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Theory of Justice

Importance of Justice in political philosophy:

Justice is architectonic concept. (fundamental, base, taken from architecture). It is the most fundamental, political value. The entire western political philosophy revolves around the concept of justice. To begin with Plato’s REPUBLIC, the subtitle of the REPUBLIC is ‘concerning justice’. Justice is the foundation on which state is based. Why justice is such a important concept? Society cannot exist without the idea of justice. People will adhere to the social norms, institutions only when they find these institutions as just. Hence John Rawls writes that

Justice is the first virtue of the social institutions, just as truth is the first virtue of any system of thought.

John Rawls

Various Types of Justice

Social justice

This conception of justice broadens the theory of justice beyond political and legal borders. It advocates the social treatment and opportunities for individuals and communities in a state. To put explicitly, it suggest that all people should have equal access to wealth, health, well-being, justice, privileges, opportunities, regardless of different circumstances.

Political justice

Political justice refers to the use of the judicial process for the purpose of power sharing in politics. For example the provision of universal adult suffrage, separate electorate, reservation policy etc. deal with political justice.

Economic justice

The theory of justice aimed at achieving equal economic opportunities for all individuals and to establish a foundation to lead a life of dignity and opportunity. It mainly deals with economic policies of state.

Legal justice

Simply put, it stands for the justice as it is enforced by legal entities, in accordance with the laws established. It is more concerned with following the just procedures (procedure established by law) than upholding the value of justice. Consequently, legal justice may or may not comply with other forms of justice. For example the abortion may be legal in eyes of law in some states, but it may not enjoy the ‘just’ status in eyes of community or religion.

Distributive justice

It deals with the justice at the level of distribution. Distribution of resources by the state. Various schools have different opinions to achieve such justice. Classical liberal suggest least state intervention to allocate resources. Nozick suggests state intervention only when the life is at threat. Dworkin has suggested just initial distribution. John Rawls suggest difference principle to establish social security net for disadvantaged sections. And Amartya Sen has suggested ‘capacity building’ approach to achieve the goal of distributive justice. Socialists take this concept to another level when they suggest state ownership of industries and extreme intervention of state to ensure ‘just’ allocation of resources.

[Note: The concept of justice and equality is quite intertwined – so same answer is also applicable for distributive equality.]

Procedural justice and Substantive justice

Procedural justice concerns itself at the level of application. The procedures followed must be just and the legal codes should not be violated. The Substantive justice, on the other hand, is concerned about the outcome of the process. While the former is concerned about ‘letter of law’, the latter is more about ‘spirit of law’.

Procedural justice is based on ideas like equality before law, When procedural justice is about ‘procedure established by law’ and substantive justice is about ‘due process of law’.

The idea of substantive justice can be said to be a more mature approach than procedural justice. The idea of procedural justice inspires minimal state (no use of discretion by state – just follow the procedure) and is largely inspired from classical liberal school. Substantive justice encourages state intervention to ensure ‘justice’. It allows state to use its discretion in favour of weaker sections, or to ensure justice in fullest sense of the word.

We can given an example of Indian constitution. Originally Art 21 contained provision only for ‘procedure established by law’. But Supreme Court found the clause inadequate and expanded the ambit of the article to also include ‘due process of law’ (substantive justice).

Rule of law

In simple words, it means ‘law’ rules. Law is supreme and is determinant of all activities – those of government and also individual. Law provides a framework for the actions, codifies individual and collective rights and also enlists any exception to such rights. Rule of law is also called as ‘constitutionalism’.  It has been developed to establish stability in a state.

AV Dicey in his work INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION has given four features of rule of law. 1) No one should be punished except for breach of law.  2) The law should not discriminate against persons and apply equally to ordinary citizens and government officials.  3) There must be certainty of punishment when law is broken.  4) Rights and liberties of individual should be embodied in the ‘ordinary law’ of the land.

Critics have argued that it creates a situation where citizens are compelled to obey the rule. It does not talk about content of the law. The rule of law was even observed in Third Reich (Nazi Germany) and in Soviet Union  to justify the oppression. Marxists consider law to be a part of superstructure, only to protect the property of capitalist class, and communitarians argue that law only represent the values and attitudes of dominant group.


Introduction of Rawls as a thinker:

John Rawls is considered as the greatest philosopher of twentieth century. He has been given the credit for the revival of political theory. (political philosophy). There was a time when scholars have declared the death of political theory. Under the influence of behavioralism, a movement to convert political science into ‘pure science’, there was decline of political philosophy. Political science as a discipline started losing relevance. 1950s and 1960s were the decades of social upheavals in USA, there was growth of movements like Black Rights movement, feminists movements, environmental movements, movements for disarmament, opposition to Vietnam war. Political theory had nothing to offer as a solution.
To make political science, science, political scholars neglected the normative issues like Justice, Liberty, Equality etc. whereas there was a demand for the new theories which can guide the policy makers. In this context came Rawls’ theory of justice. The publication of Rawls’ theory of Justice in 1971 is regarded as the revival of normative political theory or philosophy. Just like classical political philosophy is attributed to Plato and Aristotle, considered as footnotes to their thoughts, similarly contemporary political philosophy can be considered as footnote to Rawls. Rawls is a reference point for all contemporary scholars like Nozick, Amartya Sen, Dworkin, Isaiah Berlin, Will Kymlicka.

School of thought: We can consider Rawls as social liberal, or liberal egalitarian.

Prominent works of Rawls.

1] In 1958 his article JUSTICE AS FAIRNESS was published.
2] In 1971 his THEORY OF JUSTICE was published
3] In 1993 his another book POLITICAL LIBERALISM was published.
4] In 1999 his book THE LAWS OF THE PEOPLE was published.

Rawls’ purpose in giving theory of justice?

In light of the social unrest, he believed that there is a need for new principles of justice on which American society can be based. Principles on which all can agree or which can result into consensus.
Like Plato, Rawls also believes that there has to be ‘ultimate principles of justice’. The principles which will appear rational to all. Thus Rawls’ approach is  a) Universalist  b) Rationalist. 
Rawls’ theory of justice ultimately appear to be based on the principles of liberalism, which he projects as most rational principles. Thus he has been accused of propagating the hegemony of liberal discourse. However Rawls tried to be rational and impartial. Rawls’ tragedy that others never regarded him as impartial, rather an advocate of liberalism affirms the fact that man is ‘situated self’. Since Rawls belonged to USA, it was natural for him to consider liberalism as the ultimate way of life.

Features of Rawls’ theory:

Till Rawls’ theory of justice, utilitarian theory of justice has been the dominating theory in liberalism. Utilitarian theory is based on the principle of the greatest happiness of greatest number. The theory ultimately led to the support of such policies which result into the maximization of national income but disregard for ‘distributive justice’. The flaw of utilitarianism is the neglect of human dignity. This is the reason it has been criticized as inhumane.


Rawls’ Theory of Justice

What Rawls does?

There are two broad traditions in liberalism.
1. Utilitarian tradition represented by Bentham which focuses on utility or pleasure. (teleological approach / consequentialist approach)
2. The tradition of human dignity, which comes from Immanuel Kant. Immanuel Kant held that human dignity is ‘categorical imperative’, which means cannot be violated for any reason. It is the foremost duty to respect human dignity. (deontological approach).
Rawls revives the tradition of Immanuel Kant and calls his theory of justice as ‘deontological’. In the words of John Rawls “Each person posses inviolability founded on the principles of justice.” (Inviolability – human dignity). It shows that human dignity has to be the fundamental principles of theory of justice. If any theory of justice which is not based on human dignity, compromises human dignity, it cannot be accepted as the theory of justice.
Rawls describes his theory as ‘purely procedural’. He wants to show that his theory is completely rational. It is not based on some prior values or biasness. He suggests that to find out the most rational principles of justice, we have to live it on ‘rational procedures’. Whatever is the outcome of the rational procedure, will be accepted as rational or the ultimate principles of justice.
Rawls revives the tradition of social contract. Social contract tradition has been sidelined in liberalism because liberalism came to be dominated by utilitarian tradition based on ideas of Hobbes. e.g. Bentham rejects the concept of natural rights as nonsense. However Rawls revives social contract, adopt it in his methodology. He considers contract is the most rational approach. Social contract assumes that human beings are rational. Contract is a rational procedure. Contract represent choice. It has not been forced. Hence people obey the contract because contract represents their ‘rational choice’.

Concept of moral judgement. (intuitionism).

Rawls principles of justice are based on intuitions. Intuitions are moral judgements. According to Rawls, the principles of justice which we follow should be in accordance to our intuitions or moral judgements. If they are not in accordance to our moral judgements we will not be able to follow such principles of justice. Because our soul will not be in peace. The purpose is being happy or satisfied soul.
Hence Rawls propose a method of ‘reflexive equilibrium’. It is a type of logical reasoning by which we can understand our own preferences or judgements more clearly. It is a process by which we can bring our intuitions, reasons in sync with our actions. According to Rawls utilitarianism cannot be the sound principle of justice. Utilitarianism will not be in conformity with our moral judgement with respect to justice. According to utilitarian ethics, pleasure should determine right which means what I should do or not depends on whether that action gives me pleasure/profit. To quote Bentham, “Nature has placed mankind under two sovereign masters…..” According to Rawls, such principles may not be in sync with our moral judgement.
For example, as per utilitarianism, we should think about maximization of profit. Profit maximization by the capitalist may put the life of worker in the state of exploitation. Making profit at the cost of human life may not be in sync with our moral judgements. Capitalists may be rationalizing it but ignoring his moral judgements. He may be making profit but will not be at peace.

[ This is also similar to Gandhian idea where Gandhi proposed that for one who commits violence, it causes more harm to himself that victim. The offender is harmed at mental and spiritual level. And such a person will never be in peace. ]

Good is not prior to right rather determined by right.

According to utilitarians, end should determine whether the action is right or wrong. According to utilitarian ethics, if any action gives us pleasure, we can call such action as right. Hence for utilitarians, good is prior to right and determines right.
From Rawls point of view, above principles do not conform the principles of justice. Above principles cannot be brought in equilibrium with our moral judgements. Utilitarianism makes profit maximization principle of industry as a yardstick for the political actions as well as ethics. Profit maximization at the cost of putting the life of workers in danger cannot be considered as the principle of justice.
Like Immanuel Kant, Rawls also believes in the categorical imperative of human dignity. Human dignity as a principle cannot be compromised in human society. Hence human dignity determines the standard of rights and rights should determine good. Profit maximization can be allowed, but not at the cost of human dignity. Hence Rawls mentions that the principles of justice as fairness is based on the idea of inviolability of each person. In the words of Rawls, “Each person posses inviolability founded on the principles of justice, that even the welfare of the society as a whole cannot override.” For this reason, Justice denies that the loss of freedom for some is made right by the greater good shared by others. [rejection of ‘greatest happiness of greatest number’ (GHGN) principle.] It does not allow that the sacrifices imposed on few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society, the liberties of equal citizens are taken as settled. (Human dignity cannot be violated). The rights secured by justice are not subjected to political bargaining or calculus of social interest (GHGN)… Being first virtue of human activity, truth and justice are uncompromising (deontological approach).

Rawls’ Approach.

Rawls’ challenge is to convince others that his principles of justice are the universal and ultimate principles of justice. Hence Rawls is very specific about the procedure. Rawls calls his theory as ‘purely procedural theory’.
To arrive at universally acceptable principles of justice, Rawls suggest that such principles should be the outcome of purely rational procedure. It means it will not involve any pre-conceived notion of justice based on any ideology. Whichever principles of justice emerge out of the procedure, will be accepted as the ultimate principles of justice. Rawls procedure is called as a thought experiment.
To understand thought experiment, we have to understand the concept used by Rawls like primary goods, original position, veil of ignorance.
Rawls revived the tradition of social contract to show that the principles of justice are  a) Voluntary  b) Based on reason.  Like the old social contract thinkers talking about the state of nature, Rawls talks about the original position.

Features of original position

People have come together to device the principles. They are not Hobbesian men. They do have moral reasoning/judgement or inherent ideas of justice. They are ‘mutually dis-interested. Though they are mutually dis-interested, they understand that to live in the society, they have to agree on some basic principles of cooperation. They have come to determine the distribution of primary goods.
Every person has some rational plans, primary goods are needed to pursue these rational plans. Rational plans means goals e.g. becoming IAS, Dr. etc. Rational goals are secondary goods. For the secondary goods, we need some primary goods. e.g. Liberty, Rights, Income, Wealth and Dignity. 
People are kept behind the veil of ignorance. The purpose is to bring people in original position hence in a thought experiment it is assumed that people do not know particular facts about themselves. They only know some general facts, means a general understanding of society, economics and psychology. They do not know which position they will be placed in, in that society. They may be rich or poor, advantaged or disadvantaged, male, female or transgender.
Considering this these people have to decide what should be the system with respect to the arrangement of primary goods. In the thought experiment, Rawls wants to show that person will neither prefer liberty alone as libertarians think nor equality alone as socialists think, any rational person behind the veil of ignorance will require both – liberty as well as equality. Thus he ends up justifying social welfare state/approach.

Maximin principle

To determine the order of priority, Rawls believes that maximin principle is the most rational way. Maximin principle implies 1) Any rational person would like to maximize the benefits of any advantage he has.  2) Any rational person would like to minimize the impact of any disadvantage if he has.  3) Any rational person will put himself in both the situations. 1) What if he is best off?  2) What if he  is worst off?
People in the original position will consider different options and will ultimately opt for the option whose worst outcome is better than the worst outcome of any other option. e.g. If they only think they are most talented, hence they will not have concern for equality but this choice will lead them in worst position, if after removing the veil of ignorance they come to realize that they were least advantaged. They will realize that they should have agreed for social security net.
Similarly if they think they may be worst off and just include equality and ignore the liberty but once they come out of ignorance, they realize that they were most advantaged, hence they will feel that they are now the worst off.
According to Rawls, any rational person will give primacy to thinking about the advantages over disadvantages. Rational person will give priority to liberty over equality.

Rawls’ principles of Justice

Rawls suggests that under the situation of Veil of Ignorance, the rational choice of people would be:

1] Everyone would like to take the benefits of any advantage/talent if they have any. Hence they would agree for maximum equal liberty. [Liberty Principle]
“Each person is to have an equal right to the most extensive liberty compatible with similar liberty for all.” (1)
2] 2nd Principle: 2nd Principle is called as Equality of Opportunity principle. Everyone would like that they should be given equal opportunity to explore their talents. [Equality of opportunity principle]
3] 3rd Principle: 3rd Principle is called as Difference Principle. Difference principle suggests that our policy should be such that benefits the least advantaged section of the society. [Difference principle]

Lexical Order

It is a definite order of priority. Rawls’ suggests that principles of justice are prioritized in following sequence. 1 will have preference over 2, 2 will have preference over 3.
In other words, liberty will have preference over equality of opportunity which in turn will have preference over difference principle.

Rawls’ concept of democratic equality.

According to Rawls the concept of equality found in western countries may not be adequate. It needs to be democratized, which means making it pro-poor. This can be done by affirmative action policies in favour of the least advantaged.
He suggests how inequality is an interesting concept, more we offset, more we end inequalities, new forms of inequalities become visible. For example initially there was no equality before law. Once this system was institutionalized, it was realized that many people are not in a position to live a life of dignity. Hence came the idea of equality of opportunity. Still large number of people were not in a position to live a life of dignity. Hence it was realized that there is no level playing field in the society. Thus it appears just, match to our inherent conception of justice if we provide for affirmative action policies.
Thus Rawls justify progressive taxation, welfare state and the system of social security. According to Rawls, natural distribution is neither just, nor unjust. It is not unjust that a person is born in a society at some particular position. These are simply the natural facts. What is just and unjust is how the institutions deal with these facts. Hence according to Rawls, justice and injustice is a matter of social institutions. It is within the capacity of human beings to change the social system based on the principles of justice as fairness.
There will be no peace if there is injustice in the society. According to him, society is like a chain, where the weakest link is as important as the strongest. He is sure that reasonable persons will never disagree on offering each other ‘fair terms of cooperation’.
Why rich should agree? 1. Matter of being fair.   2. It was their rational choice behind the veil of ignorance.   3. It is the best possible way they can maximize their advantage.   4. Welfare policies are like social insurance, anyone may require insurance anytime. 
Why poor will agree? 1. Matter of being just.   2. Accepted it behind the veil of ignorance.  3. The rational choice is to go for the option whose worst consequence is better than the worst consequence of any other option. It will be rational for poor to opt for the option which will make them better off rather than worst off.
He suggests that socialism will result into everyone being worst off. Socialism is not productive. It is like sharing equal poverty. Difference principle is just because it is not unfair for those who are talented and hardworking.  It is the best possible utilization of inequality. Society will have more resources to help the poor. It will lead them better off rather than worst off.
Rawls uses the concept of advantage and disadvantage. He wants to show that there is a difference between pure talent and advantages. What person possess is not just because of his own talent. (Rejection of possessive individualism). Thus he incorporates chance factor. It may be a matter of chance that a person is born in a good family, went to good school and so on. For example professor Yogendra Yadav and Satish Deshpande suggest that government should make disadvantage index while formulating merit.

Rawls makes a difference between personal and political. Social institutions will be economic, political, educational etc. Church or family will be personal institution.

Posted in PSIR 1A

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sakshi

Amazing efforts!
I had a Q that in 2020 paper a Q came on comparison of Greek perspective of justice and Rawlsian concept..
can you please suggest why the Greek perspective was asked?

Anmol

Super effort and great Content sir..!!
just a Quick Question

Based on his critique of Rawls Theory of Justice can Amartya Sen be termed as advocate of Substantive Justice?

Nemichand

hi sir ,I think Communitarian critique of rawls theory of justice is not mentioned

rohit

very good content sir

Harshdeep singh

sir your content is good but u need to update it as in this part u had not mention about critique of rawls theory of justice plzzz try to add more point as per upsc psir
syllabus

admin

Hello Harshdeep, please click on PAGES: [2] at the end of content. (below ad) You’ll find what you’re looking for.

And thank you for your appreciation.

Last edited 1 year ago by admin
Harshdeep singh

thanx alot sir its
really really helpful