CHAPTER/

THE CONCEPT OF JUSTICE

The concept of justice has generated serious controversies in the realm of political

philosophy because of the complexities and intricacies involved within the concept itself.

Indeed, among all the evocative ideas, that of justice appears to be one of the most

eminent and the most hopelessly confused.l The very attempt to define justice has

become a very risky venture partly because of the ambiguity inherent in the concept itself

and partly because of the various interpretations of the concept by different philosophers

at different times. From the time of Plato down to the present day no consensus and no

satisfactory definition of justice could emerge due to its abstract, universal and all

pervasive characteristics.2 In all the normative disciplines which directly or indirectly

govern action in regard .to others -whether it be law or political philosophy, ethics or

religion, justice constitutes a central value.3

In this chapter an attempt has been made for a conceptual exploration and analysis

of the concept of justice. But the objective is not to prescribe or recommend an ideal form

of justice. The thrust is to examine different theories i.e. representative of liberal concept

of justice and to point out their shortcomings. This Chapter has been divided into five

1. See Perelman, 1963:5.

2. Most thinkers have elucidated justice in terms of some simple rules or symmetry; some of them, however, looked for the key to the concept of justice elsewhere and have construed it in terms of rules, or merit or utility or liberty or equality. Justice has, in consequence, been much misunderstood and in practice much neglected (See J.R. Lucas, 1980: 1-2).

3. See Perelman, 1963:61. Very wide and ubiquitous applicability of the principles of justice creates suspicion and compels man to doubt that something may be wrong with this concept which can be invoked for any cause. It strengthens and excites both the defenders of old order and also the aspirants of new order; it has been manipulated too freely to divert attention from sellish purposes and sinister and hidden interests, and to rati­onalise every other activity.

12

parts. The first part deals with how the concept of justice originated in human society. The

second part analyses different theories of liberal justice and its inadequacies. The third

part discusses the origin of compensatory justice within the liberal theory and the purpose

it serves. The fourth part examines whether justice is essentially a moral or normative

, concept and can morality be based on objective criterion. The last part provides a critical

evaluation of the liberal concept of justice. It tries to explore the intrinsic i'nadequacy and

deficiency of the liberal concept of justice as a result of which it has failed to achieve its

basic objectives.

I

ORIGIN OF THE CONCEPT OF JUSTICE

There is wide divergence in the prevalent notions of justice. Philosophers like

Plato1 and Aristotle2 regard justice as a supreme virtue, the source of all others and

encompassing within itself the whole of morality. For Kant3 and Rawls4 justice is a very

important aspect of human existence, the first virtue of society. Hume,S a"nd Marx and

Engels denigrate the concept of justice; and for them it is unnecessary if not entirely

irrelevant. Nonetheless, the very charge of inadequacy or redundance or superfluity

against justice presupposes its meaningfulness and worth otherwise, all the charges would

1. See Plato, 1937.

2. Aristotle, 1966.

3. Immanuel Kant, 1974.

4. John Rawls, 1972.

5. David Hume, 1911.

13

be irrelevant.1

Common usage continues to treat justice, despite all its inadequacies and

limitations, as denoting some of the greatest human needs. Man's longing for justice is

explained as the active process of preventing or remedying what would arouse the sense of

injustice.2 This consciousness of injustice arises in society in the context of a prevailing

system of human relationship. The origin of justice therefore, is traced to man's

consciousness of injustice in society and consequently to his urge for change in the

situation towards a better and desirable one. In other words man's craving for what is good

and what ought to be is the perennial experience that gives rise to the concern for justice.3

Justice presupposes the existence of conflict and it is called upon to harmonise

antinomies.4 It is only in the realm of moral that the synthesis and perfect harmony

between personal and transpersonal values is possible, but in actual world they are in

intense conflict. And it is precisely this hiatus between the harmony of the moral ideal and

the disharmony of reality .that gives rise to the problem of justice.s Justice harmonises the

conflicting interests and tends to bring out a balance. Justice in its true and proper sense is

a principle of coordination between subjective beings and the idea of justice only manifests

1. However inadequate and dissatisfactory it may seem to be, appearence cannot be used to hide reality unless it is substantiated. Inadequacy is not total worthlessness nor is inadequate beneath esteem (L.L. Cahn (ed.), 1972:385).

2. Edmond Cahn, 1968:347. The necessity of justice arises only when men confront or face a real or imagined instance of injustice which awakens and calls them to rid themselves.

3. The desire for a just society has inspired the works of a great number of thinkers. The study of the conditins for and the consequences of establishing just order constitutes the central object of philosophy of law and moral, social and political philosophy (Perelman, 1963: 67). And whenever philosophy offered no answer or .. could not contrive to put them into effect force, rhetoric and habit have, in varying proportions, prevailed.

4. The problem of justice arises only if the possibility of a conflict is admitted between claims of individuals in a society. In completely harmonized order, free from all sorts of conflict, justice is redundant.

5. Georges Gourvich, Encyclopeadia of Social Sciences, 513.

14

and can manifest itself in relation to persons but not between· objects of any kind. 1 Justice

and injustice are meaningful and relevant only in context of a society i.e., justice and civil

society can be said to go together.2 Hence, justice primarily, is a social concept which has

its origin in man's life in society.

Justice being social is not a static and abstract concept, rather it is a concrete and

dynamic one to be understood in terms of the changing social relation of man. It implies

an idea of interpreting social relation of man in relation to ethics. R. W. Baldwin remarks

that justice being essentially a quality of the behaviour of one man to another, that is of

man in society, all justice is social justice and the adjective is otiose.3 Morris Ginsberg also

subscribes to the same view and repudiates the metaphysical deduction of justice from the

concept of self-consciousness only.4 Justice, thus involves an element of desirability or

goodness in social life through alleviating some of the gross injustice of a society.5

II

UBERAL THEORIES OF JUSTICE

In the beginning of recorded ethical and legal thought the term justice was used as

equivalents to righteousness in general, virtue par-excellence and sovereign amongst all

1. G.D. Vecchio, 1982: 2.

2. John Rawls has rightly mentioned that the various conceptions of justice are the outgrowth of different notions of society against the background of opposing views of the natural necessities and opportunities of human life (sec John Rawls: 1972:9).

3. R.W. Baldwin, 1966: 1.

4. Ginsberg has contended that we arc aware of others when we hate, fear or arc suspecious of them, just as much as when we love them, sympathise with them or respect them. That the latter attitudes or conditions are morally good and the former bad can not be deduced form the bare idea of self-consciousness (see Morris Ginbcrg, 1965:52).

5. For an elaborate disucssion of this aspect see F.H.Knight "On the Meaning of Justice" in C.J. Friedrich and J.W. Chapman (ed.), 1961: 3.

15

and all- comprehensive. I The liberal theory of justice subscribing to the same kind of view

has obscured the meaning of justice. The liberal thinkers have abstracted the concept of

justice from the concrete reality by defining it in a highly metaphysical way.2 Being so wide

and general, the concept of justice admitted into its sphere a series of distinctions and

postulates varying greatly in content.

Justice as righteousness or an ethical concept has found it supreme manifestation in

the writings of Plato.3 Plato rejects the particularistic and specific conception of justice

and uncompromisingly makes it too broad a concept that regulates -the whole of life. In

envisaging a theory of justice he divides the entire society into three classes i.e., the ruler,

the soldier and the producer representing three qualities: reason, spirit and appetite

respectively which are intrinsic to the soul of man.4 Such a division of the society based on

functional specialization is founded on innate potentialities. According to Plato's

conception of justice the soul, instead of rushing everywhere for its satisfaction, should

work out its own appoint~d function singly and quietly.s Justice meant, in his eyes, that a

man should do his work in the station of life to which he is called by his capacities.

1. See G.D. Vecchio, 1982:18.

2. The focus of study will be mainly on the critique of different liberal theories of justice. The detail and elaborate discussion of theories of justice will be out of its scope. Only those theories will be studied which have got direct and considerable bearing on the shaping of liberal idea ofjustice or one true representatives of liberal theory of justice. Sometimes great difficulty has been faced to present the concept of justice of some thinkers in a clear and explicit manner because they have not dealt with the problem of justice in a very overt way. Hence an attempt is taken to present their conception of justice in a derivative form from their views on issues related to justice. Plato's and Aristotle's views have been discussed here because their idea of justice have contributed significantly to the shaping of liberal theory of justice.

3. See Agnes Heller, 1987: 70-74, 281-285; G.D. Vecchio, 1982: 19-20; E. Barker, 1959:86.

4. Sec Plato, 1937: 704-705. In- Platonic system justice dwells in proportion between the various parts which compose the organic whole; everyone of which may well possess its own particular virtue (as for example wisdom, courage and temperencc) but remains nevertheless subordinated to the formal principle which con­nects the different parts, connects their virtues also (Sec G.D. Vecchio, 1982: 19-20).

5. E. Barker, 1959:86.

16

For Plato justice meant the maintenance of social equilibrium and rational

coordination and harmonisation of the acts of the both individuals and congregated

multitudes by assigning each class of citizens and every faculty its proper direction and

function and by forbidding one to interfere on the task of other.l Any changing or

intermingling within three classes must be injustice.2 For the principle that every class

should attend to its business means, briefly and bluntly, that the state is just if the ruler

rules, if the worker works and if the slave slaves.3 Plato does indeed conceive of a unity of

the soul, but it is a unity not of reconciliation but of subjugation.4

D. D. Raphel treats Plato's concept of justice as a version of aristocratic justice.

What Plato does is to take over this aristocratic sentiment and make it seem more

palatable by labelling it justice instead of discipline and order.s The Platonic division of

citizen into different classes contains so many arbitrary elements that it is in itself the best

demonstration of the inadequacy to solve the problem of justice.6 Plato's view of justice is

inequitious and abstract.1 The strict adherence to one's own duty and non-interference in

others activity that Plato meant by justice inspires and rationalises despotism and

1. "This is then justice; and on the other hand when the trader, the anxiliary, and the guardian each do their own business, that is justice, and will make the city just" (Plato, 1937:698).

2. "Seeing then, I said, that there are three distinct classes any meddling of one with other, or the change of one into another, is the greatest harm to the Stale, and may be most justly termed evil doing? Precisly'' (Plato, 1937:697).

3. See K. R. Popper, 1969 (vol.l): 90.

4. No longer should individualism infect the State: a spirit of Collectivism should permeate the individual, and the state is to be maintained as a communion of souls rationally and inevitably united for the pursuit of moral end (See E. Barker, 1959: 86,113).

5. D.O. Raphel, 1980 : 79.

6. Sec G.D. Vecchio, 1982: 20.

7. Platonian definition of righteousness is abstract enough to leave both the content and density of moral norms undetermined (For detail sec Agnes Heller, 1987: 280-81, 283-85).

17

manipulation of human beings. According to Karl Popper equalitarianism was his arch­

enemy and he was out to destroy it. 1 Plato successfully enlisted the humanitarian

sentiment, whose strength he knew so well, in the cause of totalitarian class rule for a

naturally superior master race.2

After Plato there developed a narrower concept of justice tending to regard it more

as a social principle but keeping intact the Platonic concept of justice as universal virtue

with some triffling variations.3 Aristole's concept of justice does not differ substantially

from the Platonic one although it has a somewhat more precise mathematical expression,

which is probably of Pythagorean origin.4 Improving on Plato's nation, which appeared to

stress more on internal order of harmony, Aristotle suggested that while justice might be

an internal condition, it looked directly toward the outside world and objective behaviour.

For Aristotle justice is an internal state of mind or state of character that disposes one to

perform external just actions, behave in a just manner and desire what is just.

Aristotle discriminated justice as a special concept to be distinguished from morali­

ty in general, 5 thus making it clear something which Plato had obscured or ignored. Aris­

totle was aware of the polysemic character of the notion of justice and clearly distin­

guished the different uses of this term. Nevertheless, amongst these distinctions he pre-

1. Plato's is moral code is strictly utilitarian; it is a code of collectivist or political utilitarianism and the crite­rion of morality is the interest ofthe State (See Karl Popper, 1969 (vol.1): 93,107).

2. Karl Popper argues that these class prerogatives, Plato claimed, are necessary for upholding the stability of the state and hence, they constitute essence of justice (Ibid., 119).

3. In the first place, Aristotle says,the term justice may be applied to the whole of universe of discourse about right and wrong - justice is the virtue entire and injustice vice entire (Aristotle, 1966: 1130a 5), or to only part of such un~erse i.e., there is more than one kind of justice and there is one which is distinct from virtue entire (Ibid. 1130 5).

4. See G.d. Vecchio, 1982: 23.

5. Aristotle; 1966: 11308 10-15.

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served intact the ethico-political concept of justice.1 Aristotle distinguishes three kinds of

justice - General or Universal justice, Particular justice and Commutative justice.2 Aristotle

modified the purely hierarchicai conception of Platonic justice by admitting that justice

implies a certain degree of equality; this equality however, be either arithmetical or

geometrical, the first based on identity and the second on proportionality or equivalence.3

Aristotle further distinguishes particular justice into different kinds.4 The first, the

most relevant and cardinal among them, is distributive justice which is manifested in distri­

bution of honour and goods, and aims at giving each member of community a share

proportionate to his merit. Aristotle attaches considerable significance to proportional

equality and his whole theory of distributive justice is based on it. Distributive justice

consists in proportional relation which Aristotle defines a geometric proportion.5 The

second variety is equalizing or corrective or rectificatory or synallagmatic that regulates

1. Justice as the sum total of virtues in the ethical concept of justice (righteonsness), which has its political counterpart, the polity. It is in the polity, the just state, that both general and particular nations of justice coin­cide. For Aristotle, observed Barker, tlte inner unity of the state is to be found in justice which unites its members. Justice is the basis of the state and is bound up with it; and adjudication which is the determination of justice forms an institution of political society. (See Barker, 1959: 271).

2. Aristotle identifies the general justice with the whole of righteousness or complete virtue (i.e., ethical). General justice lies in conformity to the law of land and just could be considered identical with lawful (Aristotle, 1966 : 1130b 25). But Aristotle remains silent as to how the law can conform to morality or complete virtue.

3. This proper proportion or equity is a common and very important element that runs through several diverse forms or types of application of justice. According to him "The just is the s~ecies of t~e proportionate ... The just is proportional and the unjust is what violates the proportion" (Ibid., 1131 . 30, 1131 16).

4. Ibid., 1130b 30-1131a 10.

5. Ibid., 1131b 10-20.

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relations of exchange. I

Aristotle believed in a natural hierarchy or inequality of persons and insisted on

appropriate differences of treatment for each of its various levels. His theory of justice is

predominantly based on the principle that equals must be treated equally and unequals

unequally. The liberal theory of justice is primarily based on this Aristotelian dictum. But

does it really mean that two persons are equals or, for that matter, unequals. People

conspicuously differ from one another and each and every person is unique in his/her own

way. On what ground the people can be compared? And again human beings cannot be

quantified (and not at least without considerable impairing the value of such

quantification). Hence it would be more than ridiculous for us to go by the assumption

that some people are equal (i.e., to establish an equation that A=B=C) or similarly to ..

assume that among those some few are more equal (i.e., to establish that A> B >C). It will

also be equally erroneous to argue that the statement 'equals should be treated equally

and unequals unequally' refers not to two persons as a whole but some particular aspect or

aspects of them. Because as human beings we have certain essential commonality among

us. We share certain characteristics and certain essential properties with each and every

human being. Hence the dilemma and paradox of the formal or abstract justice.2

The Aristotelian dictum i.e, equals to be treated equally and unequals unequally

1. Ibid., 1131 b 25-1132a 9. Corrective justice comes into operation when the standard created by distributive justice are violated; and it is designed to main the system which distributive justice has created. Holding that the supreme criterion of the good is the just men or the equalibrium, Aristotle recognises still another aspect of justice - justice as moving equilibrium which seeks to reconcile the demands of distributive justice with those of commutative justice where commutative justicedetermines the formation of relations of exchange according to certain standards (Ibid). The uncertainties and anomalies which are traced in the work of Aristotle is mainly due to the mingling and alternating of two concepts: the grneral which is Platonic and the particular which is Pythagorean by nature.

2. This formal and abstract concept of justice is defined by Perelman as a principle of action in accordance with which beings of one and the same essential category must be treated in the same way; and further it means applying one rule to all members of an essentially category and observing a rule which lays down the obligation to treat in a certain way all persons who belong to given category (See Perelman, 1963:16,38,40).

20

(proportional equality), which has been accepted as cardinal virtue of liberal theory of

justice, also raises the implicit question: who can treat whom equally or unequally? Under

the conditions of an all-embracing social hierarchy or asymmetry, both being just and

unjust are prerogatives allotted to the repositories of social authority. Hierarchical

relations imply inequalities which are due to the very existence of lower and higher social

clusters to which different sets of norms and rules apply. 1 As a result several social

conflicts emerge, in connection with the formal concept of justice, from the hierarchical

and asymmetrical relation of social clusters. Aristotle paid much attention and attached

considerable significance to merit. He believed that people differ in merit and if equal

rewards are allotted to equal merit principle of justice is satisfied. But it is also equally

true that people differ according to their need. Now the question is raised that in a

hierarchical and asymmetrical society can the distributive justice ignore the principle of

need?

vThe social contractualists, Hobbes, Locke, Rousseau, despite their difference,

accept justice as a social concept which can only be realised in and through society.

Hobbes was nonetheless rooted in the Aristotelian tradition, both in discussing justice and

in relating righteousness to the observance of socio-political norms.2 Hobbes Worked with

an ethico-political concept of justice. The mechanistic individualism of Hobbes led to the

identification of justice with the commanding will of the state. Hobbes maintains that

1. See Agnes Heller, 1987 : 19.

2. In Leviathan Hobbes says, "Justice is the constant will of giving to every man his own .. the Validity of the Covenants begins not but with the Constitution of a Civil Power, sufficient to compel men to keep them: and then it is also that Propriety begins ... The names of Just, and Unjust, when they are attributed to men, signify one thing; when they are attributed to Actions, another ... A Just man therefore, is he that taketh all the care he can, that his Actions may be all Just; and an Unjust man, is he that neglecteth it. And such men are more often in our language stiled by the names of Righteous and Unrighteous; then Just, and Unjust; the meaning be the same. Therefore a Righteous man, does not loose that Title, by one, or a few unjust Actions .. nor does an Unrighteous man, loose his character because his Will is not framed by the Justice, but by the apparent bene­fit of what he is to do .. This Justice by the Manners, is that which is meant, where Justice is called a Virtue; and Injustice a Vice. (See Thomas Hobbes, 1968: 202-7).

7.

THESIS 344.54012596

M7255 Ju

1111111111111111111111111 TH5007

21

there lies no contradiction between natural and positive laws. It is the sovereign who

establishes the laws, the rules of lawful and unlawful, of good and evil. Hobbes's political

set-up performed two tasks concurrently. First, legal and moral norms is one and the same

and law should promote righteousness. Secondly, the maximum liberty of individual is

accomplished by absolute obedience to laws and norms. Nevertheless, this substantive

model was already highly speculative, being constituted by a subjective design, through. a

deductive procedure, and not being rooted in the preexisting forms of collective morality.1

>~Macpherson remarks that the received concepts of commutative and distributive

justice, as Hobbes describes them, are concomitants of the model of a customary society.

Hobbes's scorn for these concepts remain unconcealed. In treatment of commutative

justice (i.e., in the equality of value of the things contracted for) and distributive justice .,

(i.e., in the distribution of equal benefit to men of equal merits), Hobbes is drawing the

logical conclusions from his model of society: where all values are reduced to market

values, justice itself is reduced to market concept.2 This market assumption, argues

Macpherson, also gets reflected in Hobbes concept of equality.3

1. Agnes Heller; 1987: 79. Virtue, which for Hobbes was still identical with justice and righteousness, and nothing else, has acquired a double meaning. On the one hand it is completely subjectivised and on the other it is completely desubjectivised in the form of absolute republican virtue. Nor only are the morality of the man and the morality of the citizen different in kind, but the first only exists where the second is absent and vice versa (Ibid., 80-81).

2. See C.B. Macpherson, 1%2: 63-64.

3. Hobbes postulates two kinds of equality between men: equality of ability and equality of expectation of satisfying their wants. Each kind entails, in his view, an equality of right. Because of his original assumption of mechanical materialism, Hobbes deduced rights and obligation form facts, way of the postulates of equality, without bringing in any outside value judgement or moral premises. In Hobbes's model of society, as it can be collected from his analysis of power, honour, value and justice, there may be said to be two kinds of equality: equal insecurity and equal subordination to the market. Hobbes saw, accurately, that in a possessive market society all values and entitlements are in fact established by the operation of market, all morality tends to be morality of the market. The possessive market society does establish rights by facts. If the determination of vlaues and rights by the possessive market is accepted as justice by all members of the society, there is suffi­cient basis for rational obligation, binding an all men, to an authoriy which could maintain and enforce the market system (Ibid., 74-86).

22

-vFor Locke justice is not an exclusive product of social contract rather it

presupposes justice. Locke subordinated civil laws to natural laws. A set of positive laws

are valid and just only when they correspond to the dictates of reason or morality (the

other name of justice) that is natural law. For Locke justice is the observance of the

natural law and positive laws are just or unjust to the extent of their approximation to

natural laws. Natural laws are regarded as the ultimate stand.1 So also the natural right is

held supreme over civil right. The natural right i.e., right to life, liberty and property are

inalienable in civil society and the society is just which secures these rights. Locke's

contract was indispensable for deterring criminal acts in the state of nature in order to

protect the natural right to property.2 Locke insisted that not all kinds of civil

governments (like the absolutist state) are proper remedies. Thus, he applied the concept

of deten-ence justice in both of its understandings.

vHeller remarks that Locke cleared the way for dismantling of the ethico-political

concept of justice. It is in Locke that the retributive and distributive aspects of justice are (if

not completely) severed from the general (ethico-political) context and that the formal

characteristics of the good state for substantive qualities.3 Locke cont-ributed to the

emergence of the concept of retributive justice rather than. distributive justice. However,

Locke in a very sophisticated way rationalised inequality in property ownership by relying

1. Locke writes, 'The obligation of the law of nature cease not in society, but only in may cases are drawn closer, and have by human laws known penalties annexed to them to enforce their obervation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules they make for other men's actions must.. be conformable to the law of nature. and the fundamental law of nature being the preservation of mankind, no human sanction can be good or valid against it' (John Locke, 1965: 135).

2. According to Locke, 'Each transgression may be punished to that degree and with so much severity, as will, suffice to make it an ill bargin to the Offender'; and again: 'I easily grant, the Civil Govemment is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great, where Men may be Judges in their own case' (Ibid., ii, 8, 12, 13).

3. Sec Agnes Heller, 1987 ; 78.

23

on the labour theory of value.1 Morality became a science (like mathematics) and was to

be the same for all human kind. Locke was not in favour of the idea of each according to

his entitlement and never claimed that entitlement was the main issue but was concerned

with the only lone issue of justice .

./Rousseau constantly alternated between enthusiastic rapture and spiteful contempt.

For Rousseau that society is just and perfect which alone can provide the most congenial

atmosphere to the natural perfection of human potentialities and true realisation of

freedom. But he could not find the state of nature as the most conducive for true

realisation of human freedom. He moved from the basic premise that the human being is

essentially good but the art, culture, science and the progress of civilisation have

dehumanised him and deteriorated the basic human qualities within him. Rousseau posits

a gulf between what is and what ought to be i.e., utter degradation and perfect elevation. So

he wanted a more perfect civil society based on general will whkh would her~!d ~ !'!!!'.-':'

realm of freedom and justice. 2

,/ For Rousseau, civil law and justice are co-extensive and logically inseparable.

Justice accrues to the individual in his obedience to the laws of the state or dictates of

1. Locke moved form the axiomatic proposition that all men arc naturally equal in the sense that no one has natural jurisdiction over another. Locke's astonishing achievement, argues Macpherson, was to base the property right on natural right and natural law, and then to remove all the natural limits from the property right. Locke's individualism transforms the mass of equal individuals (rightfully) into two classes with very different rights, those with property and without property. Civil society is established to protect unequal possessions, which have already in the state of nature given rise to uriequal rights. Locke's concept of equality makes it possible to reconcile the justice of the market with the traditional notions of commutative and distrib­utive justice, thereby reducing all justice to the justice of contractors in the market. In other words, it was necessary, at least for any bourgeois theory which claimed continuity with traditional natural law, to conceive man in general in the image of rational bourgeois man, able to look after himself and morally entitled to do so. Locke's comprehension reflected accurately enough the ambivalence of an emerging bourgeois society which demanded formal equality but required substative inequality of rights. Hence it was necessary to profess the natural equality of men and to clothe that equality in natural law, and equally necessary to find a natural justi­fication of inequality. Locke did both (C.B. Macpherson, 1%2; 199, 231-245).

2. The new Civil Society created through social contract 'will defend and protect with the whole common force the person and the goods of each associate and in which each, while uniting himself with all may still obey himself alone and remain as free as before' (J.J. Rousseau, 1973).

24

general will. For him there is no contradiction between the realisation of freedom and

obeying the dictates of general wil/1 or law since man do~s not submit to any alien or

external authority but to himself and freedom lies in obeying himself.2 Rousseau argues

that law is nothing but the execution of the universal voice - the voice of reason and ..

morality. It cannot be immoral, unjust and harmful since the executors of the law are the

law makers. Law, being the voice of general will is always infallible and always does justice.

He implicitly states that it is justice what the general will, the collective conscience of

humankind, does or allows to do, and anything against it is unjust.

There was a kind of coalescence of virtue and freedom in case of Rousseau.

Rousseau held that man has been denaturalised in a competitive, divided and oppressive

civilisation. In order to put society right certain norms (or law) have to be established by

the common reason of human kind or a human community which would perfect the man

by ridding his self from all impurities. Right reason cannot be the expression of the

particular will, just as it cannot be the expression of the sum total of particular will (the will

of all). Hence it must be the expression of the right reason, i.e. general wi//3

Rousseau problemises reason and contrasts theoretical and practical reason: will

1. Rousseau asserts that it is very easy to be aware of this general will: 'the general will is, in each individual, a pure act of the understanding which reasons, when the passions are silent, about what a man can ask of his fellows and what his fellows have the right to ask him' (Ibid., 160).

2. Rousseau writes, 'What man acquires in the civil state, is moral liberty, which alone makes him truly master of himself; for the mere impulse of appetite is slavery, while obedience to a law which we prescribe to our­selves is liberty' (Ibid).

3. The general will is (in its broadest interpretation) the collective internal authority, the collective conscience of humankind, the duty of which is to test the external authorities of norms and rules. It is legislative authority because it must establish new and rational norms that free and virtuous people are bound to obey. Rousseau writes: the 'individuals see the good they rejet; the public wills' the good it does not see. All stand equally in need of guidance. The former must be compelled to bring their will into conformity with their reason; the latter must be taught to know what he wills ... This makes a legislator necessary' (Ibid., 193).

25

and understanding are thus divided. I Ideas of justice coincides with the principle of

general will, which represents the juridical consciousness, that reasons in the silence of

passion. The question which Rousseau himself has raised i.e., 'what interest I have in being

just'2 remain unanswered in an unambiguous term. No room remain for pluralism and

discourse in the model of Social Contract; there are only uniform duties. The general will

becomes an externalised and alienated self, the embodiment of 'alienated conscience'.

Even Rousseau introduced the concept of 'forced to be free' which is a violation of, what

Rousseau himself strongly advocated i.e, moral freedom.

The attempt to solve the problem of the concept of justice ends in the destruction

of the very idea the project originally stood for: the idea of free morality, a morality based

upon the power of conscience. By refuting the infallibility of general will Rousseau

justified all the acts of it in all circumstances. Justice becomes institutionalised and

&--- ... 1! .... -A 'lA- .. Al!••• t....,.,.. L--- ,.. .. \...!.--..! .. ,.!,.. ..... ...1 ,._,1 L...,,.. 1.. .......... -- ..... ---- .... - .. A ... !- _,.,...,.f,.., .. .......-an+:"" J.U1111Qilo3~U. 1YJU1 Q1HJ 11Qo3 U~~~~ o3UUj~\.UV 1o3~U QUU 11Qo3 U~\.U111~ 111\.1¥ WUl Uo3 Ill \,VlU.VllUUUVU

to the voice of general will. Hence the obedience to the dictates of general will is moral

otherwise immoral. The general will, the externalised self h;1s been accorded primacy and

supremacy over the individual being. The paradox of reason has become the paradox of

freedom that men must be forced to be free was the paradox in which the project resulted.

The utilitarians approach justice from a different angle. They envisage that the

ultimate end is and ought to be the greatest happiness of the greatest number and those

actions are right and just which serve this end.3 It is David Hume who is regarded as the

1. Happiness, the central concept of ethico-political concept of justice becomes marginal and freedom moves to the centre of discourse (sec Agnes Heller, 1987:80-81). ·

2. Rousseau gives voice to the objection of the 'civilised man': I admit that I can clearly see there the rule that I must consult ... but I still do not see the reason why I should be subject to this rule. It is not a question of tcacing me what justice is; it is a question of showing me what interest I have in being just' (J.J. Rousscan, 1973: 159-60).

3. Sec Henry Sidgwick, 1893 (Book- IV (i)): 141.

26

precursor of utilitarianism; and utilitarianism as a theory was first formulated distinctly by

Bentham and followed by fundamental modification in the hand of J .S. Mill. 1

Utilitarianism as a theory of justice regards actions of individual being as well as of state to

be just, virtuous, moral or legal if they achieve. general happiness. Justice and morality of

an action depends on its being socially good and beneficial.2

Hume, the forerunner of utilitarianism, insists that public utility is the sole origin of

justice. For Hume, the rules of justice are not natural but artificial, though he does not

mean that they are baseless for they essentially are useful.3 Justice, Hume held was

conventional in the sense of being necessary to society. Men's ideas on justice arose from

needs and these rules were binding by custom and convention but were justified by their

utility. Hume deduced justice from 'public utility'. Hume's view is, therefore, utilitarian.

Hume noted that rules of justice are intended as a remedy to SOf!le inconveniences which

external object.4

Hume limited justice to the regulation of questions of private property. According

to him property and property alone is the subject matter of justice. He also held that

inequality in property ownership is just because it is useful. For Hume justice would be

irrelevant in both the extreme cases i.e., the situation of absolute abundance and of

1. Here focuss will be on J.S. Mill, and Hume and Bentham will be dealt in a nutshell.

2. It identifies justice with utility or general good. Means are irrelevant to moral and juridical judgements since the moral worth of an act depends on the end it serves. Howsoever noble and virtuous the means may be, if the end does not incur the general happiness the action is treated as unjust and immoral. Both the natural rights and liberties are made subservient to social good.

3. Harisson, 17, 24.

4. Cited in Ibid., 24.

27

absolute scarcity, since justice presupposes scarcity.1 Thus Hume reduced the concept to '

the idea 'to each according to his property entitlement'; all other notions of justice are

seen as relating to the suspension of justice. Hume has not dealt elaborately with tbe

problem of justice rather has paid a scant attention to it; the problem of justice has been a

peripheral issue for him.

The most characteristic features of the utilitarian view found its greatest expression

in Jeremy Bentham's work. Since pleasure is good and pain is evil, the consequences

rather than motives are considered as more important than moral considerations.2

Bentham accepts the principles of utility to be self-evident, the rectitude and purity·of

which is never questioned and stands supreme over all other moral principles.3 Bentham's

utilitarianism is based purely on quantitative ground. The precision and clearness of

mathematical calculation was introduced by Bentham into the fields of morality and

iustice. AccordinQ to Renth::~m the nnrno~e ~nrl in~tifir.~tion of nen~l l~w~ were not ., u · -- - - c -~c --- ----- J--------.------ -- r ------ ----- - - .:

different from those of the secondary principles of morality - they required justification by

the general happiness principle i.e., the greatest happiness of the greatest number'.4

1. In case of absolute abundance, property is useless, redundant because if all needs can be satisfied we are beyond justice. In case of absolute scarcity property rules are violable, thus justice must be suspended. Yet we live in a situation of limited abundance (or limited scarcity). This is why property qua justice is useful. Hume held that equity can remain relevant in these other contexts. He stated, 'nature is so liberal to mankind, that, were all her presents equally divided among the species ... It must also be confesed, that, wherever we depart from this equality, we rob the poor of more satisfaction than we add to the rich .. " (David Hume, 1966 (III.ii): 193-4). He continued to state, 'The most rigorous inquisition too is requisite to watch every inequality on its first appearance; and the most severe juridiction, to punish and redress it' (Ibid, 194). ·

2. Bentham said, 'which approves and disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of party whose interest is in question ... not only of every action of a private individual but of every measure of government' (Jeremy Bentham 1843 (Vol.l, Ch.1) : 1).

3. The utility principle is not susceptible to any direct proof for 'that which is used to prove everything else, cannot be proved: a chain of proofs must have their commencement somewhere. To give such proof is as impossibe as it is needless (Ibid., 11).

4. See David L. Sills, "Utilitarianism", l11tematimral Encyclopaedia of Social Science, (vol.16), London, p.11.

28

J.S. Mill, being a thorough-going utilitarian, subsumes justice to utility making the

just only a special genus or class of the useful. Justice, for him, is merely a name for certain

social utilities that the most vital and imperatives to human well-being. According to Mill

'it has always been evident that all classes of justice are also cases of expediency : the

difference is in the peculiar sentiment which attaches to the former, as contradistinguished

from the latter.1 Mill valued justice as the most important and the most privileged of

social utilities, adhered nevertheless, to an intransigent individualism, identifying justice

with the affirmation of liberty of every individual and making it thus irreconcilable with

anything but a formal egalitarianism. Starting with an individualist philosophy Mill arrived

at a social theory of justice.

Mill, realising defects in Bentham's principle of the quantitative pleasure, modified

it accordingly so as to keep the utility principle still be the first principle of all justifications

..,._....J +L ......... 1 .. :-...,..., ...... ---- ........ 1 -& ..... 11 ..... -•!--~ 2 ~6!11 C- ... -•L-- ..l!C.C--.... &--- 0.--•L-.- !- •- ........... •!-- _....,._ auu Ull;; Ul ~llllaLI;; app~;;al Vl au cl\..LlUIJ;), lV.lllJ lUl Lll\;;1 Ullll;;l;) 11 Vlll Ul;;lHllcllll 111 U ~auu0 lUau

not as a self-centered but altruistic imbued with motive of sacrifice. Mill's utilitarian

morality recognises the good in human beings as the good for others.3 Mill noted that

justice is regarded as the chief part and incomparably the most scared and binding pact, of

all morality, not by reason of abstract right, but simply because the requirements of justice

stand higher in the scale of social utility and are, therefore, of more paramount obligation

than any other.4

1. J.S. Mill cited in L.L. Cahn (ed.), 1972: 388.

2. Mill asserted that quantity as well quality of pleasure counts in moral judgement. He said, 'it is quite com­patible with the principle that some kinds of pleasure arc more desirable and more valuable than others' (J .S. Mill, 1961: 11). And again he maintains that 'it is better to be human being dissatisfied than a pig satisfied; better to be socrates dissatificd than a pig satisfied' (Ibid, 14).

3. Mill contends that 'the happiness which forms the utilitarian standards of what is right in conduct, is not agent's own happiness but that of all concerned' (Ibid, 241).

4. Cited in Michael Sandel, 1982: 3.

29

Mill, despite all his efforts, could not retrieve utilitarianism from its inherent

weakness. For utilitarians (including Mill) it is utility but not justice which plays a decisive

role in human society and justice is to be understood only in the light of utility that it

produces in society. The utilitarians try to enclose the whole of justice in a corner of the

utilitarian domain. Mill finds himself compelled to hold that wherever two men advance

opposite and irreconcilable claims concerning what is just, social utility alone can decide

the preference. How can justice, which Mill tries to identify with utility, in its most vital

and indispensable manifestation be adjudged according to some other - necessary lesser­

type of utility. The theory of utilitarianism is faulted for giving insufficient weight to

consideration of justice, and more especially for its lack of a strong principle of equality.1

The empiricistic bias of the utilitarians is reflected in their attempt to measure

pleasure in concrete terms. But human society and human behaviour with their wide

variations and intricacies cannot hP adP.nn~tPiv llnriPro;:tnnri Ulith thP hPin nf rioid nrinrinJpo;: --- · · --·-·---- --- ---,-----., --·--·-·----- ·· ···· ···- ··-·r ~· · ·o·- r· ···-·r·--

of scienticism and causal terms. By making man subservient to the goal of the general

happiness, utilitarianism robs man of his intrinsic worth by subjecting him to an alien end

wherein, instead of being a free agent, he becomes a helpless victim in the hands of the

government seeking general good.

The utilitarian philosophy treated man primarily as consumer of utility,2 pursuing

pleasure and avoiding pain. What appeared, therefore, was a timeless theory of human

nature in which history was denied and reduced to a habit of particular time and cultural

determinants were ignored. Even the claim to maximise utilities and the claim to do so

equitably, which forms the core of utilitarianism, both fail in a hierarchic and inequitious

social system. It also ignores the ethics of self developmental i.e., man is a bundle of

1. For detail analysis of this aspect see Russel Keat and David Miller, 1974: 3-31.

2. See C.B. Macpherson, 1973: 4-5.

30

conscious energies seeking satisfaction. The free and equal development of essential

humanity has not been paid attention.

Immanuel Kant tries to formulate the universal criterion for a non-existent

(empirically) justice.1 But Kant himself did not dismiss the concept of justice totally but

kept it within the framework of the doctrine of law. The concept of justice is derivative of

Kant's concept of law and morality. According to Kant, whatever meets the percept of law

is just and whatever violates them is unjust. Only a union as an end in itself which ought to

be shared by all and which is thus an absolute and primary duty in all external relationship

whatsoever among human beings can secure justice and avoid the coercion of some by

conviction of others.2

For Kant the source of moral laws lies in the sphere of noumenal world (in which

the categories of scientific cognition have no applicability) whereas moral actions are

and noumenal) at the same time and as the noumenal world is the foundation of the laws

of the world of sense, it imposes its laws upon man's sensuous nature and makes him

conform to its laws thereby giving rise to categorical imperative and duty.3 The categorical

imperative is the moral law itself; it commands categorically and unconditionally; it does

not say: Do this if you would be happy or successful or perfect; Do it because it is your

1. The ethico-political concept of justice does not find an explicit expression in Kant since Kant's intention was to rescue the notion of the highest good as the end of moral intention without relapsing into the fallacy of heteronomy implied by every ethico-political concept of justice (see Agnes Heller, 1987: 99).

2. Kant tells, "So act as to use humanity, both in your person and in the person of every other, always at the same time as an end, never simply as means'.

3. The categorical imperative is thus the expression of the conflict in man's nature that arises because of the two fold aspects of man: 11011menal (where rationality and freedom are dominant) and phenomenal (where desires and inclinations reign supreme). The demand of reason that all our actions as phenomenal beings must conform to the autonomy of pure self in the categorical imperative - the moral law.

31

duty to do it i.e., duty for duty's sake like its stoic modei. 1 This law or categorical

imperative is universal, necessary law, a priori inherent in reason itself. Implied in this law

or rather identical with it another law i.e., every man in every case is an end-in-itself and

not merely a means.

In Kant Law is morality in its entirety. There is no conflict between moral law and

positive law since they originate from the same source i.e., categorical imperative or

reason.2 The categorical imperative manifests as morality in internal sphere and exposes

itself in the external sphere. Justice and law operate, according to Kant, in the external

sphere only. These are concerned with the external relation of man with his fellow beings

in the society and the transactions of society. Justice is essentially based on respect for

autonomy of each human being.

For Kant nothing is absolutely good except the good will. By it Kant understands

objective good will is the means to achieve an objective end: the end of humanity. Will, the

activity of reason, is determined by reason itself. In a strictly moral action nothing

determines the will except objectively the law and subjectively pure respect for this law.3

Freedom, says Kant, consists negatively in resisting the solicitations of the senses and

positively in the will willing itself. A man is free when he is governed by moral laws not by

his impulses. The inner self of man expresses itself in moral htws.4

The disciplined citizen does not find problem in obeying the laws of the state

1. See Frank Thilly, 1984: 442.

2. Kant says, 'whatever is juridically in accordance with External Laws, is said to be Just ... , and whatever is not juridically in accordance with External Laws, is Unjust' (Immanuel Kant, 1974: 32).

3. Frank Thilly, 1984 : 423.

4. The man imposes the law upon himself and his autonomy lies in its obedience. This moral consciousness implies freedom of the will. He must do right for right's own sake but not for sake of individual happiness.

32

because the laws are also the dictates of his own reason. For Kant a course of action is

lawful if the liberty to pursue it is compatible with the liberty of every other person under

a general rule.1 This Kantian formula expresses that the demand for equality is identical

with the demand for a general rule. The liberty of action is restrained in consideration

with the right of others.

The basic limitation lies in the attempt of separating what ought to be from what is,

willing from action, and freedom from necessity. The consequence of such separation is

that Kant regards the willing of a maxim as the absolute criterion for judging the goodness

or badness of moral actions without taking into account the objective reality and its

knowledge where the willing of a maxim can possibly be actualized. Mere willing without

the efforts on the basis of the cognition of objective reality cannot be excluded from the

criterion of morality. As a result his moral laws are purely formal which excludes all

specificity and contents.

It is also argued that none of these moral rules can really be universalised in

practice. We can argue that some actions are there which would be universally recognized

as good and yet which could not possibly be universalized, where the attempt to

universalize them would lead to great logical absurdities.2 Hence Kant's principle is

abandoned.

Again Kantian dismissal of empirical nature man from the realm of moral

motivation is rigid and not compatible with the pluralism of moral personality. In Kant the

concept of absolu.te freedom as absolute autonomy was meant to rescue morality after the

fragmenting of the ethico-political concept of justice. Heller contends that absolute

freedom as absolute autonomy destroys human morals completely and hence there is

--------------------1. Sec Alf Ross, 1958 : 276.

2. Sec G.C. Field, 1932: 37-38.

33

paradox of freedom (if freedom is interpreted as autonomy).1

In Kant's view the goodness and badness of moral actions depends on the willing

and if the willing is good then it continues to have its unique goodness even if it produces a

bad result. It becomes evident that Kant's definition of good is circular because it assumes

the definiendum in the definieus. But the important point is that Kant confines the

goodness of good will within its ideality and does not attempt towards actualizing it by

creating an objective condition where it can possibly be realized.

In contemporary western ethical philosophy, John Rawls's A Theory of Justice is also

an attempt to create a comprehensive normative theory of justice. It has been claimed to

be one of the best representative and most influential liberal theory of justice. Rawls'

concept of justice has been subject to a thorough and penetrating criticism from various

philosophical and ideological positions. His theory of justice needs careful and systematic

critical evaluation since it has created much controversy in the academic circle.2

Rawls rejects the methodological distinction between ethical and mataethical

discourse. His theory is very much akin to the contractarian theory of justice. In Rawls'

version of contract parties select principles of justice from a hypothetical original position

much as parties contracted to form civil society in Locke, Rousseau (and ·also Kant).3 The

linking of Kant's theory of social contract with contemporary theory of decision making is

an original idea.

Rawls rejects the methodological distinction between ethical and mataethical

discourse. His theory is very much akin to the contractarian theory of justice. In Rawls'

version of contract parties select principles of justice from a hypothetical original position

1. Agnes Heller, 1987: 105.

2. Here the emphasis will be more on his shortcomings and lacunae rather than on the elaboration of his theory of justice.

3. Sec John Rawls, 1972 : 11, 122-26, 136-50, 530-41.

34

much as parties contracted to form civil society in Locke, Rousseau (and also Kant).1 The

linking of Kant's theory of social contract with contemporary theory of decision making is

an original idea.

Rawls claims his theory to be deontological one (which is not teleological) based on

the deontological tradition of Kant. Justice is justified in a way that does not depend on

any particular vision of good. It is a form of justification that does not presuppose any final

human purpose or end nor any determinate conception of human good. For which the

teleological theories like intuitionism and more specifically the utilitarianism had to bear

the worst kind of onslaught of Rawls. His main concern is to show that a natural right or

contractarian concept of justice is preferable to utilitarian because of the incongruities

between its implications and our moral sentiment.2

The two principles of justice, central points of his entire theory, are as follows:

i) 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 of all.

ii) Second Principle: 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 saving

principle, and

b) attached to offices and positions open to all under conditions of fair equality

of opportunity.3

But the first principle has been accorded priority and the second one subordinated

because the first principle of justice is a formulation of the basic ethical postulate of

1. See John Rawls, 1972: 11, 122-26, 136-50, 530-41.

2. Ibid., 22-23.

3. Ibid., 60-65, 250, 302.

35

classical liberal doctrine. Hence Rawls' theory is a liberal theory of justice. In relation to

classical liberal doctrine it is a revisionist theory. The second principle i.e. the difference

principle, is the principle of social justice 1 which is a purely distributive justice relevant for

non-egalitarian class structured societies. It is mainly redistributive, in fact, implying an

implicit acceptance of the existing patterns of the original distribution of primary goods,

with its creation of naturally privileged or underprivileged groups. Wolf argues that by

focussing exclusively on distribution rather than on production, Rawls obscures the real

roots of distribution.2

According to Rawls, the original position3 in its analytic capacity, provides a

concrete model for reducing a relative complex problem (the social choice of principle of

justice) to a more manageable problem, the rational individual choice of principle, and it

plays its role as a justificatory device. Thomas Nagel4 claims that Rawls' original position

clearly shows a kind of- bias which is an unavoidable drawback of all contract theories.

Nagel argues that the original position contains a strong individualistic bias which is

further strengthened by the motivational assumptions of mutual disinterest and absence of

· envy. The original position seems to suppose not just a neutral theory of the good but a

liberal individualistic conception (typical to the contract theorists) according to which the

best then can be wished for som~one is the unimpeded pursuit of his own path, provided it

does not interfere with the right of others.5 Again he says that the theory is thin since

parties do not know their full conception of the good and if differing full conception of

1. Ibid., 65-82.

2. R.P. Wolf, 1977: 210.

3. See Rawls, 1972: 118-94.

4. Thomas Nagel, "Rawls on Justice" inN. Daniels (ed.), 1983: 1-15.

5./bid., 9-10.

36

good were allowed unanimity in principles is impossible.1

Milton Fisk,2 from a Marxist point of view points the Rawlsian bias in the original

position. Fisk claims that Rawls justified the contract position by reducing them down to

their natural characteristics offreedom and equality which reflected his liberal

individualistic bias. The abstraction of individual from real historical condition and

treatment of human being independent of historically specific factors is an unfortunate

distortion and incurs a fallacy of misplaced concreteness3 This distortion ieads to choosing

particular ideologically biased principle. Liberal principle of freedom of thought serves the

dominant class,s interest and provides a cover for the hidden persuaders that aid

oppressing group. It results in a misleading description of the state (which is more a

coercive and oppressive than a liberating one) which is viewed as a stumbling block to

individual selfishness rather than as an instrument of class oppression.4 Fisk severely

criticises the model of the· individual who makes the choice as itself ideologically biased.

David Lyons5 poirits out that the question of justification is complicated by the fact

that Rawls seems simultaneously to rely on two different sorts of justification, one

appealing to the method of reflective equilibrium, the other to the tradition of the social

contract and sorting out their respective roles poses certain difficulties. Contrary to Rawls,

argument Lyons suggests that there may not be so clear-cut a difference in the degrees to

which utilitarianism and Rawls, principle of justice match our considered judgment when

1. Ibid., 8-9.

2. Milton Fisk, "History and Reason in Rawls" inN. Daniels (ed.) 1983: 53~80.

3. Ibid., 53-54, 55-57.

4. Ibid., 61-63.

5. David Lyons, "Nature and Soundness of the Contract and Coherence Arguments" inN. Danniels (ed.) 1983: 141-68.

37

we apply the coherence principle.

The priority of the first principle of justice over the second (especially of the

difference principle) implies two assumptions which are intrinsic to traditional bourgeois

liberal doctrine: (1) that liberty is more important and higher value than actual equality,

(2) that political liberty is quite independent of the distribution of primary goods. The

empirical criteria needed for practical interpretation and application of the difference

principle are vague. Rawls also does not formulate any criterion on the basis of which one

could empirically determine whether this principle in a given social arrangement is

justified, that is, whether it fulfills the requirements of the difference principle.1 Norman

Daniels2 argues that Rawls arbitrarily excludes economic factors from among the

constraints definitive of basic liberties. According to Daniels, economic factors function

much like the legal restrictions and public pressures which Rawls accepts as defining

constraints.

There lies a serious incongruity between first principle: demand for equal liberty

and the second principle: justification of inequalities, even significant inequalities, in

wealth and liberty. Since inequalities in wealth and power always produce inequalities in

basic liberty, Rawls' reconciliation of two principles is a failure. Rawls' theory is a non­

egalitarian and conservative theory in double sense: first, it assumes a non-egalitarian

structure of society with regard to the distribution of primary goods as an indispensable

condition of the economic productivity of the social system (an unequal distribution as an

incentive to productive work). Secondly, it assumes that a large society consists of non

comparing groups and that this helps to keep down envy, for people will not resent

inequalities they do not notice.

1. Chapman, 1975: 589-90.

2. Normal Daniels, "Equal Liberty and Unequal Worth of Liberty" inN. Daniels (ed.), 1983: 141-68.

3H

Rawls' definitions of each of the three crucial concepts namely, interest, reason and

maximisation presuppose a specific conception of the good life. He defines interest in

terms of what he calls primary goods and these are all derived from a specific conception of

good life. It is also striking that Rawls' primary goods are almost all privately enjoyable

and do not include a single public good that can only be enjoyed by men together. Rawls

theory of justice does not adopt a neutral stance between the different conceptions of the

good life but is deeply biased towards liberal bourgeois individualism.

When carefully examined, claims Bhikhu Parekh, 1 Rawls theory turns out to have a

marked utilitarian orientation. Rawls whole mode of reasoning about justice is in terms of

individual interest, personal benefits, maximization, instrumental rationality,

compensation, justification in terms of consequence, a view of moral principles as devices

for the protection of long term' interest and so on, all of which are distinctive to the

utilitarian form of thought. Though he criticizes the fundamental categories and

assumptions of utilitarianism, though he is able to detect and reject its Benthamite and

other crude forms, he has not been able to remove their subtle and more elusive cousins.

Since Rawls' entire mode of political reasoning is based on certain ideal

assumptions about man and society, a lot of contradictions are surfaced when his theory is

confronted with real world characterised by class-interests, the pressures of organized and

dominant interest, and less than ideal citizens and legislators. His theory also becomes

irrelevant for a society whose language of public discourse is distorted and biased. Rawls

design turns out to be largely redundant to the real political world and does not offer us

much practical guidance. Since justice as fairness seeks to restore the separateness of

individuals in the way they enter into a theory of justice,2 it makes itself powerless to

. 1. See. Bhikhu Parekh, 1982: 180.

2. See John Rawls, 1972: 23.

39

explain how individuals are vulnerable to social relations of power and subordination. It

inherits the weakness, as well as the insights of a contra~t theory. There is no way of

situating individual moral experience within larger and historical relationship of power

and sub-ordination.

The deontological theory of Rawls that is based on the Kantian conception of

morality has also been challenged and criticized. Michael Sandel argues that for justice to

be primary we must be independent and distinct from the ends and values we hold. As

subjects we must constitute independently our ends and desires. He seeks the limits of

justice in the partiality of this self-image (which is inherent in deontological ethic) and

argues that deontological liberalism cannot be rescued from the difficulties associated with

the Kantian subject. 1 Strongly criticising the deontological liberalism, Sandel says that this

assumes that what separates us as individuals is in some important sense prior to what

connects us. This is an epistemological as well as moral priority. 'We are distinct

individuals first and then form relationship and engage in co-operative arrangements with

others. We are barren subjects of possession first and then we choose ends we would

possess; hence the priority of self over its ends'.2 This deontological ethic, also generates

an inability to address issues of substantive justice, namely questions about the justice or

otherwise of social relationship.

C.B. Macpherson3 remarked that the two principles are inconsistent in capitalist

market society where class in-equality in power reaches to the liberties, rights and

essential humanity of the individuals in those classes. Rawls could not visualize that this

class inequality in this market system is bound to be an inequality of power as well as of

1. Michael Sandel, 1982: 13.

2. Ibid., 133.

3. Sec C.B. Macpherson, 1973: 90-94.

40

income that allows one class to dominate another. According to Macpherson it is justified

to conclude that any theory such as Rawls' whose horizon is for the most part bounded by

the supposed wants of man as consumer or which ignores the satisfaction of those wants

that constitute the main ingredient of moral freedom or maximization of power, is not

adequate as a liberating or developmental theory rather a possessive individualistic one

representing a capitalist market society.

Rawls' theory is a plea for distributive justice only within the framework of

inequalities in the class structure. Moreover, as one critic of Rawls bluntly points out, that

the capacity of the capitalist to hoodwink the masses, all in. the interest of profits, despite

appeal to common principles of justice 1 is almost infinite. In real life, such a prescription

would be least adhered to by person who is clearly cherish the sustenance of inequality ..

under capitalism. Rawls theory is essentially a neo-liberal plea for capitalism. In Rawls

deliberations there appears an undeniable preference for the capitalist economic system

connected with the private ownership of means of production, the market economy and a

liberal democratic political system. The ideological character of the max-min rule as a

directive of rational choice is beyond doubt. Only with a capitalist socio-economic order

may the max-min rule be represented as a rational directive for choosing principles of

justice, though even within these ideological assumptions the scope of its application is

limited.

Ill

COMPENSATORY JUSTICE

In late nineteenth century and early twentieth century some changes in the society

were thrusting themselves on the attention of the liberal thinkers; changes which required

1. See R.W. Miller, "Rawls and Marxism" inN. Daniels (ed.), 1983: 209-19.

41

a quite different approach. It was no longer a question of popular discontents surfacing in

occasional eruptions of anger and desperation, but the people as a constant force to be

reckoned with, conscious of their rights and demands. Class consciousness among the

working class developed and threatened the legitimacy of the political system thereby

appearing hazardous to the socio-economic system. The conditions of the large mass of the

people was becoming so blatantly inhuman that sensitive liberals and socialist could not

accept it either morally justifiable or economically inevitable or immutable. As a result

there developed the liberal and socialist critique of capitalism coupled with the demand

for social and economic changes which challenged the very basic principles of the liberal

capitalist economy with its unconcern for gross injustice prevalent in society.

The social impact of the consistent and unbridled capitalist policy and growing

criticism of it by both the socialist movement and conscious liberals led to a reapprisal of

its ideological basis. The emergence of the capitalist sociat" philosophy which exalted the

homo-economics as the true representative of humanity and made economic success the

measure of this value no longer held good. Towards the end of the nineteenth century,

liberalism was becoming ideologically bankrupt and was running out of ideas and steam. It

was preoccupied with political forms and failed adequately to take account of their

dependence on the economic foundation they expressed. Due to the resultant class

relation and its consequent contradictions liberalism could not maintain a balance

between the power to produce and the power to distribute. The close of the nineteenth

century saw the fortunes of great liberal movement brought their lowest ebb; its faith in

itself was waxing cold and it had the air of a creed that is becoming fossilized as an extinct

form. 1

1. See L.T. Hobhousc, 1930: 110.

42

The perilous socio-economic scenario in late nineteenth century and early

twentieth century provoked theoretical changes within liberal parameter which marked the

beginning of its developmental variety i.e., welfarism. It emerged more as a theory of crisis

management. The major problem was to make the new liberal philosophy coherent and

humanitarian rather than rely on its ideological function to remove the repressive

institution of the past. There was also a resultant reformulation and revision in the liberal

concept of justice. The form of inequality once viewed as something natural or divinely

ordained was challenged as unjust. Thus as a part of broader strategy of welfare measures

one witnessed the emergence of compensatory justice or affirmative discrimination which ·

is a relatively a recent innovation of liberal theory. It represented the liberal crisis, and

one kind of liberal response to it.

In the contemporary political theory the debate over justice has mostly focussed on

social justice. Social justice is the nearly unanimous answer given to the question 'what is

justice', in the contem~orary literature on justice. Rawls's 1 original position, Robert

Nozick's,2 experience machine and Bruce Ackerman's3 spaceship are among the striking

thought experiments in this literature. These writers largely agree that social justice is

nothing more than distributive justice and they limit distributive justice to the distribution

of the benefits, ignoring the burdens of social life. Most contributors to the contemporary

debate over justice are individualists of a kind. They are philosophical individualists in that

1. John Rawls, 1972.

2. Robert Nozick, 1974.

3. Bruce Ackerman, 1980.

43

they conceive of rationality (and hence of procedural justice) in individualistic terms.1 The

atomistic individual is the receiver of material primary goods. These goods are tailored to

the use of an individual who is devoid of any particular social relations, including

especially the burden of labouring to produce these goods. The most bald presentation of

this individualism in the contemporary literature on justice is Robert Nozick's Anarchy,

state and Utopia.2

These thinkers also treat justice literally beyond politics.3 Rawls requires justice to

be determined in perpetuity prior to the institution of a government and the initiation of

politics, as does Bruce Ackerman.4 The root of politics in values and in interminable

conflict is discounted.s The search for transcultural criteria of justice may be

philosophically relevant, but is politically irrelevant. Historically, political philosophers

have addressed the first order of question of how social co-operation is possible, but to-day

the methodological strategy, of justice is to assume that social co-operation is flourishing.

Then the only problem for self-interested people is how to divide their gains among

1. Specifically John Rawl's original position is composed of atomistic, antonomous and amonymous individuals who all think alike and who arrive at unanimous conclusion as though they were a single.person (John Rawls;· 1972:564). It is important to note that they arc anonymous even to themselves behind the veil of ognorancc.

Jackson argues that if the contributors to the contemporary debate over social justice arc philosophical individualists, they are also psychological individualists. That is they think we are psychological and ethical egoists depicted by Thomas Hobbes (see M.W. Jackson,1986:16-17; also sec Macpherson, 1973). The final ingredient to the abstract national individualism of so much of social justice is its deontological character.

2. Robert Nozick, 1974. Nozick's exclusive preoccupation with the rational individual precludes an investigation of the work required to create and maintain the communities in which we live.

3. See M.W. Jackson, 1986: 161-64.

4. Bruce Ackerman, 1980: 36. Ackerman goes even to assume perfect technologies of justice unhindered by either facts, like scarcity, or human fallibility (Ackerman, 1980 : 19).

5. According to Max Weber, 'he who lets himself for politics that is, 'power and force as means, contracts with diabolical powers and for his action it is not true that good can follow orily from good and evil only from evil, but that often the opposite is true. Anyone who fails to sec this is, indeed, a political infant. (Max weber, "Poli­tics as Vocation" in H.H. Gerth and C.W. Mills (trans. and eds.), 1946: 123).

44

themselves. 1 Consequently, contemporary thinkers does not and cannot explain and

justify soci(J.l co-operation. It is a measure of the political irrelevance of justice that it

disregards actual performance in preference to promise and moots a technological

rationality unacceptable to any one2 since our lives are ruled by political performance and

not by philosophical promise.

However, liberal justice could not be retrieved from its orthodox and formalistic

bias. It still remains imbued with its own inherent weakness i.e., despite all changes

inequality based on social hierarchy continue to be justified as natural and beneficial. The

political and legal aspects of equality has been accorded primacy over social and econ<)mic

counterpart. The liberal notion of justice is treated as a concept of harmony, equilibrium,

stability and reconciliation of interest. Affirmative discrimination has arisen a crisis­

management mechanism to avert the ensuing socio-economic impasse and to rescue

political order from impending crisis of legitimisation. It does not try to strike at the root

of those social and economic forces in society which breeds injustice, perpetuates

inequitious system and causes misery to the poor. The liberal theory of justice emphasises

the political aspect of justice ignoring the more important socio-economic dimension. The

disingenuous and superficial approach to justice based on charity and pity without any

space for structural transformation failed to achieve the objectives. The liberal concept of

justice is used more as a balancing mechanism to harmonise existing conflict than to

change the impoverished condition of the beneficiaries. As a result of which the poor

remain unsalvaged, inequality gets accentuated and injustice is perpetrated.

1. John Charvct, 1981: 110.

2. M.W. Jackson, 1986;165.

45

IV

THE ISSUE OF MORALI1Y

Now the question arises that: Whether justice is essentially a moral (or normative)

concept? How and why the concept of justice gets related to moral judgment? Can

morality be based on objective criterion?

The moral or ethical thought is concerned with the question how we should live,

not how things are. The necessity of moral judgment arises in society because of

contradiction found between is and ought i.e., how he is and what he could be and what he

ought to be. 'Ethics proper begins, says Howard Selsam, when men seek to find ratiopal

grounds for accepted rules of conduct and do not merely .follow the rules because they are

sanctified by tradition.1 This awareness of contradiction between is and ought is not the

subjective phenomenon rather is determined by the objective circumstances in society. A

fundamentally natural condition becomes a moral problem, wh~n we discover the means

of controlling it and thereby make it a problem for man to think about it.2 And the

problems, like natural problem, which are beyond our actual or possible control are not

subject to moral judgment.

The concept of justice reflects the necessity of having a better and equitious society

by resolving this contradiction between how a man lives and how he should live. Hence

justice is a moral concept. But it is outcome of the objective expression of injustice that is

prevalent in society where the interests of a few are in conflict with interest of the many.

The necessity of justice reflects the objective historic necessity of resolution of this conflict.

Hence the concept of justice cannot be made completely subjective by abstracting it from

objective situation which gives rise to it.

1. Howard Sclsan, 1965: 8.

2. Ibid., 23-24.

46

Of course, morality is the consciousness of suhject hut it depends how one

interprets this consciousness. A. Alexandrov puts it rightly that awareness is simply the

transition from perception or emotional experiences to knowledge. 1 Knowledge also is

objective and contains the element of science. As Alexandrov explains that the distinction

between morality and science does not consist in the assertion that science reflects reality

whereas morality does not, rather the difference is to be viewed dialectically in the sense

that the difference resides in the nature of this reflection. Knowledge - the statement of

objective being - is the product of science and in turn morality, through knowledge,

develops imperatives.

It is because of this failure of the whole liberal tradition to find out the roots of

moral opinion and justice in the objective contradiction in social life, th~ liberal thinkers ·

have abstracted justice from social reality and put it in a co~pletely subjective domain i.e.,

a world of metaphysical.abstraction. As a result liberalism fails to provide any scientific

understanding. The liberal thinkers try to treat the conflict of interests (from which the

idea of justice originates) as essentially a moral problem. The logical outcome of such

ethical interpretation of conflicting interest, as Maurice Cornforth points out, gives rise to

the idea that rational moral judgments are those that promote the reconciliation of

interests and mutual tolerance of ideals.2 This lack of scientific interpretation of problem

of justice leads the liberal thinkers to find out a solution which is to be necessarily a moral

and metaphysical one. Thus C.K. Allen admits that it is the concept of harmony, stability,

balance or reconciliation of interests that has heen the primary and dominant theme in the

treatment of justice from Aristotle to Roscoe Pound.3 And again since the problem of

1. A. Alcxandrov, 1975: 35.

2. Maurice Cornforth, 1967: 219.

3. Sec C.K. Allen, 1958: 16-17.

47

justice is interpreted essentially as a normative one, the thrust of inquiry is directed

towards the maintenance of status-quo, of inequality and thereby justifies and rationalizes

liberalism and its philosophy.

A scientific and objective understanding of the concept of justice as well as morality

needs an inquiry into the nature of social reality that gives rise to the conflict of interest

and contradiction of values in social life. It has been explained earlier that any effort to

solve this problem with reference to moral judgment necessarily leads to ethical

subjectivism and provides no real solution for resolution of this contradiction. For which

liberal conception of justice fails to serve its purpose but instead tries to rationalize the

contradiction and justify the social inequality.

Especially in this context the Marxian contribution to the understanding of the

problem of justice and morality is highly relevant and pertinent. According to Marx, the

ethical and philosophical. concepts had no independent history, no development of their

own; but they were relative to every age depending on its mode of production. Differences

in the content of ethical expression largely reflect differences in the economic ordering of

this or that society or differences in the economic role of this or that group within the

same society.l

It is usually possible to show that the solution of particular problem is not to be

sought at the level of ideas but depends on resolving same basic social conflict which those

ideas reflect. In saying that philosophical concepts reflect the material conditions of life, it -­

is not meant to suggest that this reflection is passive and mirror like rather, on the

contrary, it is dynamic reaction' dialectically on the human situation it originally imaged.2

The very realization that being determines consciousness itself an alteration in being

1. William Ash, 1964 : xi.

2. Ibid., 4.

48

which must be registered by a 'yet more comprehensive consciousness. For Marx theories

of value and theories of knowledge do not belong to separate mental compartments and

that adopting any particular form of the one has implication pf the other.

Marxism's first contribution to the problem is to order and systematize the chaotic

and conflicting moral standards by showing that different classes have had their distinctive

norms of conduct in different times thus reflecting the mode of production prevailing at

that time. Marxism is a completely radical approach to the whole question of morality.

Since the exploitation of man by man is the basis of divisions in society and the source of

class subjectivism or morality, an objective ethical attitude depends on eliminating such

exploitation. It strikes at the very root of liberal morality and points to the necessity of

emphasising rationality and objectivity in ethics. Marxism has no faith in the efficacy of

preaching brotherly love in material circumstance which goes against it. Instead, Marxism

considers how those cinmmstances themselves can be changed by studying the means

whereby the foundations for a classless social order can be set up.

IV

CRITICAL EVALUATION

The traditional concept of justice has been criticised as an orthodox and

conservative idea which is primarily concerned with the virtue for enhancing the moral

worth of man and the performance of one's duty attached to him determined by prevalent

notion of morality, law, social customs and mode of thought. This notion of justice

continued to reign supreme in the ancient and medieval societies which were designed to

support and preserve the status quo. Only with the dawn of modern era - age of science

and technology - the old orthodox ideas of justice were challenged and sought to be

changed yielding place to the new idea of social justice. Bottomore has rightly observed

49

that during the greater part of human history the inequality, based on hierarchy of wealth,

prestige and power, among men has been generally accepted as an unalterable fact. Only

in the modern times since the American and French Revolutions, has social class, as a

stark embodiment of the principle of inequality, become an object of study, and at the

same time of widespread condemnation in terms of new social doctrines.1

All through the time the philosophers (specifically liberals) have viewed inequality,

based on social hierarchy, as natural and beneficial to society and also rationalized the

established social order. Only with the advent of modern age the inequality as something

natural or divinely ordained and as an unalterable fact has been challenged as unjust.

Hobhouse states that 'modern law and ethics have, at any rate, insisted on the equal

enjoyment of certain elementary rights, including among them the right of self­

advancement. National, racial and sex prejudices find themselves confronted with a moral

protest. The issue of the contest is not yet decided - and will not be until the ethical

importance of equality is more clearly defined - but enough has been established to con­

fute the easy view of the comfortable that inequality is inherent in progress.2

It is to be pointed out that the changes in the liberal idea of justice i.e., towards

more egalitarianism was not voluntary but was the need of the hour. Towards the later

part of the 19th cel}tury some changes in the society were thrusting themselves on the

attention of the liberal thinkers. It was no longer a question of popular discontents surfac­

ing in occasional irruptions of anger and desperation, but the people as a constant force

was to be reckoned with, conscious of their own distinctive existence and confident of the

legitimacy of their rights and demands. Class consciousness among the working class

developed and it began to appear perilous to property. The condition of the working class

1. See T.B. Bottomore, 1975 :11.

2. See L.T. Hobhouse, 1965: 114-15.

50

was becoming so blatantly inhuman that sensitive liberals and socialist could not accept it

either morally justifiable or economically inevitable. As a result there developed the liber­

al and socialist critique of capitalism coupled with the demand for social and economic

changes which challenged the vary basic principles of the liberal conception of justice.

The perilous socio-economic scenario of the mid-19th century was of crucial impor­

tance for liberalism that provoked fresh doubts in theoretical rethinking which marked the

beginning of developmental liberalism. Liberalism, being unable to absorb this crisis

within itself took the help of a technique of crisis management i.e. welfarism. The major

problem was to make the new liberal philosophy coherent and humanitarian rather than

rely on its ideological function to remove the repressive institutions of the past. Hence

there was the emergence of social justice that emphasised the egalitarianism and the

emancipation of human beings. But despite the attempts of the liberal thinkers, the con­

ception of justice remains as conservative and as status-quoist as it was earlier. The liberal

conception of justice was unable to provide a congenial atmosphere, towards which it aims

at, for the true development of human being. Still it remains imbued with its own inherent

weakness and still it justifies the inequality based on social hierarchy among men as natu­

ral and beneficial to society.

The liberal concept of justice has tried to maintain and justify existing inequality by

abstracting the concept from socio-economic reality. The liberal notion of justice is ortho­

dox and conservative which is primarily concerned with the virtue for enhancing the moral

worth of man and the performance of one's duty attached to him determined by prevalent

notion of morality, law, social customs and mode of thought. It has never tried to attack

the socio-economic roots which gives rise to and rationalises injustice. The priority has

always been given to liberty over equality. Moreover, the legal or formal and political

aspects of liberty as well as equality have been accorded primacy over the substantive or

socio-economic dimension of it. Even sometime the inequality, based on social hierarchy,

51

is justified as natural and beneficial to society. The liberal concept of justice is formal and

abstract in the sense that it means applying one rule to all members of a category irrespec­

tive of their differential needs and observing a rule which lays down the obligation to treat

in a certain way all persons who belong to a given category. Even though more importance

has been attached to equity and distributive aspect of justice in contemporary political

philosophy, the liberal concept of justice could not be retrieved from its earlier equilibria!

and comprising nature. Because the concept of justice has been adjusted within the exist­

ing system without any specific socio-economic or structural transformation. The liberal

theory has always tried to deal with the problem of justice in a disingenuous manner by

bringing an artificial balance or compromise between the conflicting interests of the privi­

leged and underprivileged without eradicating the roots of evil. Due to its equilibrial,

individualistic and formalistic approach, the liberal theory of justice has been an apologia

of the prevalent inequitious social order.

The formal and abstract concept of justice without talking note of differential needs

cannot rectify injustice. The formal and procedural concept of justice visualises man as an

isolated and atomistic individual devoid of any particular social relation. The balancing

and compromising approach justifies the existing inequality since objectives of justice can

only be secured by elimination of roots of injustice. Justice being a social concept can only

be realised and understood in terms of changing the social relation of man and the ab­

stracting of it from social reality in its denial. The liberal thinkers have tried to rationalise

the existing inequalities by abstracting it from ground reality. By giving importance on

formal and procedural part of justice and ignoring its substantive content, the liberal

theory has made the concept empty and ineffective. The overwhelming importance on the

liberty at cost of equality and the primary to formal aspect over substantive one has denied

justice to the underprivileged section of society and provided all the rationale to the pos-.

sessive individualism and the hierarchic structural inequality.

52