DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

2021-2022

SUBJECT- JURISPRUDENCE

TOPIC- THE IDEA OF JUSTICE UNDER JURISPRUDENCE

Submitted by: - Submitted to:-

PRACHI PANDEY Dr. SHAKUNTALA DEVI
ROLL NO. 200101171 Assistant Professor (Law)
Semester- V

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 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me

during the writing of this project.

The name, Dr. Shakuntala Devi stands on the top of this hierarchy. A very

warm thank you to my professor, who guided me throughout the project and

also helped with my research, which eventually lead me to know of umpteen

new things in this regard.

Secondly, I would like to thank my friends who helped me a lot in finishing this

project within the limited time. The sole purpose of making this project is not

only good grades but to increase my knowledge as well. Thanks again to all

who helped me.

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 TABLE OF CONTENTS

Table of Contents
TABLE OF CONTENTS ........................................................................................................... 3
INTRODUCTION ..................................................................................................................... 4
THEORIES OF JUSTICE AND INDIAN JUDICIARY....................................................... 4
RAWL’S THEORY OF JUSTICE: ................................................................................... 4
DWARKIN’S RIGHTS THESIS:...................................................................................... 5
AMARTYA SEN’S SOCIAL CHOICE THEORY:.......................................................... 5
PLATO’S THEORY: ......................................................................................................... 5
ARISTOTLE’S THEORY: ................................................................................................ 5
INTRODUCTION TO CORRECTIVE & DISTRIBUTIVE JUSTICE .................................... 6
CORRECTIVE JUSTICE AND ARISTOTLE’S THEORY ..................................................... 6
THE REGULATIVE ELEMENTS OF CORRECTIVE JUSTICE ........................................... 7
CORRECTIVE JUSTICE AND ITS CONTRAST WITH DISTRIBUTIVE JUSTICE .......... 8
RIGHTS AND DUTIES OF THE PARTIES INVOLVED ...................................................... 9
OUTCOMES OF CORRECTIVE JUSTICE ........................................................................... 10
ROLE OF CORRECTIVE JUSTICE IN SOCIETY ............................................................... 11
CONCLUSION ........................................................................................................................ 13

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 INTRODUCTION
According to jurist, the best indicator of a nation’s political success is its administration of
justice. Certain jurists also inculcate the idea of justice in their definition of law itself. One of
the most important functions of states is to ensure justice to their citizens. It is not only a
responsibility but a duty of the state too to ensure proper administration of justice in
consonance with its established legal system. Justice, in the most common of the terms,
means an ideal representing something which is just and right. It means the quality of being
fair, impartial, equal, just and right. According to Salmond, laws are the bodies of principles
which tribunals recognize and apply while administering justice. Therefore, if justice is to be
viewed through the modern lens, it means the proper administration and implementation of
laws by the legislature.
Thus, as contrary to the historic sense which connected justice to religion and morality,
justice, in its truest sense means the recognition, application and enforcement of laws by the
courts.

THEORIES OF JUSTICE AND INDIAN JUDICIARY

Cardozo has rightly stated in his book, ‘Nature of Judicial Process’ that a judge may be
influenced by his conscious and subconscious factors while deciding upon a case or
delivering a judgement. And he may even refer to various theories of justice given by western
philosophers while propounding upon the same. Some examples of those theories are
discussed below-

RAWL’S THEORY OF JUSTICE:

The main idea behind John Rawl’s theory was Distributive Justice. He has
propounded ‘Social Contract Theory’ wherein he vehemently points out that justice is
the first virtue of social institution. This theory of Social Contract which advocates the
principles of Liberty, Social Equality, Democracy, etc. is evident in many Indian
judgements. For example, State of Madras v. Champakam Dwairaja, is the leading
case in this principle which lead to the first constitutional amendment. Moreover,
Indira Swahney v. UOI was the then landmark judgement which followed the idea of
equality by protective discrimination and upheld reservation in jobs for backward
classes.

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DWARKIN’S RIGHTS THESIS:
Ronald Dwarkin in his book, the Rights Thesis, highlights the utter significance of the
rights of individual. Himat Lal K. Shah v. Commissioner of Police1, marked the
significance of this principle and upheld the citizen’s right to hold public meetings on
streets and the extent to which the State can control it. Besides, Kharak Singh Case2,
Satwan Singh case3 and Maneka Gandhi v. UOI4, are a few examples that upheld
individual rights theory.

AMARTYA SEN’S SOCIAL CHOICE THEORY:

Professor Amartya Sen propounded the theory of social choice wherein he advocates
that law should be made keeping in mind the needs of the society and demands of
justice. The case of KS Puttaswami v. UOI invoked the writings of Amartya Sen’ Idea
Of Justice and stated that political liberties and democratic rights are constituent
components in the development of Justice. Moreover, in Pradeshiya Jan Jati Vikas
Manch and Ors. v. State5 of Uttar Pradesh, part four of Amartya Sen’s Idea of Justice
was referred to, in ensuring political and civil rights of Scheduled Tribes and
maintaining their representation at the grass root level.

PLATO’S THEORY:
For Plato, justice lies in virtuous actions. He emphasises that justice occurred when
each individual acted in accordance with the skill he/she possessed, which was
divided into three groups- philosophers, warriors and artisans. He also emphasized on
the bodiment of justice on an individual level. He said that justice happens when the
three elements of human mind- reason, spirit and appetite performed their own
functions without interfering with others.

ARISTOTLE’S THEORY:
Aristotle’s view of justice was that when there exists fairness among the individuals,
it is a state of justice. He is the one who developed the idea of Distributive Justice,
fair distribution of goods and opportunities, and in case of a fault in executing
distributive justice, Corrective Justice comes into play.

1
Himat Lal K. Shah v. Commissioner of Police 1973 AIR 87
2
1963 AIR 1295
3
1967AIR 1836
4
1978 AIR 597
5
AIR 1991 SC 1902

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 INTRODUCTION TO CORRECTIVE & DISTRIBUTIVE JUSTICE
“The dead cannot cry out for the justice, it is the duty of a living to do so for them.”
-Lois McMaster Bujold

There have been different writers who had proposed different conceptions of corrective and
distributive justice. Aristotle and Thomas Aquinas got their own idea of it, Hobbes and
Grotius in other, while Kant and Hegel in another, but first to understand the concept of
corrective justice and its relation with distributive justice first we need to get better
knowledge of the idea of corrective and distributive justice.
In the essay written by Peter Benson on the relation between Corrective and
Distributive Justice, Aristotle's account of corrective justice is been talked upon which
describes the form of the private law relationship. Corrective justice treats the wrong, and the
transfer of resources that undoes it, as a single part of activity and passivity where actor and
victim are defined in relation to each other. Being concerned with structure not substance,
Aristotle presents corrective justice in formal terms, as an equality between the two parties to
a two-sided transaction, in contrast to distributive justice, which is a proportion in which each
person's share is relative to a distributive criterion. Although formal, Aristotle's account is not
empty. It captures the logic of the private law relationship and the categorical difference
between private and public law. Because Aristotle omits to tell us what the transactional
equality of corrective justice is an equality of, his account must be supplemented by Kant's
philosophy of right. The essay is divided into many heads but the way I have discussed the
heads of corrective justice is not similar to the one in the essay.

CORRECTIVE JUSTICE AND ARISTOTLE’S THEORY

The essay analyses the idea of corrective justice as given by Aristotle according to which-
Corrective justice is the idea that legal responsibility corrects the injustice caused by one
person on another. Aristotle's account presents corrective and distributive justice as two
different forms of justice. Corrective justice, which deals with voluntary and involuntary
transactions, focuses on whether one party has committed and the other has suffered a
transactional injustice. Distributive justice deals with the distribution of whatever is available
for all the participants in a political community. For Aristotle, justice in both these forms
relates one person to another according to a conception of equality or fairness. Injustice arises
when there is absence of equality, when one person has too much or too little relative to
another.

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 The two forms differ, in the way they take equality. Distributive justice divides a
benefit or burden according to some criteria that compares the relative merits of the
participants. Distributive justice, therefore, represents a relative equality, in which all
participants in the distribution receive their shares according to their respective merits under
the criteria in the particular case. Corrective justice, although, features the maintenance and
restores the notional equality with which the parties enter the transaction. This equality
consists in persons what lawfully belongs to them. Injustice occurs when one party realizes a
gain and the other a loss. The law corrects this injustice when it re-establishes the initial
equality by depriving one party of the gain and restoring it to the other party. For example-
consider the party’s initial positions to be two equal lines. The injustice upsets that equality
by adding to one line a segment detached from the other. The correction removes that
segment from the longer line and returns it to the shorter one. The result is original equality
of the two lines.

THE REGULATIVE ELEMENTS OF CORRECTIVE JUSTICE

The next important head discussed in this essay is the regulative function of Corrective
justice. As the name goes, in this form of justice by correcting the injustice that the defendant
has inflicted on the plaintiff, corrective justice declares a connection between the remedy and
the wrong. From the perspective of corrective justice, Aristotle does not treat the situation
being judged morally neutral given and then ask what the best course for the future is, all
things considered. Rather, because the court aims to correct the injustice done by one party to
the other, the remedy responds to the injustice and tries, so far as possible, to undo it.
Aristotle's account makes it clear that the restoration operates correlatively on both parties. A
remedy directed at only one of the parties does not fit to corrective justice. For the court
merely to take away the defendant's wrongful gain doesn’t do because then the plaintiff is left
still suffering loss. Nor does it do for the court merely to make good the plaintiff's loss, for
then the defendant is left still enjoying his or her wrongful gain. The remedy consists in at
once taking away the defendant's excess and making well the plaintiff’s lack. Justice is
thereby achieved for both parties by single operation in which the plaintiff recovers what the
defendant is made to surrender. Correlatively structured remedy responds to and undoes an
injustice only if that injustice is itself correlatively structured. In bringing an action against
the defendant, the plaintiff is stating that the two are connected as doer and sufferer of the
same injustice. The defendant has done what the plaintiff has suffered are not independent

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events. Rather, they are active and passive poles of the same injustice, so that what defendant
has done counts as an injustice only because of what the defendant has suffered. The law then
corrects this injustice by changing its active and passive limits, so that the doer of injustice
becomes the sufferer of the law's remedy. Only because the injustice the same from both
sides does the remedy treats parties as correlatively situated. Throughout the transaction,
from the occurrence of injustice to its correction, each party's position is normally significant
only through the position of the other, which is exactly similar. The idea that correlativity
informs the injustice, as well as its improvement, is a central idea of the corrective justice
approach to the theory of liability. This idea points to the kind of justifications that are
appropriate for determinations of liability. To think of something as a justice is not to refer to
a brute event but to make a normative.
The defendant, if liable, has committed the same injustice that the plaintiff has suffered, the
reason the plaintiff wins ought to be the same as the reason the defendant loses. Thus in
specifying the nature of the injustice, the only factors to be considered significant are those
that apply equally to both parties. Accordingly, corrective justice not only corrects injustice
in transactions; by structuring the considerations relevant to transactions, it is also regulative
of the idea of injustice that is applicable to them. Thus the essay steps on to say that
correlativity is the structural idea that causes the most obvious and general features of
liability, that the liability of the defendant is always a liability to the plaintiff. Liability
consists in a legal relationship between two parties, each of whose position is only in the light
of the others. Corrective justice is the theoretical concept that highlights the role of
correlativity as the organizing idea implied in the relationship between plaintiff and
defendant.

CORRECTIVE JUSTICE AND ITS CONTRAST WITH DISTRIBUTIVE

JUSTICE
The corrective justice is also reflected in the contrast with distributive justice. Corrective and
distributive justice represents different structures of justification. Corrective justice links the
doer and sufferer of injustice in terms of their related positions. Distributive justice, on the
other hand, deals with the sharing of a benefit or burden; it involves comparing the potential
parties to the distribution in terms of a distributive criteria. Instead of linking one party to
another as doer and sufferer, it links all parties through the benefit or burden they all share.
The difference between correlativity and comparison is made clear in the difference between
the numbers of parties that each admits. Corrective justice links two parties and no more

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because a relationship of correlativity is necessarily extremities. Distributive justice admits
any number of parties because, in principle, no limit exists for the number of persons who can
be compared and among whom something can be divided. The result of this difference
between corrective and distributive justice is that no distributive consideration can serve as a
justification for holding one person liable to another. The correlative structure of liability
guides the irrelevance of any factor that is normatively significant only because of its possible
role in a distributive comparison. For purposes of justifying a determination of liability,
corrective justice is independent of distributive justice. The idea of correlativity brings out the
inner structure of justification applicable to the relationship between the plaintiff and
defendant.
In the matter of distributive justice, there is a need to divide benefits or burdens on the basis
of a comparison of relative virtue or need. However, they don’t connect any two particular
persons as correlatively situated.

RIGHTS AND DUTIES OF THE PARTIES INVOLVED

In the system, the justificatory categories expressive of correlativity are those of the plaintiff's
right and the defendant's own duty not to interfere with that right. The injustice that liability
corrects consists in the defendant's having something or having done something that is
incompatible with a right of the plaintiff. Rights and duties are correlated when the plaintiff’s
right is the basis of the defendant's duty to perform and, conversely, when the duty includes
avoiding the kind of right-infringement that the plaintiff suffered. Under those circumstances
the reasons that justify the protection of the plaintiff’s right are the same as the reasons that
justify the existence of the defendant's duty. For the defendant to be held liable, it is not
enough that defendant's negligent act resulted in harm to the plaintiff. The harm caused has to
be to an interest that has the status of a right, and the defendant's action has to be wrongful
with respect to that right. Within the framework of corrective justice, rights cannot be
understood, for instance, simply as bundles of welfare, for then liability would ultimately be
only a mechanism for adjusting relative welfare of the two parties. Welfare, however, is not a
normative consideration that is correlatively structured. Of course, shortages in fare may, as a
matter of distributive justice, justify a transfer of resources from those who have more to
those who have less. Such redistribution, however, operates through a comparison of the
welfare of many parties, rather than through a correlative link of any particular two of them.

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 At this point, the Aristotelian idea of corrective justice links to the conception of
rights propounded by Kant and his heirs the account of natural right. In the account, rights
and duties are signs of what is termed as 'personality.' Personality is not a psychological but a
normative idea- it refers not to the pattern of an individual's behavioural characteristics, but to
assumption about entitlement that is implied in the rights and duties of private law.
Assumption is that, as participants in a system of liability, the parties are viewed as selfish
beings that are not subject to a duty to act for any particular purpose. Because personality
signifies the capacity for purpose without regard to particular purposes, no obligation exists
to exercise this capacity toward any particular end. Any duties that reflect personality are
therefore negatives correlating to rights. These rights arise insofar as the capacity for
purposive agency is not merely an inward attribute but achieves external existence in social
interactions through its exercise by or embodiment in an agent. Among these rights are the
right to the integrity of one's body's as the organ of purposive activity, the right to property is
appropriately connected to an external sign of the proprietor's wish, and the right to
contractual performance in accordance with the mutually consented exercises of the party’s
purpose. The existence of these rights gives rise to correlative duties of non-interference.
Moreover, these rights and duties are actualized through a set of judicial institutions that
gives them with a definite shape, makes public the mode of reasoning that unites with what is
presupposed in them, and undoes the consequences of conduct inconsistent with them.

OUTCOMES OF CORRECTIVE JUSTICE

The essay points out the favourable outcomes of the corrective justice and discusses in broad.
According to Benson in his essay, the standard objective of the view given, that corrective
justice is the organizing principle for private-law liability generally, runs as follows:
Aristotle's theory treats injustice as involving a gain to the defendant and an equivalent loss to
the plaintiff. Correlativity fulfils its corrective function by simultaneously eliminating both
the gain and the loss. In cases of restitution, the defendant may gain without the plaintiffs
losing, when the defendant, without authorization, uses and then returns undamaged, property
belonging to the plaintiff, which the plaintiff would not have used during that period.
Aristotle's corrective justice seems inapplicable to wide areas of liability. This objection is
misguided and assumes that gain and loss refer to the difference in the party’s wealth before
and after injustice. But since, in Aristotle's theory, baseline for the parties gain and loss is
their initial equality, the essay has an assumption that corrective justice presupposes -

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absurdly an initial equality in the party’s wealth. But, equality is Aristotle's way of referring
to the entitlement of each of the interacting parties to have what is rightfully theirs. Just as
equality refers to the norm which the interaction between the parties ought to match, so gain
and loss refer to a correlatively structured violation of that norm.
This correlativity establishes the crucial point in Aristotle's account- there is a conceptual
difference between the correlative logic of corrective justice and the comparative logic of
distributive justice. Correlativity then informs every ground of liability, without being
restricted to injustices in which the increase in the defendant's wealth equals the decrease in
the plaintiffs.

ROLE OF CORRECTIVE JUSTICE IN SOCIETY

A corrective justice approach attempts to differentiate the normative character of liability as a

practice within which justification has a contained role. A corrective justice approach takes
the justificatory ambitions of this practice seriously by focusing on the law's internal
normative dimension. Because the liability of the defendant is always a liability to the
plaintiff, correlativity ranks as the most abstract formulation of that structure. Correlativity,
then, becomes the key to understand and assess private law's concepts, principles, and
doctrines. The only considerations that conform to corrective justice are those that apply
correlatively to both parties. Such considerations set terms for the two party’s interaction that
take account of their mutual relationship and are consequently fair to both of them.
Conversely, in view of the categorical distinction apparent in Aristotle's account between
correlativity and comparison, considerations of distributive justice are inadmissible. Also
inadmissible are considerations whose justificatory force extends only to one party because
the fair terms of a joint interaction cannot be set on a unilateral basis. For example, the
conception of corrective justice confirms the rejection in negligence law of the subjective
standard for negligence because that standard determines the party's relationship according to
the defendant's purity of heart. Thus corrective justice holds the practice of liability to the
normative implications of liability's own correlative structure. Corrective justice is an
integrating idea that exhibits the meaning of coherence within a system of liability. One
aspect of its integrating power is that it connects the injustice and its improvement. The
ground of the liability both specifies the nature of the injustice and determines the nature of
the remedy that corrects it. A second integrating aspect is that, because the injustice is

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identical from the standpoint both parties, the reason for liability must be equally applicable
to both. Thus the liability regime functions as a logical activity in justification rather than as a
chaos of factors separately relevant only to one or the other of the parties. A third integrating
aspect is that, being correlative to each other, the doing and the suffering of injustice form a
single juridical sequence in which each party participates only through the presence of the
other. Accordingly, all the elements of liability must themselves constitute a rational group
that expresses the unity of the party’s legal relationship. A fourth integrating feature is that,
since all the relationships of private law are subject to the demands of correlativity, the
consistency of legal justification can operate not only within any given relationship but also
systemically across relationships, covering all the grounds of liability in their interconnection.
Any sophisticated system of liability aspires to realize the values of fairness and rationality.
Accordingly, attention to corrective justice honours the law's reasoning as a good faith
attempt is not always successful. The corrective justice approach to liability, therefore, views
the law's conceptual structure and modes of reasoning not as surrogates for unrecognized
goals of public policy but as one should try to understand in its own terms. Even when legal
doctrine is unfair or illogical and therefore ought to be changed, corrective justice provides
the critical standpoint informing the law's effort to work itself pure. Corrective justice as a
theoretical construct and liability as a familiar normative practice are thus reciprocally
illuminating. Corrective justice is the structure of justification implied in the practice; and, to
extent that it is fair and logical, the practice, through its doctrines and modes of discourse, is
the specific realization of corrective justice in a functioning system of liability. By attending
to the normative implied in liability as a familiar practice, corrective justice directs us away
from contemporary understandings of law.

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 CONCLUSION

The essay of Peter Benson, stating the similar and contrasting elements of Corrective and
Distributive Justice, primarily discusses the way how the theory of corrective justice is
correlatively linked to that of distributive justice and how does it differ from the corrective
justice. In this project contrast has been discussed in a broad heading as the theories are in
contrast to each other and are less similar than distinct. The writer also concludes along with
this idea that the autonomy of corrective justice requires the concept of distributive justice.
The writer reaches a conclusion on the moral grounds that are specific to corrective justice
and show the basis yields that are purely non-distributive in character. Since it is the moral
ground, we can say that the both forms are in connection with each other.

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