SUBJECT: Law And Justice In A Globalizing World

SUBMITTED TO: Dr. Vishnu K.

SUBMITTED BY: Shailja

ROLL NO. 44

PG/15/2021/567

SEMESTER 1

SACE I & II

SUBMITTED ON: 7th DECEMBER , 2021

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Raipur, Chhattisgarh
1. “Over hundreds of years, writers on justice in different parts of the world have attempted to
provide the intellectual basis for moving from a general sense of injustice to particular
reasoned diagnoses of injustice, and from there, to the analyses of ways of advancing justice.
Traditions of reasoning about justice and injustices have long - and striking – histories across
the world, from which illuminating suggestions on reasons of justice can be considered.”

- Amartya Sen, Idea of Justice

“Justice vis-à-vis reasoning about justice on the basis of passion.”

Introduction

The widest possible connotation of Justice is that “it is the principle that people get what they
deserve, with the interpretation of what constitutes 'deserving', influenced by a wide range of
fields and viewpoints, including the concepts of moral correctness based on ethics, rationality,
law, religion, equity, and fairness.” The state tries to improve justice by running courts and
enforcing their decisions.

People, for the most part, seek justice through the legal system. “To make a demand for justice, a
legal or moral claim is used. A person accused of a crime asserts his or her right to a fair trial or
procedural justice. The demand for the punishment of a criminal conduct is a demand for justice.
A claim to justice is a citizen's right to equal treatment under the law. Justice isn't just a concern
of lawyers. It is the Centre of moral and social philosophy. Justice has been considered as the
highest virtue. The concept of a just entitlement is equally relevant to the issue of justice.”

The virtue of beneficence is demonstrated by someone who is fair, generous, and helpful. The
concepts of beneficence and justice are derived from sympathy. 1 The most current conception of
justice emphasizes the importance of public reason in determining what may be done to make
societies less unjust.

Man has been battling for the preservation of justice for millennia. In democratic societies,
justice takes precedence. Justice comes from the Latin term jus, which means "to tie" or "to
1
Humayun Rasheed Khan, Shifting the focus from pursuing justice to preventing manifest injustices, 2 IJRHAL 47,
47, (2014).
contract." Dike is the Greek word for justice. It has the connotation of being closer to
righteousness. Following the rules is what justice entails (customs). Just behavior, impartiality,
or the exercise of authority in the protection of rights is all examples of justice.

Justice

Even if we have trouble putting it into words, we believe we grasp the concept of justice. Justice
is defined by “the connection between the individual and the state, and it means that the state
respects all people equally and strives to resolve disputes based on facts and objective standards
rather than a subjective judgement.” Fairness is the broadest definition of justice. Justice cannot
guarantee that every conflict is resolved "right" or without errors, but it can ensure that the
process by which choices are made is fair and delivers an acceptable result in the aggregate, even
if justice fails in a single case. When political power and economic opportunity are distributed as
evenly as feasible, or when the social and political system is structured in such a way that it tends
toward a just distribution even if it is not attained, justice is achieved. Justice is definitely an
ideal, and ideals should be pursued but not always realized. As a result, justice is defined “not by
the outcome but by the fairness of the process that leads to it.”

The notion of justice is as old as political thought. Justice is given various interpretations from
time to time. It is is regarded as a ‘virtue’ by some writers, while ‘equality’ is held by others. It is
also referred to ‘as the rule of law’ by others. Justice is an important aspect of not only political
science, but also ethics, law, philosophy, and other fields.

Injustice is a profound human emotion, and justice is a universal ideal. It is most powerful when
a person's personal interests are jeopardized, but it can also be triggered when civilized people
observe wrongdoing to others.2 Inciting the thoughts of struggling humanity is of direct concern
to policymakers and those who seek to diagnose injustice. Every judicial system's ultimate goal
is to ensure justice. Everyone desires justice, yet one person's definition of it may differ from
another's. It has different meanings depending on the time and place. 3 In moral and social theory,
the idea of justice is essential. A community will be unstable if justice is not a guiding concept,
and would be kept intact only by coercion, if at all. In moral philosophy, the idea of justice is
fundamental. In its widest and most basic definition, it refers to living in accordance with larger
2
SURI RATNAPALA, JURISPRUDENCE, 318 (Cambridge University Press, 2011).
3
N K JAYA KUMAR, LECTURES IN JURISPRUDENCE, 163 (Lexis Nexis, 2005).
cosmic laws. In Hindu and Buddhist philosophy, justice is known to as Dharma, while in
Confucian ideology, it is known to as Jen.

Incorporating rationality into the diagnoses of justice and injustice is one of the prerequisites of a
philosophy of justice. Over the course of hundreds of years, authors on justice from all over the
globe have endeavored to give the intellectual foundation for progressing from a generalized
sense of injustice to specific logical diagnoses of unfairness, and then to evaluations of strategies
to advance justice.

There are two major concepts of justice in the history of ideas. They are as follows:

1. A numerical concept of justice is one in which everyone gets an equal slice of the pie. The
norm was taken so far by the Greek city states that numerous offices were filled by lot. No
special knowledge or qualification was required to hold an office. Jeremy Bentham puts it this
way: "Everyone is to count for one, nobody for more than one." 4

2. Justice as a geometrical idea - It is a concept of appropriate equality. It translates to "equal

share to equals" and "unequal share to unequals." It means that power and patronage should be
distributed in accordance to an individual's worth or contribution. This is something that both
Pluto and Aristotle believe in. 5

Types of Justice

1. Social Justice:

In today's world, “a huge number of academics prefer to refer to the concept of justice as social
justice. It is defined as “the equality of all persons in a society, with no discrimination on the
basis of religion, caste, creed, color, sex, or status.” Scholars, on the other hand, interpret the
concept of social justice in a variety of ways. Some argue that it entails allocating each person's
fair piece of the social pie. Others argue that it is the equitable distribution of social benefits and
rights based on the rule of law and justice.”

4
A PLUS TOPPER (last visited: 23 Nov, 2021), https://www.aplustopper.com/plus-one-political-science-chapter-
wise-questions-and-answers-chapter-4-part-b/
5
Ibid.
Social justice, according to social democrats and modern liberal philosophers, is “the endeavor to
reconstruct the social order in accordance with moral values.” Attempts to correct social injustice
must be made on a continuing basis. It also denotes a morally acceptable and defendable system
of societal reward and obligation distribution that is devoid of prejudice or injustice towards any
particular person or association of individuals.

Various provisions in the Indian Constitution strive to ensure social, economic, and political
fairness. The law has ruled untouchability to be criminal. On an equal footing, every citizen has
the right to enter any public area, place of worship, or place of entertainment. Citizens cannot be
discriminated against by the government on the basis of their creed, birth, color, caste, gender,
faith, title, or status, or any combination of these elements. The spirit of social justice is
diametrically opposed to oppression and indignity. A crucial element of social justice is the lack
of preferred social classes.6

2. Economic Justice:

Economic justice and social justice are inextricably linked since the economic system is usually a
feature of the social system. Individual economic rights and possibilities are always a part of the
larger social structure. Economic justice requires that “all citizens have appropriate opportunity
to earn a living and get fair salaries, allowing them to meet their fundamental needs and aiding
their development.” The state should support them with financial stability during illness, old age,
and incapacity.7

No individual, group, or class should be able to exploit others or be exploited. The allocation of
money and assets must be fair and equitable within all individuals. The disparity among the rich
and the poor should be minimal. The benefits of wealth must be shared by all. There are various
different perspectives on what economic justice entails. Liberals believe that open competition is
fair and that personal property is valuable. Socialists, on the other hand, want to take absolute
command of society and the overall business system. They are anti-private property. Whatever
philosophy or system is in place, one thing is certain: all citizens must have access to basic
essentials of existence. Every citizen's basic demand for survival must be met.8
6
Ritika Gupta, Justice and its theories an overview, LEGAL SERVICES INDIA (Last visited: 24 Nov, 2021),
https://www.legalserviceindia.com/legal/article-2147-justice-and-its-theories-an-overview.html
7
Ibid.
8
Ibid.
3. Political Justice:

Political justice entails “providing all citizens with equal political rights and opportunity to
participate in the country's government.” “Citizens should be able to vote without fear of
discrimination based on religion, color, caste, creed, sex, birthplace, or social status. Every
citizen should have the same opportunity to vote and run for office.”

The development of just laws and then doing justice in accordance with the rules are two aspects
of legal justice. The rulers' will should not be imposed on the ruled when drafting legislation.
Public opinion and public needs should guide legislation. Social values, morality, traditions, and
the concept of right and wrong must all be kept in mind at all times. Citizens do not truly
embrace or comply by laws if they do not meet societal norms and morality rules. The
enforcement of laws becomes a challenge in this situation. Laws are only just if they are adopted
not out of fear of external power, but out of an internal sense that they are good, just, and
reasonable.9”

4. Legal Justice:

The term legal justice refers to the rule of law, not the rule of any individual. It states that “all
men are equal before the law and that the law applies equally to all.” It ensures that everyone is
protected by the law. The law makes no distinction between the wealthy and the destitute. The
objective and proper administration of justice by courts of law is a necessary component of legal
justice. Salmond believes that “the legal process should be simple, quick, fair, affordable, and
efficient. There should be effective apparatus in place to deter illegal activities. The goal of law
is to establish what is legal, to guarantee legal security, and to prevent unjust behavior.””

As a result, “social justice, economic justice, political justice, and legal justice” are the four
major components of justice. All of these forms are inextricably linked and interconnected. Only
after fairness prevails in all four aspects is it truly genuine. There can be no true Political and
Legal Justice without Social and Economic Justice.10

Different Perspectives on Justice

9
Ibid.
10
Ibid.
The basic goal of justice in prehistoric society was to punish criminals. The repercussions were
severe. The administration of justice included an “eye for an eye and ‘a tooth for a tooth.” The
goal was to keep future crimes from happening. As a result, primitive justice was exclusively
negative in nature. It is founded on established morals, tradition, or custom.

Martin Luther King on Justice

In his Letter From Birmingham Jail, Dr. Martin Luther King Jr. lays out the steps for
determining injustice: gathering evidence, negotiating, self-purification, and direct action. “An
unjust law is a code that a numerical or power dominant group imposes on a minority group but
does not make obligatory on itself” he argues. Great injustice has existed throughout human
history, according to this definition. Each absolute monarchy resulted in widespread injustice.
Injustice can exist in any political system; sovereignty, democracy, and communism all have
flaws that allow for the creation of unjust laws by either the majority or the dictator.

Plato’s Justice Philosophy

Public education, philosopher-kings as rulers, and an aristocratic government are all part of
Plato's vision of a just and fair society. He believed that “men and women, despite their
differences, should be treated equally.” In Plato's universe, just rules would be based on these
ideas. Plato's views were radical at the time, but we have seen examples of his thought
throughout history. Today, the state educates our society's children, and it is unlawful to treat
men and women separately, as the bulk of individuals concur.

Thomas Hobbes

“Justice is merely the advantage of the stronger” declared Thrasymachus, a Greek philosopher.
Thomas Hobbes was the most ardent supporter of this ideology. Under the rule of an absolute
sovereign, all laws are legitimate and justifiable, according to Hobbes' political philosophy. Even
if a law makes no sense to citizens, he believes it is legitimate because all laws are designed to
safeguard the greater good. Within a government, he never regards insurrection as legitimate.
Hobbes considers the greatest justified activity to be that which is taken to defend oneself from
death.
Jean-Jacques Rousseau

In a world ruled by Rousseau, Hobbes idea of justice would crumble. In some aspects, Jean-
Jacques Rousseau's thoughts about fair laws are nearly the polar opposite of Hobbes'; he believes
that “just laws are created via consensus and full participation of the people.” Many laws in
Rousseau's society could be seen as unjust because Rousseau believes that fair requires that
everyone agrees. Rousseau, like Hobbes, believes in the common good; in his society, the
sovereign is the majority.

Theories of Justice and Indian Judiciary

As “Cardozo, correctly observed in his book ‘The Nature of Judicial Process’, “a judge's
decision might be impacted by both conscious and subconscious considerations.” During this
time, he may also allude to many ideas of justice proposed by western thinkers. In their rulings,
the judiciary, which is supposed to be the government's autonomous institution, has made
excellent attempts to represent various ideas of justice as expounded by various jurists.
“Bentham's utilitarian theory of justice, Hebert Spencer's and Immanuel Kant's theories of
individual liberty, Dworkin's Rights Thesis, Rawl's Theory of Justice, Amartya Sen's Idea of
Justice, as well as Socialist, Gandhian, and natural principles of justice”, are examples of such
theories of justice. As a result, a brief overview of the situation is provided below.”

Theory of Justice by Rawl’s

“Justice is the primary virtue of social institutions” says Rawls, who proposed the social
contract theory. In Indian judgments, Rawls' theory of justice, which emphasizes themes such
as liberty, social equality, and democracy, can be seen.

In State of Madras v. Champakam Dwarairaja11 “the primary suit on this subject was the one
that led to the first amendment to the Constitution.

11
AIR 1951 SC 226.
Indira Sawhney v. Union of India12 was a major decision at the time, upholding the practice of
reserving jobs for the poor. Even in case of Nagaraj v. Union of India13 the notions of “equality
through protective discrimination for guaranteeing justice” were adopted in a number of rulings.

The principle of “distributive justice, which can be traced back to Aristotle and was stressed by
John Rawl, is established in the Indian Constitution, namely Articles 142 and 144, as well as
Parts III and IV.” The ideas of distributive justice were underlined in a number of decisions
dealing with environmental challenges.

Dworkin’s Rights Thesis

In “his work Rights Thesis, Ronald Dworkin emphasizes the importance of individual rights.
Himat Lal K. Shah v. Commissioner of Police 14 marked an important judgement in defending
libertarian principles of justice by upholding the average citizen's right and liberty to organize
public assemblies on the streets and the extent to which the state might regulate it.”

Libertarianism And Justice

Individual liberty and freedom are highly valued in libertarianism, which is linked to “the
classical liberal traditions of John Locke, David Hume, and Kant, among others. In the NALSA
decision, the court cited Kant's 225-year-old principle of free will and Bentham's hedonist
utilitarianism, stating that there is no duality between individual liberties and the public welfare
in this issue, and so affirmed the rights of third-gender people.” It was upheld in Navtej Singh
Johar v. Union of India15, which overturned the harsh Indian Penal Code section 377.

In Shayara Bano v. Union of India 16, “the Supreme Court of India struck down the instant triple
talaq in the name of equality”, and in Joseph Shine v. Union of India17, “the Supreme Court of
India held” that “adultery would no longer be a criminal offence under Indian law, overturning
the 158-year-old law of section 497 of the Indian Penal Code.”

12
AIR 1993 SC 477.
13
(2006) 8 SCC 212.
14
1973 AIR 87.
15
AIR 2018 SC 4321.
16
(2017) 9 SCC 1.
17
AIR 2018 SC 4898.
Justice through Utilitarian theory

Jeremy Bentham proposed the utilitarian idea, according to which “a law should be adopted
with the primary goal of ensuring maximum justice to the greatest number of people.” As a
result, the hedonistic calculus is used to determine public utility.

In Olga Tellis v. Bombay Municipal Corporation 18, Chandrachud, J. “applied this approach
and defined the principle in a simple statement:” “Human compassion must soften the rough
edges of justice in all situations”.

Although “the eviction order is legal under Articles 14 and 19 of the Constitution, the court
found that the right to life was expanded to include the right to livelihood as part of an
individual's liberty. As a result, the court's attention was drawn to the concept of a welfare state.”

Amartya Sen's Idea of Justice

Amartya Sen in his book ‘The idea of Justice’ proposed the ‘Social Choice Theory’, which holds
that “laws should be developed with an understanding of societal requirements and based on the
demand for justice.” His work is based on the critical examining and revision of Rawl’s Theory
of Justice.

Sen believes that “the theory of justice must be more concerned with the elimination of
removable injustices rather than defining a perfectly just society.” According to him, “when
dealing with a complex topic like justice and its practical application, one should return to
ancient Hindu thought, which explores the concepts of ‘Niti’ and ‘Nyaya.’ Niti in Sanskrit legal
thinking deals with just rules and institutions while Nyaya is about their realization. Niti is an
abstract exercise that, if implemented completely, would result in maximum public welfare and
justice. Nyaya, on the other hand, relates to the enforcement of laws and regulations.” He
emphasized Niti over Nyaya. In his book Amartya Sen has tried to ascertain injustice and
focused on development of human freedom and capabilities as tools and did not just rely on the
institutions.

Sen’s idea of justice is very different. He concentrates on comparative judgements of what is

"more" or "less" just, as well as the relative virtues of various societies that result from certain
18
1985 SCC (3) 545.
institutions and social interactions. Sen's argument is founded on a willingness to accept rational
variations in our understandings of what forms a "fair society." People of differing persuasions-
for example, utilitarian’s, economic egalitarians, labor right theorists, and no-nonsense
libertarians- might all perceive a simple and apparent solution to concerns of justice, but their
remedies would be fundamentally different. In light of this, Sen calls for a comparative approach
to justice, suggesting that it may assist us choose between possibilities we will confront in the
future.

His approach is that “the perfect model of justice is redundant, and that all transcendental
systems of justice are infected with a fundamental flaw that does not emphasize the reduction of
injustice and instead emphasizes the advancement of justice without taking into account that the
plurality of demands will not allow this perfect system of justice to stand on its own. Justice is
ultimately linked to how people live their lives, not only the form of the institutions that surround
them.”

Apart from privacy, the recent landmark judgement of Puttuswamy v. Union of India19 included
a wide range of issues. “Political liberties” and “democratic rights” are constituent components
of progress, according to Amartya Sen's writings in Idea of Justice. Chandrachud. J. overruled
his father's decision in ADM Jabalpur v. Shivkant Shukla 20, upholding Khanna J.'s
disagreement and hence the Constitution's acknowledgment of the right to life and personal
liberty under article 21 was acknowledged.

Part IV “of Amartya Sen's Idea of Justice- Public Reasoning and Democracy was used in
Pradeshiya Jan Jati Vikas Manch and Others v. State of UP and Others 21 in protecting the civil
and political rights of Scheduled Tribes and people's right to representation at the grass-roots
level. In B.K. Pavitre v. Union of India22, Amartya Sen's Merit and Justice was cited as a source
for understanding merit as a tool for creating social order and reducing economic disparity. As a
result, the Court determined that offering reservations to SCs and SCTs does not contradict the

19
(2017) 10 SCC 1.
20
(1976) 2 SCC 521.
21
AIR 2011 All 1.
22
(2019) 16 SCC 129.
meritocracy concept.” The court concluded that merit should not be limited to rigid criteria such
as exam grades, but should instead strive for social equality. 23

Justice & Passion

“The law is reason free from passion…Man, when perfected, is the best of animals, but when
separated from law and justice, he is the worst of all.”

– Aristotle.

In the most basic sense, justice is an ideal that represents "what is just and right."  It entails being
"just, impartial, fair, and correct." Justice is essentially seen as “acceptance and enforcement of
laws enacted by the legislators.” According to Salmond, “laws are the bodies of principles that
tribunals recognize and apply while administering justice.” Even Roscoe Pound defines ‘laws’ to
mean “principles that public tribunals recognize and enforce.”

Justice is about formal rationality, therefore judging is simply offering reasons, whereas
emotions are irrational feelings. For some, passion may be seen as something which obscures
judgment and instigates prejudice and partiality. The latin maxim “nemo judex in re sua” which
means “no man shall be a Judge in his own case” is basically used to avoid any kind partial or
bias decision in a case. Any judgment which is motivated by any element human feeling like
love, sympathy, vengeance, hatred etc. can’t be said to have truly provided justice. Thus, the
judges of the courts also require to act as per the evidences and not as per their own emotions or
the public opinion.

Many instances are seen where the public in the name of ‘justice’ takes the law in their hand.
This has even resulted in the death of many persons who were charged for some offence but
before being able to follow the due process established by law and before even being held as
convicts were killed by the public. Mob lynching is one such example where the public takes the
charge in their hand in the name of ‘justice’. This type of acts is swayed by the human emotion
of outrage, vengeance etc. Hence, to provide justice it is often required to follow the
implementation of the rules and the factor of human emotion should not control it.

23
Aneesha Dominic, Various theories of justice reflected in Indian Judgements, LEGAL SERVICES INDIA (Last
visited: 25 Nov, 2021), https://www.legalserviceindia.com/legal/article-1965-various-theories-of-justice-reflected-
in-indian-judgments.html.
Justice should take precedence above vengeance, and it should reflect a calm and balanced
response to wrongdoing. A spiteful emotion enacts mob justice, which is unsuitable because it
breaches the norms of fairness, impersonality, due process, and evidence-based decision-making.
When laws and judgments are constructed based on bitter impulses, this norm of fairness fails to
pass. The premise is that venomous feelings would block the free flow of reason required for
factual analysis, obstructing due process and a fair hearing. It is stated that the desire for
vengeance will hasten the completion of the work before it has been done honestly. A spiteful
emotion enacts mob justice, which is improper since it violates the ideals of fairness,
impersonality, and due process.24

Therefore, the basic idea behind justice is seen as the implementation of legal provisions of the
statutes. However, this idea of justice cannot be held entirely accurate. One of the most important
factors which drives justice is “passion.”

Passion basically means “a strong feeling of enthusiasm or excitement for something or about
doing something.” In the notion of general justice or righteousness, justice incorporates the
qualities of compassion, generosity, forgiveness, kindness, and maybe thankfulness and humility
(depending on one's perspective). All these are element of passion.

According to Robert C. Solomon, “justice is a virtue which everyone shares- a function of

personal character and not just of government or economic planning.” Passion is not always seen
as a negative element. It can be a driving factor in delivering justice in a positive way. Solomon
believes that, "our sense of justice is largely emotional: care and compassion, as well as negative
emotions like anger, wrath, and vengefulness, are moral sentiments that develop a feeling of
justice."  Justice, he claims, "is a passion, not a set of abstract rules."  He also believes that
humans are inherently sociable and charitable, and that justice is a natural feeling of our
interconnectedness with others. His work opposes the traditional approach on Justice by scholars
like Immanuel Kant, John Rawls etc.

“Judges' responses to injustice and human suffering are expressions of their emotional capacity
to empathize with or distance themselves from the human stories that give rise to legal

Peter Ronald DeSouza, A passion for justice- What role do emotions play in as sytem of justice? (Last visited 03
24

Dec, 2021), https://indianexpress.com/article/opinion/columns/a-passion-for-justice/

controversies. They are also reflections of their intellectual understanding of the role of the
judge.”

According to Justice Brenna, “human attribute that moves judges to act to redress injustice and
to alleviate suffering as "passion.” By this he means “the range of emotional and intuitive
responses to a given set of facts or arguments, responses which often speed into our
consciousness far ahead of the lumbering syllogisms of reason.” His definition of "passion" does
not merely mean pity, sentiment and irrational emotionalism. Rather, it's "any form of experience
that profoundly affects or moves the mind." It resembles its etymological equivalent,
compassion, which is defined as "the sensation or emotion evoked by another's suffering or
misery, and the desire to alleviate it."

Even, according to the Amartya Sen’s idea of justice he emphasized on the importance of niti
over nyaya. He believed that justice should not be entirely based on the concept of defining a just
society rather it should cate to the requirements and the needs of the changing society. According
to him, issues like malnutrition, lack of affordable health care, education and gender inequality
are the elements of injustice that are present in India and for true justice to take place, steps
should be taken to mitigate these elements of injustices. He opposed the idea of defining justice
by many eminent philosophers like Rawls who believed that “justice is primary virtue of social
institutions”

Justice is linked to human beings and therefore, it cannot be delivered in complete isolation with
passion. What is to be eliminated is vindictive passion. Recently, there have been many cases
where the judges have considered the moral aspect and public opinion while deciding the case
like Mukesh 7 Anr. V. State (NCT of Delhi)25 {Nirbhaya’s case}, Indian Young Lawyers
Association v. The State of Kerala26 {Sabrimala’s case}.

What needs to be addressed is “the hidden effect of fear, hate, love, and compassion in the
mutability of law and its transformational capacity, especially when faced with shifting social
mores.” In order to illustrate the idea of law-making as both intellectual and emotional, and
importantly as an essential activity of the empathic imagination, the textual nature of law and the
impact of literary forms on legal actors must be critically investigated. It is proposed that critical
25
(2017) 6 SCC 1
26
Decided on 28th September, 2018.
scholarship on law, passions, and emotions not only advances our understanding of the inner
workings of law, but also serves as a foundation for moral reasoning and can establish the
conditions for a more dynamic, flexible, ethical, and successful legal system.

Conclusion

The significance of righteousness, fairness, and truth is emphasized in moral philosophy, and the
concept of justice is at the Centre of it. True, egregious inequities exist in a variety of forms and
in various facets of human existence and civilization. It is a great challenge to uncover and
eliminate such evident injustices as quickly as possible, and it must be done in the best possible
way. Furthermore, regardless of socioeconomic standing, justice should be available to people
from all walks of life.

By “engaging with the underlying social context in which emotions are a motivating force, Law
and the Passions provides a unique inclusive commentary on the significance and influence of
emotions in the history and continuing development of legal judgement, policy formation, legal
practice, and legal dogma. Although the emotionality of the law and the use of emotional tropes
in legal discourse has become a well-established focus in recent scholarship, the extent to which
emotion and the passions have informed rather than served as a mere adjunct to decision-making,
decision-avoidance, and legal reasoning remains a subject for critical examination. As seen by a
number of instructive court cases, emotions have played a critical part in the genesis of
fundamental legal principles and have resulted in a number of difficult judgements.”

2. “Duncan Kennedy’s ‘three globalizations of law and legal thought’ hypothesis has been
appreciated and criticized by other scholars.”

“Analysis of growth of law in a globalizing world”

Introduction

In the previous few decades, our civilization has undergone a dramatic transformation. Many
alterations were constrained by the nation state, while others, such as the spread of ideologies
and the expansion of knowledge, transcended national boundaries. Globalization has had a
significant impact on the development of law, despite its invisibility. In the legal world, we are
witnessing fresh and deep changes. These new legal theories have encircled our legal system in a
significant way. Despite the fact that law is ubiquitous in the factual reality of globalization, it
has an ambiguous standing in sociology of globalization, just as globalization has not gotten the
attention it deserves in sociology of law.27

Globalization has not just transformed the social, political and economic framework of the
nations but it has also changed the legal framework of the nations. Due to the globalization, there
has been a paradigm shift in the regulatory framework from an individualistic approach to a
socialist approach and then towards a liberalistic approach. This shift has also resulted in
reshaping the policy norms and the legal structure of the nation.

One of the most significant works of legal intellectual history produced by an American
researcher in the last fifty years is Duncan Kennedy's paper “Three Globalizations of Law and
Legal Thought: 1850–2001.” It presents a clear, intelligent, and challenging argument regarding
the evolution of legal philosophy over the last 150 years.28

Duncan Kennedy analyses the growth of legal consciousness in the United States and around the
world (but particularly in the Western world) over a 150-year period in Three Globalizations of
Law and Legal Thought (Three Globalizations). The article distinguishes “three distinct eras,
each marked by a dominant mode or modes of legal thought and language: the first globalization,
or era of Classical Legal Thought (CLT) (1850-1914), the second globalization, or era of the
social (1900-1968), and the third globalization era which was not given any name due to its
complex features (1945-2000).”

Kennedy focuses substantially on numerous discrete fields of law, most notably contract law,
property law, regulatory/administrative law (including labor law), international law, and
constitutional law, in offering his rich depiction of legal consciousness and language within the
relevant times. Family law, for example, plays only a little role in the research, offering only as
an illustration of how diversity in certain legal fields contributed to the perpetuation of CLT
27
Terence C. Halliday and Pavel Osinsky, Globalization of Law, Annual Review of Sociology, Vol. 32 pp. 447-470,
Annual Reviews (2006).
28
John Henry Schlegel, Three Globalizations: An essay in inquiry, LAW AND CONTEMPORARY PROBLEMS
(Last visited: 03 Dec, 2021), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4718&context=lcp .
throughout the first globalization. In this version of the three globalizations, criminal law plays a
supporting role.

The application of structural analysis to analyze the situation of current legal players is
demonstrated in Three Globalizations. 29 Kennedy has tried to explain the classification of the
three different eras of globalization in legal thought. He has classified the first era of classical
legal thought as “a method of thinking about law as a system of areas of autonomy of both public
as well as the private actors, with the limits of spheres defined by legal reasoning defined as a
scientific practice.” The second era of social is again considered by him as “a way of thinking
without an essence but as a purposive activity, as a regulatory mechanism that could and should
facilitate the evolution of social life in accordance with ever greater perceived social
interdependence at every level, from the family to the world of nations.” The third era is
considered as “ to think about legal technique, in the aftermath of the critiques of CLT and the
social, as the pragmatic balancing of the conflicting considerations in administering the system
created by the social jurists and also envisaging law as a guarantor of human and property
rights.”

Globalization

Globalization, by altering borders and de-territorializing behavior, generates a slew of legal

challenges and concerns. Many commentators claim that international and national law are no
longer acceptable categories for the fullness of "law" today, and propose a variety of alternative
ideas to assist us grasp law in the global arena, such as transnational law, global law, global legal
pluralism, and so on.

The rise of the global society - sometimes known as globalization - has resulted in significant
changes not only in the economics, society, and politics, but also in the law. “These changes
have an impact on the domains that are regulated by law. Advances in communication and travel
technologies, expanded economic areas, and political opening of states have resulted in increased
cross-national communication, international dispersion of production systems, transnational
trade, global markets, mobility of people and businesses, and offshore investment. Both desirable

Duncan Kennedy, Toward an Historical Understanding of Legal Consciousness, in 3 RESEARCH IN LAW AND
29

SOCIOLOGY 3 (Steven Spitzer ed., 1980).

and socially advantageous effects can be found in these processes, as well as those that are
damaging to society. The dissemination of publications is eased, and both legal and illegal
commodities exchange profits; tourist and worker mobility, as well as the mobility of
undesirables, is enabled. All of these activities are governed by rules that aim to establish an
environment that is friendly to international trade while also minimizing hazards. Due to the
rising trans-nationalization of activities subject to legal control, cross-border legal issues are
becoming increasingly common.

Globalization is loosely defined as “the integration and democratization of the world's culture,
economy, and infrastructure through transnational investment, rapid proliferation of
communication and information technologies, and the impact of free-market forces on local,
regional, and national economies through transnational investment, rapid proliferation of
communication and information technologies, and the impact of free-market forces on local,
regional, and national economies.”

Through trade, travel, and information sharing, this term immediately reveals a stronger
"connection," or networking, across nations and peoples. Although there has been a relationship
between these three fields for millennia, “the invention of machines has substantially accelerated
the pace of development in these three domains. The seeds of globalization had already taken
root in the eastern hemisphere by the turn of the millennium, particularly in the regions bordering
the Indian Ocean and the South China Sea. These were the world's most dynamic regions at the
time, and advanced Asian country’s principal reason for venturing out to other lands was trade.
Western culture, on the other hand, was still in its infancy. Interaction with the traders provided
the impetus they needed to get back on track. However, it took more than a millennium for
Europe's best thinkers to identify transplanted eastern wisdom.”30

Growth in Law

This is true for all three primary branches of the legal system. “In the context of private law,
parties from different countries sign contracts of sale, multinational corporations form
competition-limiting cartels that affect the global market, and copyright violations occur in a
multitude of states at the same time due to the dissemination of files over the Internet.” Cross-
30
Hilalz, Legal Issues of Globalization, LEGAL SERVICE INDIA (Last visited: 01 Dec, 2021),
https://www.legalserviceindia.com/legal/article-69-legal-issues-of-globalization.html.
border cases also arise when domestically harmful emissions are released from foreign territory,
foreign suppliers offer Internet gambling, multinational corporations divert profits to subsidiaries
in offshore tax havens, and financial supervisory authorities regulate the sale of foreign financial
products. Cross-border investigations must be coordinated when investigating transnational
terrorism and global organized crime, and access to people or evidence must be obtained from
outside the country. It is a smooth transition from cross-border activities that occur on the
frontiers of two or more countries to global-scale activities that have global repercussions and
can only be solved by the international community of states cooperating. Traditional nation-state
law is increasingly confronted with "transnational" activities that affect multiple states,
necessitate legal decisions that must be enforced in foreign territory, and raise issues that can
only be resolved on a global scale as a result of the growing need for cross-border regulation.31

Globalization, first and foremost, refers to real-world events that are global in some sense. Many
of these types of advancements are well-known. Some are concerned about state relations,
particularly the rising interdependence. “The increased global trade and global markets
(facilitated in part by trade liberalization), global communication (facilitated in part by the
internet), global travel and migration, global networks (ranging from online gamers to terrorists),
global environmental destruction and climate change, increased hybridity of cultures and
societies, and increased influence of US values and culture on the rest of the world. All of these
trends are undeniably true, even if their magnitude is occasionally exaggerated (for example,
most consumption is still domestic).”

The “creation of international economic institutions like the International Bank for
Reconstruction and Development (the World Bank), the International Monetary Fund (IMF), and
the World Trade Organization (WTO) to help regulate the flow of free and fair trade and money
among nations was a third factor that aided globalization.”

Finally, “advancements in telecommunications and computer technology have made it much

easier for people to communicate and conduct business. Managers, for example, can now
effortlessly coordinate their organization's global activities, which include numerous corporate
divisions, clients, and suppliers, without having to leave their headquarters. Globalization, on the

31
Gloablization and Law: Law Beyond the State, (Last visited: 04 Dec, 2021).
https://deliverypdf.ssrn.com/delivery.php?ID=7957116087119010&EXT=pdf&INDEX=TRUE.
other hand, has a dark, ugly side. Events in one country can have major ramifications for regular
people in other countries. A long economic slowdown in Japan, for example, expanded to
Southeast Asia in the late 1990s.”

Three Globalizations of Law

According to Kennedy, “legal institutions and ideas have a dynamic, or dialectical or constitutive
relationship to economic activity.” The analysis of the “Three Globalization of Law and Legal
Thought (Three Globalization)”, in which he has traced the development of the legal
consciousness and classified the three different periods of language and legal thought is as
mentioned below.

The First Globalization

This period basically covers the time frame between the “second half of the 19th century till the
end of WWI.” This era deals with the individual rights, property rights. The legal philosophy on
which it is based is Legal positivism. It was at this time when the human race was evolving and
the rules and regulations were being formed, thus, resulting into creation of societies. Freedom,
system and legal science are the ideals followed under the Classical Legal thought. The legal
technique is based on the principle of “deduction within coherent and autonomous legal order
between private and public law, individualism and commitment to legal interpretive formalism.”
This era also laid an emphasis on the “will theory” under which it is understood that the laws
made by the advanced Western countries are considered as “set of rational derivations” and it
will help the legal person to realize their wills. The purpose of this theory was to define the
principles that should flow from consensus in order to achieve the goal of individual self-
realization. Law professor were considered as the Legal agency who were the maker of codes
and aided in modifying the code and treatises. Free trade, private international laws etc. were part
of the international economic laws. With or without codification, the English, Dutch, and French
transmitted their national versions of CLT directly to their colonies. The Great Powers compelled
"opening" to Western law and made it a requirement for non-colonized states to open to Western
trade as well.

A hallmark of this period was the universalization of a single Classical system of public
international law created by the main Western powers. Money became depoliticized, and a
global capital market with diplomacy emerged. Individuals form a people, with rights secured by
the state, which represents and secures the rights of other peoples, according to the paradigm
used here. The colonies did not object to the concept of CLT, and settlers enforced it on them.
But in the non-colonized nations CLT spread as it had some intrinsic appeal to the elites that
chose it. Every nation that participated in the world order of business and finance, according to
CLT, was a part of the “ius gentium”. And it was believed that each people had their own unique
normative order, and that jurists from many countries might contribute to the development of
legal responsibilities and international law based on their analyses of “will, right, and
sovereignty” which had no clear national particularity. They might create their own modified
versions of European powers' civil and commercial regulations, easing entry into the global
economy. Sovereigns were subjects of international law. “The German historical school created a
positivist version of normative formalism in the nineteenth century. A national legal system
reflects the normative order of the underlying society, and this normative order is consistent with
the spirit and history of the people in question.”

The Second Globalization

This era began “around 1900 and was prevalent till the end of WWII.” The fundamental feature
of this period was “the social”. Law was seen as a method of regulation that could and should
aid in the development of social life with greater emphasis on social interdependence at every
level, from family to the world of nations. “The social was born in Germany and later France, but
it spread throughout the world at the same time, even though most of those places imported parts
from Germany and France and had little or no influence back.” Main theorists were Duguit,
Lambert, Gounod etc. It deals with Group rights, social rights of the people. The legal
philosophy followed under this era was that of Legal pluralism. New norms were being
developed by various groups inside the evolving interdependent communities to meet new social
requirements. This was when the human race has evolved to a phase where acceptance to
regulation by the laws had developed in them. Thus, this resulted into development of social
institutions too. “Solidarity, evolution and social science” was the legal ideals associated during
this phase. The legal technique on which it was based is “rational development of law as means
to social ends.” The era supported the element of is-to-ought with respect to law, emphasis on
instrumental approach for formulation of norms. Legal sociologist and the administrator and the
legislator were considered to be heroes of this era. World bank, GATT, IMF, bilateralism is few
of the products of globalization in international law. “Their basic idea was that the conditions of
late nineteenth century life represented a social transformation, consisting of urbanization,
industrialization, organizational society, globalization of markets all clubbed in the idea of
interdependence.” They believed that the financial market crisis, Great Depression all were result
of the failure of coherently individualistic law. Labor legislations, regulation of financial
markets, development of new institutions in international law were carried in order to bring
reform in the individualism approach which proved to be a failure. 'The social' was a harmony
ideology that preached each organized interest's function, as well as the existence of a public
interest in the coordination of their interdependent actions in order to maximize societal welfare.
Pluralism, Institutionalism, Corporatism, Social legislation. Not only was there a strong attention
on the diversity of institutions below and above the level of state, but also on groups between the
level of individual and the people. Institutions such as League of Nations were created.
Although, it was not able to stop the WWII but then also institutional model was supported by
many theorists. It was seen as a huge structure not just by its physical characteristics but also in
terms of the power they command among the various nations. This model was seen as “a path to
channelize civilization and bring harmony between different laws of nations.” It was something
which in the Classical Legal Thought era, the group of individuals were not able to achieve. This
era also resulted in the feeling of nationalism in the nations. Import substitution industrialization
was popular during this time period. Many right-wing countries adopted it as their development
plan. “Tariffs, controlled exchange rates, currency restrictions, import licensing, and subsidized
loans were all used to benefit local businesses over imports. Another was the creation of a state-
owned or state-regulated sector using traditional social law administration practices.”

The Third Globalization

The era started since 1945 and continued till 2000. Kennedy did not label this era due to its
complex nature. It talks about the modern legal consciousness. "The third globalization," he
claims, "is similar to the first two in that it is based on a harsh critique of its predecessor, the
social." However, “unlike both the CLT and the social, there is no identifiable broad integrating
concept, similar to the will theory or the notion of adaptation to interdependence, mediating
between normative projects and positive law subsystems.” This era covered the aspect of human
rights and its development. It plays the same role in this era’s legal consciousness as played by
private rights in CLT and social rights in the Social. “Human rights functions sometimes as rules
and sometimes as policies, potentially relevant in virtually every legal dispute even if there is no
claim of violation of an enacted constitution or charter or treaty.” The legal ideals followed under
this were democracy, rights, rule of law and pragmatism. “Public law neo-formalism and
balancing of conflicting considerations” is the Legal technique under this era. It is based on the
legal philosophy of multiple normative reconstruction projects. The collective social rights (food,
housing, labor, and shelter) prioritized by the social, are more or less vindicated in positive law,
but they, like CLT property rights, exist on the periphery of contemporary legal consciousness in
its transnational form. The international economic law products include EC, WTO etc. Judges
are regarded as heroes of the third globalization, who, to the best of their abilities, apply policy
analysis or neo formalism to issues established by governmental and non-governmental
organizations claiming to represent civil society. Identity is basically seen as “a basis of claim
against the majority or dominant culture.” The legal system of any country determines which
identities are acknowledged and which are condemned. However, the identity that is recognized
is founded on the same ideas. It is founded on highly formalized equality and nondiscrimination
rules. International business enterprises begun to recognize and incorporate identity rights by
changing property ownership into a minoritarian identity and government regulation into the
equivalent of legislative majorities discriminating against minorities. Under this, the concept of
rule of law is adhered which is based on the principles of legal autonomy, legislative generality
and uniform interpretation and application of law through courts. This period has two
distinguished elements: “policy analysis” and “public law neo-formalism”. “In complicated legal
challenges, policy analysis entails weighing opposing considerations and conflicting interests in
order to arrive at a seemingly rational answer. Judges are expected to make judgements in this
manner by weighing the consequences of their decisions and balancing opposing considerations.
Neo-formalism is based on foundational writings such as treaties and constitutions and purports
to be deductive reasoning.” There is a close link between the United States and each of the major
places for the emergence of contemporary legal consciousness. For starters, constitutional courts
deal with judicial evaluation of topics such as the federal government's power allocation and
rights against the state. Second, transnational jurisdictions are becoming more prevalent. Third,
in the world of law practice, there is the emergence of a huge international law firm in the
American model, dealing with concerns of the globalized economy and the equally globalized
non-profit NGO sector, which sees itself as comprising "the worldwide community."

Effect of Globalization

Because of the social changes in society, many new notions evolved as a result of globalization.
The globalizing society has an impact on socio-economic concerns such as peace, crime, social
cohesion, and development. Laws such as international commerce law, criminal law, and other
laws are all affected by globalization. Law is now a worldwide phenomenon. As a result, the
question is no longer about the consequences of globalization on the law. Law is becoming more
international.

We are seeing an upsurge in complicated criminal conduct in international criminal law as

boundaries are liberalised. We have observed an increase in cases to the international courts as a
result of globalisation. Law is still evolving, and state actors and jurists continue to seek the
creation of new tribunals and substantive international crimes on a regular basis. After 1968,
there was a significant increase in criminal legislation and judgments. In many ways, contrary to
Kennedy's portrayal in the third globalisation, the star of criminal law is the lawmaker who
introduces new laws, not the judge. Now we have arrived at the true meaning of globalization,
with the independence of the individuals. The independence is because of the globalized
governments and how they are coming up with bilateral treaties to cater to the increased trade
and commerce activity.

Non-state actors have evolved, and their organizational structures are loose than those of the
state. Changes in labor, human, and cultural rights have resulted from the diversity of the
participants. They've brought together people from all over the world to work toward the same
aim of progress, development, and growth. Non-state players have proliferated, ushering in a
new era of global alliances between corporate and governmental entities on specific challenges.32

In India, after the liberalization of economy in the 1990s, the impact of Globalization was fell in
a full swing. During that time India also became the member of many international treaties and
conventions including the WTO, human rights commission etc.
32
The Rise of Non-State Actors in Global Governance, Opportunities and Limitations, Thomas G. Weiss D.Conor
Seyle, One Earth Future Foundation, (2013).
Conclusion

Kennedy in his work the “three globalization” has classified the various era of globalization
based on the legal thoughts. The development of the laws in a globalized world can be seen
through his work. It can be seen that how the legal approach from individualism to social to
balancing of conflicting interest and public law neo-formalism has shifted. He wanted the three
globalizations narrative to reinforce his belief that progressive elites on the periphery can and
should devise national progressive strategies rather than accepting the Centre's prescription that
they simply open their economies and reform their legal systems and accept the consequences,
good or bad.

We've examined the globalization of law from various perspectives. Administrative law,
constitutional and other rights legislation, and commercial business legal regulation are all rising
in response to a global distrust of hierarchical authority and concentrated public and corporate
power. As a result of the global need to protect individuals, personal injury, consumer protection,
environmental law, and even family law is all on the rise. The globalization of markets and
corporate businesses has resulted in the development of a global law of commercial transactions.
The global development of external corporate contacts and the expansion of arms-length
regulatory frameworks are fueling the growing demand for attorneys and their involvement in
more and more social, economic, and political ties. Given the foregoing, it is plausible to
conclude that a worldwide framework for legal education, enforcement, and harmonization of
most transnational laws is becoming more required.