GLOBAL JUSTICE

PETER SINGER (FAMINE, AFFLUENCE AND MORALITY)

Country like Bangladesh and there was movement for independence from the Pakistani and this
movement was very brutally repressed due to which 9 million fled to India to escape starvation which
occurred because of the disruption of infrastructure. The concern of the writer was that despite this
vast number of people in great need, affluent nation were not helping it was not that they don’t know
about the situation. There was need to feed and provide sanitation and shelter to the refugee. India was
much poorer country then than it is today so it was not really going to be able to cope with this
burden.
What are our obligation as people living in affluent society in terms of helping to the situation like
this? The author argument:
Premise 1. Suffering and death from lack of food, shelter and medical care is bad thing happening
Premise 2: if it is in our power to prevent something bad form happening without thereby sacrificing
anything of comparable moral importance we ought morally to do it. Author want to people to ask
themselves that making substantial donation would it be comparable moral significance to the death
and suffering that it would prevent. Sacrificing anything even in terms of my own values whatever
they might be would be of comparable moral significance to what we would be preventing. Eg:
drowing child in the shallow pond: you are walking across the park and there is a shallow pond in the
park and you see child drowing and to stop him drowing is to grab the child and pull the child out. But
you realize there is some cost to you involved. You are wearing most expensive outfit and it will get
ruined and it will be inconvenient for you but one not ought to do this because the cost of replacing
your clothes would not be anything of comparable moral significance to saving the child’s life and
therefore, that’s something you ought to do. If it’s in our power to prevent something really bad
happening without sacrificing something comparably significant you ought to do it. We do have
obligation to help strangers even when we haven’t voluntarily taken on those kind of obligations.
Premise 3: it is in our power to prevent suffering and death from lack of food, shelter and medical
care without thereby sacrificing anything of comparable moral importance.
There will be difference between the situations but whether they are morally relevant situation
between those situations? Are there morally relevant differences between the drowning child situation
and situation of affluent with regard to children dying of avoidable poverty related causes? There are
some difference that are psychologically relevant that will affect the likelihood that people will help
differences between the child and the global poverty situation today and maybe they affect the moral
judgements of the people will make about whether we ought to help or not? Identifiable individual:
The child in the pond is identifiable child you don’t know the name of the child similarly in global
poverty you don’t know who you will be helping. Psychologically people are much readier to help an
identifiable individual than a statistical individual. Futility (inability to help everyone): when we
save the child in the pond we think I can save that child and therefore, I solve the problem and there’s
nobody else needing to be saved around there. But in global poverty, we think that there are many
people and no way I can save all of them but singer says that people can make insignificant difference
compared to the size of the problem and this is the discouraging factor that makes us less likely to
help. But if we see from the point of view of individual we helped it just as much benefit for that
individual. It will never reduce the value of that benefit. Diffusion of responsibility: in the case
drowning there is only one person we could help but this is not in the case of global poverty, there are
millions of people who can help some of them are wealthier than you and also there are people who
are lot wealthier than you but not helping at all. But psychologist have done research which shows
that we are less likely to help others if we are one of the group and see others in the group are not
helping. But the people should help despite the fact they are the part of the society where people
didn’t help very much should not be an excuse them. If group of people start helping that will make it
easier for other to join in and build up the critical mass of people helping. Near or far away: child is
near and refugees are far away but that doesn’t make difference to my obligations. If the distance
makes it harder for me to actually do anything then that makes the difference. Seeing for yourself or
information from others: need not to rely on information from others, psychologically that makes
the difference too. But what really matters is the quality of information, there can be possibility that
somebody be trying to scam you into sending them a donation or sending donation to mala fide
organization. Although these are relevant and proper concerns but should rely on good information.
All these psychological points are not morally relevant. Psychology is descriptive not normative. We
ought not to rely on emotional responses that are situated to a world that is very different from the one
we are living in.
Joshua Greene book tilted ‘Moral tribes’, he says that we have psychological problems because we
have them because we evolved in small face to face societies where basically we knew the people we
could help. They are identifiable individual and part of our group. Some of the psychological
responses are hardwired into us, they are part of biology. The world have changed now we are living
in much bigger community and we have the ability to know what’s going on far away from us and
also we have the ability to help and make a difference. We need to use our reasons and our ability to
reflect in order to go beyond them and think about what we ought to do in a different way.
How much to contribute? Contribute to the maximum possible, you should reach to the marginal
utility. Enhancing cost and benefit, everyone if contributing then the problem will be addressed.
Obligation is not limited to contribute equally, they can contribute as much as they can till they reach
marginal utility. Contribute as much as you think reasonable. Distinction between the duty (negative
obligation which require to refrain from doing something) and charity (positive obligation to do
something)? Peter argues that it is duty and not charity. He is introducing change in the moral code of
which we are used to. His principle that we ought to prevent something bad from happening is
imposing a positive obligation. For people to live together and coexist, the essential condition is ‘no
harm to the other’. You have to accept this your duty. Singer considers arguments of other scholars
that this is how societies are organized, so some general behaviour is considered intolerable, and is
put in the category of ‘duty to refrain from doing’. Singer says this could be an explanation of
historical conditions of difference between duty and charity, but it is not a justification.
Dale Jameson- He says that what Singer says is a ‘live concert conception’. There is a misery in the
world at the distant place, immediately, your sensitivities are touched, you have the urge to help, and
you feel like donating. But situations are not that simple, cannot be viewed out of context, without
history. Such a viewing (without context) can actually worsen situations. Aid is not about us feeling
good about ourselves. It is about reaching out and helping, not just about immediate response of
giving money and then scramming. Refugees in camps were actually implicated for atrocities by the
Commission on Atrocities. Pumping aid into these camps actually ruined the situation, generated
unfavourable social and political results. So aid should always be viewed in a political, social and
historical context. Follow the money to the very end, study even the indirect consequences it might
have. You help should actually help in ameliorating misery, otherwise there may be unintended
outcomes. Famines do not occur is a vacuum, they have a history of civil war or any other structural
of institutional reasons behind them. Is there any relevance of Shue here? You recognise the symptom
that people are dying of i.e. hunger, but you aren’t identifying the cause of the issue. This issue is not
addressed by just giving money (live concert conception of duties towards distant).
Dale says there are two things:
1. Humanitarian Assistance: Immediate assistance so people do not die of some miserable
conditions.
2. Development Assistance: You’re helping the other countries to progress, reach a higher level,
long-term commitment. Generally measured in terms of GDP growth (economy).

Singer also recognises how long-term assistance is better. Dale says developed countries offer
assistance to many developing countries. He gives examples. Even after 20 years of the calamity in
Ethiopia, people are still dependent on outside aid and assistance, which is not good. The idea should
be to make countries self-reliant.
From these three premise the conclusion can be drawn that we ought to do what would prevent
suffering and death from lack of food where we can and if indeed it’s the case that when that’s in our
power we ought to do it.
CRITIQUE OF PETER SINGER
The critic is to say that people are too self-interested and not his theory. His theory is applicable
where there is no suffering. Obligations of individual and not government. The argument against him
is that let the government and not us. The government will also be reluctant as it thrives on the will of
the people. Both have to contribute in democracy. He is not looking into the causes of famine
according to him aid is only way to end the suffering. Not all the causes can be address through the
aid. Amartya sen says that famine generally do not exist in democracy but in dictatorship. There is
structural problem because of which famine happen. Not focusing on remedying the structural
problems. There is no politics, history and context to famine. Follow the money (tax: see what is
happening with your tax money you have given) Kant response to peter will be that there is no duty to
provide international aid because it is imperfect duty. Cannot universalize as per categorical
imperative and thus these positive obligations are not laws.
THOMAS POGGE (ARE WE VIOLATING THE HUMAN RIGHTS OF WORLD POOR?)
When you talk about human rights as being universal, these universal rights only make sense when
you are talking about perfect obligation. Imperfect obligations cannot be universalized. People are
relying Kant while saying that this imperative cannot be universalized. Kant says that you can give
yourself a rule but it must be universalized; if has contradictions, it cannot be universalized. Human
rights obligations which you can call universal are limited to negative obligations and not positive
obligation.
Large number of people are suffering very extreme deprivation, severe life threatening poverty people
being chronically under nourished, lack of safe drinking water, lack adequate shelter, no electricity,
lack of adequate sanitation etc. at least 1/3 rd of all human deaths are poverty related causes. This
brings our attention to our commitment to human rights. We officially under art 25 of UDCHR
commit ourselves as the humanity to this right to a standard of living adequate health and wellbeing of
people including food, clothing, medical care and housing and necessary social services. But the
human right is massively under fulfilled for more than half of the human population. When we think
of human rights violations or under fulfilment of rights we often think of isolated cases (person sitting
in jail, massacred people). When we think of unfulfilled human rights and our responsibilities with
regard to them, we can divide into three possibilities there’s some human right deficits for which we
have no responsibility. There are other human rights deficits where we could do something to avert
them and take human action in pursuit of of positive duty to help or protect and fulfil the HR. finally
is negative duties in some cases we are related to human right deficits as somebody who was casually
contributing to it who was involved in making it happen and who was failing to respect human rights.
We do not think human right in interactional terms but human rights as had by individual and
collective agents with regard to human being. For eg: government violating HR or police officers or
armies at war and they do that through the action they take through particular policies or initiatives.
Here we can postulate 5 condition to find HR violation has occurred: 1. they have to be unfulfilled HR
2. They have to causally traceable to human agents 3. There has to be active agency on the part of
those agents 4. They have to be acting under official capacity 5. Agent must intend or be in a position
to foresee that the conduct he or she engages in will lead to human right deficit.
Rules or institution or practices as being HR violating. Here also there are 5 parallel condition 1. They
must be a human right deficit 2. Deficit must be causally traceable to certain social rules or certain
institutional order or institutional arrangements 3. There must be active individual contribution on the
part of people to designing or imposing these social rules 4. The rules have to have a certain official
character they have to appear with the claiming perhaps the moral legitimacy the duty of compliance
5. Who participate in designing and upholding these rules have to intend or be in a position to foresee
that these rules will cause HR deficit. An institutional order or arrangement of rules or institutions are
human right violating or non-compliant with the HR which is reasonably avoidable thorough some
alternative design of the same institutional order. The deficit is foreseeable or it’s avoid ability is also
foreseeable. So a country which is so organized in terms of social institution that foreseeably a large
human right deficit persisted in that country and if tis possible to re arrange these institutions to
reform them or revise them in such a way that this deficit become much smaller or disappear then we
can say that the rules and the laws the institutions of that country are human right violating and we
should say the same at the international or super national level that international rules, procedure and
institutional arrangements can be HR violating if alternative institutions are possible under which the
human right deficit will be much smaller or entirely avoided. Similar to negligence principle – if an
action of yours will foreseeably cause harm, you need to refrain from it. He is extending this to the
way international financial institutions’ policies. Therefore, if they can reasonably foresee that their
policies will cause, they must avoid or refrain from acting in that way. This is a negative obligation on
all institutions to not cause harm. Once they have violated the negative obligation, then they have a
positive obligation to repair the harm. The positive obligations are emerging out of a violation of
negative obligation. He is still working within the characterization because they are still emerging out
of negative obligations. Unlike Singer, he does not say that there is a positive obligation to help
people in the world. He is saying that the obligation is still negative but in violation of these
obligations, there is causation and thus must have a positive obligation to repair the harm. He still
recognizes that human rights obligations are negative obligations.
Art 28 of UDCHR which reads that everyone is entitled to social and international order in which the
rights and freedom set forth in declaration can be fully realized. Pogge argument that in many
developed countires and in the world at large we have insititutional disorder national and internation
institutional order under which the right and freedom set forth in declaration and in particular right
formulated in art 25 cannot be fully realized and so first and foremost imperative of reform should be
to try to revise these institutions in such a way that HR are fulfilled. He is proposing the HR as a
minimal conception of social jsuitce both for the national and international level. In so far we
participate in design or imposition of institutional arrangements that foreseeably and avoidabllly leave
HR unfulfilled, we are harming the rights of those whose human rights are unfulfilled and violating
their HR in contravention to a HR based negative duty not to harm others not to violate their HR.
The international law is divided against itself on one hand we have wonderful formulations the UDHR
and other HR declaration and on the other hand we institutional structure built (WTO) that
systematically undermine the fulfilment of human rights. International law have wonderful ambition
to realize the HR of all human beings everywhere but many of the structure that are built outside that
vision are structures that systematically undermine the fulfilment of HR.
Many western scholar are against the view that global institutions arrangements contribute to the
persistence of poverty, the poverty is developing differently in different countries. There is wide
diversity in evolution of poverty in different countries and there must be local factors (national,
provincial or municipal factor) that contribute to the persistence of poverty. It cannot be the global
institutional order. Pogge says that global institution can play significant role in explaining the
persistence of poverty. The WTO rules allows pollution rules that allow the benefit of pollution to go
to the rich while the poor bear most of the uncompensated harms from the pollutions. The super
national institutional order works against the interest of the poor the immediate responsibility for
these defects lies with the governments especially the more powerful ones who are formulating and
enforcing these rules but indirectly the responsibility is of ours because we are the citizen of these
countries and we are responsible for what government does in our name and we also implicated in the
harms that global institutional arrangement are doing. So we have two different citizen responsibilities
one is to work towards super national institutional arrangements that would impose less harm upon
the poorer half of humanity and secondly, we can compensate for some of the harms these institutions
do.
We read in newspaper that world is very wealthy that the average income in the world is more than
why so many people are still poor? There is enough wealth in the world but it is distributed unequally
and it happened particularly of globalization (the period of rapidly increasing the income inequality
both globally and nationally). This happen because of regulatory capture when the people pay money
to politicians (corporations, rich individual, banks, industry association invest a lot of money in
lobbying so that can influence the formulation of the rules or the application of the rules and they do
that to capture more of the social product and as they capture more of the social product they become
more able to lobby more able to capture. Therefore, an inequality spiral is going on.). in India, if any
derogatory law is passed then it the people can protest against the law but a international level
everything happen behind the closed door so it is quite easy for every well connected powerful agents
to influence the relevant governments including India to influence the negotiations in their own
favour. The stunning increase in the inequality both nationally and internationally is due to
globalization which is shifting upwards from the national to global level. More and more rules that
govern our lives are determined at the global level. Most of the people who are concerned about the
poverty problem take action at individual level but there is also need to contest at the level of the
structural reform to reduce the concern of the poor and advance the objective of poverty eradications.
So we want structural reform which will effectively symbolizes the moral point that human beings are
equally important that the interest matters that institutions ought to be designed with an equal
attention to the life and wellbeing of all whole world. We need reform that are realistically feasible
meaning they have to benefit some segment of global elite. We need reform that are scalable that can
be started small and can then be expanded. We need reforms that tend to empower those whom we
want to protect so that they can find their own voice. We need reforms that can reverse spiral system.
Limitation of Pogge
1. When harm is not connected to institution but any other cause like natural disaster. Harms
which are not attributable to institution are left out.
2. Pogge say that there is obligation n states not to cause harm but he does not say what
obligation to avoid harm.
3. Existence of inequality between countries
4. Outcome independent approach, fair and impartial rules should prevail.

JOHN RAWLS (LAWS OF PEOPLE)

Rawls gives his theory of justice as fairness at a domestic level within liberal democratic societies.
Rawls theory is based on the social contract framework that works with hypothetical consent to
illustrate how any rational individual would reach and agree on principles of justice that are
established. Thus, people will be persuaded by the hypothetical social contract theory and, in turn,
will consent to its principles because they will be values that we actually do accept and commit
ourselves. 
According to Rawls, people in the original position would deliberate and establish two principles of
justice to guide their society; the principle of equal liberty and the difference principle. The principle
of equal liberty is that each person is to have an equal right to the most extensive total system of equal
basic liberties compatible with a similar system of liberty for all. The difference principle states that
unless there is a distribution that makes both persons better off (limiting ourselves to the two-person
case for simplicity), an equal distribution is to be preferred. It is Rawls’s belief that in following the
two principles created from the Original Position, the institutions in our society that we establish
would fair and just as well. This theory of justice proposed by Rawls was originally only applied on
the domestic level. However, due to its popularity and public calls for a broader theory, Rawls seeks
to extend his theory, in more general terms, to the international realm in the Law of Peoples.
Rawls explains why he uses to 'peoples' and not states. According to Rawls, liberal peoples are
rational and reasonable. Similar to states, people are rational because they pursue their own interests
and what is reasonable that is essential in the formation of a just society at the domestic level and,
thus, it is as equally important the creation of the Law of Peoples. Rawls extends the original position
to another level to illustrate how liberal democratic peoples could create the Law of Peoples. The
parties involved are rational representatives of liberal peoples that are guided by the two domestic
principles of justice. In addition, the veil of ignorance is enact so they know nothing of their level of
economic development, population and territory size, natural resources, etc. There is a role played by
the people in political decision making, which keeps in mind the interest of people. There is a
correspondence between the state and the people within that sate. There is some control exercised by
people with respect to the political decisions. They are liberal societies, therefore, individual liberty is
of primary importance. He talks about universal franchise – right for everyone to vote. There is some
extent of equality maintained when talking about political and civil rights. In these societies, you are
rejected hierarchy.
According to Rawls, the deliberations in the second original position would produce the Law of the
Peoples. The second original position is constructed to determine principle of global justice. The new
law would consist of eight principles of justice that guide the interaction between liberal peoples:
peoples are free and independent; must observe treaties and undertakings; are equal and are parties to
the agreements that bind them; to observe a duty of non-intervention; have the right of self-defence
but not to start war; must observe human rights; and peoples have a duty to assist other peoples living
under unfavourable conditions that prevent their having liberal or decent state. This set of principles
are the underlying principles that will provide a frame work for the relations of between liberal
peoples and their states.
Rawls argues whether or not the Law of Peoples can be extended to non-liberal peoples. Rawls states
that if a non-liberal peoples’ basic institutions meet certain conditions, then they would consult
approve and accept the Law of Peoples and become included in the Society of Peoples. Rawls defines
non-liberal peoples that warrant such an extension and meet the conditions as “decent” peoples.  
Decent peoples, according to Rawls, respect a minimal set of basic human rights, including rights
to life, liberty, and formal equality; they are nonaggressive with respect to other peoples; they live
under something like the rule of law; they have a decent consultation hierarchy in which the interests
of all groups are represented; and they view all persons as moral citizens. However, they are not
liberal societies because they privilege a particular comprehensive doctrine, religious or political, and
perceived opponents to this doctrine are not accorded the same rights as adherents.   Rawls’s overall
argument in this section is that the foreign policy of liberalism does not and should require that all
peoples be liberal, but should tolerate and respect the domestic political choices of decent peoples, if
they meet the above conditions. In addition, in meeting the conditions, Rawls states that a decent
people would inherently accept the same principles in the Law of Peoples if they were represented in
the second original position.
He moves past his ideal theory and what he calls well-ordered societies, liberal and decent peoples.
Instead, Rawls shifts to his non-ideal theory and determines how well-ordered societies should act in
regards to societies that are not well-ordered. Here, he suggests that as well as liberal and decent
peoples, there are outlaw states, burdened societies, benevolent absolutisms. These three types of
societies either are noncompliant with the Law of Peoples and/or consists of unfavorable conditions
that hinder them from becoming either liberal or decent. First, outlaw states are those that regimes
that believe that the war is a legitimate means of advancing their interests. Next, Rawls defines
burdened societies as societies “whose historical, social and economic circumstances make their
achieving a well-ordered regime, whether liberal or decent, difficult if not impossible”. Finally,
benevolent absolutist societies respects human rights but allow its citizens a “meaningful role” the
political arena. 
Rawls states that the Law of Peoples acts as a guide in determining what duties and actions are
justified in dealing with the three non-well-ordered societies. First, Rawls states that one of the overall
goals of the Law of Peoples is that all peoples will eventually become well-ordered. In regards to
outlaw states, Rawls states that liberal and decent people ought not to tolerate states that violate the
minimum set of human rights and incite war. Politically speaking, states being sovereign are seen as
justified in raging war against other states to pursue their interests. He suggests that well-ordered
peoples have the right to war in self-defense against outlaw states. However, unless there are grave
abuses of human rights, such well-ordered states can subject outlaw states to public condemnation,
economic sanctions, and other forms of non-violence in the hope that the outlaw states reform. Even if
well-ordered societies decide to go to war with an outlaw state, their conduct in war is restricted  by
the Law of Peoples(i.e they must still respect human rights of all citizens in the outlaw state).
In regards to burdened societies, liberal and decent peoples have an obligation to assist burdened
societies in becoming well-ordered, but only in ways that help such societies in developing and
preserving just or decent institutions, establish an the appropriate political and social culture, and
ensure that they have rational and reasonable approach to their domestic affairs. According to Rawls,
the following actions taken by well-ordered society (along with a few others) would effectively fulfil
their “duties of assistance” to non-well-ordered societies. The problem is that just institutions are
missing. They are also unable to move towards just institutional setup because they are overburdened.
There is also a disconnect between just institutional set up and resources – it is not all about resources.
He, thus, dismissed live aid or assistance because it is not all about resources. There are countries
which are not so well endowed with resources but have done well such as Japan. But, also there are
counties like Argentina which have a lot of resources but haven’t don’t well. Resources do no
completely govern having just institutional set ups. They do affect. But, the kind of aid is not
envisaged by rolling out money. If you give aid, it is with a particular purpose. Thus, what is
important is the approach of the state or political set up – and how that is related to realizing the
human rights of people. It is more about rights than just being rich. . If you have just institutions, you
will have a just society. These certain guidelines should guide any aid or assistance.  The kind of aid
and assistance that he is talking about is with respect to outlaw states because they are overburdened.
They are not aggressive. The problem is that they are existing in unfavourable conditions. They may
be willing to become liberal democracies but are unable to because they are overburdened. They do
not have just institutional setups. In defining, he is saying that these are societies which are in
unfavourable situations. The aid is geared towards aiding the outlawed states to achieving outlaw
states.
 
CRITIQUE OF JOHN RAWLS’ LAW OF PEOPLES
Whose conception of justice? – is the criticism of this approach. It is only the conception of liberal
constitutional democracies’ conception of justice. 1. You are defining justice in a way that liberal
constitutional democracies define justice, which is just one way of defining justice. He is trying to
paint everyone 2.     Burdened societies – you are not considering the entire history of how societies
got to be burdened. White man’s Burden – oh these poor people, I have obligations towards their
happiness. You are not looking at how you might have contributed to their suffering. He is avoiding
all of that mess by not going into the history of the society 3.  Whether outlaw states also make outlaw
people? At what extent do you connect the people with the state? Whether you can attribute the
decisions of the outlaw states to its people? 4. You have a particular conception of an idea and you
want to paint everyone with that brush. You are trying to work backwards with respect to resources
given to a particular society to establish your conception of just. There is a presupposition that after
the aid is given and societies become liberal constitutional democracies, then everything will be great
and dandy. There is nothing said on what will happen to those societies. It is in this particular sense
that you might say that his aid and assistance is very limited. 5.     He places a lot of emphasis on just
institutional set ups to achieve a just society – there are situations where just institutional set ups in a
society and yet inequalities are rampant.
Punj problem with rawls- talking about duties without going into causes. Assistance only to people
living under unfavourable conditions i.e people under those states where liberal institutions are
missing due to lack of resources or other reasons. He consider proposal by Charles Blitz who applies
principle to global justice. Singer conception of harm is broader than rawls which is limited burdened
societies. Commensurability problem. In liberal societies, he is looking at people while in others he is
looking at states, in some others looking at societies, heads of states etc. as if in other states people
don’t exist. He has a conception of liberty, human rights. He is teleological. He prioritizing his own
conception of good and imposing on others. There is duty to assist people who are in unfavourable
condition, he do not consider slavery, domestic violence as unfavourable condition. He doesn’t
consider the causes like peter singer, rawls have limited conception of suffering. Rawls take an
approach called transcendental institutionalism which assumes that all problems will be solved by
establishing institutions but it is not enough.

ROBERT NOZICK (ANARCHY, STATE AND UTOPIA)

What is state? Monopoly over violence. What does this mean? State is essentially violent. In the
context of the freedom of movement, the state is the only entity that is able to deprive a person of its
freedom and liberty. Violence in this sense means deprivation, force, etc. We still maintain our
immediate right of self defense but the later power of being able to punish someone for violating
someone else’s right lies only with the state. The state is the only one with the authority to authorize
violence as well.
How will we move from self-help to groups to monopoly of violence by the state?
What is being denied is that the emergence of the state arose due to the social contract theory – this is
outcome dependant. There are self-interested agents work independently in securing their interest – so
they are acting independent for the purpose of protecting themselves but they are not geared towards
achieving the result. They are working towards their interests and an incidental result of this action of
the group is a society in which violence is a monopoly of the state. It is not the intention of the people
to vest the monopoly of the violence to the state.
You are coming to a system where one particular dominant protective agency assuming power
in a particular region. The dominance of a particular agency in a particular territory We are
not at monopoly but at dominance. This doesn’t mean that all those who are buying these
services are deprived of self help. The agency will not ask them to give up self-help. They might
want the agency to take up the task to retaliate, or may take up of the task as well. There will
also be people who don’t prescribe to these agencies and are not paying these agencies. These
services are being bought – keep this in mind. These people are still exercising self-help. Thus,
you have this agency that is only protecting its customers and not everyone. The independent
people are not being protected.
 The question is whether the dominant agency in a particular territory is a state? Does it have
monopoly of the violence? It doesn’t. Second, when we say that monopoly of violence, we have this
additional idea that it will protect ALL the people in that society? But, these agencies are only
concerned with the protection of the customers and not everyone. Now, the state which has monopoly
over violence and provides protection of all the members.
 How would an anarchist see this?
Liberals are anti-tax and no redistribution. It is only self-help. When we move from this situation of
buying protective services, we start to think about a state that protects all of its members. You may
consider that some of them pay taxes are thus buy protection. But others do not pay taxes. The state
itself is immoral. It is not legitimate to protect all members when only some are paying for that
protection. 
It is here that he brings the context of individual rights.
 
His conception of the rights – rights are not goals (not the goal of protection of everyone’s rights;
right realization; this is utilitarian. Happiness is the goal. If you substitute rights with happiness, that
is rights utilitarianism. This will also lead to right maximization. He says this is problematic. Kant in
his categorical imperative did not say that always go by the maxim that says treat humanity as the end
and not the means. He completely rejects anyone being used as a means for anything even if it leads
to the maximization of rights. Rights are not the end goal because that will lead to rights
maximization and thus, trample upon rights à minimally restricting rights) Rights are not goals but
side constraints. The state may or individuals may pursue any goals but there are certain side
constraints which are rights – which constraint the means in which you may walk towards your goals.
All these plans are to be realized only through certain means. He does not identify the mean but the
constraints in which those means have to be developed. These restrict the ways individuals or state
may act – what they are allowed to do and what they are not allowed to do.  These are the constraints
in which goals are to be achieved.
Where you are taxing some for the protection of others is unacceptable and immoral. An anarchist
would argue that the state itself is immoral. He goes on to consider the morality of the state. Even a
minimal state protects people from fraud and enforces contracts. He says redistributive state is not a
minimal state. The only function performed by the minimal state is providing state and enforcement
of the contract. In a minimal state, there is self-help and the only people who are being protected are
those who are paying for the services provided by the protection agencies. Even a state that is only
protecting of people while establishing a monopoly of violence, is redistributive in nature. Even
though those people who are paying for these protections are being protected. Not everyone is paying
for these services. In monopoly of violence, self-help is gone. It is also protecting everyone and not
everyone is paying. So, why are others being helped?
nozick main focus was on procedural justice and ownership of property. Procedural justice means that
how the market is carried out in a free and fair manner. Free markets are considered fair because they
are voluntary and property rights are considered to be natural right. The John Locke idea is that in our
natural right the government should not interfere with but this idea is of unregulated capitalism. The
entitlement theory of justice is that he was essentially against the rawls ideas in redistribution of
wealth, the outcome of the free market exchanges. A system is just if everyone is entitled to the
holding they possess.
The Nozick just of distribution is the distribution that people are entitled to distribution of benefits
and burdens in society. He sees right to property as other right like right to life, right to be free
similarly the property right is inalienable right of individuals. Libertarian approach focuses on just
system in which person is free to live on his desire without being coerces by others including the
government. The government under libertarian view has a very small role (national defence, policing
and limited regulation). Eg. We can save the taxation which we don’t have the choice to pay we all
pay tax we have to be under the law so therefore it is coerced payment. Coerced payment is the fruits
of our labor and s coerced labor is forced labor. Taxation is equivalent to slavery because we have no
choice. For the Liberty of individual liberty the role of the state should be minimal (only to maintain
safety and security) to have individual liberty.
Nozick adopts the libertarian approach emphasising the fundamental rights of life, liberty and
property that were identified by the john Locke. Nozick view that you are entitled to property
provided that you acquired it fairly and this the central element of just distribution. How to know that
we are acquiring the just property? Three principles:
1. Justice in acquisition of property (original acquisition): if a person property by making it
him/herself (you created by your hand or labor and whatever you create you are naturally
entitled to that thing or you can sell that thing in terms of labor) or obtaining it from unowned
wilderness, then the property has been justly acquired.
 2. Justice in transfer of property: if a person acquired property from someone else
legitimately. Eg. Through voluntary exchange, purchase or as gift (no theft, fraud or coercion)
then the property is justly acquired.
These principle are applied repeatedly (if I acquire property from a thief, the property is unjustly
acquired). If the chain of acquisition leads to some lack of justice then the end person hasn’t justly
acquired it. If somebody got rich according to this just principle there should be no obligation on him
of aid and assistance. Distribution is not going to remain equal for very long as the people always
going to engage in voluntarily engage in transactions with others and with these transactions are
naturally going to make some people extra ordinarily wealthy and other people buy their own and
doing extremely poor the problem with the welfare economic is that it assumes that there to be some
ideal state of wealth distribution that would make everyone better off. In order to impose the even
distribution of wealth the state would have to use force against anyone who did not act in accordance
with this ideal distribution which would not be in violation of individual right but it would entail
enormous time of waste and effort. Self-ownership theory: if I have talent out of which I am earning
then it is my right. If I want to sell myself then I can.
3. And if 1 and 2 not met then justice in rectification: if either of these is unjust, then the
property should be taken away and given to the original claimant. To rectify the first two
principles. It is likely that there will be some disagreements over the status of contracts,
whether they have been enacted properly, and whether allegations of personal or property
rights violations have occurred. Somebody needs to adjudicate these conflicts, and the most
effective means is through tort law proceedings. Also, the courts are to function in perhaps a
more obvious way given the principle of rectification – to ensure that holdings are restored to
their rightful owners in cases where justice in acquisition and justice in transfer principles are
violated. An implication of all of this is that the state is within its right to demand tax monies
to support these functions.
If you have justice in acquisition of that property which is original claim and you have justice of
transfer so if you have both these things then the interference from the state and which is taking some
way to redistribute other violates individual rights.
Minimal state
To Nozick, the only justifiable state is the minimum state which does not violate individual’s rights as
its functions are limited to protection of individuals against force, theft, fraud and enforcement of
contracts. He sets out two requirements for a state: (i) an appropriate monopoly of force in a given
territory; and (ii) the provision of protection by the state within its geographical boundaries.
Criticism
Some coercion by government is necessary to enforce and upholds property rights so making property
rights paramount must involve sacrificing some liberty. He does not adequately accommodate the
importance of desert or fairness (eg. Inheriting great wealth may meet Nozick principles but might not
be considered fair because it will lead to inequality)
Milton freidman (free to choose)
Political freedom has followed the emergence of free markets and capitalist institutions. According to
Freidman, a healthy private economy naturally provides a check on the power of the state. Where
monoploies and trading restriction are rife, so is special treatment of one special, racial or religious
group over another (the ability to keep people in their place). Both ‘full employment’ and ‘economic
growth’ have been put up as reasons why governments should have more control over the economy.
The Depression was caused by government mismanagement. it is the role of government to create a
stable monetary system but he thinks that the responsibility is a grave one and should be severely
limited.
Friedman famously includes a list of areas of government intervention which he believed were not
justifiable. These include tariffs and import quotas, subsidies to farmers, rent controls, minimum
wages, and regulation of industries including banks, transport and radio/TV, social security programs
making people put aside a certain amount of money for retirement, public housing, licensing of
occupations, and conscription in peacetime.
There are really only two ways a society can organize economic activity, Friedman writes:  Through
centralization and coercion;  Through facilitating a marketplace for the trade of goods and services.
The drive towards centralization usually begins in a spirit of good will, but before too long power
becomes more important, and ‘the ends justify the means’. Coercion and violence are considered a
small price to pay for a glorious dream of equality
AMARTYA SEN
Justice is one of the most important moral and political concepts. The central issue in theory of justice
is the unequal relation between people in our societies in political power in social standing and in the
command over economic resources.
Sen attempts to reconsider influence roles in the domain of justice. He has given the social welfare
approach and in that approach he defined the capability approach and it’s linkages with the social
policy. He has co related poverty and capability aspect all together. After the cold war and increasing
globalisation and liberalization but with it came lot of inequalities was emerging in the society and
communities. The idea of measuring the well-being was one of the core concept which sen articulated
in capability approach. Sen Capability approach recognizes the fact that people have different
capacities to translate goods and services because people have different capacities to translate goods
and services into valuable achievements because of personal, social and locational arrangements in
their lives. Eg: if person who is visually impaired then likelihood of him despite having piece of land,
despite having housing, education that person may not able to get job because he may not be able to
perform similarly to the person who have abled body. According to Sen, every individual is different
and access to resources is different for each individual. Individual can have different abilities to
change similar resources into valuable functioning’s. Lot of individual who brought up in particular
environment of deprivation and marginalization internalize the deprivation as given as a fact and may
not be able to come of that until or unless certain amount of dialogue is done with them. Certain
conducive environment is need to be created by the policy framework. Policy maker should also
address this format of deprivation and internal discrimination. Every individual reality is complex and
multidimensional hence every evaluation should acknowledge this complexity and consider its
multidimensional aspect into its parameters.
Quality of life cannot be same for the different set of people, and therefore, it is important to
understand what people are actually able to do. This approach focuses directly on the quality of life
that an individual is able to achieve. This quality of life is defined in terms of functioning and
capability that is being capable of doing it and at the same time translating what you are capable of
doing into adequate functioning. So, I may have education but I may not able to get the job. Despite
having degree I am not able to convert it into adequate functioning. Functioning are states of ‘being
and doing’. Functioning mean that I am able to perform certain activities which improve wellbeing.
Thus, capabilities alone is not enough, it is combination of capabilities and functioning. Capabilities
denotes the set of valuable functions that an individual have effective access to.
Sen has focused on wellbeing (adequate standard of living, high need of aspiration to different forms
activities that enhance my wellbeing I am able to access) and agency (I may have the resources but
how do you I convert my resources and what is my process and what is the decision making skills I
have that is actually my freedom to do so) in order to understand the concept of freedom. How the
agency enable people in different situation to become empowered and effective working towards their
own wellbeing? Aspiration is to develop my talent, my skill, but if I am not able to do this then my
agency gets limited. In childhood, if a boy do activities which are considered to feminine then this
child will not be able to express his agency is higher because patriarchy in his household may not
allow him to actually have the freedom and agency to ensure his wellbeing. Agency freedom can be
broke down into three parts such as personal characteristics (I have a talent and have the opportunity
to take it forward), social characteristics (but if the social characteristic of society or community does
not allow me to pursue ) and environmental characteristics (not only the social but also social political
condition which means that I belong to particular region in the world where my talent s not seen
favourably or morally forbidden then I may not be able to develop my talent). But if I have the
conducive environment and there is a possibility of me to explore my talent then only I can ensure my
wellbeing and agency. Therefore, any evaluation should not be just focused on the wellbeing but also
cover the process through which individuals asserts his/ her ability to realise the valued choices. Sen
says while we are looking at individual and access to resources and possibility of converting them into
adequate functioning, it is also important to evaluate that how the people are able to exercise his or
her agency and not exercise his or her agency within the political, economic and social circumstance.
It deepens the notion of freedom and deepens the idea of agency of individual and brings different
indicator which can be used to develop an understanding of possibilities and the process that social
policy practice should be able to address.
Capability space: people have alternative for transportation: do I choose bicycle as my option or
because I don’t have bus in my area. Ability and opportunity to ride a bike? Woman are not
allowed, it is seen more of a male activity. So women may avoid doing work because of no public
transportation available because women are not allowed to use bicycle in social construction. The
structural factor and issue which is need to be address by Policy framework and this is what the
capability space talk about.
How to convert my capability in function? For mobility, attainment of inner peace as well as
resources for adequate standard of living. Capability approach is influence in ensuring that just
looking from wellbeing of the individual from their aspect of income it brings in the human
development indicator which impact human life and human development reports of UNDP to look at
the development of country or state. But there are larger issue that is further needs to be contextualise
to improve the human development report and also develop in-depth understanding of human
development index of each and every country.
Assessment of human development in a country is critical to understand because it brings in
diverse experience of specific community, the disadvantage the community may face and what kind
of policy can be utilise and evolve to address that. It can also enable us to understand as to why some
people are able to convert their capability into effective functioning and why certain set of people are
not able to convert their capability into effective functioning. A lot of countries use capability
approach in analysing and calculating the human development index for their nation. The use of
capability approach stated when sen ranked a couple of countries first on the basis of GNP per capita
and then added parameters such as life expectancy and literacy rate. The results of both the analysis
were strikingly different. While comparing solely based on GNP per capita countries such as Brazil,
Mexico was much better than sri lanka and India but when these countries were compared for life
expectancy, infant mortality, sri lanka was much better than India and Mexico was much better than
brazil. So, the notion of development, poverty also get changed when we bring in newer dimension
and indicators and capability approach enable us to do that and it is globally accepted standard so the
comparative analysis of the country can be effectively done.
Assessment of small scale development projects: these can be model of larger development project
and bring into newer insight or ideas of looking at specific process of development and also enables
us to look at development as concept from a larger and wider and more in depth understanding.
Identification of poor people in developing country: the capability approach effectively brings that
in by bringing in the concept of multi-dimensional poverty rather than absolute or income poverty.
The correlation between income and some basic functioning to human well-being such as education,
health and child nutrition. It was found that income was an inadequate factor to capture the deficit of
above mentioned wellbeing functioning. But the income was not the only factor because the income is
also depended on the household structure, social structure and regional characteristics etc. needed to
include to evaluate what really the poverty is.
Assessment of poverty and wellbeing in advanced economies: there is a poverty and
marginalization even in the advance economy and that is something that the policy structure need to
address.
Gender inequality assessment: sen had examined discrimination based on gender in India. Women
are worse off than men in terms of personal wellbeing owing to the social and political factors of the
society.
The capability approach is often used on the data which was not collected originally to measure
functioning or capabilities. Hence the results are likely to be limited owing to the preconceived biases
in the data. Hence need other methods of research to supplement the inferences.
Transcendental institutionalism: according to rawls justice is transcendental it works in same way
with the same principles in any place. Sen oppose transcendental institutionalism and says that rather
than thinking about the ideal theory of justice that function through a flawless set of rules that can be
implemented anywhere at any time on the contrary sen says that manifest injustice the continuing
poverty that plagues unequal manifest unequal access to resources and other problem which forces to
stop dreaming about some ideal justice, instead come with the very practicable implementable
conception of justice that can be employed right away to help remove manifest injustice. So sen is
moving from an ideal theory of justice to a workable idea of justice in order to prevent manifest
injustice.
But how to achieve this? Sen Question fundamentally deontological approach of justice that we find
in rawls and he put forward more of consequentialist approach. Sen wants to lead us away from this
principled approach which blends into the transcendental institutionalism of the ideal theory of justice
in rawls and lead us more to consider the consequences of our actions and organizations because this
are the things be necessary to remove manifest injustice. The idea is that ideal is to be translated into a
viable practice for injustice to eliminate.
Sen refers to ‘Niti (organizational propriety and behavioural norms) and Nayaya (actual social
realization, going beyond these organizational rules and norms)’. Niti correspond to deontological and
nyaya correspond to consequential. Nyaya is to deliver justice on ground. It is considered with what
emerges and how it affects the lives that people are actually able to lead rather than articulating lives
in ideal theory. Niti is about rules and institutions and nyaya is about there realization. Sen argues
that both niti and nyaya are essential unless the principles of niti are actually translated into nyaya that
is into pragmatic consequences of those principles then justice is not achieved. There is no use of
ideal of justice if it cannot be implemented.
Michael walzer Communitrarianism ciritque of liberalism and political theory
He define equality as a simple equality and complex equality. Simple equality is absence of
monopolies over social goods that is property which belongs to any sphere should be distributed
equally and properly. These spheres can be economic, political or social sphere, the equality can be
enjoyed in each of these spheres and they may be asymmetrically enjoyed in each of them in other
words we might have certain economic equality but not the political and social equality. There are
some spheres of justice not the uniform idea of justice as rawls’ propounded because his conception
of justice is more suitable to more plural society.
Possession (salmond)
Possession is to exclusive use the material good and this possession involve two things: 1. Claim over
the object and 2. Conscious and actual exercise of this claim that is physical control.
Physical element (corpus possession) which consist of the physical control over the thing and mental
element (animus possidendi) which consist in the determination to exercise that control. There must
be mental element which means intention to possess as well as corpus possessionis that is thing must
be actually by the person who has intention to possess it.
Possession is a relation between person and object. Corpus possession have two condition 1. That
physical control over the thing possessed and 2. Having absolute power of excluding others from the
possession, private use or enjoyment of the thing concerned. It is not necessary that the possessor
must have the physical control with the thing possessed for eg. You kept the money in a box and keep
it with yourself. Although the box is not in physical possession of you but you have the absolute
control over the money. Eg. You give the silver spoon to eat the dinner, although the physical control
is with the guest but then also you only have the possession. The possession is not lost by temporary
absence of the possessor from the object. To abstain others from using your property then there is no
need of physical power. Corpus possession depends more on the general exception that others will not
interfere.
Animus possessideni: exclusive use of the thing possessed, you should have intention to possess the
property then only you can abstain other people from taking your object. Animuns possidendi is in the
conscious intention of an individual to exclude others from the control of an object. The intention
should be to use the property exclusively. Thief will have the real possession on the jewel except the
real owner of the jewel. No one else can possess that property.
A mere claim to use of a thing does not amount to possession of the material thing. You have a right
to use but do not have right to exclusive use. This is known as incorporeal possession. The animius
possidendi need not amount to a claim or intent to use thing as owner. A tenant or a borrower have the
possession as the true owner himself will have.
Savigny theory of possession
Possession have two element:
1. Corpus possessionis: effective physical control of the object. Commencement of the
possession (there should be physical power to use the object) and retention of the possession
(physical power to abstain others from using the property at the commencement of the
possession). In retention the physical power can be applied again at your own will to abstain
 someone after the commencement of possession of object then it is known as retention of
possession. After buying the horse, there should be immediate possession of horse and for its
retention the immediate physical control is not necessary.
2. Animus domini: mental element or the intention to hold the object as the owner against all
others (continuous intention). It is conscious intention to exclude others from the object.
Tenant and borrower do not have the possession because they have no animus domini as they
did not intend to hold the object in their own right. The claim of the possessor must be
exclusive (no other person can use the property). Animus or intention need not be claim in
one’s own behalf (a servant, agent can hold possession on behalf of his master, principle).
There is no need that you alone possess the property. The animus or the intention need not
amount to a claim to use it as an owner (a tenant can have possession, while the ownership
lies with the landlord). The animus need not be specific but may be general (a general
intention is enough. I possess all the books in my library, though I may not exactly know the
number of the books I even what I have).
Savigny analysis is wrong
Savingny theory assumed that corpus and animus both are required for acquisition constituted
possession itself. but now the concept of possession is changed if there is no corpus or animus then
also there can be possession. Eg: master and slave, master have the possession of slave so whatever
object the save have will ultimately belong to master, here there is no animus and corpus. Stolen
property is still belongs to the real owner and here also both the element are absent. According to
savigny, possession continued only so long as effective physical control over the object existed but in
actual practice if a person left the country of few days then that person is not in effective physical
control but still the property will be considered in possession with the owner.
Salmond objection: even at the commencement the possessor may not have the physical power of
excluding others. If a child or dead person have money in their hand, so to protect money they will not
have the physical power but then also they have the possession of the property. The possession at the
commencement and possession at retention, the possession cannot have the two element. The
possession remain the same from beginning to the end. Possession is continuing de facto relation
between a person and a thing and must have the same essential nature from the beginning to end.
Savigny theory is inapplicable to possession of incorporeal things (where there is neither exclusion
nor the power of exclusion). For eg: possession on vast land, then it is impossible to exclude the
person on coming on that land.
Salmond theory
He talked about possession in fact (actual control over a thing) and possession in law (possession
which is recognized and protected by law). Salmond consider possession in fact as possession not the
possession in law because to establish and identify possession in law possession in fact will be
required. The law will recognize the possession of a person who have actual possession.
Corporeal possession: claim to the exclusive use of material things like land, buildings and other
movable or immovable things. The exercise of claim consists of two ingredients, corpus possessionis
and animus possidendi.
Incorporeal things: it is connected with the intangible things such as trade mark, goodwill, right to
vote, right to passage etc. in this case things are need to be used regularly as non-use of it may give
rise to non-existence of possession of a right of way only through actual and repeated use of it.
English law defined it as the continuing exercise of right rather than continuous exercise of claim.
Salmond possession theory consist of two elements 1. Corpus possession 2. Animus possidendi
(explained above)
Mediate possession: held by one man through another is termed mediate possession. That is indirect
possession. When the relation is through the intervention or agency of some other person, it is called
mediate possession. If I send an agent to shop and he make purchase, then his possession is mediate.
The owner have possession through agent without agent claiming any interest for himself. The person
having the superior right over the property is in mediate possession of the object. Eg: Borrowing
books: superior right is with the owner of the book. Mediate possession if certain condition has been
fulfilled or certain time has elapsed.
Immediate possession: possession acquired directly or personally. Master have mediate possession
and servant have immediate possession.
Constructive possession: not actual possession, it is possession in law and not in fact. Giving keys to
tenant is constructive possession.
Both the slamond and savigny says that need both the element to possess a property.
PERSON (DIAS HOHFLED)
Personality is wider and vaguer term than humanity. In law personality is related to the person legal
right and legal duty. Natural person is a living human being to whom the law attributes the personality
in accordance with reality and truth. Legal person are artificial or imaginary being to whom the law
attributes personality by way of fiction where it does not exist in fact. An entity which is capable of
suing or being sued.
Three kinds of legal person: corporation: group of co-existing or series of successive persons by
which a legal fiction is regarded as a real person. Municipal Corporation and sovereign. Institutions:
in some cases the corpus or object personified is not group of co-existing or series of successive
persons but the institutions itself. College, mosque, church and hospital. Fund and estate: in this case
the corpus is some fund/estate reserved to particular uses. Eg. Property if dead man, estate of an
insolvent, fund for charity.
Kind of corporation: 1. Corporate aggregate: when group of co-existing persons, united into one body
under special denomination. Joint stock company. Company is perpetual succession under an artificial
form unless wind up by law. Board of director may die but the company will continue unless it is
wind up. Corporate sole: when one person have the rights and duties to run the entity like vice
chancellor. One chancellor take the responsibility of the whole entity. Perpetual succession
constituted in single person. Take and hold property but not in personal capacity, it will belong to
office of the vice chancellor.
Right and liabilities of corporate: Corporation is continuous identity. Companies power are restricted
by law, a company cannot go beyond the power given by law. Whether it is right to punish corporate
body for the acts of its agents or if the agents do anything beyond the limit of corporation? According
to salmond, the representative of a corporation are in fact the agents of beneficiaries. Just as the
principle is held liable for the acts of the agents so also in the cases of a corporation it is held liable
for the acts of the directors. Sometime happens that company do not do wrongful act beyond the
scope of his authority. For the agents wrong the corporation will be liable because the corporation for
their representation choose the careless and dishonest agents.
Five theories
Fiction theory
Legal and juristic person are made by law fiction. It is an imaginary entity which have rights and
duties as human being have. Corporate are treated like a human being. They are treated trough law as
human beings. it has no will, mind; it can work through the way law allowed. A corporation cannot
commit a crime because it does not have mental capacity or will whatever is done is done by the
members of the corporation. Salomon v. salomon: adopted fiction theory. It was held that as the
company has fulfilled requirements of the companies Act. The company becomes a person at law,
independent and distinct from its members.
Concession theory
State and government recognizes the legal person then only the corporation come into existence.
Unless the company is recognised as a legal person it is specifically granted concession in India. No
corporation has any claim to recognition as a person. It is a matter of discretion of state.
Purpose theory
It declares human person as legal person only human beings can be person and have rights. Juristic
person are subject less property which are created for the particular purpose.
Bracket/symbolism theory
Only human being have interest and rights of the legal person. A corporation is only legal device
which make the complex issue of jural relation simple. The rights and duties of the corporation are
binding on the members of the corporation. Group of members are known as one entity.
Realistic theory
Corporation is living organism just like human being who have natural right as human being.
Corporation is not fiction and is not created by the state. Corporation have the real value and have
power to take action. A group is a person. A corporation is association of members where experience
and power of the reason is same and each and every individual work for fulfilling the desire of the
members of the group.
Legal status of unborn child (holding the property of ascendants)
Legal status of dead person (personality of the human commences from the date of his birth and cease
to exist at death. But today we have decent burial, donate body parts, right relating to reputation).
Right relating to property:
Legal status of animals (any person who is capable of executing the rights and duties will be
considered as a person but the animal are not capable to hold any right and duty.),
Legal status of idol.

Module: Feminist Legal Theory

What is associated with males and females? Male – Rational, physical prowess, public domain, less
caring and Female – Emotional, physical weakness, private domain, more caring.

Sexual segregation – gendering the roles:

Men Women
Public sphere Pvt. Sphere
Reason Emotion
Aloof Caring

LIBERAL FEMINISM

Liberal Feminism challenge sexual segregation but dismiss hierarchy. They don’t challenge the
hierarchy. Women are as capable of reason, public work etc as men are. Women can perform the
same as men given that there is formal equality, and there is no discrimination in law. They don’t say
emotion and reason are equally valuable, but that women are equally capable of both.

Equal pay for equal work – You may say women are as capable as men but the problem is that the
standard is being set as a man. Men are the standard and you are constantly trying to match women up
to them. (Sameness approach). They challenge sexual segregation (division of attributes on the basis
of sex), accept hierarchy between these attributes. Liberal rallied for right to vote for women, equality
of opportunity for men and women at the workplace (Equal Remuneration Act- men and women paid
equally if they are doing work of similar nature). This made a contribution in the movement for
formal equality for women.

What is liberal feminism securing, and what is it ignoring? State should not interfere in private sphere,
as that’s where individual is supposed to be free. So what happens to issues like DV and marital rape?
How do you puncture the private sphere to allow for law to function? This is problematic. Even if you
have equal laws. Whether equal laws actually bring about equality? Equal Rem. Act. But this doesn’t
change that some jobs are considered suitable for men and some for women. So they can under this
Act be paid differently, as work of similar nature does not exist. Because there are traditional
norms and ideology of gender that inform the norms of the household, as well as those of the
market and the State. State, market, family, community are all informed by the ideology of
gender. Example: Women emotional, men practical. So market offers women jobs of receptionists,
nurses, teachers, while men get high ranking corporate posts.

Ideas of shame and honour. If you want to dishonour a community, attack and rape women. Happens
in India, Rwanda etc. It’s not just violence, it is serving other functions as well, because of the
patriarchal ideology it stems from. A second kind of gender based violence is if it affects women
differentially than it would men, so the structures of inequality get perpetuated. So yes, gender based
violence is different from violence, as it is deeply imbedded in hierarchical structures of domination
embedded in society. History of dowry law: Characterised as suicides or accidents. But people
started examining, there was a particular pattern to these accidents. All victims were newly wedded
women, 1-5 years of marriage. They were being harassed for dowry. This pattern got revealed on
account of sharing of experiences. Which is why collective experience-sharing is a very important
feminist research methodology (which is different from those of other research fields). Finally, the
mothers of these brides came together to reveal that there was a pattern and that they were being
harassed for dowry by their in-laws. From this experience sharing came the demand for greater
enquiry, circumstantial evidence, and the need for a new law. Why should dowry death be different
from, say, murder? Structural, systemic violence. Patriarchy and domination are aspects of this
context. Our dowry law then recognises gender based violence. The State is sovereign, it has
monopoly over violence. Because State is so powerful, we need protection against it, that’s why we
have FRs. Does this provide comprehensive security to women?

CULTURAL FEMINISM

On the other hand, cultural feminists challenge the hierarchy, but accept gendering of roles. LibFem
based on sameness. Cultural Fem imbibes the difference approach.  Their position is completely
opposite to LibFems as they don’t not accept the hierarchy within the segregation, even though they
accept the segregation. They celebrate the differences of women as apart from men. Women are
emotional, but emotions are as valuable as reason.

Carol Gilligan is known for her work on care, and its association with women. She makes an
illustration to see responses of men and women. She experimented on a male and female child, with
everything else the same. And considered their response to those situations. A man’s wife is very
unwell. He doesn’t have the money to buy medicines for her. Should he steal? Jake said that life has
greater priority over property, and so if husband steals the medicine it’s okay. Even if he’s caught,
judge should be lenient on him. If he’s not lenient, then the law itself is bad because it doesn’t see life
> property.

Annie on the other hand, didn’t address the specific question of whether he should steal or not. She
explored other options if there were options other than stealing available to him. Is there a possibility
of loan? Then she started thinking about the relationship between man and wife and what would
happen to it on account of his actions. If he doesn’t steal, wife will die. If he does steal, he will be
imprisoned, then wife will not get medicine and she’ll die. Gilligan said that women think more in
relational terms rather than purely individual terms. So women think differently.

Orissa study – If you ask women about their property, they will say family property is their own. So
they didn’t about self-conceptualization purely on the basis of individual concerns because for
women, family constitutes the self. Introduction of the female perspective wrt psychoanalysis – deals
with the relationship between men and women, and parents and children. Son will snap his
relationship with the mother to establish himself in society, while females generally don’t. Female
child will relate to mother only in terms of her motherhood, not womanhood. Psychoanalysis is
always going to be informed by the male perspective (Freud), never the female because it has till now
been dominated by males.

Unlike liberal feminists, they recognise the difference between men and women and celebrate this
difference. “Care is a special attribute of women.”- How to view this? This is mostly a matter of
enculturation, children grow up watching traditional differences between males and females in their
families.

RADICAL FEMINISM

Even though liberal and cultural feminists have different approaches, their standard of comparison
remains the same, reference point remains the male. This is the basic critique levelling against these
two schools by rad fems. Neither of these schools look at dominance and power relationships in
society.

Rad fems say that it’s not about socialisation, more about power structures in society- how patriarchy
informs both society and law. For lib fems, law is a panacea which can ensure equality. Legal reforms
has been the strategy of lib fems. Rad fems disagree, as law is also pervaded by patriarchy.

Their focus is the attribute of sex. How women are dominated by men, how your sexual identity is
important. How the male exercises power over females because of this sexual identity. The focus,
hence, is on sexual violence, reproductive rights. Rad fems present a basic critique of law itself, how
it perpetuates male domination. Various powers exercised by males. Katherine McKinnon

Examples of law being informed by patriarchy: Adultery, rape. Not about sexual autonomy of women,
but about the relationship between two men, trespassing on property. Damages and punishment based
only on the concept of property. Women are no longer persons in law, but property. A person is a
bearer of rights and duties, property is not. Marital rape is still unrecognised. Idea of ‘one flesh’- why
marital rape is not an offence. Idea of continued irrevocable consent. Punishment for rape on
judicially separated wife- imprisonment up to 2 years. Not worthy of as harsh a punishment as
ordinary rape. McKinnon says there is no point speaking of difference or sameness. One has to strike
at the structures which perpetuate the dominance of men. Society and law are both informed by a
male perspective.

rad fems speak of: The Power of Self-Assertion: Men have a power of self-assertion since law
incorporates their view. Names such as pornography, prostitution are all informed by the male
perspective.

Sexual differences lie at the core of RadFem, upon which the structures of power and dominance are
based. CultFems focus on binaries generally.  RadFem focus upon this particular aspect because every
structure is informed by the patriarchy upon this difference. Focus on sexual violence, reproductive
rights because their organising feature is sexual difference.
RadFem goes beyond individuals and looks at structures. Does not operate within the status quo.
LibFem only looks at individuals, and does not look at structures at all. HSA recognises that son and
daughter have equal rights of inheritance wrt self-earned property. This kind of legal change can be
attributed to which strand of feminism? LibFem. Did it lead to greater control being exercised by
women over property? No, because the social structure still prevailed. So familial animosity would
come in if women began claiming their share of the property. The law does not address the social
structure, which is where RadFem takes you. If you don’t demolish the structure, mere law will not
help you. That’s the contribution of RadFem. Radical goes beyond liberal feminism, and has the
capacity to go deeper and address subordination and inequality. Dismantle power structures in the
society directly, misogyny in the law as well.
What are the issues with it?
Rad fem cannot actually dismantle the whole structure. Some women may be in a position to make a
claim. They ‘can’ make a claim if the need arises. Important to note that women themselves normalise
the maleness of the law. In a survey, most women believed domestic violence is acceptable. Rad fems
say women are viewed as sex objects. That’s the kind of naming power that men have. The second
issue goes back with its organising and structuring. Sexual difference lies at the heart of rad fem, and
they attribute female subordination completely to this. This is the issue of essentialism. It looks at a
particular attribute, the only common thread that all women have, common across women and their
subordination. Ignores class, race, and economic background. It sticks to binaries, trans-exclusionary.
Excludes homosexual women as well. For lesbian women, you can’t say their subordination is
completely attributable to men. Rad fem looks at sexual difference as the only reason for the
subordination of women. Perceived women as victims. Only a victim, without agency, cannot
exercise her agency.

SOCIALIST-MARXIST FEMINISTS

Engel- They relate marriage and recognition of private property to the subordination of women. When
property was communally owned, there was no concept of ownership or inheritance. Monogamous
marriages were not very prevalent earlier, they emerged only with the emergence of private property
and inheritance. How mechanisation and coming in of machinery resulting in women being relegated
to the private sphere. What class is to Marxists, sex is to rad fems.

What do Marxist feminists do then? Issues?

 Attribute subjugation to class difference and private property.

 Again, reductionist in nature. Reduce the cause to one simplistic factor. Different experiences
of different women (different realities, contexts and identities) are lost sight of.

POST-MODERNIST FEMINISTS

Basic idea- Against any idea of grand theorising. All the above theories indulge in grand theorising.
Other theories have this conception of a frail, emotional woman. They say rad-fems imagine a white,
middle class working woman. PMs say everyone has different experiences, a black woman has a
different reality she lives in. They suggest moving from global to local. Focus on local and individual
realities, rather than subsuming everything into sexual difference or class difference. Look at real
experiences of real women. These experiences are very specific. How a black woman would suffer
not only on account of subordination from black and white males, but also white females. Female-
female subordination. Not only attributable to gender, but also class along with other factors taken
together.
How can an upper class white woman speak about the subordination of a lower class woman? PM
moves from speaking in universal terms to actually studying particularities.
CLS criticise the idea of rights. Patricia Williams builds on the experience of black women and the
public perception of this as untrustworthy. This puts them in a weird position when they go out to
seek acco. Now when they have a binding contract, rights trump perceptions, binding contract is
always enforceable. So rights actually help them.
Issues:
Even though PM unravels the multiplicity of identities and experiences (along with gender), and the
idea that not everything can be attributed solely to your gender (contribution), it does have some
issues. If you say rad fem cannot speak about experiences of subordination of other women. If no one
can speak for anyone else, how does the movt. move forward? Movt.s are based on solidarity. Where
is the cohesion? The commonalities espoused by rad fems. foster solidarity and cohesion, some
common rallying point.
How is the subject constituted in law? What identity constitutes the subject? Law constitutes the
subject in a very particular way (reasonable man), and fem must deconstruct the subject. Example:
Battered woman syndrome, reasonable man standard to grave and sudden provocation etc. The subject
in law is always a particular dominant white male. Elite male.

CEDAW
Recognises group rights. In the realisation of human rights, there are more challenges, barriers and
disadvantages specifically for women, which may be structural in nature. So a special HR instruments
is required recognising particular challenges for women. Common instruments (ICESCR, ICCPR) for
both men and women are present, they can both avail of the protections from it. Why then is CEDAW
required, what is it doing that others aren’t?
Art.5 specifically required structural barriers. Liberal discourse focussed on individual actions and
free will, but CEDAW contextualises individuals (unlike the disembodied conception of liberals).
CEDAW recognises that individual behaviour is influenced by patterns of conduct, which are context
dependent. Patterns of conduct affect our actions, along with degree of realisation of our rights.
CEDAW places obligation on parties to destroy these barriers. Dismantle stereotypes. One of the
rallying points of feminism is that personal is political. A social stereotype, or norms within family or
community w.r.t. woman being the caregiver (or others) actually affects her rights in the political
arena. Maternity as a social fn. is a significant arena. Why it is not considered equal responsibility of
both mother and father?
How do you place Art.5 within feminist discourse? Radical feminism: Identify and destroy
power structures. This provision is not completely informed by the liberal discourse.
Article 23: The convention prioritises equality before itself.
Provisions about maternity and marriage: Connection between public sphere and private sphere.
Private affects public, so you have to reform private to facilitate achievement of private rights.
Article 6: Equates sex work with exploitation, radical feminist stand here? All sex work is necessarily
exploitation? What about consent? But it says “exploitation of prostitution” so only what is
exploitative has to be protected from.
Article 2: The standard of comparison still remains the man. Look from PM perspective.

I. M YOUNG (JUSTICE AND THE POLITICS OF DIFFERENCE)

Justice is the way institutions develop and exercise individual capacities and collective
communication (justice consist of institutions holding individuals to exercise their capacities).
Injustice refer to oppression and domination.
Oppression is political oppression of a dictator, violently and viciously preventing people from voting
or protesting or openly speaking their mind. Young has used oppression more broadly to refer to
situations in which people suffer some inhibition of their ability to develop their own capacities and to
able to express their thoughts and feelings because they are part of a group. So many people are
oppressed in society like caste oppression, race, gender etc.
Young do not use the word oppression in individual sense but in a structural sense. Eg: sexism is
embedded in our social practice that we don’t realize are there. The important aspect of oppression is
the one that designates the injustice to some groups because of the everyday practice of well-
intentioned liberal societies. It is structural as it is embedded in unquestioned norms, habits and
symbols. Oppression are systematically reproduced so we cannot get rid of structural oppression just
by eliminating rulers and making new laws. Many of us are adding to the oppression of subordinating
groups without even realizing that we are doing it.
Young says that group is collective of persons differentiated from at least one other group by cultural
forms, practices or way of life. She contrast aggregates (any classification of persons according to
some attribute) and associations (formally organized institutions) with groups. Aggregates and
association exist only after individuals exist. Individual have own sense of their identity and sense of
self independent of an aggregate or an association. Groups constitute individuals, like being Jewish or
being black or being disabled or being woman is part of what defines the individuals in these groups.
Someone who’s member of an aggregate or an association in not someone who tends to be defined by
the collection of people. Distinction between atomism and holism. Atomist perspective of social
group says that groups are nothing more than a collection of individual so that group has very little to
do with the sense of self of the individuals in that group have. Aggregates and associations are
atomist. On other hand, young conception of the group is holistic. The group make the individual in
the sense that a group helps define each individual sense of who they are. Theory of justice should not
presume atomism. They should presume that an individual is unified, free, self-made or stands apart
from their membership of the group of which they are a member. A person joins an association but
one finds oneself as a member of group. Groups exist only in relation to other groups so that a group
may be identified by outsiders. The category of race was invented by people in the 17 th century who
wanted to justify slavery. Group membership itself is not oppressive, eg: Roman Catholic. Whether
the group is oppressed or not depends on where they have one or more of five conditions. There is no
common nature all the group share according to young. Group differences frequently cut across one
another so that being black for instance is not just a matter of being a member of a simple unified
group with a common life. People are often member of more than one group, eg. Jewish and disabled,
black and lesbian.
5 phases of oppression:
1. Exploitation: this concept come from the Marxist critique of capitalism. The mystery of
capitalism is represented by the question when everyone is formerly free how can there be
class domination? Labor power produces surplus value, surplus value is difference between
how much the workers is paid for their labor and how much money is made from the product
of that labor. The capitalist is the one who profits from the surplus value of workers a
capitalist is someone who owns the means of production someone able to supply the material
for workers to make what the capitalist wants to make. Labor $ 5 and sell the product $20=
surplus value $ 15. Marx argue that in the injustice of capitalist society, some people exercise
their capacities under the control and purposes and for the benefit of other people. This
systematically transfers the power of some people onto others which raises the amount of
power these other people have. For instance, women’s oppression can be explained in terms
of exploitation, women transfer their maternal labor and their labor nurturing children and
their sexual labor to men. Marx saw marriage as a class relation where women labor benefits
men without payment. Women are expected to provide emotional care for children and men
they are expected to provide sexual satisfaction. The norm of hetero sexuality oriented around
the men pleasure. Eg: viagra ads it’s always the woman talking about how the Viagra is going
to increase the pleasure for men what are the commercials for increasing women’s pleasure in
the sexual act. The man are the one that the society always tends to focus on in terms of
sexual pleasure. Even in the workplace the women take feminine jobs where the task is to
smooth over workplace tensions. For enhancing the status of pleased or comforting others
usually men think of waitresses, clerical workers nurses and other care takers. Take racism as
a significant outcome of social structuring in terms of exploitation in fancy hotels and
restaurants, the staff tend to be people of colour and they are paid low.
2. Marginalization: our people the systems of labor cannot or will not use. Large portion of
population is marginalized according to young (old people, young people, single mothers,
mentally and physically disabled etc. a whole category of people is expelled from the social
life moral agency and full citizenship require a person to be autonomous and independent.
Groups that are marginalized do not have this moral agency or another way to say it is the
ability to make one’s own self-determining decision about how to live one’s life is denied as
someone who is marginalized.
3. Powerlessness: powerless are those who lack authority or power the powerless must take
orders and rarely have the right to give them they have little or no work autonomy. The
autonomy is ability to make one’s own decisions they exercise little creativity or judgement in
 their work they tend to have no technical expertise and express themselves awkwardly they
have low social status and don’t have the sense of self that professionals. Professionals are
those who acquire and practice a profession which requires specialized knowledge they are
college educated and have day to day autonomy. They have privileges that extend to their
whole way of life, they have respectability. Women and men of color must daily prove their
respectability and that it is not assumed like it often is for someone in the dominant group rich
white men, the powerless are not treated with initial respectful distance or deference whereas
working class white men are treated with respect until their status is revealed.
4. Cultural imperialism: presence in the media and in the cultural products of the society. The
dominant cultural products express the experience values and goals and achievement of the
dominant group. The dominant group culture is depicted as representative of humanity. The
oppressed groups are stereotyped in some way that is usually attached to their bodies. So gays
peoples are promiscuous, women are good with children. The oppressed group’s experience
an interpretation of social life differs drastically from those of the dominant culture the
dominant group imposes their experience and interpretation on the oppressed group through
cultural imperialism.
5. Violence: the oppression of violence consist not only in direct victimization but in the daily
knowledge that all oppressed members share that they are liable to violations solely on the
account of their group identity. Justice threat deprives them of freedom and dignity it expends
needless energy and since it is tolerated by the society it gains legitimacy. A gay man or
woman has to live with a needless expending of energy in making extra plans when they walk
down the street or when they go to a social event because they always have to be aware that
violence can be directed toward them at any time and since it is tolerated on some level by
society it gains legitimacy.
Young in end apply these criteria to different oppressed groups. Some groups have one or two faces
of oppression some have more, some have only one. For eg: working class people are exploited and
powerless but not marginalized or undergo constant threats of violence. A group gay men are not
exploited or powerless so much but they experience cultural imperialism and live under constant
threats of violence. Old people are marginalized and experience cultural imperialism. Women are
exploited powerless and living conditions of imperialism and violence. While some of these particular
ways of applying the criteria may be arguable the existence of the criteria is a helpful method to
determine. If a group is oppressed without reducing all oppressions to a single scale.