Nozick challenges the Rawlsian
assumption that a person’s endowments are arbitrary from a moral
point of view, because we can be entitled to something without us
deserving to have it. Thus a person may be entitled to his talents
without deserving them. Thirdly, using the better-off to benefit the
worst–off is to violate the Kantian injunction never to use people as
means but always as ends. This led him to propound a theory of
distributive and private property in attempt to describe “justice in
holding” (Nozick, 1974:150) or what can be said about and done
with the property people own when viewed from a principle of
justice. There are three aspects to this, which are:
(a) a principle of justice in acquisition- which is an initial
acquisition of holding. It is an account of how people first
came to own property, what types of things can be held and
so forth.
(b) A principle of justice in transfer- which is how one person
can acquire holdings from another, including voluntary
exchange and gifts.
(c) A principle of rectification of injustice- which is how to deal
with holdings that are unjustly acquired or transffered,
whether and how much victims can be compensated, how to
deal with long past transgressions or injustices done by a
government, and so on.
Nozick believes that if the world were wholly just, only the
first two principles would be needed, as “the following inductive

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definition would exhaustively cover the subject of justice in

holdings.
A) A person who acquires a holding in accordance with the
principle of justice in acquisition is entitled to that holding.
B) A person who acquires a holding in accordance with the
principle of justice in transfer, from someone else is entitled
to the holding.
C) No one is entitled to a holding except by (repeated)
application of 1 and 2 (Nozick 1974:151)
Unfortunately, not everyone follows these rules, “some people steal
from others or defraud them, or enslave them, seizing their product
and preventing them from living as they choose, or forcibly exclude
others from competing in exchanges”. (ibid:152). Thus the third
principle of rectification is needed.
Self ownership is the cornerstone of Nozick’s work. It is from this
source that the right of the individual and the minimal state
originate.
From the above exposition, the strenghts and the weakneses
of Nozick’s entitlement theory are apparent. This paper therefore
attempts to inquire into Nozick’s theory to highlight some of these
perceived strengths, defects, inconsistencies and hidden fallacies and
to offer some remedial solutions where necessary. Then know how
consistent and relevant his philosophy is to our contemporary world.

Exposition of the Entitlement Theory Justice in Acquisition

According to this theory, a possession is justly held if it was
acquired in a just fashion. But it says nothing about the process of
initial appropriation, however. To this, Nozick appeals to the
“Lockean proviso”, such that an individual can legitimately claim
possession of the natural world. For according to locke:

Whatsoever then he removes out of the state that

nature have provided, and left in, he hath mixed his
labor with, and joined to it something that is his
own, and thereby makes it his property. It being by
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Nnajiofor & Ifeakor: Robert Nozick’s entitlement theory of justice…

him removed from the commonal, state of nature

hath placed it in, it hath by this labor something
annexed to it, that excludes the common right of
other men: for this labor being the unquestionable
property of the laborer, no man but he can have a
right to what that is once joined to, at least where
there is enough, and as good, left in common for
others. (Locke, Ch.5, sec.27)

There are serious questions that can be asked concerning Nozick’s

theory of justice in initial acquisition. Like, “What is original
acquisition”? asks Palmer (2005:358) Adam’s and Eve’s? He
observes that most current holdings are historically traceable to
items that were once the spoils of war or of other forms of removal
by force or intimidation. He says:

My country was once the territory of the Miwork

Indians. I don’t know if the miworks wrested this
land from anearlier prehistoric people, but I do
know that the Miwoks did not simply bestow the
land on the European settlers who are my ancestors.
(ibid)

Equally the same generalization will be made that the first American
colonialst had no legitimate claim to the land that they either through
violence or conned whole population out with unquestionably unfair
trades (such as the infamous beads-for Manhattan transfer)
The same problem is also raised by American’s history of slavery. It
can be once again generalized that for over two hundred years,
citizens of the United States as a whole benefited from the
subjugation of the entire race. The labor being exercised (the slaves)
was not that of those who benefitted (the slave owners), and thus no
legitimate claims can be made to any of the fruits of that labor. And
because they benefits of this ill-gotten labor were spread even to
those who did not condone slavery, the legacy of slavery is
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essentialy one of blood money, staining the hands of all involved

and so not justly acquired.
From here we can conclude that Nozick’s just acquisitions
seem untenable, especially in the way that he establishes that
acquisition must be gained. The question is that in today’s world,
does anybody have just entitlement to her or his property derivable
from original acquisition? Cohen (1995) noted that as long as
historical injustices are unresolved, Nozick’s entire position on right
and minimal state is rendered nigh invalid. As noted, historical
injustice violates property rights. If property rights are allowed to
remain comprised, then there is no moral objection to further
infringing property rights- for instance, through taxation. The
minimal state would cease to be the most extensive state that can be
justified, then a Rawlsian welfare state or Hobbesian Leviathan
would be made morally justifiable.
Since the principle of justice in acquisition of property
affirms very strong property rights. In Nozick’s view every
individual is entitled to sell or use their natural endowment willingly
or as they might please. There is however a slight problem because
he does not come up clearly on the foundation of the same property
rights. The clearest issue is the fact that he does not base this to the
right to life and there is no utilitarian foundation (Goldsmith; 2006).
Critiques therefore argue that Nozick does not provide a persuasive
foundation that explains much about private property.
Vargas (2010), observed that the most significant
shortcoming of the entitlement theory is that it is a construction
without any foundation ….as it is, it has very little, if any practical
value. He also noted that instead of providing an original principle of
justice in acquisition, Nozick refer his to Locke’s theory of property.
By doing so, he inherits all the weaknesses of the lockean theory of
property. This is particularly important since if the principle of the
theory in acquisition is flawed, the entire entitlement theory
collapses, because this principle constitutes the foundation of all
kinds of entitlement to holdings.

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Nnajiofor & Ifeakor: Robert Nozick’s entitlement theory of justice…

If we are to go by Nozick’s theory of justice in acquisition, there

is no parameter to measure original/initial acqusitions, the sources of
what we presently use are unknown, so do we go about asking for
the justification of our holdings. It could be embarrasing to go from
person to person asking for the authenticity of our holding. Some of
our holdings were inherited either from our fathers and grand
fathers, so there is no way to know whether they were justly
acquired or not. I suggest that conscience should dictate our
acquisition of holdings because going by Nozick’s model will result
to chaos and anarchy in property acquisition.

Principles of Justice in Transfer

Under justice in transfer, it states that whatever is justly held
can be freely transferred. Again he used Locke’s principle to justify
this, for according to Locke:

Again, if he would give his nuts for a price of metal,

pleased with its colour; or exchange his sheep for
shells, or wool for a sparkling pebble or a diamond ,
and keep those by him all his life he invade not the
right of others , he might heap up as much these
durable things as he pleased; the exceeding of the
bounds of his just property not lying in the largeness
of his possessions, but the perishing of anything
uselessly in it. (Locke: Second treatise on
Government, Sec. 46)

(The notion of ‘free” in this case would seem to mean freedom from
force, theft, fraud and so on). Philosophers were critical on Nozick’s
assumption that just situations result from just actions. A
philosopher like Chia (2010), considers a case where an individual
willingly sells himself or herself into slavery. Here, no justice in
transfer was violated but in effect the free individual (an end) is
subsumed as a means, and self ownership violated. Nozick’s tale of
the slave, where the slave has a plethora of rights and benefits but

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not freedom is still amorally unacceptable position. This according

to Chia shows that Nozick’s model does not necessarily remain just
in all cases.
Also, the concept of justice implies that there should be no
prohibition between capitalist actions between two or more
consenting adults. He noted that there are usually some community
concerns in situations where say a husband commits adultery with
someone’s wife. As long as there was no force used, then there is
nothing unjust in this situation in Nozick’s view.
Nozick argues that before a holding could be justly transffered it has
to be justly acquired. He builds on the theory of appropriation
created by John Locke. This theory explains how a person could
own property right for an unowned by the mere fact that he
contributes his labour. Nozick, however changes this a little by
stating that appropriation can never be justified if the condition of
others are no longer at liberty to use the same property would be
made worse by appropriation. For instance, a call centre company is
bought by a mobile service company and the workers of the call
centre company are sent packing, then this could not be considered a
just acquisition. Chia (2010) observes that this is because the
financial condition of the former workers who is no longer at liberty
to benefit from the call centre will deteriorate. It can only be just if
the employees are still retained to work in the same company
although under different employer.
Another criticism leveled against justice in transfer was that
it was not systematically delineated by Nozick. The accumulation of
wealth is said to lead to acquisition of power that might express or
manifest liberty. This implies that it is not socialism that actually
restricts liberty, rather it is capitalism. Goldsmith (2006) states that
critics add that capitalism would lead to exploitation of labour
making acquisition of wealth even more unjust. For instance in the
society, the rich normally have more to say than the poor. This
means that it is because of their wealth that they gain the bargaining
power to control the poor. A poor man will therefore work in a steel
industry for a very little pay that could not even be equated to the

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Nnajiofor & Ifeakor: Robert Nozick’s entitlement theory of justice…

kind of work he does because he has no alternative. The rich man on

the other hand would kick him out if he keeps complaining because
there are still many more people looking for the same job. Inother
words, the rich man has nothing to loose. However, Nozick counters
this by arguing that as long as the arrangement is voluntary and not
forced, there is absolutely no injustice in that.
Nozick insistence that whatever that is justly acquired can be
justly transferred is not true in all cases. A situation where one justly
acquired a certificate either as a lawyer, doctor or engineer, he is not
justified to transfer it to another person. Equally for me, Nozick’s
justice in transfer seems to justify slavery to an extent. For example,
a father can justifiably sell his son to slavery because he is a
justifiable possession and can part with him.

Rectification of Injustice
This third theory theory states that if the current distribution
of holdings are the result of unjust acquisition, then a distribution
which would have arisen had the transaction been just must be
rectified. Nozick (1974:231) says “that although to introduce
socialism as the punishment for our sins would be to go too far, past
injustices might be so great as to make neccesary in the short run a
more extensive state inorder to rectify them”.
This according to Cohen (1995) if the current distribution of
property holdings are as the result of unjust acquisitions, then a
distribution which would have arisen had the transaction been just
must be realised. The simplest way of putting this idea, is that if A
unjustly acquire X from B, and then A may (if necessary) be
compelled to restore X to B. The idea can be made more precise: to
the extent that A has illegitimately worsened the situation of B,
rectification is accomplished If A brings it about that B is no worse
off, given the actions done with a view of rectification, than B would
have been had the injustice not occurred in the first place.
Narveson remarked that this is a tall order, and not easily
accomplished in a wide variety of cases. Indeed, in conspicuously
important cases, it is impossible, for in those cases, B is dead and

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nothing whatever can be done to make B in particular better off than

he is now. And in numerous other cases as well, rectification would
no doubt be very difficult. The fact, that rectification is often
difficult or even impossible, is said by many writers, and evidently
also thought by Nozick himself, to be a major problem for Nozick
theory.
Another important pertinent question to ask is, how far back
should we go when deciding to rectify these injustices? Cowen
(2002) in an attempt to this question noted that the Hopis charge that
their lands were stolen from them by the Navajo. If the United States
government returns land to the Navajos, should it also return some
Navajo property to the Hopi? Equally in the post- communist and
transition economies, should it also return some Navajo property to
the Hopi? Should it matter that the nobles virtually enslaved the
Russian peasantry? Should it matter that the Ghenghis Khan sacked
Baghdad in 1258?
He concurs with our earlier submission that everyone living
today, if they go back far enough can find ancestors who were
oppressed and victimised. Also subsequent corporate assets have
been built on stolen lands or generated by investments on originally
stolen land endowments. So the choice of time horizon for
rectification becomes important to the extent we compound past
losses at positive interest.
Judging by Nozick’s rectification criteria, few current land
titles would satisfy it because it is obviously impractical and almost
certainly unjust to redistribute all the world’s land. Ignorance of
previous transgressions offers no escape here. We would not wish to
overturn all current land titles, even if we knew exactly who had
stolen what from whom.
Another criticism leveled against Nozick’s rectification is on
the account of resource constraints limiting the sum available for
restitution. If oppression destroys economic value, the sum total of
claims may exceed the resources available for rectification.
In the former soviet Union, there is not nearly enough to give
everyone“what they would have had’, had Lenin instituted liberal

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capitalist democracy, nor can ex-dictator of Haiti give back all the
economic value they have destroyed, or even a sizeable fraction
there-of.
According to some estimates, the total national wealth of
Hungary was not greater than the value of the assets confiscated
from Hungarian Jews during the second world war. (Pogany
1997;177).
In sports especially football, Newey (2009) opined that there
has been a collateral damage from footballing injustices, such as
England’s defeat by west Germany in the 1970 tournament. The
wessies winning strike always looked a bit suspect, with Gerald
Muller’s leg well up. Since rectification is the putting right of past
wrong, would Thiery Henry’s hand ball in France’s world cup
qualifier against Ireland offer a mass exercise in rectificatory justice,
with many in the republic calling for the game to be replayed? The
Irish know what they are talking about, having recently had to take
the Lisbon Treaty referenduum to a replay inorder to get the right
result. FIFA has spoils sportingly turned down the Irish FA’s pleas.
Newey contended that if rectification were to be carried out in
football, why stop with Henry’s handball? Why not rectify other
injustices of footballing injustice like the Maradonna’s “hand of
God’s goal” for Argentina against England in the 1986 world cup.
Critiques now argued that if the match should be replayed
would some players who are tired and retired come out of
retirement. Would they be replaced by cardboard cut-outs or by
some of the surviving substitutes? Does this mean that those who
watched those matches are to go back to the stadium and watch the
match replayed, take autographs and redo the events of that day
before justice is realized. This is the problem we are faced with
Nozick’s rectification of injustice, because we have to return the
situation in “statusquo ante bellum.”
How and where do we begin to rectify these injustices?
What of those who we are in possession of their holdings but don’t
know their whereabout again? how do we go about looking for
them? What of those who have long died? Do we return the

179
 Ogirisi: a new journal of African studies vol 12 2016

properties to their children who were not there during the “taking”?
Will it not result to an unjust acquisition from the children, which
Nozick vehemently opposed?
However, Nozick’s model call for the rectification of these
past transgressions of indigenous property rights is not outrightly
untenable. This is currently achieved in some cases through fiscal
compensation or affirmative action schemes.
Charles J. Ogletree in “the case for Affirmative Action” remarks
that after centuries of bias, we stand by policies that redress past
wrong (rectification of injustices).He made this assertion because of
the help he got through affirmation policies. His dreams became
reality as a result affirmative policies in Stanford education. To this
he wrote:

My father, who grew up in Birmingham, Ala, and

my mother, a native of little Rock, Ark, never
finished high school. They grew in a segregated
South that offered few opportunities and many
obstacles for African Americans. I grew up in
Merced, Calif, in an environment where many of my
peers viewed merely staying alive and getting a job
as a successful course in life. But, with a push from
my parents, I was determined to be the first in my
family to attend college. With help from high school
counselors, I discovered Stanford. And thanks to an
aggressive, minority out reach program by the
admission office, I was given the opportunity of a
first rate education. Without Affirmative action, I
would never have applied to and certainly would not
have attended Stanford.

Nozick’s rectification of injustice will be readily useful in

Nigeria where corruption has eaten deep into the fabrics of the
Nation’s marrow. Having explored all options to tackle corruption
and non seems to yield any tangible result. I believe that the
180
Nnajiofor & Ifeakor: Robert Nozick’s entitlement theory of justice…

rectification theory of Nozick will offer the most needed help. So

that before one is cleared of any corruption charge especially
embezzlement of the public coffer, he must have restituted all he had
stolen both during and after he left office.

Conclusion
We have seen that Nozick’s theory is based on three key
principles. Nozick put forward the claim that, inorder to deserve
something, a person must be entitled to it according to the principle
of justice in acquisition, the principle of justice in transfer, or the
principle of rectification. However, he does not tell us what these
principles actually consist of. Consequently this lack much of the
value it could have had if it had been more complete. Instead of
providing an original principle of justice in acquisition, Nozick
refers us to Locke’s theory of property. By doing so, he inherits all
the weaknesses of the Lockean theory of property. This is
particularly important since, if the principle of the theory in
acquisition is flawed, the entire entitlement theory collapses, because
this principle constitutes the foundation of all kinds of entitlement to
holding. In turn, Nozick completely ignores the principle of justice
in transfer. How can we know when it is just to transfer holdings
from one person to another? The entitlement theory provides no
answer to that question, other than suggesting that people are free to
transmit their holdings to others if they wish to do so. The only
principle sufficiently explained, the rectification principle, relies on
the other two in order to acquire any meaning, so if the other two
principles are void so is the rectification principle. How far shall we
go to rectify these injustices? What parameter do we use measure to
measure the quantity of what to rectify of what happened decades
back. What of those that have benefited from those injustices? Do
we term it an unjust acquisition? We have seen that Nozick’s
entitlement theory is not entirely problematic but useful in fiscal
compensation and affirmative action.
Overall, the entitlement theory as it has been put forward by
Robert Nozick feels incomplete, like a law which has a defined

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 Ogirisi: a new journal of African studies vol 12 2016

structure but does not have actual legal disposition inside it to give it
real meaning. These not withstanding, Nozick’s theory has delighted
a number of people whose political posture is decidedly to the right.
But most of the literature that his book has inspired has been critical.
It as if political writers see Nozick’s arguments as important enough
to require as important enough to require a response.

*Osita Gregory Nnajiofor, Department of Philosophy,

Faculty of Arts, Nnamdi Azikiwe University Awka, Nigeria, Email:
gregossy@yahoo.co.uk
*Chinedu Stephen Ifeakor, Department of Philosophy,
Faculty of Arts, Nnamdi Azikiwe University, Nigeria.

182
Nnajiofor & Ifeakor: Robert Nozick’s entitlement theory of justice…

References
Chia, C. “No Man An Island; Refuting Robert Nozick’s
Libertarian Political Philosophy.” Cross-Section 6, 138-146.
2010
Cohen, G.A, Self-Ownership,Freedom And Equality (Cambridge
University Press, 2nd ed), 1995.
Cowen, T. “How Far Back Should We Go?; Why Restitution
Should be Small,(Fairfax, George Mason University Press),
2002. Elster.dox, 16-08-2014
Dworkin, R. in Bryan Magee, Men of ideas: Some Creators of
Contemporary Philosophy (London: British Broadcasting
Corporation), 1978.
Fesser, E. “On Nozick” (Belmont, CA;Wadsworth), 2003.
Goldsmith in “ Nozick And His Entitlement Theory Philosophy
Essay.” Ukessays.com. 2006
Kymlicka, W. Comtemporary Political Philosophy (Oxford
University Press, 2nd ed.1995), 67-8
Locke, J. Second Treatise On Government, Ch.5 Sec.46(27)
Naveson,J.“RectificationandRedistribution..,Present payment,
Past wrongs” correcting impressions from Nozick on
Rectification (University of Waterloo)
Newey, G. “Putting right of Past Wrong” (London Review
Book, 2009)
Nozick, R. Anarchy State and Utopia (New York, Basic Books,
1974)
Ogletree, J. The Case For Affirmative Action” in (Stanford
Alumni, Stanford University)-
alumnistanford.edu/get/page/magazine 22-03-2014
Palmer, A. Does The Centre Hold? An Introduction To Western
Philosophy, 2nd ed (California, Mayfield Publishing Company,
1995), p.385
Pogany, I, “Righting Wrongs In Eastern Europe, (Manchester,
Manchester University Press. 1997)
Vagas, B. Republic Of Men: An Assessment Of Robert
Nozick’s Entitlement Theory, 2009.

183
LAW

Advanced Jurisprudence

Lon L. Fuller
Principal Investigator Prof. Ranbir Singh, Vice Chancellor, National Law University
Delhi

Paper Coordinator Prof. Sri Krishna Dev Rao (Vice Chancellor, National Law
University, Odisha)

Content Writer Dr. Sheela Rai

Associate Professor National Law University Odisha

Content Reviewer Prof. S.K. Bhatnagar (Professor of Law, Ambedkar University,

Lucknow)
 LON.L.FULLER

Description of Module
Subject Name Law
Paper Name Advanced Jurisprudence
Module Name/Title Lon L. Fuller
Pre-requisites Background of positivist thinking of law
would help.
Objectives Purpose of this module is to:

(a) To discuss the theory of Lon L.

Fuller and revival of natural law

(b) To examine the theory of Lon L.

Fuller in the light of the Indian legal
system

(c) To examine the conflict between

obligation to obey law of a citizen

is morally right.

Keywords Law, morality, duty, reasonable, obligation.

Kreon: Now tell me, briefly and concisely:
were you aware of the proclamation prohibiting those acts?
Antigone: I was.
Kreon: You still dared break this law?
Antigone: Yes, because I did not believe
That Zeus was the one who had proclaimed it;
Neither did justice,
Or the gods of the dead whom Justice lives among
The laws they have made for men are well marked out

Or you, who are human,

To violate the lawful traditions
The gods have not written merely, but made infallible.
These laws are not for now or yesterday,
they are alive forever;
And no one knows when they were shown to us first.
I did not intend to pay, before the gods, for breaking these laws
Because of my fear of one man and his principles.
I was thoroughly aware I would die
Before you proclaimed it;

No, I do not suffer from the fact of death

But if I had let my own brother stay unburied
I would have suffered all the pain I do not feel now.
And if you decide what I did was foolish,
You may be fool enough to convict me too.1

This is a dialogue between Kreon King of Thebes and Antigone his niece living under his
protection who decided to bury her dead brother even though Kreon had prohibited his burial. As
per the orders of Kreon dead body of all who had fought against Kreon had to left in open to be
devoured by the vultures. Antigone defies Kreon on the ground that she would rather obey the
law of God and humanity than law of one man.

This is the reply and stand which judges at the Nuremberg trial and jurists like Lon. L. Fuller
would have expected from persons who were obliged to commit atrocities under the orders of
Nazi party and obey the laws of Hitler against the laws of humanity. Fuller is in total agreement
with Gustav Radbruch that it was the excess of positivist thinking that had made Nazi regime
possible. Command of the sovereign had become the final word in deciding its legal character.
The command of positive law theory need not follow any norm of society or principles of

1
Sophocles, Antigone Translated by Richard Emil Braun (Oxford University Press, 1973) pp. 38-39
humanity. Can killing at the order of state be called murder? Judges at Nuremberg and Fuller
said yes. Can an act done at the orders of sovereign be illegal? Again the answer was yes because
the order of sovereign was invalid! This was revival of natural law for the purpose of re-infusing
values in the commands of the sovereigns. This revival sought to put certain normative
limitations on the law making powers of the sovereign. Lon.L. Fuller is the foremost jurist
dedicated to the effort of infusing moral content in the laws made by 20th century sovereigns.

of legality from any

criteria of morality.2 For Fuller law has to contain both inner morality and substantive morality in
order to pass the test of legality. In most cases adherence to former would guarantee adherence to
latter too.3

Inner Morality of Law: Inner morality of law is concerned with propriety in law making
process which would ensure that only just laws are made by the State. For this purpose Fuller
asks us to imagine sovereign Rex who wants to completely overhaul the legal system in his
kingdom. He repeals all existing laws in his kingdom and starts making new laws for his
kingdom by process of trial and error. In this process eight principles of law making are
discovered which should be followed in any law making process. These are as follows:
1. Laws should be general in character

2
Lon. L. Fuller, Positivism and Fidelity to Law: A Reply to Prof. Hart 71 Harv. L. Rev. 630
3
Since Hart-
is discussed.
 2. Law should be made public: Rex initially keeps these laws secret from the public. But
public resents this secrecy as they would like to know in advance the laws which would
make their actions illegal so they can avoid it.
3. Laws should be prospective in nature. Subjects should know the laws in advance.
4. Laws should be clear and understandable
5. Laws should not be self-contradictory
6.
law; it is to unmake law, for a command that cannot be obeyed serves no end but
4
confusion, death
7. es every day is worse than no
5

8. There should be congruence between official action and declared rule.

When these rules for law making are followed, the resultant law is more often than not a just
law.
Substantive Morality: According to Fuller Law has a purpose. Commenting on the open-
texture of law and hard cases of H.L.A. Hart, Fuller stated that when a judge interprets any
law he takes into account the purpose of the law. A judge does not exercise his discretion in
vacuum. The social purpose which was force behind the enactment of the law is taken into
account by the judge in interpreting ambiguous terms or exercising discretion in hard cases.
In this way we see Fuller is close to Dworkin who says that judge has discretion in the weak
sense because a legal system not only comprises of rules but also of principles and in hard
cases judge takes those principles into account.6 Inner morality of law normally ensures
substantive morality also. However, Fuller accepts that law should aim at substantive
morality. For this purpose he distinguishes between morality of duty and morality of
aspiration. According to him morality of duty is the minimum substantive morality which
every legal system should embody within itself. Morality of aspiration is the ideal or goal of

4
Lon L. Fuller, The Morality of Law 37 (1969)
5
Id.
6
 complete justice towards which a legal system should progress. Success in this progress
would depend on many factors. Therefore no legal system should blindly proceed towards
morality of aspiration as it would result in sacrifice of individual rights and liberty.

between morality of duty and morality of aspiration and should work towards achievement
7

Fuller and the Indian Legal System: Fuller developed his theory as a check on excess of
positivist thinking which emphasized too much on autonomy of law from any social or moral
norms. According to positivists,
which had to be followed by the citizens of that State, irrespective of its content. Positivists
7
Lon. L. Fuller The Morality of Law (1969)
 were preoccupied with identifying law as a distinct institution from other social and religious
institutions. Fuller and others who revived the natural law thinking were concerned with the

How far Indian legal system incorporates morality within its ambit? Many provisions of the
constitution empower the legislature to make laws which enforce moral principles, for
example articles, 19(2), 19(4), 25 and 26. However, this is not what Fuller is concerned with.
Enforcement of morality would be more within the ambit of Hart-Devlin debate that has been
dealt in another module. Fuller is concerned with validity of immoral laws. Should an
immoral enactment or
itself normally does not have an answer to this question. A law made by its authorized bodies
after adopting authorized procedure is normally not questioned on the grounds of morality or
natural law principles unless there is another higher law within the legal system against
which its validity can be checked. This higher law or the fundamental law in the Indian legal
system is the C
-
ourts of the country in the process of
examining the validity of legislative or administrative actions through the process of judicial
review, to import prevailing principles of morality and natural law.

The Indian Supreme Court has transformed its role drastically from A.K. Gopalan to present
day. In A.K. Gopalan v. State of Madras8

examined on the grounds of reasonableness and justice. Even

though in Keshavanand Bharti9 the court propounded the theory of basic structure and sought

8
AIR 1950 SC 27
9
Keshvanand Bharti v. State of Kerala (1973) 4 SCC 225
 of the Constitution, in ADM Jabalpur vs. Shiv Kant Shukla10 again except for Khanna, J. the
Supreme Court adopted a strict positivist stance. However, after the emergency the Supreme
Court changed its posture. In Maneka Ghandi v. Union of India11 the court clearly stated that
procedure established by law under art. 21 cannot be any procedure, but has to be just, fair

have also been interpreted in wider sense. Article 14 similarly has been interpreted in wider
sense. Violation of article 14 is now not judged only on the basis of reasonable classification
and intelligible differentia. Even if the law does not violate the two criteria it can still be held
to be arbitrary because in the case E.P. Royappa12 Bhagwati, J. stated that equality and
arbitrariness are sworn enemies. Best example where law was held to be violating article 14
even though there was reasonable classification which corresponded with the object of
legislation is Nergesh Meerza13. In this case the Supreme Court held that the rule whereby
services of air hostesses was terminated on first pregnancy was arbitrary as it insulted the

moral grounds even though in strict positivist terms there was nothing in the primary rule of
obligation which conflicted with the secondary rule of recognition. In this way a positive
norm was adapted to provide justice in particular facts of the case.

Morality, however, is a subjective notion and in a particular case it becomes tricky to predict
what the demand of morality is. The Bearer Bond Case14 is a classic example which shows
that morality can be a debatable issue. In this case the majority of the Supreme Court refused
to declare a law unconstitutional on the grounds of morality and stated that morality cannot
be a criteria for declaring a law arbitrary. Even if a law is considered immoral, it may be
more prudent to allow the law to be implemented. Therefore in the process of judicial

10
(1976) 2 SCC 521
11
(1978)1 SCC 248
12
E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3
13
Air India vs. Nergesh Meerza (1981) 4 SCC 335
14
R.K. Garg vs. Union of India (1981) 4 SCC 675
 review, Court may have to balance demands of morality with many requirements of
statecraft.

The new expanded interpretation of articles 21 and 14 is helping not only to provide justice
in many cases but also to fill in the gaps due to absence of law. In this way right to education,
right to health, prevention of harassment of women at workplace were recognized as part of
right to life under article 21 by the Supreme Court at a time when there were no laws to
protect these interests of Indian citizens. Decisions of the court persuaded the Parliament to
examine these issues and to come out with suitable legislations and amendments in the
Constitution. This way we see that actual positive law followed the decisions of the court
which were made according to certain aspirations of society which were considered to be
good. But what can be the mean between morality of duty and morality of aspiration? The
Supreme Court decision in Minerva Mills v. Union of India15 highlights a situation where it
would be necessary to safeguard individual rights and liberties against socially friendly
policies. In the Indian context fundamental rights can be called morality of duty and directive
principles morality of aspirations. In Minerva Mills case the Supreme Court declared that
amendment of the Constitution whereby precedence was given to all laws implementing
directive principles over fundamental rights was not in consonance with the basic structure of
the Constitution because in the Indian Constitutional scheme there was a balance between the
fundamental rights and the directive principles and this balance was part of the basic
structure of the Constitution. What the Supreme Court called as balance between
fundamental rights and directive p
morality of aspiration mentioned by Lon. L. Fuller.

With regard to inner morality of law Indian legal system provides for rule of law and
procedure established by law and that procedure should be just, fair and reasonable.16 Laws
in India are made public by publication in the gazette. They are normally general in nature.

15
Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
16
Maneka Gandhi v. Union of India
 Although in the case of Chiranjeet Lal v. Union of India17 the Supreme Court had allowed
single person law, normally courts find single person laws incompatible with article 14 of the
Constitution. In Indra Nehru Gandhi v. Raj Narain18 Mathew, J. stated that constitutional
amendments were also law and they cannot be made to decide particular cases, they have to
be general in nature. Art. 20(1) prohibits retrospective laws in criminal liability. But there is
no such prohibition for civil liability. Best examples are tax laws. However, with
development of international accountability, retrospective civil liability as in the Vodafone
Case19 can create problems for the national legal system. As for the inner contradiction in
laws and laws requiring impossible acts is taken care of in cases of interpretation of the laws
and in judicial review. Official actions have to be incongruence with the existing laws
otherwise they are declared ultra-vires and arbitrary in the process of judicial review.20

Law and Morality: Role of Judiciary: In liberal legal regimes natural law principles are
imbibed in certain in certain terms under the fundamental law of that country. Terms like

promulgated by the legislature adhere to basic principles of that social and legal system.
However, for this it is necessary that judiciary itself has to be sensitive and accountable to the
general public of that legal system. In most of the modern democracies judiciary forms the
oligarchic branch of the governance system. In such a situation there is a danger that the legal
system may get divorced from the prevailing social principles as the judges may have no

legal system would fail in this scenario as the legal system may lose the general social
acceptance.

17
AIR 1951 SC41
18
1975 Supp (3) SCC 217
19
Vodafone International Holdings B.V. vs. Union of India & Anr. Civil Appeal o. 733 of 2012 available at
<http://supremecourtofindia.nic.in/outtoday/sc2652910.pdf>
20
For an exhaustive analysis of cases see Udai Raj Rai, Fundamental Rights and their Enforcement (Prentice Hall of
India, 2011)
 Hence it is necessary that appointment of members of judiciary especially higher judiciary is
made through a process where wider social and political participation is possible. This is
necessary to retain higher judiciary that takes decision on important constitutional matter as
responsive to social, economic and political principles instead to becoming an insular group
of persons who have lost touch with people of India.21

21
Sheela Rai, Indian Bar Review Vol. XXVIII (2& 3)
2001, at p. 217.
Morality of Law and Weapon of Civil Disobedience: Advocates of natural law feel that

obey them. In case the legal system itself is abhorrent to the general idea of morality, solution
is simple, revolution. In this case there is little difference between solutions given by Hart
and Fuller. But often it happens that particular laws in a legal system may not be acceptable
to the general idea of morality. In such a case the weapon accepted in civilized societies is
Civil disobedience was used and developed by Socrates,
Thoreau and Mahatma Gandhi as a tool to force change in immoral or unjust laws. Thoreau
used it to oppose certain taxes which he considered unjust. Mahatma Gandhi used it to
oppose taxes on salt. Mahatma Gandhi linked civil disobedience with morality by naming it
m the word Satyagrah is combination of two Sanskrit words
which exists
Therefore only truth can exi omething which is untrue or bad
cannot exist and bad or immoral laws are not laws at all. Civil disobedience is a persuasion to
not enforce law which cannot exist and a subject should be under no obligation to obey it.

at Nuremberg trial expected of persons accused of obeying Nazi law. Something which
Antigone had done by saying she does not recognized existence of laws of Kreon as they
were against laws given by Zeus.
Winter Issue 2016 ILI Law Review

RAWLS’S THEORY OF JUSTICE THROUGH AMARTYA SEN’S IDEA

Dhawal Shankar Srivastav*

Abstract

“The Idea of Justice” by Nobel Laureate, Amartya Sen is a path breaking work on the concept
of justice. His book is not only an extension but also a critique of John Rawls work – Theory
of Justice. He talks about niti and nyaya, former relates to just rules, whereas, the latter refers
to realisation. Niti is an abstract exercise, if implemented completely, would result in
maximum public welfare and justice. Nyaya, on the other hand, relates to the enforcement of
laws and regulations. The concept of justice has been discussed in a very broad manner; to
quote Prof. Sen “...aim is 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”1. According to Professor Sen, Rawls’s emphasis on the importance of ‘ideal
theory’, which is universal and applies everywhere, is doubtful. Through the story of Ann,
Bob and Carla he beautifully exemplifies the problem of scarcity of resources and conflicting
demands of valid claim.

I Introduction

CONCEPT OF justice has been, one of the most complex concepts, consuming a lot of
scholarly ink, yet remaining enigmatic, cryptic and imprecise. Justice is a word of ambiguous
import.2 Even in Bible, Justice is regarded as a general virtue, but there, the concept is
ambivalent because one can observe that all the values are rejected in favour of rather vague
and general standards.3 Plato’s conception regarding justice gave more emphasis on the
substantive portion rather than the procedural aspect.4 As per the utilitarian, justice lies in the
greatest good done to greatest number of people, but the inherent fault lies as to what about
the fact that justice is not being done towards those who do not constitute amongst the
greatest number of people. Marx considered justice as a sham, a mask which facilitates
capitalist exploitation.5 Some believe justice is equality, but equality is equally a nebulous
concept, it is a relative concept, what may be notion of equality for me, may not be equal to a
wage labour so, therefore, it would not appropriate to set standards of justice for the other.

* LL.M. (4th Semester), Indian Law Institute, New Delhi.

1
Amartya Sen , The Idea of Justice 6 (Penguin Book Ltd.,2010)
2 V.R. Krishna Iyer , Social Justice – Sunset or Sun dawn 28 (Eastern Book Co., Lucknow 1987).
3 David L. Sills (ed.,) VIII International Encyclopaedia of the Social Sciences (The Macmillan Co., NY, 1968).
4 Ibid.
5 Ronald Commers, “Marx’s Concept of Justice and the two tradition in European Political thought” 108
Philosophica 33(1984).

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Winter Issue 2016 ILI Law Review

But this type of comparative approach is very necessary when it comes to the question of
advancement of justice, as the process of comparing, somehow makes room for debate,
thereby admitting multiple sets of opinions and thereby preventing the concept of justice
from a unilateral and unipolar interpretation.

The social contract theory as propounded by Hobbes, Locke and Rousseau, concentrated
mainly on the institutional arrangement for a society. This approach, which can be called
‘transcendental institutionalism’, has two distinct features. Firstly, it concentrates its attention
on what it identifies as perfect justice, rather than on relative comparisons of justice and
injustice. Secondly, in the quest for the perfection, transcendental institutionalism
concentrates primarily on getting the institutions right rather concentrating on the actual
societies that would ultimately emerge.6

The buck stops here, what is justice? In order to understand it, it is very necessary to
understand what injustice is and how to mitigate it , men turns to the meaning of justice when
they themselves have experienced it, the history is replete with such instances, even Mahatma
Gandhi started his quest for justice, for independence, when he himself experienced the
ignominy, when he himself felt the brunt of injustice, therefore, injustice is that potent
equipment through which a person understands the importance of justice, he associates
himself to the injustice perpetrated on others and thus prepares himself against injustice, thus
we can see that justice is an active process, a decisional process which helps one to bar a
course which is wrong, by experiencing injustice a person tries to bring justice by
rectification of that injustice or at least by devising methods through which that injustice
could further be prevented. This is what lies in the heart of arguments which Professor
Amartya Sen has made. He contradicts Rawlsian concept of justice. Rawls attempts to a
theory of justice by proposing a new social contract theory, he construed the notion of justice
in terms of maximisation of liberty, equality and opportunity as the central theme seeing
‘justice’ in the light of ‘fairness’. Sen argues that the basic problem associated with Rawls
concept of justice is that, it also rests on some pre requisites as the earlier theories of social
contract, i.e., on a perfect arrangement, such perfect arrangement is simply impossible as the
plurality of opinions will never allow any arrangement to become perfect, therefore, in
absence of such a perfect arrangement the concept of justice as such may never fructify, it is,
therefore, necessary to understand the ‘idea of justice’ first and then to approach towards the

6 Supra note 1 at 6.

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Winter Issue 2016 ILI Law Review

‘concept of justice’ subsequently. The aim should be to mitigate injustice and justice shall
automatically advance, unfurl and bloom. The present paper shall deal with these broad
frameworks, it will deal with the Rawlsian’s approach towards justice in the light of the book
‘Idea of justice’ written by Professor Amartya Sen. The paper shall also show that how Sen’s
idea of justice completes the concept of justice propounded by John Rawls.

Rawls’s theory of justice in a nutshell

John Rawls theory of justice had come up at a time when all what everyone talked about was
regarding maximising the welfare of society or the utilitarian concept of maximising the
happiness of the majority of the people, ‘justice’ as a concept was least talked about, least
discussed about. Rawls’s theory of justice was in a way an alternative to the classical
utilitarian.

Rawls theory of distributive justice is based on the idea that society is a system of
cooperation for mutual advantage between individuals. As such, it is marked by both
conflicts between differing individuals’ interests and an identity of shared interest. Principles
of justice should ‘define the appropriate distribution of the benefits and burdens of social co-
operation. One must not fail to observe the fact that Rawls’s theory of justice as fairness,
stretches its roots from the social contract theory, Rawls argues that it is necessary to
distinguish between the genuine judgements about justice (which people have) and their
subjective, self-interested views. After arriving at those objective principles, it should be
measured against our own judgements, there will be inevitable distinction when one resorts
to such measurement, therefore, it is important to modify our own judgement in such a way
that a stage of equilibrium could be reached in which these two situations are similar; this is
the situation of ‘reflective equilibrium’.7

In his rather complex theory, Rawls starts with a moral conjecture, that justice is tied to
fairness, with a fair society and fair institutions and those members of the society adopt this
situation in order to arrive at fundamental principles of justice. The ‘original position’ is a
central feature of John Rawls’s social contract account of justice. In the words of Rawls the
original position is simply a hypothetical thought experiment that seeks to:8

7 Raymond Wacks, Understanding Jurisprudence 222 (Oxford University Press, New York, 2nd edn. , 2009).
8 Id at 223.

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Winter Issue 2016 ILI Law Review

Make vivid to ourselves the restrictions that it seems reasonable to impose on

arguments for principles of justice, and, therefore, on these principles
themselves.

Rawls imagine people in the hypothetical situation of ‘original position’ and places upon
them the restraint of the ‘veil of ignorance’. This veil denies them knowledge of their status
(e.g. gender, ethnicity, economic standing, intelligence etc) and their perception about ‘good
living or well being’. In the words of John Rawls’:9

No one knows his place in society, his class position or social status, nor does
anyone know his fortune in the distribution of natural assets and abilities, his
intelligence, strength, and the like. I shall even assume that the parties do not
know their conceptions of the good or their special psychological propensities.
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 the result of a fir agreement or
bargain.

So basically, according to Rawls this is a special type of arrangement, a contract where

people favours for a strategy which maximises the prospects of the least well- off. Once the
veil of ignorance is lifted and once the people leave their original position, the contract shall
be maintained, out of respect for each other. So basically this is a kind of radical egalitarian
liberalism in which focus is on the fact that one person should not resort to maximising profit
so much that it leads to deterioration of the other person.

Rawls original position has been designed to be a fair and impartial point of view that is to be
adopted in our reasoning about fundamental principles of justice and exclude personal
interest when choosing the ‘basic principles of justice’ so as to ensure generality and validity.

II Principles of justice

9 Supra note 7 at 224.

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Rawls’s basic principles of justice are generalised means of securing generalised ends. It
primarily deals with the aspect of distribution of wealth, if behind the veil of ignorance the
people are confronted with the question as to whether they will accept the utilitarian principle
of distribution of wealth. The answer will be a certain no, because anyone under the veil of
ignorance will like to be treated with dignity, once the veil of ignorance goes up. He will
stipulate basic liberties such as right to life, liberty, freedom of consciousness and religion,
assembly etc and these basic liberties will similarly be demanded by a member of minority
community as well, he will not take chance of ending up a member of oppressed minority
being tyrannized by a majority. This brings us before the ‘first principle’ of Rawls i.e., the
‘Liberty Principle’. Rawls in his book Political Liberalism included this principle in a form
of guarantee of fair value of the political liberties. The fair value of political liberties requires
that “citizens similarly gifted and motivated have roughly an equal chance of influencing the
government’s policy and of attaining positions of authority irrespective of their economic and
social class.10 Thus ensuring that members of a social group are able to participate in the
political process which conforms to the principle of equality.

Now coming to the ‘second principle’, which proposes that “social and economic inequalities
are to be arranged in such a way so that they are both

i. Reasonably expected to be to everyone’s advantage , and

ii. Attached to offices and positions open to all under conditions of fair equality of
opportunity

According to Rawls, social and economic inequalities should be so arranged so that they are
for the greatest benefit of the least advantaged persons, also known as the ‘difference
principle’. The people under the veil of ignorance don’t know that under what system are
they going to be placed in, if the veil is lifted, whether they will be healthy or unhealthy, rich
or poor. Therefore, it is advisable to have an arrangement, whereby there is an equal
distribution of wealth so as to ensure that each member is on a safe side. Or the members can
go for a different setup, on a qualified principle of equality (difference principle), according
to which, only those social and economic inequalities will be permitted that work to the
benefit or advantage of the least worst off.

10 John Rawls, Political Liberalism 358(Columbia University Press, New York, 1993).

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Fair equality of opportunity maintains that “offices and positions” should be open to
individual, regardless of his/her social background, ethnicity or sex. Rawls rejects the idea of
feudal aristocracy. Rawls argues that an individual should not only have the right to
opportunities, but also an effective equal chance as another of similar natural ability. Formal
equality of opportunity is satisfied if there are no discrimination legal barriers that bar some
groups in society from access to social institutions and offices.11

Rawls do not overrule the possibility that these two primary principles will be in conflict with
each other. To meet this difficulty Rawls proposes certain ‘Principles of Priority’. Such
priority is ‘lexical’, i.e., the first has to be fully satisfied before the second is to be considered.
These principles have been arranged lexicographically which means that the first principle of
justice takes priority over the second and the principle of fair equality of opportunity takes
priority over the difference principle. This implies that the equality of basic liberties and
rights, including the fair value of the political liberties, is not to be overridden by other
considerations.

Rawls and beyond- Sen’s critique of Rawlsian’s approach

Sen’s chief argument against Rawls theory is that the ‘transcendental institutionalism’ is
nothing more than a moral conjecture, a hypothesis, on which he progresses his theory and
which subsequently gets infested with certain limitations.

The first objection which Sen raises is that the ‘original position’ which Rawls is talking
about, creates a hypothetical situation, in practicality it may never be able to incorporate
multifaceted, diverse, variegated, conflicting but very genuine and cogent demands of a large
plurality. Sen beautifully exemplifies his point with the help of the example of the illustration
of three children and a flute.12 With resources being limited we may not be able to meet the
plurality of genuine voices airing their genuine demands. Anne, Bob and Clara are all well
raising their genuine arguments and these genuine demands cannot be brushed aside by
giving a superficial argument of being foundation less which is based on the pursuit of human
fulfilment, or removal of poverty, or entitlement to enjoy the products of one’s own labour.13

11 Arneson , Richard, “Equality of opportunity” The Standard Encyclopedia of Philosophy (Summer 2015
edn.), Edward N. Zalta (ed.), available at: http://plato.stanford.edu/archives/summer 2015/entries/equal-
opportunity/(last visited on Mar. 25, 2015).
12 Supra note 5 at 128.
13 Ibid.

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So in a way transcendental theories of justice do not resort to comparative assessment

between pair of alternatives, what Prof. Sen wants to propose is that concept of justice should
not be indifferent to the lives of people which they are actually living.

Discussing further about his ‘principles of justice’, Sen argues that there is an inner
dichotomy in Rawls’s liberty principle. As said before, priority has been given to the liberty
principle over the second principle which relates to the equality of certain general
opportunities and to equity in the distribution of general – purpose resources.14 In other words
liberty is that sacrosanct principle which people will not like to compromise about even if it is
related to better distribution of wealth or even if it facilitates furtherance of wealth i.e., the
concept of liberty cannot be reduced to the level of a mere facility, but if we see when Rawls
deals with the ‘primary goods’ then it includes things such as rights, liberties and
opportunities, income and wealth, and the social bases of self respect.15 We can see that
liberty though has entered but just in from of a mere facility. One can see that the concept of
liberty is being treated like a king and a slave simultaneously. Again, why such kind of
unrestrained priority is being given to liberty, aren’t hunger, starvation and medical neglect
etc less important than personal liberty?

It is important to see that in his pursuit of advancing his principles of justice he excluded the
idea of merits and just deserts, or on ownership of property. He allows room for only those
inequalities that would help the worst off. May be incentives can be given so that it instils
amongst the member a new vigour and new vitality which can catapult them to do their work
more efficiently. Here Sen argues that should not the principles adopted at the original
position eliminate the need for incentives? Somehow we can see that Rawls is taking one step
forward and then simultaneously going back two steps.

IV Niti over nyaya – The cornerstone of Sen’s idea of justice

It has been dealt that how Sen consider the perfect model of justice as redundant, he believes
that all these transcendental system of justice are impregnated with a basic flaw that do not
emphasizes on reduction of justice and instead emphasises on advancement of justice without
taking into consideration that plurality of demands will not let this perfect system of justice to
stand on its feet. According to Sen, presence of remediable injustice may well be connected
with behavioural transgressions rather than with institutional shortcomings. Justice is

14 Supra note 2 at 15.

15 Supra note 7 at 226.

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ultimately connected with the way people’s lives go, and not merely with the nature of the
institutions surrounding them.16

Professor Sen took cue of the early Indian jurisprudence to shed light on the different
concepts of justice, ‘Niti’ and the ‘Nyaya’. The idea of niti relates to organizational propriety
as well as behavioural correctness, whereas the latter, nyaya, is concerned with what emerges
and how, and in particular the lives that people are actually able to lead.17 In other words it is
necessary to assess the roles of institutions on the basis of fact that how much inclusiveness is
reflected in them i.e., in the broader perspective of nyaya, which pertains to the world that
actually emerges and not just constricted to the institutions that we possess.

Sen gives an example to show the difference between niti and nyaya. Ferdinand I, roman
emperor in the sixteenth century claimed: ‘Fiat justitia , et pereat mundus’, which can be
translated as ‘Let justice be done , though the world perish’. This is an example of a very
austere form of niti which advocates even bringing of catastrophe, but without considering
the fact that how justice will be done if world will perish? According to Professor Sen, a
realization- focussed perspective also makes it easier to understand the importance of the
prevention of manifest injustice in the world, rather than seeking the perfectly just.18 He
further gave an example that the agitation against slavery in the eighteenth and the nineteenth
century was not successful because they were labouring under the belief that abolition of
slavery will lead to a perfectly just society. It was intolerably nauseating injustice that made
abolition of slavery a priority.19 Even though the arrangement – centred perspective of niti is
often interpreted in ways that make the presence of appropriate institutions themselves
adequate to satisfy the demands of justice, the broader perspective of nyaya would indicate
the necessity of examining what social realizations are actually generated through that
institutional base.20 Such a system can help to incorporate and accommodate divergent points
of view. Sen also visualises a set of principles for justice for the modern world that will avoid
parochialism and address the vital questions of global injustice.

Sen acknowledges the fact that institutions play a very important role in sharpening our
ability to scrutinize the values and priorities that we can consider , especially through public
discussions and democracy is such an institution, which is assessed in terms of public

16 Supra note 1 at X.
17 Supra note 1 at XV.
18 Supra note1 at 21.
19 Ibid.
20 Supra note 1 at 82.

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reasoning , an institution of democracy should be judged on the touchstone of the extent, as to

how different voices from diverse sections are able to put forth their voice and their voice
actually been heard and not just about the formal existence of the institution, because a
democratic institution, if fails to provide representation to the people, fails to provide the
much needed opportunity to put forth their voice then the institution is insipid.

V Conclusion

Sen’s work though criticizes the notion of perfect justice and rather advocates removal of
injustice, but this very idea can be debated. The search for perfect justice aspires to an
unachievable completeness but the problem is that many plausible cases of injustice are much
more complicated.21 If we look into the complex question of gender inequality, we may get
conflicting opinion regarding what really is unjust as our conception may differ regarding
what should be considered as injustice pertaining to gender. Today questions are coming
before society that whether men should also be given incentives on the line of women as a
men also involves his labour in child rearing and domestic care, should there be a concept of
paternity leave? Some people think that in order to ensure equality in opportunity between
men and women, legal barrier must be lifted. These questions are very difficult to answer
both men and women may reason that injustice is being done to them. The point is that there
are times when a person cannot figure out what constitutes a move to a superior, more just
position without reflecting upon and working out her own conception of what “perfect”
justice entails. There are times when we need a Mona Lisa to anchor our judgements about
Picasso and Dali.22

A vision of just society puts forth before an existing society a sort of vision, a noble
pursuit which a society should aspire to accomplish, it is not necessary that the vision comes
into reality but at least it leads to fulfilment of some tenets of that vision. Karl Marx theory
was also regarding a perfect society in which labourers were no more the subjugated class,
the theory was brushed aside as being hypothetical and not tenable and yet it has not led to
the establishment of setup which Marx envisioned, but it paved a way, where economic
reforms were rolled down, legislatures such as workmen compensation act, labour laws etc.
were possible. A vision for perfect society also leads to lessening of injustice.

21 Debra Satz, “Amartya Sen’s The Idea Of Justice : What Approach , Which Capabilities” 43 Rutgers Law
Journal 277(2012 ).
22 Id at 281.

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However, both Rawls and Amartya Sen are traversing on the same path and they have similar
opinion in this regard that utilitarianism or a conception of system which only promotes
welfare of majority or happiness of greatest number is not correct. Sen uses an analogy of old
Hindu jurisprudence regarding the Matsyanyaya or the judgements of the fishes, where big
fish devoured small fish, is somewhat identical to the utilitarian principle that exists today,
and cannot be said to be chink free.

It is hard to conclude that whether Rawls’s ‘Concept of Justice’ is better or Sen’s ‘Idea of
justice’ and this would not be a good point to discuss about. However, it can be to put forth
that Sen’s ‘Idea of Justice’ in a way completes and moves forward Rawls’s ‘Concept of
Justice’. So, Sen’s effort should be seen as fulfilling the grooves of Rawls’s concept and not
an alternate view.

160
Chris Brown
On Amartya Sen and The idea of justice

Article (Accepted version)

(Refereed)

Original citation:
Brown, Chris (2010) On Amartya Sen and The idea of justice. Ethics & international affairs, 24
(3). pp. 309-318. ISSN 0892-6794

DOI: 10.1111/j.1747-7093.2010.00269.x

© 2010 Carnegie Council for Ethics in International Affairs

This version available at: http://eprints.lse.ac.uk/31273/

Available in LSE Research Online: February 2011

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