UNIT 5 RELATION BETWEEN LAW AND JUSTICE

1. EQUIVALENCE THEORIES – JUSTICE AS NOTHING

MORE THAN THE POSITIVE LAW OF THE STRONGER
CLASS

The equivalence theory of justice is a legal

concept that asserts all participants in an unlawful
act share equal responsibility for the outcome,
regardless of their level of involvement or intention.
This theory has far-reaching implications in
the criminal justice system, particularly in the
way guilt is determined, sentencing is issued, and
legal defences are constructed. Additionally, it plays
a role in international law, where it is used to hold
states accountable for their actions.
For an Indian audience, this concept intersects
with various principles of Indian law, such as
collective responsibility in crimes, equal treatment
under the law, and the importance of fairness in
legal proceedings. Understanding the equivalence
theory of justice in this context can shed light on
how Indian courts may approach cases involving
multiple offenders and how the law views collective
wrongdoing.

Contents hide
1. Origins and Historical Context of Equivalence Theory
of Justice
2. Key Principles of the Equivalence Theory
2.1. Equal Responsibility for All Participants
2.2. Application Beyond Individual Crimes
2.3. Moral and Legal Accountability
3. Equivalence Theory in Indian Criminal Law
3.1. Section 34 (Acts done by several persons in
furtherance of common intention):
3.2. Section 120B (Criminal conspiracy):
4. Landmark Cases on Equivalence Theory of Justice
4.1. Case 1: The Nirbhaya Gang Rape Case
4.2. Case 2: The Babri Masjid Demolition
5. Debate Around the Equivalence Theory
6. Relationship to Other Legal Principles
7. Implications of Equivalence Theory of Justice for Indian
Legal Practice
8. Conclusion
Origins and Historical Context of Equivalence
Theory of Justice
The equivalence theory has its roots
in philosophy, particularly in Aristotle’s concept
of causality, which seeks to understand how
different actions and events lead to a specific
outcome. Aristotle argued that multiple factors
could contribute to the same result, and all
contributing factors should be considered when
determining responsibility.
The theory gained prominence in 19th-
century German jurisprudence, where legal
scholars began to use the concept to explain
collective responsibility in crimes. According to this
theory, whether someone was the mastermind
behind the crime or merely a passive participant, all
individuals involved are considered equally
responsible for the result. This has influenced
modern legal systems globally, including India’s,
especially in cases where crimes are committed
collectively, such as conspiracy, riots, and group
violence.

Key Principles of the Equivalence Theory

Equal Responsibility for All Participants

The equivalence theory holds that all
individuals involved in a criminal act are equally
accountable. This means that regardless of whether
someone directly committed the crime or simply
aided and abetted it, the legal consequences should
be the same. In India, this principle can be seen
in Section 34 of the Indian Penal Code (IPC), which
deals with acts done by several persons in
furtherance of a common intention.
Application Beyond Individual Crimes
While often applied in criminal cases, the
equivalence theory also has implications in civil
cases and international law. In international law,
for instance, it is used to address state
responsibility. If a state takes part in an unlawful
action—such as violating human rights—it is held
equally accountable as any other state that
participated in or supported that action.
Moral and Legal Accountability
The theory implies a moral component to legal
accountability, suggesting that participants in a
wrongful act share a collective moral burden. This
raises debates about moral luck, where individuals
could be held accountable for outcomes they had
little direct control over. In India, the courts have
occasionally struggled with balancing moral
responsibility and legal accountability, particularly in
cases where there are multiple actors with varying
levels of involvement.

Equivalence Theory in Indian Criminal Law

The Indian Penal Code (IPC) already
incorporates principles similar to the equivalence
theory. Some sections that reflect this idea include:
Section 34 (Acts done by several persons in
furtherance of common intention):
This section holds that when a criminal act is carried
out by several individuals with a shared intention,
each of them is liable as if they had committed the
crime individually. This is an example of equivalence
in action—whether you plan, assist, or execute the
crime, you are equally responsible.
Section 120B (Criminal conspiracy):
This section lays down that if two or more persons
conspire to commit a crime, they can be held liable
even if the crime is not carried out. The idea here is
that mere participation in the conspiracy makes an
individual equally accountable.
These sections of the IPC reflect the principle that in
the eyes of the law, all participants in a criminal act
are treated equally, irrespective of their level of
involvement.
Landmark Cases on Equivalence Theory of
Justice
Case 1: The Nirbhaya Gang Rape Case
One of the most prominent cases that brought the
concept of collective responsibility into public
discourse in India was the Nirbhaya gang rape
case of 2012. In this case, six individuals were
involved in the brutal crime. The court ruled that all
 participants were equally responsible, despite the
fact that they played different roles in the assault.
Each was treated as an active participant in the
crime, embodying the equivalence theory in action.
The judgment emphasised that collective
participation in the crime made all individuals
equally culpable, regardless of their specific actions.

Case 2: The Babri Masjid Demolition

Another case where equivalence theory could be
applied is the Babri Masjid demolition. Here,
various political leaders and groups were accused of
conspiracy and incitement, leading to the
destruction of the mosque. Though not all
individuals physically participated in the act, those
who planned or instigated the event could be held
equally accountable under the equivalence
principle. This case shows how collective
responsibility plays a role in large-scale unlawful
actions involving multiple actors.

Debate Around the Equivalence

Theory
The equivalence theory is not without its critics.
Legal scholars, both in India and abroad, argue over
its applicability in complex individual situations.
Some of the key points of debate include:
 Complexity of Roles:
Critics argue that not all participants in a crime
should be treated equally. Someone who played a
minor role, such as acting under duress or coercion,
may not deserve the same punishment as the
mastermind. Indian law sometimes makes
allowances for this through mitigating factors during
sentencing, but the theory itself pushes for equal
accountability.
 Moral Luck:
The concept of moral luck refers to situations
where individuals may be held responsible for
outcomes they had little control over. For example,
in a case where a crime results in death, should all
participants in the crime be charged with murder?
 This moral dilemma is part of the ongoing debate
around the equivalence theory, with some legal
experts calling for more nuanced approaches.
Relationship to Other Legal
Principles
The equivalence theory of justice is closely tied
to several other important legal principles in India,
including:
1. Equal Treatment:
The Constitution of India, in Article 14,
guarantees the right to equality, which prohibits
discrimination before the law. The equivalence
theory supports this by ensuring that all participants
in a criminal act are treated equally, without
discrimination based on their level of involvement.
2. Non-Discrimination:
The principle of non-discrimination is another key
aspect of Indian law, ensuring that individuals are
not treated differently based on their background,
status, or role in a crime. Equivalence theory
reinforces this idea by treating all participants as
equally responsible, regardless of their specific
actions.
Implications of Equivalence Theory of Justice for
Indian Legal Practice
The application of the equivalence theory in
Indian law has significant implications for the
way criminal cases are prosecuted and defended.
Lawyers and judges must carefully weigh the extent
to which each participant contributed to a crime,
while also adhering to the principle of equal
treatment. This can be particularly challenging in
cases involving group crimes or conspiracy,
where participants may have varying degrees of
involvement.
For defense strategies, the equivalence theory
presents a challenge, as it leaves little room for
distinguishing between the actions of different
individuals. However, Indian courts do have the
discretion to take into account mitigating factors,
such as duress or lack of intent, when
determining guilt and sentencing.
Conclusion
 The equivalence theory of justice plays an
essential role in shaping how crimes are understood
and prosecuted in India. By holding all participants
equally accountable for the outcome of a criminal
act, this theory emphasises fairness and equal
treatment under the law. However, the complexities
of individual situations and the debates surrounding
moral luck suggest that while the theory provides a
valuable framework, it must be applied with nuance
and care.
For the Indian legal system, which already
incorporates elements of equivalence through the
IPC and other laws, understanding this theory helps
in navigating complex criminal cases, ensuring that
justice is served equally and fairly.

2. DEPENDENCY THEORIES- FOR ITS REALISATION

JUSTICE DEPENDS ON LAW BUT USTICE IS NOT THE
SAME LAW

The Theories of Justice and its

Correlation with Law

ABSTRACT:
Administration of justice is one of the most
essential and primary functions of a State. Justice is
a concept of moral rightness based on ethics,
rationality, law, natural law, religion, fairness, or
equity, along with the punishment of the breach of
said ethics. The terms most frequently used by
lawyers in the praise or condemnation of law or its
administration are the words ‘just’ and ‘unjust’ and
very often they write as if the ideas of justice and
morality were coextensive. To clear the confusion,
there are various theories of Justice put forth by
different jurists such as Aristotle, Dworkin, Rawls
etc. This Article firstly deals with the pros and cons
of the theories and concept of justice and also
explains its relation with law. It is analytical and
descriptive in nature and doctrinal in approach.

INTRODUCTION:
 The most essential functions of a State are
primarily two: war and administration of justice. If a
State is not capable of performing either or both of
these functions, it cannot be called a State.
According to Salmond, the administration of justice
implies the maintenance of right within a political
community by means of the physical force of the
State. Justice is the first virtue of social institutions,
as truth is of systems of thought. A theory however
elegant and economical must be rejected or revised
if it is untrue, likewise laws and institutions no
matter how efficient and well-arranged must be
reformed or abolished if they are unjust. Each
person possesses an inviolability founded on justice
that even the welfare of justice as a whole cannot
override. For this reason justice denies that the loss
of freedom for some is made right by a greater good
shared by others. Existing societies are of course
seldom well-ordered in this sense, for what is just
and unjust is usually in dispute. Men disagree about
which principles should define the basic terms of
their association. Yet we may still say, despite this
disagreement, that they each have a conception of
justice. That is, they understand the need for, and
they prepared to affirm, a characteristic set of
principles for assigning basic rights and duties and
for determining what they take to be the proper
distribution of the benefits and burdens of social
cooperation. Thus it seems natural to think of the
concept of justice as distinct from the various
conceptions of justice and as being specified by the
role which these different sets of principles, these
different conceptions, have in common. 1 The main
idea of the theory of justice is to present a
conception of justice which generalizes and carries
to a higher level of abstraction the familiar theory of
the social contract as found, say, in Locke, Rousseau
and Kant. In order to do this we are not to think of
the original contracts one to enter a particular
society or to set a particular form of government.
Rather, the guiding idea is that the principles of
justice for the basic structure of the society are the
object of the original agreement.
 They are the principles that free and rational
persons concerned to further their own interests
would accept in an initial position of equality as
defining the fundamental terms of their association.
These principles are to regulate all further
agreements; they specify the kinds of social
cooperation that can be entered into and the forms
of government that can be established.2

WHAT IS JUSTICE?
Justice is a concept of moral rightness based
on ethics, rationality, law, natural law, religion,
fairness, or equity, along with the punishment of the
breach of said ethics.3 Justice can be thought of as
distinct from and more fundamental than
benevolence, charity, mercy, generosity or
compassion. Justice has traditionally been
associated with concepts of fate, reincarnation or
Divine Providence, i.e. with a life in accordance with
the cosmic plan. The association of justice with
fairness has thus been historically and culturally
rare and is perhaps chiefly a modern innovation [in
western societies].

Importance of Justice
In the words of Prof. Sidgwick, “In determining
a nation’s rank in political civilisation, no test is
more decisive than the degree in which justice as
defined by the law is actually realised in its judicial
administration.” Lord Bryce writes, “There is no
better test of the excellence of a government than
the efficiency of its judicial system.” George
Washington said, “Administration of justice is the
firmest pillar of government. Law exists to bind
together the community. It is sovereign and cannot
be violated with impunity.” Salmond and Roscoe
Pound have emphasized the importance of justice in
their definitions of law. They have defined law in the
terms of justice. According to Salmond, “Law may
be defined as the body of principles recognised or
enforced by public and regular tribunals in the
administration of justice.” Blackstone wrote, “Justice
is not derived from the king as his free gift but he is
the steward of the public to dispense it to whom it is
due. He is not the spring but the reservoir from
whence right and equity are conducted by a
thousand channels to every individual.”

Justice according to Law

In modern times, what is given by the courts
to the people is not what can really be called justice
but merely justice according to the law. Judges are
not legislators and it is not their duty to correct the
defective provisions of law. Their only function is to
administer the law of the country. They are not
expected to ignore the law of the country. It is
rightly said that “in modern State, the
administration of justice according to law is
commonly taken to imply recognition of fixed rules.”

A few illustrations may be given to show what

we understand by justice is according to law. A
creditor has to realise some money from a debtor.
However, he files a suit after the lapse of 3 years.
Equity may be on his side, but his suit must fail on
account of the law of limitation which demands that
a suit must be filed within 3 years. Likewise, a
person may have actually committed a murder. He
may confess his guilt before the police officer who is
an honest man. However, he does not make a
confession before a magistrate. If he is convicted on
the basis of his confession before the police officer,
his conviction has to be set aside as it is opposed to
the law of the country. Even if a guilty person
escapes, judges are not bothered about it. They do
not play and are not expected to play the role of
legislators. If the law is defective, it is the duty of
the people to demand from their legislators to alter
the same. However, so long as a particular law is on
the statute book, the same has to be enforced
unmindful of the consequences.

Law may be blind and therefore justice becomes

blind, but there is no help for it. Judges are expected
to give justice according to the law of the country
and not according to what they consider to be just
under the circumstances.4

Variations of Justice
Utilitarianism is a form of consequentialism,
where punishment is forward-looking. Justified by
the ability to achieve future social benefits resulting
in crime reduction, the moral worth of an action is
determined by its outcome.

Retributive justice regulates proportionate

response to crime proven by lawful evidence, so
that punishment is justly imposed and considered as
morally correct and fully deserved. The law
of retaliation (lex talionis) is a military theory of
retributive justice, which says that reciprocity
should be equal to the wrong suffered; "life for life,
wound for wound, stripe for stripe."

Restorative justice is concerned not so much

with retribution and punishment as with (a) making
the victim whole and (b) reintegrating the offender
into society. This approach frequently brings an
offender and a victim together, so that the offender
can better understand the effect his/her offense had
on the victim.

Distributive justice is directed at the proper

allocation of things — wealth, power, reward,
respect — among different people.

Oppressive Law exercises an authoritarian

approach to legislation that is "totally unrelated to
justice", a tyrannical interpretation of law is one in
which the population lives under restriction from
unlawful legislation.
Some theorists, such as the classical Greeks
and Romans, conceive of justice as a virtue – a
property of people, and only derivatively of their
actions and the institutions they create. Others
emphasize actions or institutions, and only
derivatively the people who bring them about. The
source of justice has variously been attributed
to harmony, divine command, natural law, or human
creation. One thread all of these theories have in
common is that they are theorizing about what
constitutes a proper or right relationship. On this
take of things, justice is the philosophy of right
relationships.5

RELATION BETWEEN LAW AND JUSTICE

The terms most frequently used by lawyers in
the praise or condemnation of law or its
administration are the words ‘just’ and ‘unjust’ and
very often they write as if the ideas of justice and
morality were coextensive. They are indeed very
good reasons why justice should have the most
prominent place in the criticism of legal
arrangements yet it is important to see that it is a
distinct segment of morality and that laws and the
administration of laws may have or lack excellences
of different kinds. Very little reflection on some
common types of moral judgments is enough to
show this special character of justice. A man guilty
of gross cruelty to his child would often be judged to
have done something morally wrong, bad or
even wicked or to have disregarded his moral
obligation or duty towards his child. But it would be
strange to criticize his conduct as unjust. This is not
because the word ‘unjust’ is too weak in
condemnatory force, but because the point of moral
criticism in terms of justice or injustice is usually
different from, and more specific than, the other
types of general moral criticism which are
appropriate in this particular case and are
expressed by words like ‘wrong’, ‘bad’ or ‘wicked’.
‘Unjust’ would become appropriate if the man had
arbitrarily selected one of his children for severer
punishment than those given to others guilty of the
same fault, or if he had punished the child for some
offence without taking steps to see that he really
was the wrongdoer. That just and unjust are more
specific forms of moral criticism than good and bad
or right and wrong, is plain from the fact that we
might intelligibly claim that a law was good because
it was just or that it was bad because it was unjust,
but not that it was just because good or unjust
because bad.
 The distinctive features of justice and their
special connection with law begin to emerge if it is
observed that most of the criticisms made in terms
of just and unjust could almost equally well be
conveyed by the words ‘fair’ and ‘unfair’. Fairness is
plainly not coextensive with morality in general;
references to it are mainly relevant in two situations
in social life. One is when we are concerned not with
a single individual’s conduct but with the way in
which classes of individuals are treated when some
burden or benefit falls to be distributed among
them. Hence what is typically fair or unfair is a
‘share’. The second situation is when some injury
has been done and compensation or redress is
claimed. These are not the only contexts where
appraisals in terms of justice or fairness are made.
We speak not only of distributions or compensations
as just or fair but also of a judge as just or unjust; a
trial as fair or unfair; and a person as justly or
unjustly convicted. These are derivative applications
of the notion of justice which are explicable once
the primary application of justice to matters of
distribution and compensation is understood.

The general principle latent in these diverse

applications of the idea of justice is that individuals
are entitled in respect of each other to a certain
relative position of equality or inequality. This is
something to be respected in the vicissitudes of
social life when burdens or benefits fall to be
distributed; it is also something to be restored when
it is disturbed. Hence justice is traditionally thought
of as maintaining or restoring a balance or
proportion, and its leading precept is often
formulated as ‘Treat like cases alike’; though we
need to add to the latter’ and ‘treat different cases
differently’. So, when, in the name of justice, we
protest against a law forbidding coloured people the
use of the public parks, the point of such criticism is
that such a law is bad, because in distributing the
benefits of public amenities among the population it
discriminates between persons who are, in all
relevant respects, alike. Conversely, if a law is
praised as just because it withdraws from some
special section some privilege or immunity, e.g. in
taxation the guiding thought is that there is no such
relevant difference between the privileged class and
the rest of the community as to entitle them to the
special treatment. These simple examples are,
however, enough to show that, though ‘Treat like
cases alike and different cases differently’ is a
central element in the idea of justice, it is by itself
incomplete and, until supplemented, cannot afford
any determinate guide to conduct. This is so
because any set of human beings will resemble
each other in some respects and differ from each
other in others and, until it is established what
resemblance and differences are relevant, ‘Treat
like cases alike’ must remain an empty form.
Without this further supplement we cannot proceed
to criticize laws or other social arrangements as
unjust.

There is therefore a certain complexity in the

structure of the idea of justice. We may say that it
consists of two parts: a uniform or constant feature,
summarized in the precept ‘Treat like cases alike’
and a shifting or varying criterion used in
determining when, for any given purpose, cases are
alike or different. But this determination is far
complicated when justice is concerned because the
shifting standard of relevant resemblance between
different cases incorporated in it not only varies with
the type of subject to which it is applied, but may
often be open to challenge even in relation to a
single type of subject.

In certain cases, indeed, the resemblances and

differences between human beings which are
relevant for the criticism of legal arrangements as
just or unjust are quite obvious. This is pre-
eminently the case when we are concerned not with
the justice or injustice of the law but of its
application in particular cases. For here the relevant
resemblances and differences between individuals
are determined by the law itself. To say that the law
against murder is justly applied is to say that it is
impartially applied to all those and only those who
are alike in having done what the law forbids.
Consistently with this, the procedural standards
such as ‘audi alteram partem’ i.e. ‘let no one be the
judge in his own case’ and the principles of Natural
Justice are thought of as requirements of justice.

The connection between this aspect of

administration of justice and the very notion of
proceeding by rule is obviously very close. Indeed, it
might be said that to apply a law justly to different
cases is simply to take seriously the assertion that
what is to be applied is different cases is the same
general rule, without prejudice, interest or caprice.
This close connection between justice in the
administration of the law and the very notion of a
rule has tempted some famous thinkers to identify
justice with conformity to law. In particular cases,
not administration but the laws themselves are
often criticized as just or unjust. There is no
absurdity in conceding that an unjust law forbidding
the access of coloured persons to the parks has
been justly administered when only those persons
genuinely guilty of breaking the law were punished
under it after a fair trial.

When we turn from the justice or injustice of the

administration of the law to the criticism of the law
itself in these terms, it is plain that the law itself
cannot now determine what resemblances and
differences among individuals the law must
recognize if its rules are to treat like cases alike and
so be just. Here accordingly there is much room for
doubt and dispute. Fundamental differences, in
general moral and political outlook, may lead to
irreconcilable differences and disagreement as to
what characteristics of human beings are to be
taken as relevant for the criticism of law as unjust.

Indeed so deeply embedded in modern man is the

principle that prima facie human beings are entitled
to be treated alike but almost universally where the
laws do discriminate by reference to such matters
as race and colour. If such discriminations are
attacked they are often defended by the assertion
that the class discriminated against lack, or have
not yet developed, certain essential human
attributes; or it may be said that, regrettable though
it is, the demands of justice requiring their equal
treatment must be overridden in order to preserve
something held to be of greater value, which would
be jeopardized if such discriminations were not
made. Here comes the concept of social justice.
Very few social changes or laws are agreeable to or
advance the welfare of all individuals alike. Only
laws which provide for the most elementary needs,
such as police protection or roads come near to this.
In most cases the law provides benefits for one class
of the population only at the cost of depriving others
of what they prefer. Compulsory school education
for all may mean not only loss of liberty for those
who wish to educate their children privately, but
may be financed only at the cost of reducing or
sacrificing capital investment in industry or old-age
pensions or free medical services. When a choice
has been made between such competing
alternatives it may be defended as proper on the
ground that it was for the ‘public good’ or the
‘common good’.6

THEORIES OF JUSTICE
ARISTOTLE AND THE THEORY OF JUSTICE
According to Aristotle, Distributive Justice
means: “Injustice arises when equals are treated
unequally and also when unequals are treated
equally”. Aristotle contrasted “distributive justice”
from “corrective justice”. According to Aristotle,
“distributive justice” is a distribution of goods and
honours to each according to his place in the
community; it conceives equal treatment of those
equal before the law.

The “corrective justice” is the measure of the

technical principles which govern the administration
of law. In regulating legal relations, corrective
justice imposes an obligation that uniform and
general standards should be laid to measure the
standards of redressing the violations of the law
notwithstanding what the position of the individual
is.

EGALITARIANISM
According to the egalitarian, justice can only
exist within the coordinates of equality. This basic
view can be elaborated in many different ways,
according to what goods are to be distributed—
wealth, respect, opportunity—and what they are to
be distributed equally between—individuals,
families, nations, races, species. Commonly held
egalitarian positions include demands for equality of
opportunity and for equality of outcome. It affirms
that freedom and justice without equality are hollow
and that equality itself is the highest justice.

At a cultural level, egalitarian theories have

developed in sophistication and acceptance during
the past two hundred years. Among the notable
broadly egalitarian philosophies are socialism,
communism, anarchism, left-libertarianism, and
progressivism, all of which propound economic,
political, and legal egalitarianism, respectively.
Several egalitarian ideas enjoy wide support among
intellectuals and in the general populations of many
countries. Whether any of these ideas have been
significantly implemented in practice, however,
remains a controversial question. One argument is
that liberalism provides democracy with the
experience of civic reformism. Without it,
democracy loses any tie argumentative or practical
to a coherent design of public policy endeavoring to
provide the resources for the realization of
democratic citizenship.7

UTILITARIANISM
A society, according to Utilitarianism, is just to
the extent that its laws and institutions are such as
to promote the greatest overall or average
happiness of its members.
How do we determine the aggregate, or overall,
happiness of the members of a society? This would
seem to present a real problem. For happiness is
not, like temperature or weight, directly measurable
by any means that we have available. So utilitarians
must approach the matter indirectly. The traditional
idea at this point is to rely upon (a) a theory of the
human good (i.e., of what is good for human beings,
of what is required for them to flourish) and (b) an
account of the social conditions and forms of
organization essential to the realization of that
good.

People, of course, do not agree on what kind of life

would be the most desirable. Intellectuals, artists,
ministers, politicians, corporate bureaucrats,
financiers, soldiers, athletes, salespersons, workers:
all these different types of people, and more
besides, will certainly not agree completely on what
is a happy, satisfying, or desirable life. Very likely
they will disagree on some quite important points.

So what does all this do for Utilitarianism?

(A) The theory of the human good, the general
conditions essential to a happy or desirable life. The
Utilitarian may plausibly claim to be trying to
promote the overall happiness of people in his
society, therefore, when he tries to improve such
things as rate of employment, per capita income,
distribution of wealth and opportunity, the amount
of leisure, general availability and level of
education, poverty rates, social mobility, and the
like. The justification for thinking these things
relevant should be pretty plain. They are measures
of the amount and the distribution of the means and
opportunities by which people can realize their
various conception of a desirable life. With these
things clearly in mind the Utilitarian is in a position
to argue about item

(B) The sorts of social arrangements that will

deliver the means and opportunities for people to
achieve their conception of a desirable life.

John Stuart Mill, one of the three most important

19th century Utilitarians (the other two were Jeremy
Bentham and Henry Sidgwick), argued that freedom
or liberty, both political and economic, were
indispensable requisites for happiness. Basing his
view upon much the same interpretation of human
beings and human life as Aristotle, Mill argued that
democracy and the basic political liberties--freedom
of speech (and the press), of assembly, of worship--
were essential to the happiness of rational end-
choosers; for without them they would be prevented
from effectively pursuing their own conception of a
good and satisfying life. Similarly he argued that
some degree of economic prosperity--wealth--was
indispensable to having a realistic chance of living
such a life, of realizing one's ends.

So, according to Utilitarianism, the just society

should be so organized in its institutions--its
government, its laws, and its economy--that as
many people as possible shall have the means and
opportunity to achieve their chosen conception of a
desirable life. To reform the institutions of one's
society toward this goal, in the utilitarian view, is to
pursue greater justice.

Some of the institutions that utilitarians have

championed over the years are:
(1) A public education system open to all and
funded by public money, i.e., taxes.
(2) A competitive, "free" market economy. In the
19th century utilitarians often argued for a laissez
faire capitalist economy. More recently some of
them have argued for a "mixed" economy, i.e., a
state regulated market system. Mill, interestingly,
argued at the beginning of the 19th century for an
unregulated capitalist economy, but at the end
argued for a socialist economy (which is not the
same thing as a "mixed economy").
(3) The protection of the sorts of liberties that were
guaranteed in the United States by the Bill of
Rights in our Constitution.
(4) Democratic forms of government generally.8

JUSTICE AS FAIRNESS: JOHN RAWLS

One of the most interesting modern attempts to
defend the principles of justice is found in John
Rawls’s theory of justice as now reformulated in
political liberalism.
The conception of justice for which Rawls argues
demands:
1. The maximization of liberty subject only to
such constraints as are essential for the protection
of liberty itself.9
2. Equality for all, both in the basic liberties of
social life and also in distribution in all other forms
of social goods subject only to the exception that
inequalities may be permitted if they produce the
greatest possible benefit for those least well off in a
given scheme of inequality (“the difference
principle”) and
3. Fair equality of opportunity and elimination of
all inequalities of opportunities based on birth or
wealth.10
His ‘magnum opus’, ‘A Theory of Justice’ is now
regarded as one of the primary texts in political
philosophy. His work in political philosophy dubbed
‘Rawlsianism’, takes as its starting point the
argument that “most reasonable principles of justice
are those everyone would accept and agree to from
a fair position”.
His theory is known as “Justice as Fairness”, from
which Rawls derives his two famous principles of
Justice:
1. Liberty Principle
2. Difference Principle

Rawls and the First Principle of Justice:

“First: each person is to have an equal right to the
most extensive basic liberty compatible with a
similar liberty for others”. The basic liberties of
citizens are roughly speaking, political liberty (i.e. to
vote and run for office), freedom of speech and
assembly, liberty of conscience, freedom of personal
property and freedom from arbitrary arrest.
However, Rawls says: “Liberties not on the list, for
example, the right to own certain kinds of property
(e.g. means of production) and freedom from
contract as understood by the doctrine of laissez-
faire are not basic; and so they are not protected by
the priority of first principle”.
The first principle may not be violated, even for the
sake of the second principle, above an unspecified
but low level of economic development. However,
because various liberties may conflict, it may be
necessary to trade them off against each other for
the sake of obtaining the largest possible system of
rights. There is thus some uncertainty as to exactly
what is mandated by the principle, and it is possible
that a plurality of sets of liberties satisfy its
requirements.

Rawls and the Second Principle of Justice:

Social and economic inequalities are to be arranged
so that:
a) They are to be of the greatest benefit to the
least-advantaged members of society (the
difference principle).
b) Offices and positions must be open to
everyone under conditions of fair equality of
opportunity.

Rawls claim in (a) is that departures from equality of

a list of what he calls primary goods – ‘things which
a rational man wants whatever he wants’ – are
justified only to the extent that they improve the lot
of those who are worst-off under that distribution in
comparison with the previous, equal distribution. His
position is at least in some sense egalitarian, with a
proviso that equality is not to be achieved by
worsening the position of the least advantaged. An
important consequence here, however, is that
inequality can actually be just on Rawls’ view, as
long as they are to the benefit of the least well off.
His argument for this position rests heavily on the
claim that morally arbitrary factors (e.g. the family
one is born into) shouldn’t determine one’s life
chances or opportunities. Rawls is also keying on an
intuition that a person does not morally deserve
their inborn talents; thus, that one is not entitled to
all the benefits that they could receive from them;
at least one of the criteria which could provide an
alternative to equality in assessing the justice of
distributions is eliminated.
The stipulation in b) is lexically prior to that in a).
Fair equality of opportunity requires not merely that
offices and positions are distributed on the basis of
merit, but that all have the reasonable opportunity
to acquire the skills on which merit is assessed. It
may be thought this stipulation, and even the first
principle of justice, may require greater equality
than the difference principle, because large social
and economic inequalities, even when they are to
the advantage of the worst off, will tend to seriously
undermine the value of the political liberties and
any measures towards fair equality of opportunity.

Rawls’s theory differs from utilitarianism in three

significant ways. First utilitarians can accept
inequalities, social arrangements in which some
benefit at the expense of others, provided the
benefits (or pleasures) exceed the costs (or pains),
so that the outcome is the maximization of overall
welfare level (“the greatest happiness of the
greatest number”). This may be thought
unjust. Secondly, while utilitarians defend liberty
11

and political rights, they have no objections to

limiting liberty or restricting political rights, provided
doing so promote greater well being. Rawls’s first
principle (the equal maximum liberty principle)
means that there are some rights, freedom of
speech and association, the right to vote and stand
for public office, liberty of conscience and freedom
of thought, freedom of the person and the right to
hold personal property, freedom from arbitrary
arrest, which every system must respect. These are
rights that may not be sacrificed to increase the
aggregate welfare level. Thirdly, Rawls’s conception
of benefits is different from utilitarianism, which is
concerned with welfare. Rawls, by contrast, defines
benefits in terms of “primary goods”: liberty and
opportunity, income and wealth and the basis of self
respect. These need not be considered desirable in
themselves, but they give persons the opportunities
rationally to further their own autonomy. 12 Rawls
does not stipulate how primary goods should be
used by individuals: he implies that they may use
them as they choose, provided in doing so they do
not undermine just situations.13

JUSTICE AS ENTITLEMENT: NOZICK

Robert Nozick’s Anarchy, State and Utopia14 is one
of the most provocative essays in political
philosophy in recent times. In it he revives the claim
long associated with John Locke 15 and Herbert
Spencer16 that a “minimal state limited to the
narrow functions of protection against force, theft,
fraud, enforcement of contracts, and so on, is
justified; and that the minimal state is inspiring as
well as right.”17 He develops a conception of justice
which he calls “Entitlement Theory” 18, according to
which economic goods arise already encumbered
with rightful claims to their ownership. Philosophies
which espouse distributivism (or worse re
distributivism) are misconceived. Nozick extols the
virtues of 18th century individualism and 19th century
capitalism19 and it may be thought to have captured
the character of the Thatcher-Reagan era. Even so,
it came as a profound shock to many.

First, Nozick seeks to justify the minimal state

against the individualist anarchist who holds that
“when the state monopolizes the use of force in a
territory and punishes others who violate its
monopoly, and when the state provides protection
for everyone by forcing some to purchase protection
to others, it violates moral side constraints on how
individuals may be treated”, thus concluding that
the state itself is “intrinsically immoral.” 20 To Nozick
what is attractive in this scenario is that the state
“grows by an invisible-hand process and by morally
permissible means, without anybody’s rights being
violated.”21

Nozick then proceeds to defend the minimal state

against arguments for a more extensive state. First,
that the state is necessary, or is the best
instrument, to achieve distributive justice. Against
this Nozick puts forward his “entitlement theory” of
justice: Under this a person’s holdings are just if
acquired through just original acquisition or just
transfer, or through the rectification of injustices in
the first two senses. He claims that “if each person’s
holdings are just, then the total set (distribution) of
holding is just.”22 In the light of this, Nozick
concludes that no state is justified in applying a
principle or principles which aim at some end-results
and specify some patterned distribution. The
“entitlement theory” by contrast is “historical” 23 and
so is unlikely to upset any pattern. Nozick then sets
out to attack the case for state action to promote
equality.24 In his view the state should confine itself
to enforcing contracts, prohibiting thefts and taking
such other measures to ensure holdings to those
entitled to them.

In the final part of the book, Nozick offers a

speculative Utopia, “a system of diverse
communities, organized along different lines and
perhaps encouraging different types of characters,
and different patterns of abilities and skills.” 25 The
only possible framework for such a system is the
minimal state which “best realizes the utopian
aspirations of untold dreamers and visionaries.” 26 He
concludes that such a state “treats us as inviolate
individuals, who may not be used in certain ways by
others as means or tools or instruments or
resources: it treats us as persons having individual
rights with the dignity that it constitutes…. It allows
us, individually and with whom we choose, to
choose our life and realize our ends…aided by the
voluntary cooperation of other individuals
possessing the same dignity.”27

Nozick’s book challenges28 the whole concept of

distribution. There is “no such meaningful concept
as the goods of society but only the goods of
particular individuals.”29 Nozick forces to ask not
how distribution can be other than equal (Rawls’s
premise), but why should there be distribution at all.
This is clearly an important question for all
concerned with social and economic justice.

Nozick’s principle argument against distributionist

theories of justice rests on their failure, as he sees
it, to cohere with his ideal of individual liberty. The
right to property is an expression of the right to
liberty. But for Nozick the right to liberty is defined
by reference to the right to property. If, as Nozick
says, property rights derive from the right to liberty,
and if it is the case that large-scale property
accumulation has negative effects on liberty, then
the right to liberty would, contrary to Nozick’s
thesis, demand redistributive theories of justice.
Nozick’s error – a not uncommon one – is to assume
that it is possible to “define the conditions of
freedom for single individuals prior to considering
the conditions of freedom for all individuals.” 30

JUSTICE AS RIGHTS: RONALD DWORKIN

For both Rawls and Nozick, there is a clear
relationship between justice and rights but it is
Ronald Dworkin who can be said most clearly to
ground justice in rights.

In one sense there is nothing new in this: the idea

that political morality and social choice were to be
governed by considerations of the rights of
individuals as its heritage in the writings of
Locke31 and Kant32 as well as in the literature and
constitutions of the American and French
revolutions. The emphasis has not gone
unchallenged. Bentham was a trenchant critic,
particularly of natural rights.33 So was Marx.34 Today,
one of the central conflicts in legal, moral and
political philosophy is between those who espouse
rights-based theories and those, utilitarians in
particular, who put forward those goal-based
theories.35

The distinction is easy enough to state. A

requirement is rights-based when generated by a
concern for some individual interest, and goal-based
when propagated by the desire to further something
taken to be of interest to the community as a
whole.36 The rights-based approach does not deny
that the interest of a particular individual is not also
shared by others (in the case of human rights, all) in
the community, but it would claim that the interest
of each individual qua individual is sufficient to
generate the moral requirement. It is part of the
philosophy of those who espouse rights-based
theories to insist on the pre-eminence of rights.
Rights are valuable commodities37, important moral
coinage.38

To Dworkin rights are “trumps”.39 They are

grounded in a principle of equal concern and
respect. So for a judge to make a mistake about a
legal right is “a matter of injustice”. 40 Further, the
whole institution of rights rests on the conviction
that “the invasion of a relatively important right” is
a “grave injustice”.41 Dworkin sees rights as trumps
over some background justification for political
decisions that state a goal for the community as a
whole.

There are, Dworkin notes42, two distinct senses in

which a community may be said to be better off as a
whole despite the fact that certain of its members
are distinctly worse off. It may be better off in a
utilitarian sense (the average or collective level of
welfare in the community is improved even though
the welfare of some falls), or in an ideal sense
(because “it is more just, or in some way closer to
an ideal society, whether or not average welfare is
improved”). For example, a policy of affirmative
action might be pursued to reduce social tensions or
to make the community more equal and therefore
more just.43

In addition, Dworkin offers a substantive explanation

of the values underlying certain rights. He sees
rights as safeguards inserted into political and legal
morality to prevent the “corruption” 44 of the
“egalitarian character of welfarist calculations” 45 by
the introduction of “external preferences”46 majority
preferences should count but only where these
preferences are based on “personal” preferences
(what they want to happen to others). Utilitarianism,
Dworkin argues, assigns critical weight to external
preferences: it is, accordingly, not egalitarian since
it will “not respect the right of everyone to be
treated with equal concern and respect”47

Rights-based moral theories have been contrasted

with the consequentialist ones (of which
utilitarianism is the paradigm). Hare expresses
surprise that critics of utilitarianism, some of whom
like Dworkin lay great weight on the “right to equal
concern and respect”, should “object when
utilitarians show this equal concern by giving equal
weight to the equal interests of everybody, a
precept which leads straight to Bentham’s formula
and to utilitarianism itself”.48 The problem with this
view is that although there may be utilitarian
reasons for respecting justified legal rights, these
reasons are not the same as the moral force of such
rights, because they neither exclude direct
utilitarian arguments against exercising rights not
those for interfering with them.49, 50

ST. THOMAS AQUINAS AND THEORY OF

JUSTICE
His concept of justice was to co-relate positive law
with the law of God as he believed that ig justice is
taken away, the kingdoms are reduced to robberies.
Justice has been defined by St. Thomas Aquinas as,
“habit whereby a man renders to each one his due
by a constant and perpetual will”.

Justice is the steady and lasting willingness to give

to others what they are entitled to. Aquinas works
with this Roman Law definition and with Aristotle's
division of justice into (i) distributive (good
judgment about how to divide up and parcel out
beneficial or burdensome wholes or sets in a way
that is fair because guided by appropriate criteria)
and (ii) what Aquinas calls commutative justice
(good judgment going far wider than Aristotle's
“corrective” justice, and concerned with all other
kinds of dealings between persons). His prioritizing
of the concept of right (jus), conceived as
something that belongs to another, brings him to
the brink of articulating a concept of human rights,
a concept certainly implicit in his thesis that there
are precepts of justice each imposing, on me and
my communities, a duty to everyone without
discrimination. For his definition of justice
immediately entails that correlative to such duties
of justice there must be rights that belong to
everyone indifferent. Many duties of justice are
positive (affirmative duties to give, do, etc.), and
Aquinas treats the duties of relieving poverty both
under justice and under love (of neighbor, for God's
sake). The duties in either case are essentially the
same, and Aquinas' understanding of them strongly
affects his understanding of justified private
property rights, which are valid because needed for
prosperity and development, but are subject to a
duty to distribute, directly or indirectly,
one's superflua – that is, everything beyond what
one needs to keep oneself and one's family in the
state of life appropriate to one's (and their)
vocation(s). For the natural resources of the world
are “by nature” common; that is, reason's principles
do not identify anyone as having a prior claim to
them other than under some customary or other
socially posited scheme for division and
appropriation of such resources, and such schemes
could not be morally authoritative unless they
acknowledged some such duty to distribute
one's superflua.51

St. Thomas here explains that justice is a virtue

even though just acts are the fulfillment of
commands and hence of obligations. Thomas deals
with supererogation. It does seem that we can have
supererogation, relatively speaking, in that we
might sometimes go beyond the strict demands of
justice in our dealings with one another. But one
might also claim that there can be no true
supererogation, absolutely speaking, in a moral
theory according to which we are ultimately
commanded to love one another as Christ has loved
us. In any case, St. Thomas later notes that (natural)
mercy and liberality are traced back to justice as
potential parts and in that sense fall under justice.
St. Thomas deals with justice insofar as it is
a general virtue, i.e., insofar as it is a virtue which
underlies any good action that affects our relations
with others. When one puts it this broadly, it is
evident that general justice provides an end, the
common good, that can motivate even acts of
temperance and fortitude. That is, when acts of
temperance and fortitude are directed to the
common good, they become, as it were, acts of
(general) justice as well, much as such acts can be
turned into acts of charity if they are motivated by
the (general) virtue of charity. For all such actions
can at least make one a more fit member of the
community and so, if this motive is at least in the
background, then all such actions can be thought of
as being just and, indeed, as acts of justice, even
though, strictly speaking, general justice is best
thought of, like charity, as causing or motivating
such actions.. St. Thomas calls general justice 'legal
justice' (justitia legalis), the virtue of a good citizen
or of a good member of a community.

St. Thomas clarifies the nature of this legal justice,

claiming that it is general insofar as it is a cause of
all the acts of the other virtues (prudence,
temperance, fortitude, and particular justice) insofar
as it orders them toward the common good. He uses
an analogy: "Just as charity can be called a general
virtue to the extent that it orders the acts of all the
virtues to the divine good, so, too, legal justice can
be called a general virtue to the extent that it orders
the acts of all the virtues to (its own end) the
common good." It is principally in the sovereign and
secondarily in the subjects of the sovereign.

St. Thomas also deals with justice insofar as it is

a particular virtue, i.e., insofar as it specifies
general justice with respect to our particular
relations with particular individuals as parts of a
political community and with respect to particular
goods.

St. Thomas divides justice into commutative justice,

which deals with the relations between individuals
within a given community, and distributive justice,
which deals with the relation of the community as a
whole to individuals. St. Thomas's conception of the
individual and the community self-consciously
steers between individualism, which recognizes only
commutative justice and thinks of the common good
as a mere compilation of private goods and the role
of the sovereign as simply to prevent private
individuals from harming one another in pursuit of
their independently conceived private goods,
and collectivism , which recognizes only distributive
justice and thinks of the individual's private good as
wholly exhausted by the public common good
insofar as this public good is determined by those in
authority 52

CICERO AND THEORY OF JUSTICE

Marcus Tullius Cicero, a Roman orator equated
justice with a universal natural law principle of
divine origin and accordingly justice means equality
of men in terms of discovering the divine truth.
Justice is an essential condition for human welfare
and freedom. According to Cicero there are three
types of governments
1. Monarchy
2. Aristocracy
3. Democracy
Cicero says that the law is a means of achieving just
government. Men are slaves of law to achieve
freedom. Freedom means freedom from
arbitrariness and power should not be abused.

Cicero on Justice
Justice is the crowning glory of the virtues.
Justice consists in doing no injury to men…
Justice is the set and constant purpose which gives
every man his due.
The foundations of justice are that no one should
suffer wrong; then, that the public good be
promoted.
…justice must be observed even to the lowest.
Justice does not descend from its pinnacle.
Justice extorts no reward, no kind of price; she is
sought…for her own sake.
Extreme justice is extreme injustice.
If our lives are endangered by plots or violence…
any and every method of protecting ourselves is
morally right.53

Cicero’s doctrine of justice is that justice is good in

and of itself and not for any consequential
advantages. Justice is good in and of itself because
it is, along with the other virtues, constitutive of a
genuinely human life. It is not good for its
consequential advantages because there are no
consequences which, taken in abstraction from it
and the other virtues, could possibly be considered
advantageous. It is never the case, contrary to what
consequentialists think, either that justice could be
instrumental to such presumed advantages or that
it could be subordinated to them. Justice is not for
the sake of any further outcome. It is already by
itself the best outcome. To commit an injustice for
the sake of saving lives (and killing the one is
certainly an injustice, since it is the deliberate
choice to inflict on that one an undue harm) is to
suppose that justice is not in itself the best outcome
but that more lives saved is.54

CONCLUSION:
We have reviewed various theories of justice. The
reformulation of Utilitarianism we saw comes from
John Rawls, who did not present it as a version of
Utilitarianism at all. He presented it as a first
approximation to a quite distinct conception of
justice from Utilitarianism, a conception that he calls
"Justice as Fairness." It is one of the most interesting
modern attempts to defend principles of justice.
One cannot think about justice, without taking a
position in Rawls’s Theory of Justice.

In a world where people are interconnected but they

disagree, institutions are required to instantiate
ideals of justice. These institutions may be justified
by their approximate instantiation of justice, or they
may be deeply unjust when compared with ideal
standards — consider the institution of slavery.
Justice is an ideal the world fails to live up to,
sometimes despite good intentions, sometimes
disastrously. The question of institutive justice
raises issues
of legitimacy, procedure, codification and interpreta
tion, which are considered by legal theorists and
by philosophers of law.

Another definition of justice is an independent

investigation of truth. In a court room, lawyers,
the judge and the jury are supposed to be
independently investigating the truth of an alleged
crime. In physics, a group of physicists examine
data and theoretical concepts to consult on what
might be the truth or reality of a phenomenon.

3. THE INDEPENDENCE OF JUSTICE THEORIES –

MEANS TO END RELATIONSHIP OF LAWAND JUSTICE
– THE RELATIONSHIP IN THE CONTEXT OF THE
INDIAN CONSTITUTIONAL ORDERING :
(DEPENDANCE AND INDEPENDENCE THORIES
YOUTUBE LA NOTES YETDU ETHU JUST THORIES OF
JUSTICE EXPLANATION THAN)

Unit 4 The Concept of Justice

1. The concept of Justice or Dharma in Indian

Thought

Concept of Justice

Meaning/ Definition
Justice is a moral quality and is equated with all
that is good. The concept is of great significance
to Political Science because it is justice that
adds the moral dimension to politics and
governance. The term suggests the quality of
being ‘just’, ‘right’. It is an ethical concept. But
it is an dynamic idea. It has undergone changes
with the change in time and situations. It is
closely related to religion, morality, law, politics
and socio- economic system. For example,
slavery, untouchability, inferior status of women
were justified till recently in some parts of the
world but now they are regarded unjust.
Meaning/ Definition
Earnest Barker in his book ‘principles of Social
and political Theory’ notes that the term
‘justice’ is derived from the Latin word ‘jus’
which means the idea of joining or bond or tie.
He identifies three values as necessary in
human relations- values of liberty, equality and
fraternity. Justice represents the synthesis of
different values.
According to Robert Tucker, ‘the idea od justice
connotes a rightful balance in a situation where
two or more parties or principles are in conflict.’
According to Charles Merriam, ‘justice consists
in a system of understandings and procedures
through which each is accorded what is agreed
upon is fair.’

Meaning/ Definition
According to Barker there are four different
sources of justice- religion, nature, economics
and ethics. But the most important source of
justice is ‘reason’. Men develop the faculty of
reasoning according to the social consciousness
of his age. The true meaning of justice should
therefore be determined in the light of
prevalent social consciousness
 Procedural Justice and Distributive Justice
The contemporary debate on the nature of justice
focuses on the distinction between procedural
justice and distributive justice.

Procedural Justice
Herbert Spencer, F.A.Hayek, Milton Friedman,
Robert Nozick etc. are the supporters of this
concept.
1. It implies that it is neccesary to
determine a just procedure for the
distribution of social advantages, - goods
and services, opportunities and benefits,
power and honours, then its outcome
will automatically be accepted as just.
2. This concept is closely related to the
ideology of liberalism. The function of
justice is to regulate the mutual relations
between individuals and groups. Rules
should be applied impartially to all
categories.
3. It requires the state to ensure that no
individual or group would oppress
another by force. A fair race is not the
one in which the person who wins
morally deserves to win but one in which
there is no cheating or nobody has unfair
advantage.
4. It treats the rules of market economy as
the model rules of human behaviour.
5. It holds that market mechanism creates
necessary conditions for the most efficient
use of resources. State initiated social
policies will lead to a wastage of material
and human resources.
‘

Distributive Justice

1. It implies that the allocation or

distribution of social advantages

among various sections of society itself should be

just.

2. It corresponds to the ideology of socialism.

It demands that the opportunities of self
development should be progressively extended
to the under privileged and disadvantaged
sections of society. The test of justice in
society consists in ascertaining whether the
poor and the underprivileged have adequate
opportunity to improve themselves. Positive
discrimination (system of reservation for
weaker section in jobs, educational institutions)
is an example of promoting distributive
justice.
3. According to John Rawls, “ Social and
economic inequalities are to be re-arranged
so that they are to the greatest benefit of the
least advantaged.”
Justice requires that a provision should be
made for meeting the minimum needs of all
human beings irrespective of individual
contribution to society – like food, health care
education and some job opportunity.
THE CONCEPT OF DHARMA :

INTRODUCTION

Dharma is an important idea with different meanings in

different religions across the country, like Hinduism,

Buddhism, Jainism, Sikhism and others. The idea of

dharma is being used in many Vedic religions and its

importance and reasonable degree is developed. Indian

law is rich in the ideas and the diversity in the country

made the Indian law a wealthy law. Indian law gets

acknowledgement from different strict laws, tradition,

and customs. Dharma shapes the fundamental

establishment of Indian law because the majority of the

population in India consists of Hindu, Dharma plays an

important part in the formation of the Indian law.

During the ancient times, Hindus used the word Dharma

in place of law. Earlier people used to define dharma as a

person’s moral and social obligation in the society, both

as an individual and as a member of the society. The

primary aim of dharma is to regulate human behaviour in

its cosmic and human context. jurisprudence is the study

of the theory, principles, and philosophy of law, as well

as the interpretation and application of legal principles.

It is a broad and complex field that encompasses various

schools of thought, including natural law, legal

positivism, and legal realism, among others.

The meaning and scope of jurisprudence have been a

topic of debate among philosophers and legal scholars

throughout history, which has led to diverse and

sometimes conflicting views on the subject. Some argue

that jurisprudence is a branch of philosophy, while others

see it as a distinct discipline that is part of the social

sciences. Despite these different perspectives, there is a

general agreement that jurisprudence is concerned with

the nature of law, its origins, its relationship to morality

and justice, and its role in society.

III. JURISPRUDENCE

Jurisprudential thought aims to concentrate on both

theory and reality. It speaks to the fundamental

principles that underpin the greatest form of law. In

general, the study of jurisprudence is the foundation and

core of all legal sciences.

Jurisprudence is a particular type of legal study in which

we are interested in considering the nature of legal

concepts and the core elements of the legal system.

The earliest individuals to study law were the Romans.

The term "jurisprudence" comes from the Latin word

"Jurisprudential," which can mean either "Understanding

of Law" or "Skill of Law." Juris means "law," while the

Latin word "prudential" means "knowledge, science, or

skill." Hence, jurisprudence refers to knowledge of the

law and its application. Jurisprudence is defined here as

the full body of fundamental general legal precepts that

form the basis of actual legal standards. Because of this,

it does not refer to the study of laws or specific areas of

law, such as consumer, criminal, tort, or property law,

but rather to the underlying principles that guided the

development of those areas of law.

A. Definition of Jurisprudence

The term "jurisprudence" has been defined by several

well-known jurists. Bentham, Ulpian, Austin, Salmond,

Keeton, H.L.A Hart, and Julius Stone are a few examples

of such jurists.

One of the most well-known jurists and the man who is

credited with founding jurisprudence is Jeremy Bentham.

Bentham defined jurisprudence as the ability to discern

what actions have been taken in the context of internal

administration. In this context, "jurisprudence" refers to

a body of philosophical principles or conceptual

frameworks that are employed to understand the law.

Ulpian, a Roman jurist, defined jurisprudence as the

study of right and wrong in relation to deities and people.

Austin was a well-known legal expert who is today

referred to be the Father of English Jurisprudence. He

was the first lawyer to compare law to science.

Jurisprudence, in his opinion, is the theory of positive

law. Jurisprudence, in Salmond's view, is the study of the

basic principles of civil law. The laws upheld by courts in

the administration of justice are referred to as civil law.

He provided two definitions of jurisprudence.

They are:

1. Generic Sense

2. Specific Sense

H.L.A. Hart's legal thought was in opposition to strict

positivism. He considered jurisprudence as a science of

law from such a wider vision and broader viewpoint by

integrating morality and the law.

Jurisprudence, according to Julius Stone, is the lawyer's

extraversion. It is the lawyer's evaluation of legal

concepts, theories, and procedures in light of recent

developments in non-legal domains.

B. Scope of Jurisprudence

Divergent authorities provide the law varying

interpretations and presumptions, which results in

conflicting views on the precise bounds of the area of

jurisprudence it covers. When jurisprudence has been

expanded to embrace moral and theological elements,

there is doubt. Austin's ability to make distinctions is

evidenced by the fact that he separated law from

morality and theology and only used the term to refer to

the body of rules established and upheld by the

sovereign or highest law-making power inside the realm.

Jurisprudence cannot address matters of ethics or

religion, hence it is limited to the study of notions of

positive law.

IV. ORIGIN OF DHARMA

Dharma originated from the Vedas, which are Sruti

(heard information). Sruti is the representation of what is

heard from the old ministers, and the Vedas are the most

important source of information for people. They contain

portrayals on everything that might be within reach,

from military to governmental matters to everyday

citizens' life. Its various sources include Smriti, which is

the interpretation of the Vedas, and four sages who are

referred to as Smriti Kars and who have espoused the

dharma sastras. As follows:

1. Yagnavalkaya

2. Manu

3. Narada

4. Brihaspati

The other source is the Puranas, which include eighteen

chapters and contain information on the creation of God,

his lines of ancestors, wise men and kings, and a detailed

description of each yuga. Each of the sources is moving

at a comparable pace, and none stands out above the

rest.

One line from the Brihadaranyaka Upanishad, "punyo vai

punyena Karmana bhavati, Papah Papeneti," which

means "everyone turns out to be acceptable by

acceptable deeds and terrible by awful deeds,"

can be used to summarise the idea that led people to

adhere to the Dharma: "each one gets what he really

asks for and what's benefit is characterized by Dharma."

In Sanskrit, the word "dharma" implies to uphold,

maintain, or bear. Dharma is based on the legal system,

which states that every person has a responsibility to

other people in the community and has a right to exist.

Karma, which defined people's Dharma in ancient times,

was a prevalent belief. Hence, Yudhistir from the

Mahabharata is also known as Dharma Raj. It is an idea

that contributes to the improvement of all living things.

As a result, that which guarantees the wellbeing of living

things is known as the Dharma. Legal, social, religious,

moral, and other conceptual distinctions that are

important to people seem to be less difficult to

understand than confusing since it seems to cut across

all of them. It indicates the highest commendation that is

rightness, Justice, goodness, purpose rather than chance.

V. TYPES OF DHARMA

There are various types of dharma some of them are

listed below: -

1. Samanyadharma (Morality, qualities of the soul) – this

type of dharma include mercy, truth, control over the

mind, purity , offerings, control over the senses , non-

 violence, pilgrimage , compassion, honesty, absence of

any greed and no one can criticize any of the above .

2. Varnadharma (Dharma of a class)- this type of dharma

is applicable to the four classes of people which is

Brahman (Priest), Kshatriya (Warrior), Vaishya

(Businessman), and Shudra (labourer).

3. Ashramdharma (Dharma according to stages of life) –

this type of dharma is limited to a certain stage of life

and it also include four type of ashrams which is

Brahmacharyashram,

Gruhasthashram,Vanaprasthashram and

Sanyasasashram.

4. Gunadharma (Dharma according to the qualities ) – this

type of dharma tell duty to be performed by the person

who is holding a particular position or role . for

example, the duty of king is to nurture his subjects. The

impute of five cosmic elements are also called

Gunadharma.

5. Svadharma – this type of dharma tells to practice it own

duties, rights which each and every people is being

provided with. It is unique dharma because every

person has born out of his/her own traits , nature and

capacities which is known as swabhav. For example –

the swadharma of the fish is to live in water but milk is

better than water , if any fish will insist to live in milk

will die.
 6. Sanatana Dharma - this type of dharma is used by

Hindus to refer to Hinduism. In sanatan dharma the

term Hinduism is denoted as 'eternal' or set of duties

and responsibilities that is prescribed to every

individual irrespective of class, creed ,caste or sect.

VI. NATURE OF DHARMA

The word "Dharma" is first used in reference to the

universe's foundation in the Rig Veda, during the Vedic

period, and it is believed that God created life using

Dharmic principles. Thus, according to Hinduism, moksha

is the eternal Dharma for people. The idea of Dharma

has recently been improved and moralised by the

Upanishads.

In Hindu legal codes like Manusmriti, it also has a

juridical sense that explains citizens' legal obligations.

Manusmriti covers topics including marriage, succession,

administration, economy, and civil and criminal law.

Upholding the Dharma is a king's primary duty. With the

advancement of the concepts of law and justice, their

significance and application have grown. All social, legal,

political, and spiritual rights have their ultimate origin in

divinity.

Hindu law, in contrast to other schools of law, places a

greater focus on obligations than rights. This is true

because Dharma, in all of its meanings, specifies what

each person's highest obligations are. These obligations

may take many forms depending on the person, but they

are always consistent. A king's Dharma, for instance, is

to uphold religious law, but a farmer's Dharma is to

provide for his or her family.

Another characteristic of Dharma is how much it

resembles schools of jurisprudence based on natural law.

This is because traditional Indian law held that people's

rights were bestowed by God. In light of this, divinity is

the ultimate source of all social, legal, political, and

spiritual rights.

Dharma has many facets even though it is fundamentally

a very religious idea. It has rules and legislation covering

a wide range of topics. Texts like Manusmriti, for

instance, cover topics like marriage, succession, civil &

criminal legislation, administration, economy, and

religion.

Hindu law places more emphasis on obligations than

rights, in contrast to other systems of law. This is due to

the fact that Dharma, in all of its nuances, encourages

each person to have a clear obligation. The concept of

these commitments may vary from person to person, but

it is not the main concern. For instance, a rancher's

Dharma is to provide food, whereas a ruler's Dharma is

to uphold severe law.

Another characteristic of Dharma is how much it

resembles schools of jurisprudence based on natural law.

This is due to the outdated Indian law, which

acknowledges that God granted each person's rights.

Thus, divine nature is the undisputed source of all

amicable, legal, political, and profound rights.

While having a very rigorous nature, Dharma has many

facets. It includes laws and customs governing a broad

range of topics. For instance, texts like Manu smriti

address issues related to religion, business, finances,

common and criminal law, marriage, advancement, and

so forth.

VII. INDIAN PERSPECTIVE OF DHARMA AND

JURISPRUDENCE

One of the oldest legal systems in existence, the Hindu

legal system is founded on the idea and philosophy of

Dharma. It incorporates the idea of Nyaya, often known

as justice, which is the universal law. Dharma is a Hindu

idea that dates back to ancient times and is known as

"Dharmashastras," which assures that humans coexist

peacefully with the rest of the cosmos.

Some of the important Code of law are as follows:-

1. Manu Smriti: Manu Smriti is a systematic compilation of

Dharmashastra norms that addresses all legal

 disciplines. Manusmriti is written in straightforward

language, which gives it additional authority.

2. Narada Smriti: It consists of both substantive and

procedural laws, according to Narada Smriti. Procedural

laws specify how a crime is committed, whereas

substantive laws specify the crime's offence and

punishment.

3. Arthashastra: The Arthashastra is a collection of Hindu

political pacts.

The common law system is the foundation of the

contemporary Indian legal system. India is a secular

nation as well. As a result, the old Hindu legal system is

no longer applicable in the contemporary setting.

VIII. A COMPARISON OF DHARMA AND MODERN

LAW

Dharma signifies routineness of commonly accepted

order; it also includes religion, duty, and is inseparable

from a quality or an order, despite the fact that modern

legislation is based on justifications and encompasses

rigid opinions. Dharma is an obligation-based philosophy,

however under the current legal system, rights are

prioritised over obligations. The current framework does

not recognise the good or moral traits and instead of

direct or goal, it currently centres around the

demonstration and the results. Dharma in itself

encompassed ethics, morality, and a noble lead of a

man. The law depends on sensitivity and binds through

the legal assents granted by courts, however the dharma

presupposes a powerful and ties together by the fear of a

comparable extraordinary (human).

In the modern meaning, law is tied to rights, legitimate

obligations, and other things. Additionally, Dharma is all-

inclusive and inescapable yet not having outstanding

leadership and being specific in nature. The law relies on

sense and really presupposes what man "should be."

The idea of the modern nation state that provides

support to its people discovered to have roots in the

Dharma. The Dharma and the Rigveda both clearly

provide ample support for human rights and fundamental

rights.

IX. PURPOSE OF LAW

Providing justice for its residents is the state's primary

duty. Each state has the capacity to administer justice in

accordance with its own legal framework. Even in ancient

times, a ruler's primary responsibility was to ensure that

their subjects were treated fairly.

In order for a judgement to be just, unbiased, fair, and

right, it must represent something that is just and right.

According to contemporary legal doctrine, justice entails

the application of ideas like equality and liberty. It also

includes the acceptance and application of laws passed

by the Parliament, which serves as the legislative

branch. And the Supreme Court of India, in particular,

performs the function in the judicial system.

Justice then refers to the courts' acknowledgment,

implementation, and enforcement of the law.

A. Decline Of Dharma And Advent Of Positive Law

Dharma (Hinduism) started to lose its lustre and roots

with the arrival of Muslim rule, which was followed by

British rule. Dharma was replaced with koranic lessons

during Muslim rule, but many practises persisted, so it

continued to be primarily pure. However, the

introduction of British standards and their ignorance of

Indian laws severely damaged the concept of Dharma as

they discovered that there were no laws in place to

supervise people.

To fix the problem, they either introduced western law,

or more precisely, normal law with the tools of balance,

equity, and strong inner voice, or they forced western

laws through codification into areas where neither the

Hindu nor Muslim Natural law, lessons, or customs

provided a law.
In any event, the social equality and liberties that people

enjoyed were taken away. Indians were brutally treated,

and their opinions were suppressed in all spheres of life,

from politics to society to economics. The rights and

liberties that Indians enjoyed under the strict control of

the Law of Dharma were met with retaliation. Gandhiji

said at his famous champaran speech that he disobeyed

the law not out of disrespect for British law, but rather

out of duty to a higher law of our being—the ill habit of

heart—by which he implied Dharma.

Conclusion
Dharma and law, as seen above, may seem interesting,

yet their underlying principles are the same. Law is a

component of Dharma without conflict everywhere, and

laws constitute a single incorporated whole. On the one

hand, dharma is thought to be rigorous; nevertheless,

this is not the case, and the equivalent has frequently

been confirmed by the honourable Supreme Court as set

out in the regions above. At varying degrees, Dharma

has directed and continues to direct our actions, morals,

and laws. On the surface, there may appear to be no

relationship between the two, yet upon closer inspection,

both are interconnected and work as a cohesive whole.

One of the many sources of modern law is \"Dharma,\"

which is influencing society. Thus, one might say that

‘dharma’ and law are firmly related and joined. Dharma

by finishing the assessment of time has shown its

unceasing person.

(DHARMA AS THE FOUNDATION OF LEGAL

ORDERING IN INDIAN THOUGHT - STUDY IN YOU
TUBE)

THORIES OF JUSTCIE WESTERN PART : Justice is one

of the most important moral and political concepts. The word
comes from the Latin jus, meaning right or law. The Oxford
English Dictionary defines the “just” person as one who
typically “does what is morally right” and is disposed to
“giving everyone his or her due,” offering the word “fair” as a
synonym. But philosophers want to get beyond etymology and
dictionary definitions to consider, for example, the nature of
justice as both a moral virtue of character and a desirable
quality of political society, as well as how it applies to ethical
and social decision-making. This article will focus on Western
philosophical conceptions of justice. These will be the greatest
theories of ancient Greece (those of Plato and Aristotle) and of
medieval Christianity (Augustine and Aquinas), two early
modern ones (Hobbes and Hume), two from more recent
modern times (Kant and Mill), and some contemporary ones
(Rawls and several successors). Typically the article considers
not only their theories of justice but also how philosophers
apply their own theories to controversial social issues—for
example, to civil disobedience, punishment, equal opportunity
for women, slavery, war, property rights, and international
relations.

For Plato, justice is a virtue establishing rational order,

with each part performing its appropriate role and not
interfering with the proper functioning of other parts.
Aristotle says justice consists in what is lawful and fair,
with fairness involving equitable distributions and the
correction of what is inequitable. For Augustine, the
cardinal virtue of justice requires that we try to give all
people their due; for Aquinas, justice is that rational
mean between opposite sorts of injustice, involving
proportional distributions and reciprocal transactions.
Hobbes believed justice is an artificial virtue, necessary
for civil society, a function of the voluntary agreements
of the social contract; for Hume, justice essentially
serves public utility by protecting property (broadly
understood). For Kant, it is a virtue whereby we respect
others’ freedom, autonomy, and dignity by not
interfering with their voluntary actions, so long as those
do not violate others’ rights; Mill said justice is a
collective name for the most important social utilities,
which are conducive to fostering and protecting human
liberty. Rawls analyzed justice in terms of maximum
equal liberty regarding basic rights and duties for all
members of society, with socio-economic inequalities
requiring moral justification in terms of equal opportunity
and beneficial results for all; and various post-Rawlsian
philosophers develop alternative conceptions.
Western philosophers generally regard justice as the
most fundamental of all virtues for ordering interpersonal
relations and establishing and maintaining a stable
political society. By tracking the historical interplay of
these theories, what will be advocated is a developing
understanding of justice in terms of respecting persons
as free, rational agents. One may disagree about the
nature, basis, and legitimate application of justice, but
this is its core.

Table of Contents
1. Ancient Greece
a. Plato
b. Aristotle
2. Medieval Christianity
a. Augustine
b. Aquinas
3. Early Modernity
a. Hobbes
b. Hume
4. Recent Modernity
a. Kant
b. Mill
5. Contemporary Philosophers
a. Rawls
b. Post-Rawls
6. References and Further Readings
a. Primary Sources
b. Secondary Sources
1. Ancient Greece
For all their originality, even Plato’s and Aristotle’s
philosophies did not emerge in a vacuum. As far back in
ancient Greek literature as Homer, the concept
of dikaion, used to describe a just person, was
important. From this emerged the general concept
of dikaiosune, or justice, as a virtue that might be
applied to a political society. The issue of what does and
does not qualify as just could logically lead to
controversy regarding the origin of justice, as well as
that concerning its essence. Perhaps an effective aid to
appreciating the power of their thought is to view it in
the context of the teachings of the Sophists, those
itinerant teachers of fifth-century ancient Greece who
tried to pass themselves off as “wise” men. In his trial,
Socrates was at pains to dissociate himself from them,
after his conviction refusing to save himself, as a typical
Sophist would, by employing an act of civil disobedience
to escape (Dialogues, pp. 24-26, 52-56; 18b-19d, 50a-
54b); Plato is more responsible than anyone else for
giving them the bad name that sticks with them to this
present time; and Aristotle follows him in having little
use for them as instructors of rhetoric, philosophy,
values, and the keys to success. So what did these three
great philosophers (literally “lovers of wisdom”) find so
ideologically objectionable about the Sophists? The brief
answer is, their relativism and their skepticism. The first
important one, Protagoras, captures the former with his
famous saying, “Man is the measure of all things—of the
things that are, that they are, and of the things that are
not, that they are not”; and he speaks to the latter with a
declaration of agnosticism regarding the existence of
divinities. Gorgias (Plato named dialogues after both of
them) is remembered for a striking three-part statement
of skepticism, holding that nothing really exists, that,
even if something did exist, we could not grasp it, and
that, even if we could grasp something real, we could
never express it to anyone else. If all values are
subjective and/or unknowable, then what counts as just
gets reduced to a matter of shifting opinion. We can
easily anticipate how readily Sophists would apply such
relativism and skepticism to justice. For example,
Thrasymachus (who figures into the first book of
Plato’s Republic) is supposed to have said that there
must not be any gods who care about us humans
because, while justice is our greatest good, men
commonly get away with injustice. But the most
significant Sophist statement regarding justice arguably
comes from Antiphon, who employs the characteristic
distinction between custom (nomos) and nature (physis)
with devastating effect. He claims that the laws of
justice, matters of convention, should be obeyed when
other people are observing us and may hold us
accountable; but, otherwise, we should follow the
demands of nature. The laws of justice, extrinsically
derived, presumably involve serving the good of others,
the demands of nature, which are internal, serving self-
interest. He even suggests that obeying the laws of
justice often renders us helpless victims of those who do
not (First, pp. 211, 232, 274, 264-266). If there is any
such objective value as natural justice, then it is
reasonable for us to attempt a rational understanding of
it. On the other hand, if justice is merely a construction
of customary agreement, then such a quest is doomed to
frustration and failure. With this as a backdrop, we
should be able to see what motivated Plato and Aristotle
to seek a strong alternative.

a. Plato
Plato’s masterful Republic (to which we have already
referred) is most obviously a careful analysis of justice,
although the book is far more wide-ranging than that
would suggest. Socrates, Plato’s teacher and primary
spokesman in the dialogue, gets critically involved in a
discussion of that very issue with three interlocutors
early on. Socrates provokes Cephalus to say something
which he spins into the view that justice simply boils
down to always telling the truth and repaying one’s
debts. Socrates easily demolishes this simplistic view
with the effective logical technique of a counter-
example: if a friend lends you weapons, when he is
sane, but then wants them back to do great harm with
them, because he has become insane, surely you should
not return them at that time and should even lie to him,
if necessary to prevent great harm. Secondly,
Polemarchus, the son of Cephalus, jumps into the
discussion, espousing the familiar, traditional view that
justice is all about giving people what is their due. But
the problem with this bromide is that of determining who
deserves what. Polemarchus may reflect the cultural
influence of the Sophists, in specifying that it depends on
whether people are our friends, deserving good from us,
or foes, deserving harm. It takes more effort for
Socrates to destroy this conventional theory, but he
proceeds in stages: (1) we are all fallible regarding who
are true friends, as opposed to true enemies, so that
appearance versus reality makes it difficult to say how
we should treat people; (2) it seems at least as
significant whether people are good or bad as whether
they are our friends or our foes; and (3) it is not at all
clear that justice should excuse, let alone require, our
deliberately harming anyone (Republic, pp. 5-11; 331b-
335e). If the first inadequate theory of justice was too
simplistic, this second one was downright dangerous.

The third, and final, inadequate account presented here

is that of the Sophist Thrasymachus. He roars into the
discussion, expressing his contempt for all the
poppycock produced thus far and boldly asserting that
justice is relative to whatever is advantageous to the
stronger people (what we sometimes call the “might
makes right” theory). But who are the “stronger”
people? Thrasymachus cannot mean physically stronger,
for then inferior humans would be superior to finer folks
like them. He clarifies his idea that he is referring to
politically powerful people in leadership positions. But,
next, even the strongest leaders are sometimes
mistaken about what is to their own advantage, raising
the question of whether people ought to do what leaders
suppose is to their own advantage or only what actually
is so. (Had Thrasymachus phrased this in terms of what
serves the interest of society itself, the same appearance
versus reality distinction would apply.) But, beyond this,
Socrates rejects the exploitation model of leadership,
which sees political superiors as properly exploiting
inferiors (Thrasymachus uses the example of a shepherd
fattening up and protecting his flock of sheep for his own
selfish gain), substituting a service model in its place (his
example is of the good medical doctor, who practices his
craft primarily for the welfare of patients). So, now, if
anything like this is to be accepted as our model for
interpersonal relations, then Thrasymachus embraces
the “injustice” of self-interest as better than serving the
interests of others in the name of “justice.” Well, then,
how are we to interpret whether the life of justice or that
of injustice is better? Socrates suggests three criteria for
judgment: which is the smarter, which is the more
secure, and which is the happier way of life; he argues
that the just life is better on all three counts. Thus, by
the end of the first book, it looks as if Socrates has
trounced all three of these inadequate views of justice,
although he himself claims to be dissatisfied because we
have only shown what justice is not, with no persuasive
account of its actual nature (ibid., pp. 14-21, 25-31;
338c-345b, 349c-354c). Likewise, in Gorgias, Plato has
Callicles espouse the view that, whatever conventions
might seem to dictate, natural justice dictates that
superior people should rule over and derive greater
benefits than inferior people, that society artificially
levels people because of a bias in favor of equality.
Socrates is then made to criticize this theory by
analyzing what sort of superiority would be relevant and
then arguing that Callicles is erroneously
advocating injustice, a false value, rather than the
genuine one of true justice (Gorgias, pp. 52-66; 482d-
493c; see, also, Laws, pp. 100-101, 172; 663, 714 for
another articulation of something like Thrasymachus’
position).

In the second book of Plato’s Republic, his brothers,

Glaucon and Adeimantus, take over the role of primary
interlocutors. They quickly make it clear that they are
not satisfied with Socrates’ defense of justice. Glaucon
reminds us that there are three different sorts of goods—
intrinsic ones, such as joy, merely instrumental ones,
such as money-making, and ones that are both
instrumentally and intrinsically valuable, such as health
—in order to ask which type of good is justice. Socrates
responds that justice belongs in the third category,
rendering it the richest sort of good. In that case,
Glaucon protests, Socrates has failed to prove his point.
If his debate with Thrasymachus accomplished anything
at all, it nevertheless did not establish any intrinsic value
in justice. So Glaucon will play devil’s advocate and
resurrect the Sophist position, in order to challenge
Socrates to refute it in its strongest form. He proposes
to do this in three steps: first, he will argue that justice
is merely a conventional compromise (between harming
others with impunity and being their helpless victims),
agreed to by people for their own selfish good and
socially enforced (this is a crude version of what will later
become the social contract theory of justice in Hobbes);
second, he illustrates our allegedly natural selfish
preference for being unjust if we can get away with it by
the haunting story of the ring of Gyges, which provides
its wearer with the power to become invisible at will and,
thus, to get away with the most wicked of injustices—to
which temptation everyone would, sooner or later,
rationally succumb; and, third, he tries to show that it is
better to live unjustly than justly if one can by
contrasting the unjust person whom everyone thinks just
with the just person who is thought to be unjust, claiming
that, of course, it would be better to be the former than
the latter. Almost as soon as Glaucon finishes, his
brother Adeimantus jumps in to add two more points to
the case against justice: first, parents instruct their
children to behave justly not because it is good in itself
but merely because it tends to pay off for them; and,
secondly, religious teachings are ineffective in
encouraging us to avoid injustice because the gods will
punish it and to pursue justice because the gods will
reward it, since the gods may not even exist or, if they
do, they may well not care about us or, if they are
concerned about human behavior, they can be flattered
with prayers and bribed with sacrifices to let us get away
with wrongdoing (Republic, pp. 33-42; 357b-366e). So
the challenge for Socrates posed by Plato’s brothers is to
show the true nature of justice and that it is intrinsically
valuable rather than only desirable for its contingent
consequences.

In defending justice against this Sophist critique, Plato

has Socrates construct his own positive theory. This is
set up by means of an analogy comparing justice, on the
large scale, as it applies to society, and on a smaller
scale, as it applies to an individual soul. Thus justice is
seen as an essential virtue of both a good political state
and a good personal character. The strategy hinges on
the idea that the state is like the individual writ large—
each comprising three main parts such that it is crucial
how they are interrelated—and that analyzing justice on
the large scale will facilitate our doing so on the smaller
one. In Book IV, after cobbling together his blueprint of
the ideal republic, Socrates asks Glaucon where justice is
to be found, but they agree they will have to search for it
together. They agree that, if they have succeeded in
establishing the foundations of a “completely good”
society, it would have to comprise four pivotal virtues:
wisdom, courage, temperance, and justice. If they can
properly identify the other three of those four, whatever
remains that is essential to a completely good society
must be justice. Wisdom is held to be prudent judgment
among leaders; courage is the quality in defenders or
protectors whereby they remain steadfast in their
convictions and commitments in the face of fear; and
temperance (or moderation) is the virtue to be found in
all three classes of citizens, but especially in the
producers, allowing them all to agree harmoniously that
the leaders should lead and everyone else follow. So
now, by this process-of-elimination analysis, whatever is
left that is essential to a “completely good” society will
allegedly be justice. It then turns out that “justice is
doing one’s own work and not meddling with what isn’t
one’s own.” So the positive side of socio-political justice
is each person doing the tasks assigned to him or her;
the negative side is not interfering with others doing
their appointed tasks. Now we move from this macro-
level of political society to the psychological micro-level
of an individual soul, pressing the analogy mentioned
above. Plato has Socrates present an argument
designed to show that reason in the soul, corresponding
to the leaders or “guardians” of the state, is different
from both the appetites, corresponding to the productive
class, and the spirited part of the soul, corresponding to
the state’s defenders or “auxiliaries” and that the
appetites are different from spirit. Having established
the parallel between the three classes of the state and
the three parts of the soul, the analogy suggests that a
“completely good” soul would also have to have the
same four pivotal virtues. A good soul is wise, in having
good judgment whereby reason rules; it is courageous in
that its spirited part is ready, willing, and able to fight for
its convictions in the face of fear; and it is temperate or
moderate, harmoniously integrated because all of its
parts, especially its dangerous appetitive desires, agree
that it should be always under the command of reason.
And, again, what is left that is essential is justice,
whereby each part of the soul does the work intended by
nature, none of them interfering with the functioning of
any other parts. We are also told in passing that,
corresponding to these four pivotal virtues of the moral
life, there are four pivotal vices, foolishness, cowardice,
self-indulgence, and injustice. One crucial question
remains unanswered: can we show that justice, thus
understood, is better than injustice in itself and not
merely for its likely consequences? The answer is that,
of course, we can because justice is the health of the
soul. Just as health is intrinsically and not just
instrumentally good, so is justice; injustice is a disease—
bad and to be avoided even if it isn’t yet having any
undesirable consequences, even if nobody is aware of it
(ibid., pp. 43, 102-121; 368d, 427d-445b; it can readily
be inferred that this conception of justice is non-
egalitarian; but, to see this point made explicitly,
see Laws, pp. 229-230; 756-757).

Now let us quickly see how Plato applies this theory of

justice to a particular social issue, before briefly
considering the theory critically. In a remarkably
progressive passage in Book V of his Republic, Plato
argues for equal opportunity for women. He holds that,
even though women tend to be physically weaker than
men, this should not prove an insuperable barrier to their
being educated for the same socio-political functions as
men, including those of the top echelons of leadership
responsibility. While the body has a gender, it is the soul
that is virtuous or vicious. Despite their different roles in
procreation, child-bearing, giving birth, and nursing
babies, there is no reason, in principle, why a woman
should not be as intelligent and virtuous—including as
just—as men, if properly trained. As much as possible,
men and women should share the workload in common
(Republic, pp. 125-131; 451d-457d). We should note,
however, that the rationale is the common good of the
community rather than any appeal to what we might
consider women’s rights. Nevertheless, many of us
today are sympathetic to this application of justice in
support of a view that would not become popular for
another two millennia.

What of Plato’s theory of justice itself? The negative part

of it—his critique of inadequate views of justice—is a
masterful series of arguments against attempts to
reduce justice to a couple of simplistic rules (Cephalus),
to treating people merely in accord with how we feel
about them (Polemarchus), and to the power-politics
mentality of exploiting them for our own selfish purposes
(Thrasymachus). All of these views of a just person or
society introduce the sort of relativism and/or
subjectivism we have identified with the Sophists. Thus,
in refuting them, Plato, in effect, is refuting the Sophists.
However, after the big buildup, the positive part—what
he himself maintains justice is—turns out to be a
letdown. His conception of justice reduces it to order.
While some objective sense of order is relevant to
justice, this does not adequately capture the idea of
respecting all persons, individually and collectively, as
free rational agents. The analogy between the state and
the soul is far too fragile to support the claim that they
must agree in each having three “parts.” The process-
of-elimination approach to determining the nature of
justice only works if those four virtues exhaust the list of
what is essential here. But do they? What, for example,
of the Christian virtue of love or the secular virtue of
benevolence? Finally, the argument from analogy,
showing that justice must be intrinsically, and not merely
instrumentally, valuable (because it is like the
combination good of health) proves, on critical
consideration, to fail. Plato’s theory is far more
impressive than the impressionistic view of the Sophists;
and it would prove extremely influential in advocating
justice as an objective, disinterested value.
Nevertheless, one cannot help hoping that a more
cogent theory might yet be developed.

b. Aristotle
After working with Plato at his Academy for a couple of
decades, Aristotle was understandably most influenced
by his teacher, also adopting, for example, a virtue
theory of ethics. Yet part of Aristotle’s greatness stems
from his capacity for critical appropriation, and he
became arguably Plato’s most able critic as well as his
most famous follower in wanting to develop a credible
alternative to Sophism. Book V of his
great Nicomachean Ethics deals in considerable depth
with the moral and political virtue of justice. It begins
vacuously enough with the circular claim that it is the
condition that renders us just agents inclined to desire
and practice justice. But his analysis soon becomes
more illuminating when he specifies it in terms of what is
lawful and fair. What is in accordance with the law of a
state is thought to be conducive to the common good
and/or to that of its rulers. In general, citizens should
obey such law in order to be just. The problem is that
civil law can itself be unjust in the sense of being unfair
to some, so that we need to consider special justice as a
function of fairness. He analyzes this into two sorts:
distributive justice involves dividing benefits and burdens
fairly among members of a community, while corrective
justice requires us, in some circumstances, to try to
restore a fair balance in interpersonal relations where it
has been lost. If a member of a community has been
unfairly benefited or burdened with more or less than is
deserved in the way of social distributions, then
corrective justice can be required, as, for example, by a
court of law. Notice that Aristotle is no more an
egalitarian than Plato was—while a sort of social
reciprocity may be needed, it must be of a proportional
sort rather than equal. Like all moral virtues, for
Aristotle, justice is a rational mean between bad
extremes. Proportional equality or equity involves the
“intermediate” position between someone’s unfairly
getting “less” than is deserved and unfairly getting
“more” at another’s expense. The “mean” of justice lies
between the vices of getting too much and getting too
little, relative to what one deserves, these being two
opposite types of injustice, one of “disproportionate
excess,” the other of disproportionate “deficiency”
(Nicomachean, pp. 67-74, 76; 1129a-1132b, 1134a).

Political justice, of both the lawful and the fair sort, is

held to apply only to those who are citizens of a political
community (a polis) by virtue of being “free and either
proportionately or numerically equal,” those whose
interpersonal relations are governed by the rule of law,
for law is a prerequisite of political justice and injustice.
But, since individuals tend to be selfishly biased, the law
should be a product of reason rather than of particular
rulers. Aristotle is prepared to distinguish between what
is naturally just and unjust, on the one hand, such as
whom one may legitimately kill, and what is merely
conventionally just or unjust, on the other, such as a
particular system of taxation for some particular society.
But the Sophists are wrong to suggest that all political
justice is the artificial result of legal convention and to
discount all universal natural justice (ibid., pp. 77-78;
1134a-1135a; cf. Rhetoric, pp. 105-106; 1374a-b). What
is allegedly at stake here is our developing a moral virtue
that is essential to the well-being of society, as well as to
the flourishing of any human being. Another valuable
dimension of Aristotle’s discussion here is his treatment
of the relationship between justice and decency, for
sometimes following the letter of the law would violate
fairness or reasonable equity. A decent person might
selfishly benefit from being a stickler regarding following
the law exactly but decide to take less or give more for
the sake of the common good. In this way, decency can
correct the limitations of the law and represents a higher
form of justice (Nicomachean, pp. 83-84; 1137a-1138a).

In his Politics, Aristotle further considers political justice

and its relation to equality. We can admit that the
former involves the latter but must carefully specify by
maintaining that justice involves equality “not for
everyone, only for equals.” He agrees with Plato that
political democracy is intrinsically unjust because, by its
very nature, it tries to treat unequals as if they were
equals. Justice rather requires inequality for people who
are unequal. But, then, oligarchy is also intrinsically
unjust insofar as it involves treating equals as unequal
because of some contingent disparity, of birth, wealth,
etc. Rather, those in a just political society who
contribute the most to the common good will receive a
larger share, because they thus exhibit more political
virtue, than those who are inferior in that respect; it
would be simply wrong, from the perspective of political
justice, for them to receive equal shares. Thus political
justice must be viewed as a function of the common
good of a community. It is the attempt to specify the
equality or inequality among people, he admits, that
constitutes a key “problem” of “political philosophy.” He
thinks we can all readily agree that political justice
requires “proportional” rather than numerical equality.
But inferiors have a vested interest in thinking that those
who are equal in some respect should be equal in all
respects, while superiors are biased, in the opposite
direction, to imagine that those who are unequal in some
way should be unequal in all ways. Thus, for instance,
those who are equally citizens are not necessarily equal
in political virtue, and those who are financially richer are
not necessarily morally or mentally superior. What is
relevant here is “equality according to merit,” though
Aristotle cannot precisely specify what, exactly, counts
as merit, for how much it must count, who is to measure
it, and by what standard. All he can suggest, for
example in some of his comments on the desirable
aristocratic government, is that it must involve moral
and intellectual virtue (Politics, pp. 79, 81, 86, 134, 136,
151, 153; 1280a, 1281a, 1282b, 1301a-1302a, 1307a,
1308a).

Let us now consider how Aristotle applies his own theory

of justice to the social problem of alleged superiors and
inferiors, before attempting a brief critique of that
theory. While Plato accepted slavery as a legitimate
social institution but argued for equal opportunity for
women, in his Politics, Aristotle accepts sexual inequality
while actively defending slavery. Anyone who is inferior
intellectually and morally is properly socio-politically
inferior in a well-ordered polis. A human being can be
naturally autonomous or not, “a natural slave” being
defective in rationality and morality, and thus naturally
fit to belong to a superior; such a human can rightly be
regarded as “a piece of property,” or another person’s
“tool for action.” Given natural human inequality, it is
allegedly inappropriate that all should rule or share in
ruling. Aristotle holds that some are marked as superior
and fit to rule from birth, while others are inferior and
marked from birth to be ruled by others. This
supposedly applies not only to ethnic groups, but also to
the genders, and he unequivocally asserts that males are
“naturally superior” and females “naturally inferior,” the
former being fit to rule and the latter to be ruled. The
claim is that it is naturally better for women themselves
that they be ruled by men, as it is better for “natural
slaves” that they should be ruled by those who are
“naturally free.” Now Aristotle does argue only for
natural slavery. It was the custom (notice the
distinction, used here, between custom and nature) in
antiquity to make slaves of conquered enemies who
become prisoners of war. But Aristotle (like Plato)
believes that Greeks are born for free and rational self-
rule, unlike non-Greeks (“barbarians”), who are naturally
inferior and incapable of it. So the fact that a human
being is defeated or captured is no assurance that he is
fit for slavery, as an unjust war may have been imposed
on a nobler society by a more primitive one. While
granting that Greeks and non-Greeks, as well as men
and women, are all truly human, Aristotle justifies the
alleged inequality among them based on what he calls
the “deliberative” capacity of their rational souls. The
natural slave’s rational soul supposedly lacks this, a
woman has it but it lacks the authority for her to be
autonomous, a (free male) child has it in some
developmental stage, and a naturally superior free male
has it developed and available for governance (ibid., pp.
7-11, 23; 1254a-1255a, 1260a).

This application creates a helpful path to a critique of

Aristotle’s theory of justice. If we feel that it is unjust to
discriminate against people merely on account of their
gender and/or ethnic origin, as philosophers, we try to
identify the rational root of the problem. If our moral
intuitions are correct against Aristotle (and some would
even call his views here sexist and racist), he may be
mistaken about a matter of fact or about a value
judgment or both. Surely he is wrong about all women
and non-Greeks, as such, being essentially inferior to
Greek males in relevant ways, for cultural history has
demonstrated that, when given opportunities, women
and non-Greeks have shown themselves to be
significantly equal. But it appears that Aristotle may also
have been wrong in leaping from the factual claim of
inequality to the value judgment that it is therefore right
that inferiors ought to be socially, legally, politically, and
economically subordinate—like Plato and others of his
culture (for which he is an apologist here), Aristotle
seems to have no conception of human rights as such.
Like Plato, he is arguing for an objective theory of
personal and social justice as a preferable alternative to
the relativistic one of the Sophists. Even though there is
something attractive about Aristotle’s empirical (as
opposed to Plato’s idealistic) approach to justice, it
condemns him to the dubious position of needing to
derive claims about how things ought to be from factual
claims about the way things actually are. It also leaves
Aristotle with little viable means of establishing a
universal perspective that will respect the equal dignity
of all humans, as such. Thus his theory, like Plato’s, fails
adequately to respect all persons as free, rational
agents. They were so focused on the ways in which
people are unequal, that they could not appreciate any
fundamental moral equality that might provide a
platform for natural human rights.

2. Medieval Christianity
When Christian thinkers sought to develop their own
philosophies in the middle ages (“medieval” meaning the
middle ages and “middle” in the sense of being between
antiquity and modernity), they found precious basic
building-blocks in ancient thought. This included such
important post-Aristotelians as the enormously influential
Roman eclectic Cicero, such prominent Stoics as Marcus
Aurelius (a Roman emperor) and Epictetus (a Greek slave
of the Romans), and neo-Platonists like Plotinus. But the
two dominant paths that medieval philosophy would
follow for its roughly thousand year history had been
blazed by Plato and Aristotle. More specifically,
Augustine uses Platonic (and neo-Platonic) philosophy to
the extent that he can reconcile it with Christian thought;
Aquinas, many centuries later, develops a great
synthesis of Christian thought (including that of
Augustine) and Aristotelian philosophy. A great
difference, however, between their philosophies and
those of Hellenic thinkers such as Plato and Aristotle
stems from the commitment of these Christians to the
authority of the Hebrew and Christian scriptures.
Aquinas would later agree with Augustine (who is
accepting the mandate of Isaiah 7:9) that the quest for
philosophical understanding should begin with belief in
religious traditions (Choice, pp. 3, 32). Both the Old
Testament and the New Testament call for just behavior
on the part of righteous people, with injustice being a sin
against God’s law, the references being too numerous to
cite (but see Job 9:2, Proverbs 4:18, Proverbs 10:6-7,
Ecclesiastes 7:20, Matthew 5:45, Philippians 4:8, and
Hebrews 12:23). The claim that God’s justice will prevail
in the form of divine judgment is both a promise for the
just and a threat for the unjust. Righteousness is
identified with mercy as well as with justice (e.g., Micah
6:8 and Matthew 5:7) and involves our relationship with
God as well as with fellow humans. The ten
commandments of the Old Testament (Exodus 20:1-17)
are prescriptions regarding how the righteous are to
relate to God as well as to one another. In the New
Testament, Jesus of Nazareth interprets how the
righteous are to live (Matthew 22:36-40) in terms of love
of both God and their neighbors; the concept of one’s
neighbor is meant to extend even to strangers, as is
illustrated in the parable of the Good Samaritan (Luke
10:29-37). In the Beatitudes beginning the Sermon on
the Mount, Jesus expands on this gospel of love by
advocating that his followers go beyond the duties of
justice to behave with compassion in certain
supererogatory ways (Matthew 5:3-12). All of this
scriptural tradition essentially influenced medieval
thinkers such as Augustine and Aquinas in a way that
distinguishes them from ancient Greek philosophers such
as Plato and Aristotle.

a. Augustine
Aurelius Augustine was born and raised in the Roman
province of North Africa; during his life, he experienced
the injustices, the corruption, and the erosion of the
Roman Empire. This personal experience, in dialectical
tension with the ideals of Christianity, provided him with
a dramatic backdrop for his religious axiology.
Philosophically, he was greatly influenced by such neo-
Platonists as Plotinus. His Christian Platonism is evident
in his philosophical dialogue On Free Choice of the Will,
in which he embraces Plato’s view of four central moral
virtues (which came to be called “cardinal,” from the
Latin word for hinges, these being metaphorically
imaginable as the four hinges on which the door of
morality pivots). These are prudence (substituted for
wisdom), fortitude or courage, temperance, and justice.
His conception of justice is the familiar one of “the virtue
by which all people are given their due.” But this is
connected to something new and distinctly Christian—
the distinction between the temporal law, such as the
law of the state, and the eternal, divine law of God. The
eternal law establishes the order of God’s divine
providence. And, since all temporal or human law must
be consistent with God’s eternal law, Augustine can draw
the striking conclusion that, strictly speaking, “an unjust
law is no law at all,” an oxymoron (Choice, pp. 20, 11, 8;
cf. Religion, p. 89, for an analysis of justice that relates it
to love). Thus a civil law of the state that violates God’s
eternal law is not morally binding and can be legitimately
disobeyed in good conscience. This was to have a
profound and ongoing influence on Christian ethics.

In his masterpiece, The City of God, Augustine draws the

dramatic conclusion from this position that the Roman
Empire was never a truly just political society. He
expresses his disgust over its long history of “revolting
injustice.” Rome was always a pagan, earthly city, and
“true justice” can allegedly only be found in a Christian
“city of God.” The just, rather than the powerful, should
rule for the common good, rather than serving their own
self-interest. He strikingly compares unjust societies,
based on might rather than on right, to “gangs of
criminals on a large scale,” for, without justice, a
kingdom or empire is merely ruled by the arbitrary fiat of
some leader(s). A genuinely just society must be based
on Christian love, its peaceful order established by the
following of two basic rules—that people harm nobody
and that they should try to help everyone to the extent
that they can do so (City, pp. 75, 67, 75, 138-139, 873).

Despite his Christian commitment to love and peace,

Augustine is not a pacifist and can support “just wars” as
morally permissible and even as morally obligatory.
Every war aims at the order of some sort of established
peace; while an unjust war aims to establish an unjust
peace of domination, a just war aims to establish a “just
peace.” He agrees with Cicero that a just war must be
defensive rather than aggressive (ibid., pp. 861-862,
866, 868-869, 1031). In a letter (# 138) to Marcellinus,
Augustine uses scripture to deny that Christian doctrine
is committed to pacifism, though wars should be waged,
when necessary, with a benevolent love for the enemy.
In a letter (# 189) to Boniface, he maintains that godly,
righteous people can serve in the military, again citing
scripture to support his position. He repeats the view
that a just war should aim at establishing a lasting and
just peace and holds that one must keep faith with both
one’s allies and one’s enemies, even in the awful heat of
warfare. Augustine’s most important treatment of the
just war theory is contained in his writing Against
Faustus the Manichean, where he analyzes the evils of
war in terms of the desire to harm others, the lust for
revenge and cruelty, and the wish to dominate other
people. In addition to the condition that a just war must
aim at establishing a just and lasting peace, a second
condition is that it must be declared by a leader or body
of leaders, with the “authority” to do so, after
deliberating that it is justified. Again Augustine makes it
clear that he is no pacifist (Political, pp. 209, 219-223).

While this is a very valuable application of his theory of

justice, this doctrine of the just war standing the test of
time to this very day, the general theory on which it is
based is more problematic. The unoriginal (and
uninspired) conception of justice as giving others their
due had already become familiar to the point of being
trite. It remains vulnerable to the serious problems of
vagueness already considered: what is the relevant
criterion whereby it should be determined who deserves
what, and who is fit to make such a judgment? But, also,
Augustine should have an advantage over the ancient
Greeks in arriving at a theory of justice based on
universal equality on account of the Christian doctrine
(not to mention because of the influences of Cicero, the
Stoics, and Plotinus) that all humans are equally children
of God. Unfortunately, his zealous Christian evangelism
leads him to identify justice itself, in a divisive,
intolerant, polemical way, with the Christian church’s
idea of what God requires, so that only a Christian
society can possibly qualify as just, as if a just political
society would need to be a theocracy. Thus, while he
has some sense of some moral or spiritual equality
among humans, it does not issue in equal respect for all
persons as free, rational agents, allowing him, for
example, to accept the institution of slavery as a just
punishment for sin, despite the belief that God originally
created humans as naturally free, because of the idea
that we have all been corrupted by original sin (City, pp.
874-875).

b. Aquinas
As Augustine is arguably the greatest Christian Platonist,
so Thomas Aquinas, from what is now Italy, is the
greatest Christian Aristotelian. Nevertheless, as we shall
see, his theory of justice is also quite compatible with
Augustine’s. Aquinas discusses the same four cardinal
moral virtues, including that of justice, in his
masterpiece, the multi-volume Summa Theologica. No
more a socio-political egalitarian than Plato, Aristotle, or
Augustine, he analyzes it as calling for proportional
equality, or equity, rather than any sort of strict
numerical equality, and as a function of natural right
rather than of positive law. Natural right ultimately
stems from the eternal, immutable will of God, who
created the world and governs it with divine providence.
Natural justice must always take precedence over the
contingent agreements of our human conventions.
Human law must never contravene natural law, which is
reason’s way of understanding God’s eternal law. He
offers us an Aristotelian definition, maintaining that
“justice is a habit whereby a man renders to each one his
due by a constant and perpetual will.” As a follower of
Aristotle, he defines concepts in terms of genus and
species. In this case, the general category to which
justice belongs is that it is a moral habit of a virtuous
character. What specifically distinguishes it from other
moral virtues is that by justice, a person is consistently
committed to respecting the rights of others over time.
Strictly speaking, the virtue of justice always concerns
interpersonal relations, so that it is only metaphorically
that we can speak of a person being just to himself. In
addition to legal justice, whereby a person is committed
to serving the “common good” of the entire community,
there is “particular justice,” which requires that we treat
individuals in certain ways. Justice is a rational mean
between the vicious extremes of deficiency and excess,
having to do with our external actions regarding others.
Like many of his predecessors, Aquinas considers justice
to be preeminent among the moral virtues. He agrees
with Aristotle in analyzing particular justice into two
types, which he calls “distributive” and “commutative”;
the former governs the proportional distribution of
common goods, while the latter concerns the reciprocal
dealings between individuals in their voluntary
transactions (Law, pp. 137, 139, 145, 147, 155, 160, 163,
165).
Aquinas applies this theory of justice to many social
problems. He maintains that natural law gives us the
right to own private property. Given this natural right,
theft (surreptitiously stealing another’s property) and
robbery (taking it openly by force or the threat of
violence) must be unjust, although an exception can
arise if the thief and his family are starving in an
environment of plenty, in which case, stealing is justified
and, strictly speaking, not theft or robbery at all.
Secondly, Aquinas refines the Augustinian just war
theory by articulating three conditions that must jointly
be met in order for the waging of war to be just: (a) it
must be declared by a leader with socio-political
authority; (b) it must be declared for a “just cause,” in
that the people attacked must be at fault and thus
deserve it; and (c) those going to war must intend good
and the avoidance of evil. It is not justifiable deliberately
to slay innocent noncombatants. It is legitimate to kill
another in self-defense, though one’s intention should be
that of saving oneself, the taking of the other’s life
merely being the necessary means to that good end
(this, by the way, is the source of what later evolves into
the moral principle of “double effect”). Even acting in
self-defense must be done in reasonable proportion to
the situation, so that it is wrong to employ more force
than is necessary to stop aggression. Even killing
another unintentionally can be unjust if done in the
course of committing another crime or through criminal
negligence. Thirdly, while Aquinas thinks we should
tolerate the religious beliefs of those who have never
been Christians, so that it would be unjust to persecute
them, he thinks it just to use force against heretics who
adhered to but then rejected orthodox Christianity, even
to the point of hurting them, as in the Inquisition, for the
good of their own souls. In an extreme case of
recalcitrant heretics who will not be persuaded to return
to the truth of Christianity, it is allegedly just that they
should be “exterminated” by execution rather than being
allowed to corrupt other Christians by espousing their
heterodox religious views. Fourth, like Augustine,
Aquinas accepts slavery, so long as no Christian is the
slave of a non-Christian (ibid., pp. 178-183, 186, 221,
224, 226, 228, 250, 256, 253), and considers it just that
women should be politically and economically “subject”
to men. Although he considers women to be fully
human, he agrees with Aristotle that they are “defective
and misbegotten,” the consequence allegedly being
inferior rational discretion (Summa, pp. 466-467).
From a critical perspective, his general theory of justice
is, by now, quite familiar, a sort of blend of Aristotle’s
and Augustine’s, and marked by the same flaws as
theirs. His applications of the theory can be regarded as
indicative of its problematic character: (a) given the
assumption of a right to own private property, his
discussion of the injustices of theft and robbery seems
quite reasonable; (b) assuming that we have a right to
self-defense, his analysis of the legitimacy of killing in a
just war does also; (c) his attempted defense of the
persecution of religious heretics, even unto death, invites
suspicions of dogmatic, intolerant fanaticism on his part;
and (d) his acceptance of slavery and the political and
economic subjection of women as just is indicative of an
empirical orientation that is too uncritically accepting of
the status quo. Here again the Christian belief that all
humans are personal creatures of a loving God is vitiated
by an insufficient commitment to the implications of that,
regarding socio-political equality, so that only some
humans are fully respected as free, rational agents. The
rationalistic theories of Plato and Augustine and the
classical empirical theories of Aristotle and Aquinas all
leave us hoping that preferable alternatives might be
forthcoming.

3. Early Modernity
Although only half as much time elapses between
Aquinas and Hobbes as did between Augustine and
Aquinas, from the perspective of intellectual history, the
period of modernism represents a staggering sea-
change. We have neither the time nor the space to
consider the complex causal nexus that explains this
fact; but, for our purposes, suffice it to say that the
Protestant Reformation, the revolution of the new
science, and the progressive willingness publicly to
challenge authority (both political and religious)
converge to generate a strikingly different philosophical
mentality in the seventeenth century. In the previous
century, the Protestant Reformation shattered the
hegemony of the Roman Catholic Church, so that
thinkers need not feel so constrained to adhere to
established orthodoxy. The naturalistic worldview of the
sixteenth and early seventeenth centuries that
eventuated in an empirical and experimental (non-
dogmatic) methodology in both natural and political
science set an example for philosophers. Thinkers of the
modern era became increasingly comfortable breaking
from the mainstream to pursue their own independent
reasoning. Although the influence of great ancient
philosophers like Plato and Aristotle and of great
medieval thinkers such as Augustine and Aquinas would
persist, there was no returning to their bygone
perspectives. This vitally affects moral and political
theory, in general, and views on justice, in particular. As
we shall see in this section, views of justice as relative to
human needs and interests became prominent as they
had not been for a couple of millennia. This will locate
Hobbes and Hume closer to the Sophists than had been
fashionable since pre-Socratic times in philosophy,
regarding justice as a social construct.

a. Hobbes
Whereas Plato, Aristotle, Augustine, and Aquinas all offer
accounts of justice that represent alternatives to
Sophism, Thomas Hobbes, the English radical empiricist,
can be seen as resurrecting the Sophist view that we can
have no objective knowledge of it as a moral or political
absolute value. His radical empiricism does not allow
him to claim to know anything not grounded in concrete
sense experience. This leads him in Leviathan, his
masterpiece, to conclude that anything real must be
material or corporeal in nature, that body is the one and
only sort of reality; this is the philosophical position of
materialistic monism, which rules out the possibility of
any spiritual substance. On this view, “a man is a living
body,” only different in kind from other animals, but with
no purely spiritual soul separating him from the beasts.
Like other animals, man is driven by instinct and
appetite, his reason being a capacity of his brain for
calculating means to desirable ends. Another
controversial claim here is that all actions, including all
human actions, are causally determined to occur as they
do by the complex of their antecedent conditions; this is
causal determinism. What we consider voluntary actions
are simply those we perform in which the will plays a
significant causal role, human freedom amounting to
nothing more exalted than the absence of external
restraints. Like other animals, we are always
fundamentally motivated by a survival instinct and
ultimately driven by self-interest in all of our voluntary
actions; this is psychological egoism. It is controversial
whether he also holds that self-interest should always be
our fundamental motivation, which is ethical egoism. In
his most famous Chapter XIII, Hobbes paints a dramatic
and disturbing portrait of what human life would be like
in a state of nature—that is, beyond the conventional
order of civil society. We would be rationally distrustful
of one another, inclined to be anti-social, viewing others
as threats to our own satisfaction and well-being.
Interpersonal antagonism would be natural; and, since
there would exist no moral distinctions between right
and wrong, just and unjust, violent force and fraudulent
deception would be desirable virtues rather than
objectionable vices. In short, this would be a state of
“war of every man against every man,” a condition in
which we could not reasonably expect to survive for long
or to enjoy any quality of life for as long as we did. We
are smart enough to realize that this would be a
condition in which, as Hobbes famously writes, “the life
of man” would inevitably be “solitary, poor, nasty,
brutish, and short.” Fortunately, our natural passions of
fear, desire, and hope motivate us to use reason to
calculate how we might escape this hellish state. Reason
discovers a couple of basic laws of nature, indicating how
we should prudently behave if we are to have any
reasonable opportunity to survive, let alone to thrive.
The first of these is double-sided: the positive side holds
that we should try to establish peace with others, for our
own selfish good, if we can; the negative side holds that,
if we cannot do that, then we should do whatever it takes
to destroy whoever might be a threat to our interests.
The second law of nature maintains that, in order to
achieve peace with others, we must be willing to give up
our right to harm them, so long as they agree to
reciprocate by renouncing their right to harm us. This
“mutual transferring of right,” established by reciprocal
agreement, is the so-called social contract that
constitutes the basis of civil society; and the agreement
can be made either explicitly or implicitly (Leviathan, pp.
261-262, 459-460, 79, 136, 82, 95, 74-78, 80-82; for
comparable material, see Elements, pp. 78-84, 103-114,
as well as Citizen, pp. 109-119, 123-124).
What is conspicuously missing here is any sense of
natural justice or injustice. In the state of nature, all
moral values are strictly relative to our desires:
whatever seems likely to satisfy our desires appears
“good” to us, and whatever seems likely to frustrate our
desires we regard as “evil.” It’s all relative to what we
imaginatively associate with our own appetites and
aversions. But as we move from this state of nature to
the state of civil society by means of the social contract,
we create the rules of justice by means of the
agreements we strike with one another. Prior to the
conventions of the contract, we were morally free to try
to do whatever we wished. But when a covenant is
made, then to break it is unjust; and the definition of
injustice is no other than the not performance of
covenant. What is not unjust, is just in civil society. This
turns out to be the third law of nature, that, in the name
of justice, we must try to keep our agreements. In civil
society, we may justly do anything we have not, at least
implicitly, committed ourselves not to do. A just person
typically does just actions, though committing one or a
few unjust actions does not automatically render that
person unjust, especially if the unjust behavior stems
from an error or sudden passion; on the other hand, a
person who is typically inclined to commit unjust actions
is a guilty person. Still, if we are as selfishly motivated
by our own desires as Hobbes maintains, why should we
not break our word and voluntarily commit injustice, if
doing so is likely to pay off for us and we imagine we
might get away with it (remember the problem posed by
Glaucon with the story of the ring of Gyges)? Clearly one
more element is needed to prevent the quick
disintegration of the rules of justice so artificially
constructed by interpersonal agreement. This is the
power of sovereign authority. We need laws codifying
the rules of justice; and they must be so vigilantly and
relentlessly enforced by absolute political power that
nobody in his right mind would dare to try to violate
them. People simply cannot be trusted to honor their
social commitments without being forced to do so, since
“covenants without the sword are but words, and of no
strength to secure a man at all.” In other words, we
must sacrifice a great deal of our natural liberty to
achieve the sort of security without which life is hardly
worth living. In civil society, our freedom is relative to
the lack of specified obligations, what Hobbes calls “the
silence of the law.” If we worry that this invests too
much power in the government, which may abuse that
power and excessively trample on our freedom, the
(cynical) response is that this is preferable to the chaos
of the state of nature or to the horrors of civil war
(Leviathan, pp. 28-29, 89, 93, 106, 109, 143, 117; for
comparable material, see Elements, pp. 88-89, Citizen,
pp. 136-140, and Common, p. 34). One of the most
crucial problems of political philosophy is where to strike
the balance between personal liberty and public order;
Hobbes is, perhaps, more willing than most of us to give
up a great deal of the former in order to secure the
latter.

As we have with earlier thinkers, let us see how Hobbes

applies this theory of justice, as a prelude to evaluating it
critically. He compares the laws of civil society to
“artificial chains” binding us to obey the sovereign
authority of the state in the name of justice. The third
law of nature, the law of justice, obliges us to obey the
“positive” laws of the state. Any deliberate violation of
civil law is a “crime.” Now the social problem to be
considered is that of criminal punishment. This
deliberately inflicts some sort of “evil” on an alleged
criminal for violating civil law. Its rationale is to enforce
obedience to the law itself and, thus, to promote security
and public order. Hobbes lays down various conditions
that must be met in order for such an infliction of evil to
qualify as legitimate “punishment,” including that no
retroactive punishment is justifiable. He also analyzes
five sorts of criminal punishment—“corporal,
or pecuniary, or ignominy, or imprisonment, or exile,”
allowing for a combination of them; he also specifies that
the corporal sort can be capital punishment. It would be
wrong for the state deliberately to punish a member of
civil society believed to be innocent; indeed, strictly
speaking, it would not even qualify as “punishment,” as
it fails to meet an essential part of the definition. The
severity of punishment should be relative to the severity
of the crime involved, since its rationale is to deter future
violations of civil law (Leviathan, pp. 138, 173, 175, 185,
190, 203-208, 230; see, also, Elements, pp. 177-
182, and Citizen, pp. 271-279; near the end of his verse
autobiography—Elements, p. 264—Hobbes writes,
“Justice I Teach, and Justice Reverence”).

While this is a decent consequentialist theory of crime

and punishment, the more general view of justice from
which it is derived is far more problematic. It does stand
in sharp contrast to the theories of Plato, Aristotle,
Augustine, and Aquinas. It does revive something like
the Sophist theory to which they were all advocating
alternatives. And it does reflect the naturalistic
approach represented by the new science. However, all
the foundational elements supporting it are quite
dubious: the radical empiricism, the materialism, the
determinism, the egoism, the moral relativism, and the
narrow conception of human reason. Without these
props, this theory of justice as artificially constructed by
us and purely a function of our interpersonal agreements
seems entirely arbitrary. But in addition to its being
insufficiently justified, this theory of justice would justify
too much. For example, what would prevent its involving
a justification of slavery, if the alternative for the slaves
were death as enemies in a state of nature? Even apart
from the issue of slavery, in the absence of any
substantive human rights, minorities in civil society
might be denied any set of civil liberties, such as the
right to adopt religious practices to which they feel called
in conscience. Hobbes’s conception of justice is
reductionistic, reducing it to conventional agreements
that seem skewed to sacrifice too much liberty on the
altar of law and order.

b. Hume
As a transition between Hobbes and Hume, brief mention
can be made of John Locke, the most important political
philosopher between them. (The reason he is not being
considered at length here is that he does not offer a
distinctive general theory of justice.) In his
masterful Second Treatise of Government, Locke
describes a state of nature governed by God’s law but
insecure in that there is no mechanism for enforcing it,
when the natural rights of property—comprising one’s
life, liberty, and estates—are violated. In order to
protect such property rights, people agree to a social
contract that moves them from that state of nature to a
state of political society, with government established to
enforce the law. Another great social contract theorist
between Hobbes and Hume who is worth mentioning
here (again he gives us no distinctive theory of justice) is
Jean-Jacques Rousseau. In The Social Contract, he
maintains that, in a well-ordered society, the general will
(rather than the will of any individual or group of
individuals) must prevail. True freedom in society
requires following the general will, and those who do not
choose to do so can legitimately be forced to do so. A
human being is allegedly so transformed by the move
from the state of nature to that of civil society as to
become capable of such genuine freedom as will allow
each citizen to consent to all the laws out of deference to
the common good. David Hume, an eighteenth-century
Scottish thinker, who is very influenced by Locke’s focus
on property while rejecting the social contract theory of
Hobbes, Locke, and Rousseau, is an interesting
philosopher to consider in relation to Hobbes. Like
Hobbes, Hume is a radical empiricist and a determinist
who is skeptical of justice as an objective, absolute
virtue. But Hume does not explicitly embrace
materialism, is not a psychological or ethical egoist, and
famously attacks the social contract theory’s account of
moral and political obligation on both historical grounds
(there is no evidence for it, and history shows that force
rather than consent has been the basis of government)
and philosophical grounds (even if our ancestors had
given their consent, that would not be binding on us, and
utility is a more plausible explanation of submission than
genuine agreement) alike (Essays, pp. 186-201). In the
third section of his Enquiry concerning the Principles of
Morals, Hume argues that “public utility is the sole origin
of justice.” To place that claim in context, we can note
that, like Hobbes, Hume sees all values, including that of
justice, as derived from our passions rather than (as
Plato, Aristotle, Augustine, and Aquinas thought) from
reason. Any virtue, he maintains, is desirable in that it
provides us with the pleasant feeling of approval; and
any vice, including that of injustice, is undesirable in that
it provides us with the painful sense of disapproval. In
order to qualify as a virtue, a quality must be
“useful or agreeable to the person himself or to others.”
It is possible for some virtues to be rich enough to fit
appropriately in more than one of these four categories
(for example, benevolence seems to be useful and
agreeable to both the benevolent person and to others);
but justice is purportedly a virtue only because it is
useful to others, as members of society. Hume offers us
a unique and fascinating argument to prove his point.
He imagines four hypothetical scenarios, in which either
human nature would be radically different (utterly
altruistic or brutally selfish) or our environment would be
so (with everything we desire constantly and abundantly
available or so destitute that hardly anyone could
survive), allegedly showing that, in each of them, justice
would not be a virtue at all. His conclusion is that justice
is only a virtue because, relative to reality, which is
intermediate among these extremes, it is beneficial to us
as members of society. He also refuses to identify
justice with “perfect equality,” maintaining that the ideal
of egalitarianism is both “impracticable” and
“extremely pernicious to human society.” For Hume, the
rules of justice essentially involve protecting private
property, although property rights are not absolute and
may be abridged in extreme cases where “public safety”
and the common good require it. Even international
relations normally require that “rules of justice” be
observed for mutual advantage, although public utility
can also require that they should be suspended (Enquiry,
pp. 20, 85, 72, 21-25, 28-35; see also Essays, pp. 20,
202). Though different from Hobbes’s theory, this one
also leans towards the Sophist view of justice as
conventional and relative.

In his masterpiece, A Treatise of Human Nature, Hume

makes the striking claim, “Reason is, and ought only to
be the slave of the passions,” which rules out all forms of
ethical rationalism. He also makes a remarkable
distinction between descriptive language regarding what
“is, and is not,” on the one hand, and prescriptive
language concerning what “ought, or ought not” to be,
on the other, challenging the possibility of ever justifying
value claims by means of any factual ones, of logically
inferring what should be from what is. The second part
of Book 3 of Hume’s Treatise deals extensively with
justice. Here he calls it an “artificial” but “not arbitrary”
virtue, in that we construct it as a virtue for our own
purposes, relative to our needs and circumstances, as we
experience them. It is valuable as a means to the end of
social cooperation, which is mutually “advantageous.”
An especially beneficial, if unnatural, convention is
respecting others’ property, which is what the rules of
justice essentially require of us. The psychological
grounds of our sense of justice are a combination of
“self-interest” and “sympathy” for others. He holds a
very conservative view of property rights, in that,
normally, people should be allowed to keep what they
already have acquired. Indeed, justice normally
comprises three principles—“of the stability of
possession, of its transference by consent, and of the
performance of promises.” He rejects the traditional
definition of justice as giving others their due, because it
rashly and wrongly assumes that “right and property”
have prior objective reality independent of conventions
of justice. Internationally, the rules of justice assume the
status of “the law of nations,” obliging civilized
governments to respect the ambassadors of other
countries, to declare war prior to engaging them in
battle, to refrain from using poisonous weapons against
them, and so forth. The rationale for such principles of
international justice is that they reduce the horrors of
war and facilitate the advantages of peace. By
respecting other societies’ possessions, leaders minimize
the likelihood of war; by respecting the transference of
possessions by mutual consent, they enhance the
possibilities of international trade; and by keeping their
promises, they create a climate for peaceful alliances. A
bit later, Hume adopts a position which, in the twentieth
century, has been called a “rule utilitarian” view of
justice, writing that, though individual acts of justice
might be contrary to public utility, they ought to be
performed if they are conducive to “a general scheme or
system” of conduct that benefits society as a whole
(Treatise, pp. 266, 302, 311, 307, 312, 315, 320-321,
323, 337-338, 362-363, 370-371). Yet the rules of justice
that are normally conducive to public utility are never
absolute and can be legitimately contravened where
following them would seem to do more harm than good
to our society. He applies this view to the issue of civil
disobedience, which is normally unjust because it
threatens “public utility” but can be justified as a last
resort “in extraordinary circumstances” when that same
public utility is in jeopardy (Essays, pp. 202-204).
Whether that is or is not the case in specific
circumstances becomes a judgment call.

Hume is important here because of a convergence of

several factors. First, like the Sophists and Hobbes, he
makes justice a social construct that is relative to human
needs and interests. Second, like Hobbes, he associates
it fundamentally with human passions rather than with
reason. Third, the virtue of justice and the rules of
justice are essentially connected to the protection of
private property. And, fourth, he considers public utility
to be the sole basis of justice. This theory would prove
extremely influential, in that Kant will take issue with it,
while utilitarians like Mill will build on its flexibility. This
sort of flexibility is both a strength and a weakness of
Hume’s theory of justice. While it may be attractive to
allow for exceptions to the rules, this also creates a kind
of instability. Is justice merely an instrumental good,
having no intrinsic value? If that were the case, then it
would make sense to say that the role of reason is simply
to calculate the most effective means to our most
desirable ends. But then, assuming that our ends were
sufficiently desirable, any means necessary to achieve
them would presumably be justifiable—so that, morally
and politically, anything goes, in principle, regardless
how revolting. Finally, notice that Hume himself,
because of the empirical nature of his practical
philosophy, fails to avoid the “is-ought” trap against
which he so deftly warned us: because some
end is sufficiently desired, whatever means are
necessary, or even most effective, to achieve it ought to
be pursued. Is this the best we can do in our pursuit of
an adequate theory of justice?

4. Recent Modernity
Moving from one of the greatest philosophers of the
Enlightenment to the other, we shall see that Kant will
take more seriously the “is-ought” challenge than Hume
himself did. As justice is both a moral and a political
virtue, helping to prescribe both a good character and
right conduct, the question of how such obligations arise
is crucial. For Hume, we ought to pursue virtue
(including justice) because it (allegedly) is agreeable
and/or useful to do so. But, then, what is the logical link
here? Why should we, morally speaking, act for the sake
of agreeableness and utility? For Kant, the reason we
should choose to do what is right has nothing to do with
good consequences. It is merely because it is the right
thing to do. Conceding that prescriptive “ought” claims
can never be logically deduced from any set of factually
descriptive “is” claims, Kant will forsake the empirical
approach to justice (of Hobbes and Hume) in favor of the
sort of rationalistic one that will revert to seeing it as an
absolute value, not to be compromised, regardless of
circumstances and likely consequences. Then we shall
consider the utilitarian response to this, as developed by
the philosopher who is, arguably, the greatest
consequentialist of modern times, John Stuart Mill, who,
as an empiricist, like Hobbes and Hume, will make what
is right a function of what is good.

a. Kant
Immanuel Kant, an eighteenth-century German professor
from East Prussia, found his rationalistic philosophical
convictions profoundly challenged by Hume’s formidable
skepticism (as well as being fascinated by the ideas of
Rousseau). Even though he was not convinced by it,
Kant was sufficiently disturbed by it that he committed
decades to trying to answer it, creating a revolutionary
new philosophical system in order to do so. This system
includes, but is far from limited to, a vast, extensive
practical philosophy, comprising many books and essays,
including a theory of justice. It is well known that this
practical philosophy—including both his ethical theory
and socio-political philosophy—is the most renowned
example of deontology (from the Greek, meaning the
study or science of duty). Whereas teleological or
consequentialist theories (such as those of Hobbes and
Hume) see what is right as a function of and relative to
good ends, a deontological theory such as Kant’s sees
what is right as independent of what we conceive to be
good and, thus, as potentially absolute. Justice
categorically requires a respect for the right, regardless
of inconvenient or uncomfortable circumstances and
regardless of desirable and undesirable consequences.
Because of the “is-ought” problem, the best way to
proceed is to avoid the empirical approach that is
necessarily committed to trying to derive obligations
from alleged facts.

This is precisely Kant’s approach in the foundational

book of his system of practical philosophy, his Grounding
for the Metaphysics of Morals. He argues, in its Preface,
that, since the moral law “must carry with it absolute
necessity” and since empiricism only yields “contingent
and uncertain” results, we must proceed by way of “pure
practical reason, “ which would be, to the extent
possible, “purified of everything empirical,” such as
physiological, psychological, and environmental
contingencies. On this view, matters of right will be
equally applicable to all persons as potentially
autonomous rational agents, regardless of any
contingent differences, of gender, racial or ethnic
identity, socio-economic class status, and so forth. If
Kant can pull this off, it will take him further in the
direction of equality of rights than any previous
philosopher considered here. In order to establish a
concept of right that is independent of empirical needs,
desires, and interests, Kant argues for a single
fundamental principle of all duty, which he calls the
“categorical imperative,” because it tells us what, as
persons, we ought to do, unconditionally. It is a test we
can use to help us rationally to distinguish between right
and wrong; and he offers three different formulations of
it which he considers three different ways of saying the
same thing: (a) the first is a formula of universalizability,
that we should try to do only what we could reasonably
will should become a universal law; (b) the second is a
formula of respect for all persons, that we should try
always to act in such a way as to respect all persons,
ourselves and all others, as intrinsically valuable “ends in
themselves” and never treat any persons merely as
instrumental means to other ends; and (c) the third is a
“principle of autonomy,” that we, as morally autonomous
rational agents, should try to act in such a way that we
could be reasonably legislating for a (hypothetical) moral
republic of all persons. For the dignity of all persons,
rendering them intrinsically valuable and worthy of
respect, is a function of their capacity for moral
autonomy. In his Metaphysics of Morals, Kant develops
his ethical system, beyond this foundation, into a
doctrine of right and a doctrine of virtue. The former
comprises strict duties of justice, while the latter
comprises broader duties of merit. Obviously, it is the
former category, duties we owe all other persons,
regardless of circumstances and consequences, that
concerns us here, justice being a matter of strict right
rather than one of meritorious virtue. At the very end of
his Metaphysics of Morals, Kant briefly discusses “divine
justice,” whereby God legitimately punishes people for
violating their duties (Ethical, pp. 2-3, 30-44, 36, 48, 158-
161).

In his Metaphysical Elements of Justice, which constitutes

the first part of his Metaphysics of Morals, Kant develops
his theory of justice. (His concept of Rechtslehre—
literally, “doctrine of right”—has also been translated as
“doctrine of justice” and “doctrine of law.”) For Kant,
justice is inextricably bound up with obligations with
which we can rightly be required to comply. To say that
we have duties of justice to other persons is to indicate
that they have rights, against us, that we should perform
those duties—so that duties of justice and rights are
correlative. Three conditions must be met in order that
the concept of justice should apply: (a) we must be
dealing with external interpersonal behaviors; (b) it must
relate to willed action and not merely to wishes, desires,
and needs; and (c) the consequences intended are not
morally relevant. A person is not committing an injustice
by considering stealing another’s property or in wanting
to do so, but only by voluntarily taking action to
appropriate it without permission; and the act is not
justified no matter what good consequences may be
intended. According to Kant, there is only one innate
human right possessed by all persons; that is the right
freely to do what one wills, so long as that is “compatible
with the freedom of everyone else in accordance with a
universal law.” Thus one person’s right freely to act
cannot extend to infringing on the freedom of others or
the violation of their rights. This leads to Kant’s ultimate
universal principle of justice, which is itself a categorical
imperative: “Every action is just [right] that in itself or in
its maxim is such that the freedom of the will of each can
coexist together with the freedom of everyone in
accordance with a universal law.” Although the use of
coercive force against other persons involves an attempt
to restrict their freedom, this is not necessarily unjust, if
it is used to counteract their unjust abuse of freedom—
for example, in self-defense or punishment or even war.
Kant approvingly invokes three ancient rules of justice:
(1) we should be honest in our dealings with others; (2)
we should avoid being unjust towards others even if that
requires our trying to avoid them altogether; and (3) if
we cannot avoid associating with others, we should at
least try to respect their rights (Justice, pp. 29, 38, 30-31,
37; see also Lectures, pp. 211-212).

Kant distinguishes between natural or private justice, on

the one hand, and civil or public justice, on the other. He
has an intricate theory of property rights, which we can
only touch upon here. We can claim, in the name of
justice, to have rights to (a) physical property, such as
your car, (b) the performance of a particular deed by
another person, such as the auto shop keeping its
agreement to try to fix your car, and (c) certain
characteristics of interpersonal relationships with those
under our authority, such as obedient children and
respectful servants. Someone who steals your car or the
auto mechanic who has agreed to fix it and then fails to
try to do so is doing you an injustice. Children, as
developing but dependent persons, have a right to
support and care from their parents; but, in turn, they
owe their parents obedience while under their authority.
Children are not the property of their parents and must
never be treated like things or objects; and, when they
have become independent of their parents, they owe
them nothing more than gratitude. Similarly, a master
must respect a servant as a person. The servant may be
under contract to serve the master, but that contract
cannot be permanent or legitimately involve the giving
up of the servant’s personhood (in other words, one
cannot justifiably enter into slavery). While the master
has authority over the servant, that must never be
viewed as ownership or involve abuse. This all concerns
private or natural justice, having to do with the securing
of property rights. Next let us next consider how Kant
applies his theory of justice to the problem of crime and
punishment, in the area of public or civil justice,
involving protective, commutative, and distributive
justice, the requirements of which can be legitimately
enforced by civil society. When a person commits a
crime, that involves misusing freedom to infringe the
freedom of others or to violate their rights. Thus the
criminal forfeits the right to freedom and can become a
legitimate prisoner of the state. Kant considers the rule
that criminals should be punished for their crimes to be
“a categorical imperative,” a matter of just “retribution”
not to be denied or even mitigated for utilitarian
reasons. This extends to the ultimate punishment, the
death penalty: justice requires that murderers, the most
heinous criminals, should suffer capital punishment, as
no lesser penalty would be just. A third application to
consider here is that of war. This is in the international
part of public justice that Kant calls “the Law of
Nations.” He adopts a non-empirical version of the social
contract theory, interpreting it not as a historical fact
mysteriously generating obligations but rather as a
hypothetical idea of what free and equal moral agents
could reasonably agree to in the way of rules of justice.
Unlike Hobbes, he does not see this as a basis for all
moral duty. It does account for the obligation we have to
the state and other citizens. But states have duties to
other states, so that there is an international law of
nations. Even though different states, in the absence of
international law, are in a natural condition of a state of
war, as Hobbes thought, he was wrong to think that, in
that state, anything rightly goes and that there is no
justice. War is bad, and we should try to minimize the
need for it, although Kant is not a pacifist and can justify
it for purposes of self-defense. Kant proposes an
international “league of nations” to help provide for
mutual “protection against external aggression” and,
thus, to discourage it and reduce the need to go to war.
Still, when war cannot be avoided, it should be declared
rather than launched by means of a sneak attack;
secondly, there are legitimate limits that prohibit, for
example, trying to exterminate or subjugate all members
of the enemy society; third, when a war is over, the
winning party cannot destroy the civil freedom of the
losing parties, as by enslaving them; and, fourth, certain
“rights of peace” must be assured and honored for all
involved. Thus the ultimate goal of international
relations and of the league of nations should be the ideal
of “perpetual peace” among different states that share
our planet (Justice, pp. 41, 43, 91-95, 113, 136-141, 146,
151-158; for more on Kant’s version of the social
contract theory, see Writings, pp. 73-85, and for more on
his views on war and “perpetual peace,” see Writings,
pp. 93-130). Thus we see Kant applying his own theory
of justice in three areas: in the area of private law
having to do with the securing of property rights, in the
area of public law having to do with retributive
punishment for crimes committed, and in the area of
international justice concerned with war and peace.

What shall we critically say about this theory? First, it

argues for a sense of justice in terms of objective, non-
arbitrary right—against, say, Hobbes and Hume. Second,
this sense of justice is of a piece with Kant’s categorical
imperative, in that the rules of justice (e.g., regarding
property rights, punishment, and war) are
universalizable, designed to respect persons as
intrinsically valuable, and conforming to the principle of
autonomy. Third, if Hume is correct in suggesting that
we can never logically infer what ought to be from what
actually is, then Kant’s is the only theory we have
considered thus far that can pass the test. To focus the
issue, ask the question, why should we be just? For
Plato, this is the way to achieve the fulfillment of a well-
ordered soul. For Aristotle, the achievement and
exercising of moral virtue is a necessary condition of
human flourishing. For Augustine and Aquinas, God’s
eternal law requires that we, as God’s personal
creatures, should be just, with our salvation at stake. For
Hobbes, practicing justice is required by enlightened self-
interest. For Hume, even though our being just may not
benefit us directly all the time, it is conducive to public
utility or the good of the society of which we are
members. But for each of these claims, we can ask, so
what? If any combination of these claims were to turn
out to be correct, we could still legitimately ask why we
should therefore be just. Are we to assume that we
ought to do whatever it takes to achieve a well-ordered
soul or to flourish or to comply with God’s will or to serve
our own self-interest or public utility? Why? Consider
Kant’s answer: we should try to be just because it’s the
right thing to do and because it is our duty, as rational,
moral agents, to try to do what is right. Kant’s analysis
of justice works well; and, given that, his applications to
property rights, crime and punishment, and war and
peace are also impressive. Yet his theory is commonly
rejected as too idealistic to be realistically applicable in
the so-called “real world,” because it maintains that
some things can be absolutely unjust and are, thus,
categorically impermissible, regardless of likely
consequences. His theory as we have considered it here
is a paradigmatic example of the view of justice being
advocated in this article, as essentially requiring respect
for persons as free, rational agents. Yet Kant’s
inflexibility in other points of application, such as in his
absolute prohibition against lying to a would-be murderer
in order to save innocent human life (Ethical, pp. 162-
166), his idea that women and servants are merely
“passive citizens” unfit to vote, and his categorical denial
of any right to resistance or revolution against
oppression (Justice, pp. 120, 124-128), is problematic
here, inviting an alternative such as is represented by
Mill’s utilitarianism.

b. Mill
Let us consider a bit of Karl Marx (and his collaborator
Friedrich Engels) as a quick transition between Kant and
Mill. Kant represents the very sort of bourgeois
conception of justice against which Marx and Engels
protest in their call, in The Communist Manifesto, for a
socialistic revolution. Marx explains the ideal of socio-
economic equality he advocates with the famous slogan
that all should be required to contribute to society to the
extent of their abilities and all should be allowed to
receive from society in accordance with their needs.
John Stuart Mill, a nineteenth-century English
philosopher, was aware of the call for a Communist
revolution and advocated progressive liberal reform as
an alternative path to political evolution. Whereas Kant
was the first great deontologist, Mill subscribed to the
already established tradition of utilitarianism. Although
earlier British thinkers (including Hobbes and Hume)
were proto-utilitarians, incorporating elements of the
theory into their own worldviews, the movement, as
such, is usually thought to stem from the publication of
Jeremy Bentham’s Introduction to the Principles of
Morals and Legislation in 1789. He there proposes the
“principle of utility,” which he also later calls the
“greatest happiness” principle, as the desirable basis for
individual and collective decision-making: “By the
principle of utility is meant that principle which approves
or disapproves of every action whatsoever, according to
the tendency which it appears to have to augment or
diminish the happiness of the party whose interest is in
question.” That single sentence establishes the ultimate
criterion for utilitarian reasoning and the root of a great
movement. A famous lawyer named John Austin, under
whom Mill studied, wrote a book of jurisprudence based
on Bentham’s “principle of general utility.” Mill’s father,
James Mill, was a friend and disciple of Bentham and
educated his only son also to be a utilitarian. Near the
end of his life, Mill observed that it was the closest thing
to a religion in which his father raised him. And, if he
was not the founder of this secular religion, he clearly
became its most effective evangelist. In Utilitarianism,
his own great essay in ethical theory, Mill gives his own
statement of the principle of utility (again employing a
curiously religious word): “The creed which accepts as
the foundation of morals, Utility, or the Greatest
Happiness Principle, holds that actions are right in
proportion as they tend to promote happiness, wrong as
they tend to produce the reverse of happiness.” He
immediately proceeds to interpret human happiness and
unhappiness (as Bentham had done) in hedonistic terms
of pleasure and pain (Utilitarianism, pp. 33-34, 329,
257). This presents the deceptive appearance of a
remarkably simple rubric for practical judgment: if an
action generates an excess of pleasure over pain, that
contributes to human happiness, which is our greatest
good, making the action right; on the other hand, if an
action generates an excess of pain over pleasure, that
contributes to human unhappiness, which is our greatest
evil, making the action wrong. But what is deceptive
about this is the notion that we can sufficiently anticipate
future consequences to be able to predict where our
actions will lead us. (Notice, also, that unlike Kantian
deontology, which makes what is right independent of
good consequences, utilitarianism makes the former a
function of the latter.)

Mill acknowledges that concern about a possible conflict

between utility and justice has always been “one of the
strongest obstacles” to the acceptance of utilitarianism.
If permanently enslaving a minority could produce
overwhelming happiness for a majority (he was
personally opposed to slavery as an unconscionable
violation of human liberty), then, given that utility is the
value that trumps all others, why shouldn’t the injustice
of slavery be accepted as a (regrettably) necessary
means to a socially desirable end, the former, however
unfortunate, being thus justified? Mill thinks that the key
to solving this alleged problem is that of conceptual
analysis, that if we properly understand what “utility”
and “justice” are all about, we shall be able to see that
no genuine conflict between them is possible. We have
already discerned what the former concept means and
now need to elucidate the latter. Mill lays out five
dimensions of justice as we use the term: (1) respecting
others’ “legal rights” is considered just, while violating
them is unjust; (2) respecting the “moral right” someone
has to something is just, while violating it is unjust; (3) it
is considered just to give a person what “he deserves”
and unjust to deny it; (4) it is thought unjust to “break
faith” with another, while keeping faith with others is
just; and (5) in some circumstances, it is deemed unjust
“to be partial” in one’s judgments and just to be
impartial. People commonly associate all of these with
justice, and they do seem to represent legitimate
aspects of the virtue. (Interestingly, Mill rejects the idea
“of equality” as essential to our understanding of justice,
a stand which would be problematic for Marxists.) As he
seeks his own common denominator for these various
dimensions of justice, he observes that justice always
goes beyond generic right and wrong to involve what
“some individual person can claim from us as his moral
right.” This entails the legitimate sense that anyone who
has committed an injustice deserves to be punished
somehow (which connects with Kant). Mill thinks all this
boils down to the idea that justice is a term “for certain
moral requirements, which, regarded collectively, stand
higher in the scale of social utility,” being more
obligatory “than any others.” But this means that
justice, properly understood, is a name for the most
important of “social utilities” (ibid., pp. 296-301, 305,
309, 320-321). Therefore there purportedly cannot be
any genuine conflict between utility and justice. If there
ever were circumstances in which slavery were truly
useful to humanity, then presumably it would be just; the
reason it is (typically) unjust is that it violates utility. The
main goal here is to reduce justice to social utility, in
such a way as to rule out, by definition, any ultimate
conflict between the two. Thus, the social role played by
our sense of justice is allegedly that it serves the
common good.
Mill’s other great work is On Liberty, which provides us
with a connecting link between this utilitarian theory and
applications of it to particular social issues. The problem
Mill sets for himself here is where to draw a reasonable
line between areas in which society can rightly proscribe
behavior and those in which people should be allowed
the freedom to do as they will. When is it just to
interfere with a person’s acting on personal choice? To
solve this problem, which is as relevant today as it was a
century and a half ago, he proposes his “one very simple
principle” of liberty, which he states in two slightly
different ways: (1) the “self-protection” version holds
that people can only legitimately interfere with the
freedom of action of others to protect themselves from
them; (2) the “harm” version maintains that force can
only be justifiably used against other members of
community to prevent their harming others. It is not
acceptable to use power against others to stop them
from hurting only themselves. Mill candidly admits that
this principle is reasonably feasible only with regard to
mature, responsible members of civilized societies—not
to children or to the insane or even necessarily to
primitive peoples who cannot make informed judgments
about their own true good. He decisively renounces any
appeal to abstract rights as a basis for this principle,
basing it simply on “utility in the largest sense, grounded
on the permanent interests of a man as a progressive
being.” Notice that this presupposes that we can
distinguish between other-regarding behavior, which
may be justifiably regulated, and purely self-regarding
behavior, which may not be. If that turns out to be a
false distinction, then Mill’s theory may collapse. At any
rate, he articulates at least three areas of social life in
which people’s liberty should be “absolute and
unqualified”: (a) that of freedom of thought and
expression; (b) that of freedom of personal lifestyle; and
(c) the freedom to associate with others of one’s choice,
so long as it is for peaceful purposes. He seems
confident that utility will always require that freedom be
protected in these areas (ibid., pp. 135-138). In other
words, on this liberal utilitarian view, it would always be
unjust for an individual or a social group, in a civilized
society, deliberately to interfere with a responsible,
rational person’s actions in any combination of these
areas.
Let us now see how Mill applies his utilitarian theory to
three problems of justice that are still timely today. First
of all, the issue of punishment is one he considers
in Utilitarianism, though his discussion is aimed at
considering alternative accounts rather than conclusively
saying what he himself thinks (we might also observe
that, in this short passage, he attacks the social contract
theory as a useless fiction) (ibid., pp. 311-313). As a
utilitarian, he favors the judicious use of punishment in
order to deter criminal activity. He believes in the
utility/justice of self-defense and sees the right to punish
as anchored in that. In 1868, as an elected member of
Parliament, he made a famous speech in the House of
Commons supporting capital punishment on utilitarian
grounds. Although it is clear that he would like to be
able to support a bill for its abolition, the lawful order of
society, a necessary condition of societal well-being,
requires this means of deterring the most heinous
crimes, such as aggravated murder. He even thinks it a
quicker, more humane punishment than incarcerating
someone behind bars for the rest of his life. Mill does
worry about the possibility of executing an innocent
person, but he thinks a carefully managed legal system
can render this danger “extremely rare” (“Punishment,”
pp. 266-272). Thus his utilitarian theory provides him
with a basis for supporting capital punishment as morally
justifiable. A second famous application of his utilitarian
theory of justice Mill makes is to the issue of equal
opportunity for women. In the very first paragraph
of The Subjection of Women, Mill maintains that “the
principle which regulates the existing social relations
between the two sexes—the legal subordination of one
sex to the other—is wrong in itself, and now one of the
chief hindrances to human improvement; and that it
ought to be replaced by a principle of perfect equality,
admitting no power or privilege on the one side, nor
disability on the other.” So he does not call for the
preferential treatment of “affirmative action” but only for
equal opportunity. Unlike contemporary feminists, he
does not appeal to women’s human rights as his
rationale, but only to the maximization of “human
happiness” and the liberty “that makes life valuable”
(Subjection, pp. 1, 26, 101). Here, again, we have an
issue of social justice to which his utilitarian theory is
applied, generating liberal conclusions. Our third issue
of application is that of international non-intervention.
Mill’s general principle here is that using force against
others is prima facie unjust. Although defensive wars can
be justifiable, aggressive ones are not. It can be
justifiable to go to war without being attacked or directly
threatened with an attack, for example, to help civilize a
barbarian society, which, as such, allegedly has no
rights. It can be justifiable to save a subjected
population from the oppression of a despotic government
(“Non-Intervention,” pp. 376-383). All of this is
presumably a function of utilitarian welfare. Once more,
a still timely moral issue has been addressed using the
utilitarian theory of justice.

These applications all plausibly utilize the values and

reasoning of utilitarianism, which, by its very nature,
must be consequentialist. From that perspective, the
deterrence approach to punishment, including capital
punishment, seems appropriate, as do Mill’s call for
equal opportunity for women and his measured position
on international interventionism. Surely, the premium he
places on human happiness is admirable, as is his
universal perspective, which views all humans as
counting. The problem is in his assumptions that all
values are relative to consequences, that human
happiness is the ultimate good, and that this reduces to
the maximization of pleasure and the minimization of
pain. The upshot of this position is that, in principle,
nothing can be categorically forbidden, that, given
sufficiently desirable ends, any means necessary to
achieve them can be justified. If we really believe that
there can be no genuine conflict between justice and
utility because the former is merely the most important
part of the latter, then the rules of justice are reducible
to calculations regarding what is generally conducive to
the greatest happiness for the greatest number of people
—mere inductive generalizations which must permit of
exceptions; at least Mill’s ambiguity leaves him open to
this interpretation. There would seem to be a tension in
Mill’s thought: on the one hand, he wants to respect the
liberty of all (civilized) responsible persons as rational
agents; but, on the other hand, his commitment to
utilitarianism would seem to subordinate that respect to
the greatest good for the greatest number of people,
allowing for the possibility of sacrificing the interests of
the few to those of the many.

5. Contemporary Philosophers
From its founding, American political thought had an
enduring focus on justice. The Preamble to the American
Constitution says that one of its primary goals is to
“establish justice.” Founding father James Madison, in
1788, wrote in The Federalist Papers that justice should
be the goal of all government and of all civil society, that
people are willing to risk even liberty in its pursuit.
American schoolchildren are made to memorize and
recite a Pledge of Allegiance that ends with the words
“with liberty and justice for all.” So justice is an abiding
American ideal. We shall now consider how one of
America’s greatest philosophers, John Rawls, addresses
this ideal. We should notice how he places a greater
emphasis on equality than do most of his European
predecessors—perhaps reflecting the conviction of the
American Declaration of Independence that “all men are
created equal.” (This greater emphasis may reflect the
influence of Marx, whom he occasionally mentions.)
After considering the formidable contributions of Rawls
to justice theory and some of its applications, we shall
conclude this survey with a brief treatment of several
post-Rawlsian alternatives. A key focus that will
distinguish this section from previous ones is the effort to
achieve a conception of justice that strikes a reasonable
balance between liberty and equality.

a. Rawls
Rawls burst into prominence in 1958 with the publication
of his game-changing paper, “Justice as Fairness.”
Though it was not his first important publication, it
revived the social contract theory that had been
languishing in the wake of Hume’s critique and its
denigration by utilitarians and pragmatists, though it was
a Kantian version of it that Rawls advocated. This led to
a greatly developed book version, A Theory of Justice,
published in 1971, arguably the most important book of
American philosophy published in the second half of the
last century. Rawls makes it clear that his theory, which
he calls “justice as fairness,” assumes a Kantian view of
persons as “free and equal,” morally autonomous,
rational agents, who are not necessarily egoists. He also
makes it clear early on that he means to present his
theory as a preferable alternative to that of utilitarians.
He asks us to imagine persons in a hypothetical “initial
situation” which he calls “the original position”
(corresponding to the “state of nature” or “natural
condition” of Hobbes, but clearly not presented as any
sort of historical or pre-historical fact). This is strikingly
characterized by what Rawls calls “the veil of ignorance,”
a device designed to minimize the influence of selfish
bias in attempting to determine what would be just. If
you must decide on what sort of society you could
commit yourself to accepting as a permanent member
and were not allowed to factor in specific knowledge
about yourself—such as your gender, race, ethnic
identity, level of intelligence, physical strength,
quickness and stamina, and so forth—then you would
presumably exercise the rational choice to make the
society as fair for everyone as possible, lest you find
yourself at the bottom of that society for the rest of your
life. In such a “purely hypothetical” situation, Rawls
believes that we would rationally adopt two basic
principles of justice for our society: “the first requires
equality in the assignment of basic rights and duties,
while the second holds that social and economic
inequalities, for example inequalities of wealth and
authority, are just only if they result in compensating
benefits for everyone, and in particular for the least
advantaged members of society.” Here we see Rawls
conceiving of justice, the primary social virtue, as
requiring equal basic liberties for all citizens and a
presumption of equality even regarding socio-economic
goods. He emphasizes the point that these principles
rule out as unjust the utilitarian justification of
disadvantages for some on account of greater
advantages for others, since that would be rationally
unacceptable to one operating under the veil of
ignorance. Like Kant, Rawls is opposed to the
teleological or consequentialist gambit of defining the
right (including the just) in terms of “maximizing the
good”; he rather, like Kant, the deontologist, is
committed to a “priority of the right over the good.”
Justice is not reducible to utility or pragmatic
desirability. We should notice that the first principle of
justice, which requires maximum equality of rights and
duties for all members of society, is prior in “serial or
lexical order” to the second, which specifies how socio-
economic inequalities can be justified (Theory, pp. 12-26,
31, 42-43). Again, this is anti-utilitarian, in that no
increase in socio-economic benefits for anyone can ever
justify anything less than maximum equality of rights
and duties for all. Thus, for example, if enslaving a few
members of society generated vastly more benefits for
the majority than liabilities for them, such a bargain
would be categorically ruled out as unjust.
Rawls proceeds to develop his articulation of these two
principles of justice more carefully. He reformulates the
first one in terms of maximum equal liberty, writing that
“each person is to have an equal right to the most
extensive basic liberty compatible with a similar liberty
for others.” The basic liberties intended concern such
civil rights as are protected in our Constitution—free
speech, freedom of assembly, freedom of conscience,
the right to private property, the rights to vote and hold
public office, freedom from arbitrary arrest and seizure,
etc. The lexical priority of this first principle requires that
it be categorical in that the only justification for limiting
any basic liberties would be to enhance other basic
liberties; for example, it might be just to limit free access
of the press to a sensational legal proceeding in order to
protect the right of the accused to a fair trial. Rawls
restates his second principle to maintain that “social and
economic inequalities are to be arranged so that they are
both (a) reasonably expected to be to everyone’s
advantage, and (b) attached to positions and offices
open to all.” Thus socio-economic inequalities can be
justified, but only if both conditions are met. The first
condition (a) is “the difference principle” and takes
seriously the idea that every socio-economic difference
separating one member of society from others must be
beneficial to all, including the person ranked lowest. The
second condition is one of “fair equality of opportunity,”
in that socio-economic advantages must be connected to
positions to which all members of society could have
access. For example, the office of the presidency has
attached to it greater social prestige and income than is
available to most of us. Is that just? It can be, assuming
that all of us, as citizens, could achieve that office with
its compensations and that even those of us at or near
the bottom of the socio-economic scale benefit from
intelligent, talented people accepting the awesome
responsibilities of that office. Just as the first principle
must be lexically prior to the second, Rawls also
maintains that “fair opportunity is prior to the difference
principle.” Thus, if we have to choose between equal
opportunity for all and socio-economically benefiting “the
least advantaged” members of society, the former has
priority over the latter. Most of us today might be readily
sympathetic to the first principle and the equal
opportunity condition, while finding the difference
principle to be objectionably egalitarian, to the point of
threatening incentives to contribute more than is
required. Rawls does consider a “mixed conception” of
justice that most of us would regard as more attractive
“arising when the principle of average utility constrained
by a certain social minimum is substituted for the
difference principle, everything else remaining
unchanged.” But there would be a problem of fairly
agreeing on that acceptable social minimum, and it
would change with shifting contingent circumstances. It
is curious that his own theory of “justice as fairness” gets
attacked by socialists such as Nielsen (whom we shall
consider) for sacrificing equality for the sake of liberty
and by libertarians such as Nozick (whom we shall also
consider) for giving up too much liberty for the sake of
equality. Rawls briefly suggests that his theory of justice
as fairness might be applied to international relations, in
general, and to just war theory, in particular (ibid., pp.
60-65, 75, 83, 302-303, 316, 378).

Rawls applies his theory of justice to the domestic issue

of civil disobedience. No society is perfectly just. A
generally or “nearly just society” can have unjust laws, in
which case its citizens may or may not have a duty to
comply with them, depending on how severely unjust
they are. If the severity of the injustice is not great, then
respect for democratic majority rule might morally
dictate compliance. Otherwise, citizens can feel a moral
obligation to engage in civil disobedience, which Rawls
defines as “a public, nonviolent, conscientious yet
political act contrary to law usually done with the aim of
bringing about a change in the law or policies of the
government.” Certain conditions must be met in order
that an act of civil disobedience be justified: (1) it should
normally address violations of equal civil liberties (the
first principle of justice) and/or of “fair equality of
opportunity” (the second part of the second principle),
with violations of the difference principle (the first part of
the second principle) being murkier and, thus, harder to
justify; (2) the act of civil disobedience should come only
after appeals to the political majority have been
reasonably tried and failed; (3) it must seem likely to
accomplish more good than harm for the social order.
Yet, even if all three of these conditions seem to be met
and the disobedient action seems right, there remains
the practical question of whether it would be “wise or
prudent,” under the circumstances, to engage in the act
of civil disobedience. Ultimately, every individual must
decide for himself or herself whether such action is
morally and prudentially justifiable or not as reasonably
and responsibly as possible. The acts of civil
disobedience of Martin Luther King (to whom Rawls
refers in a footnote) seem to have met all the conditions,
to have been done in the name of justice, and to have
been morally justified (ibid., pp. 350-357, 363-367, 372-
376, 389-390, 364n).

Rawls’s second book was Political Liberalism. Here he

works out how a just political conception might develop a
workable “overlapping consensus” despite the
challenges to social union posed by a pluralism of
“reasonable comprehensive doctrines.” This, of course,
calls for some explanation. A just society must protect
basic liberties equally for all of its members, including
freedom of thought and its necessary condition, freedom
of expression. But, in a free society that protects these
basic liberties, a pluralism of views and values is likely to
develop, such that people can seriously disagree about
matters they hold dear. They will develop their own
“comprehensive doctrines,” or systems of beliefs that
may govern all significant aspects of their lives. These
may be religious (like Christianity) or philosophical (like
Kantianism) or moral (like utilitarian). Yet a variety of
potentially conflicting comprehensive doctrines may be
such that all are reasonable. In such a case, social unity
requires respect for and tolerance of other sets of
beliefs. It would be unjust deliberately to suppress
reasonable comprehensive doctrines merely because
they are different from our own. The problem of political
liberalism nowadays is how we can establish “a stable
and just society whose free and equal citizens are deeply
divided by conflicting and even incommensurable
religious, philosophical, and moral doctrines.” What is
needed is a shared “political conception of justice” that
is neutral regarding competing comprehensive
doctrines. This could allow for “an overlapping
consensus of reasonable comprehensive doctrines,” such
that tolerance and mutual respect are operative even
among those committed to incompatible views and
values, so long as they are reasonable (Liberalism, pp.
291-292, 340-342, 145, xviii, 13, 152n., 59-60, 133, 154-
155, 144, 134). Thus, for example, a Christian Kantian
and an atheistic utilitarian, while sincerely disagreeing
on many ethical principles, philosophical ideas, and
religious beliefs, can unite in mutually accepting, for
instance, the American Constitution as properly binding
on all of us equally. This agreement will enable them
mutually to participate in social cooperation, the terms of
which are fair and reciprocal and which can contribute to
the reasonable good of the entire society.

Near the end of his life, Rawls published The Law of

Peoples, in which he tried to apply his theory of justice to
international relations. Given that not all societies act
justly and that societies have a right to defend
themselves against aggressive violent force, there can
be a right to go to war (jus ad bellum). Yet even then,
not all is fair in war, and rules of just warfare (jus in
bello) should be observed: (1) the goal must be a “just
and lasting peace”; (2) it must be waged in defense of
freedom and security from aggression; (3) reasonable
attempts must be made not to attack innocent non-
combatants; (4) the human rights of enemies (for
example, against being tortured) must be respected; (5)
attempts should be made to establish peaceful relations;
and (6) practical tactics must always remain within the
parameters of moral principles. After hostilities have
ceased, just conquerors must treat their conquered
former enemies with respect—not, for example,
enslaving them or denying them civil liberties. Rawls
adds a very controversial “supreme emergency
exemption” in relation to the third rule—when a
relatively just society’s very survival is in desperate peril,
its attacking enemy civilian populations, as by bombing
cities, can be justifiable. More generally, Rawls applies
his theory of justice to international relations, generating
eight rules regarding how the people of other societies
must be treated. While we do not have time to explore
them all here, the last one is sufficiently provocative to
be worth our considering: “Peoples have a duty to assist
other peoples living under unfavorable conditions that
prevent their having a just or decent political and social
regime.” This, of course, goes beyond not exploiting,
cheating, manipulating, deceiving, and interfering with
others to a positive duty of trying to help them, at the
cost of time, money, and other resources. Justice
demands that we try to assist what Rawls calls
“burdened societies,” so that doing so is not morally
supererogatory. What is most interesting here is what
Rawls refuses to say. While different peoples,
internationally speaking, might be imagined in an
original position under the veil of ignorance, and Rawls
would favor encouraging equal liberties and
opportunities for all, he refuses to apply the difference
principle globally in such a way as to indicate that justice
requires a massive redistribution of wealth from richer to
poorer societies (Peoples, pp. 94-96, 98-99, 37, 106, 114-
117).

From a critical perspective, Rawls’s theory of civil

disobedience is excellent, as are his theory of political
liberalism and his version of the just war theory, except
for that “supreme emergency exemption,” which
uncharacteristically tries to make right a function of
teleological good. His views on international aid seem so
well worked out that, ironically, they call into question
part of his general theory of justice itself. It does not
seem plausible that the difference principle should apply
intrasocietally but not internationally. The problem may
be with the difference principle itself. It is not at all clear
that rational agents in a hypothetical original position
would adopt such an egalitarian principle. The veil of
ignorance leading to this controversial principle can itself
be questioned as artificial and unrealistic; one might
object that, far from being methodologically neutral, it
sets up a bias (towards, for example, being risk-aversive)
that renders Rawls’s own favored principles of justice
almost a foregone conclusion. Indeed, the “mixed
conception” that Rawls himself considers and rejects
seems more plausible and more universally applicable—
keeping the first principle and the second part of the
second but replacing the difference principle with one of
average utility, constrained by some social minimum,
adjustable with changing circumstances. Thus we could
satisfactorily specify the requirements of an essentially
Kantian conception of justice, as requiring respect for the
dignity of all persons as free and equal, rational moral
agents. While less egalitarian than what Rawls offers, it
might prove an attractive alternative. To what extent
should liberty be constrained by equality in a just
society? This is a central issue that divides him from
many post-Rawlsians, to a few of whom we now briefly
turn.

b. Post-Rawls
Rawls’s monumental work on justice theory revitalized
political philosophy in the United States and other
English-speaking countries. In this final subsection, we
shall briefly survey some of the most important recent
attempts to provide preferable alternatives to Rawls’s
conception of justice. They will represent six different
approaches. We shall consider, in succession, (1) the
libertarian approach of Robert Nozick, (2) the socialistic
one of Kai Nielsen, (3) the communitarian one of Michael
Sandel, (4) the globalist one of Thomas Pogge, (5) the
feminist one of Martha Nussbaum, and (6) the rights-
based one of Michael Boylan. As this is merely a quick
survey, we shall not delve much into the details of their
theories (limiting ourselves to a single work by each) or
explore their applications or do much in the way of a
critique of them. But the point will be to get a sense of
several recent approaches to developing views of justice
in the wake of Rawls.

(1) Nozick

Nozick (a departmental colleague of Rawls at Harvard)

was one of the first and remains one of the most famous
critics of Rawls’s liberal theory of justice. Both are
fundamentally committed to individual liberty. But as a
libertarian, Nozick is opposed to compromising individual
liberty in order to promote socio-economic equality and
advocates a “minimal state” as the only sort that can be
socially just. In Anarchy, State, and Utopia (1974),
especially in its famous chapter on “Distributive Justice,”
while praising Rawls’s first book as the most important
“work in political and moral philosophy” since that of Mill,
Nozick argues for what he calls an “entitlement
conception of justice” in terms of three principles of just
holdings. First, anyone who justly acquires any holding
is rightly entitled to keep and use it. Second, anyone
who acquires any holding by means of a just transfer of
property is rightly entitled to keep and use it. It is only
through some combination of these two approaches that
anyone is rightly entitled to any holding. But some
people acquire holdings unjustly—e.g., by theft or fraud
or force—so that there are illegitimate holdings. So,
third, justice can require the rectification of unjust past
acquisitions. These three principles of just holdings
—“the principle of acquisition of holdings, the principle of
transfer of holdings, and the principle of rectification of
the violations of the first two principles”—constitute the
core of Nozick’s libertarian entitlement theory of justice.
People should be entitled to use their own property as
they see fit, so long as they are entitled to it. On this
view, any pattern of distribution, such as Rawls’s
difference principle, that would force people to give up
any holdings to which they are entitled in order to give it
to someone else (i.e., a redistribution of wealth) is
unjust. Thus, for Nozick, any state, such as ours or one
Rawls would favor, that is “more extensive” than a
minimal state and redistributes wealth by taxing those
who are relatively well off to benefit the disadvantaged
necessarily “violates people’s rights” (State, pp. 149,
183, 230, 150-153, 230-231, 149).

(2) Nielsen

Nielsen, as a socialist (against both Rawls and Nozick)

considers equality to be a more fundamental ideal than
individual liberty; this is more in keeping with Marxism
than with the liberal/libertarian tradition that has largely
stemmed from Locke. (Whereas capitalism supports the
ownership and control of the means of producing and
distribution material goods by private capital or wealth,
socialism holds that they should be owned and controlled
by society as a whole.) If Nozick accuses Rawls of going
too far in requiring a redistribution of wealth, Nielsen
criticizes him for favoring individual liberty at the
expense of social equality. In direct contrast to Rawls’s
two liberal principles of justice, in “Radical Egalitarian
Justice: Justice as Equality,” Nielsen proposes his own
two socialistic principles constituting the core of his
“egalitarian conception of justice.” In his first principle,
he calls for “equal basic liberties and opportunities”
(rather than for merely “equal basic liberties”), including
the opportunities “for meaningful work, for self-
determination, and political participation,” which he
considers important to promote “equal moral autonomy
and equal self-respect.” Also (unlike Rawls) he does not
claim any lexical priority for either principle over the
other. His sharper departure from Rawls can be found in
his second principle, which is to replace the difference
principle that allegedly justified socio-
economic inequality. After specifying a few
qualifications, it calls for “the income and wealth” of
society “to be so divided that each person will have a
right to an equal share” and for the burdens of society
“also to be equally shared, subject, of course, to
limitations by differing abilities and differing situations.”
He argues that his own second principle would better
promote “equal self-respect and equal moral autonomy”
among the members of society. Thus we might
eliminate social stratification and class exploitation, in
accordance with the ideals of Marxist humanism
(“Equality,” pp. 209, 211-213, 222-225).

(3) Sandel

Sandel, as a communitarian, argues (against Rawls and

Nozick) that the well-being of a community takes
precedence over individual liberty and (against Nielsen)
over the socio-economic welfare of its members. While
acknowledging that Rawls is not so “narrowly
individualistic” as to rule out the value of building social
community, in Liberalism and the Limits of Justice, he
maintains that the individualism of persons in the
original position is such that “a sense of community” is
not a basic “constituent of their identify as such,” so that
community is bound to remain secondary and derivative
in the Rawlsian theory. To deny that community values
help constitute one’s personal identity is to render
impossible any preexisting interpersonal good from
which a sense of right can be derived. Thus, for Sandel,
Rawls’s myopic theory of human nature gives him no
basis for any pre-political natural rights. So his
conception of justice based on this impoverished view
must fail to reflect “the shared self-understandings” of
who they are as members of community that must
undergird the basic structure of political society.
Through the interpersonal relationships of community,
we establish “more or less enduring attachments and
commitments” that help define who we are, as well as
the values that will help characterize our sense of justice
as a common good that cannot be properly understood
by individuals detached from community. Thus justice
must determine what is right as serving the goods we
embrace in a social context—“as members of this family
or community or nation or people, as bearers of this
history, as sons and daughters of that revolution, as
citizens of this republic” rather than as abstract
individuals (Limits, pp. 66, 60-65, 87, 150, 172-174, 179,
183, 179).

(4) Pogge

Pogge develops a globalist interpretation of justice as

fairness that, in a sense, is more consistent than Rawls’s
own. More specifically, it not only accepts the difference
principle but wants to apply it on an international level as
well as nationally. In “An Egalitarian Law of Peoples,”
Pogge observes that Rawls means his theory of justice to
be relatively “egalitarian.” And, as applied
intranationally, so it is. But, as applied internationally, it
is not. As he says, there is a disconnect “between
Rawls’s conception of domestic and of global justice.”
(We should note that, like Sandel’s critique, which we
just considered, Pogge’s is not a complete theory of
justice, but more a modification of Rawls’s own.) While
Rawls does believe that well-off societies have a duty to
assist burdened societies, he rejects the idea of a global
application of his difference principle. What Pogge is
proposing is a global egalitarian principle of distributive
justice. He thinks that this will address socio-economic
equalities that are to the detriment of the world’s worst-
off persons. What he proposes is “a global resources
tax, or GRT.” This means that, although each of the
peoples of our planet “owns and fully controls all
resources within its national territory,” it will be taxed on
all of the resources it extracts. If it uses those extracted
resources itself, it must pay the tax itself. If it sells some
to other societies, presumably at least part of the tax
burden will be borne by buyers in the form of higher
sales prices. “The GRT is then a tax on consumption” of
our planet’s resources. Corporations extracting
resources (such as oil companies and coal mining
companies) would pay their taxes to their governments
which, in turn, would be responsible for transferring
funds to disadvantaged societies to help the global poor.
Such payments should be regarded as “a matter of
entitlement rather than charity,” an obligation of
international justice. If the governments of the poorer
states were honest, they could disburse the funds; if they
were corrupt, then transfers could go through United
Nations agencies and/or nongovernmental
organizations. At any rate, they should be channeled
toward societies in which they could improve the lot of
the poor and disadvantaged. (Of course, less well-off
societies would be free to refuse such funds, if they so
chose.) But, one might wonder, would well-off societies
only be motivated to pay their fair share by benevolence,
a sense of justice, and possible shame at being exposed
for not doing so? No, there could be international
sanctions: “Once the agency facilitating the flow of GRT
payments reports that a country has not met its
obligations under the scheme, all other countries are
required to impose duties on imports from, and perhaps
also similar levies on exports to, this country to raise
funds equivalent to its GRT obligations plus the cost of
these enforcement measures.” Pogge believes that well-
off societies should recognize that his more egalitarian
model of international relations is also more just than
Rawls’s law of peoples (“Egalitarian,” pp. 195-196, 210,
199-202, 205, 219, 224).

(5) Nussbaum

Nussbaum, like Pogge (and unlike Nozick and Nielsen),

does not so much reject Rawls’s liberal conception of
justice as extend its explicit application. In Sex and
Social Justice, she argues for a feminist interpretation of
justice, using what she calls a “capabilities approach”
that connects with “the tradition of Kantian liberalism,”
nowadays represented by Rawls, tapping into their
“notions of dignity and liberty,” as a foundation for
discussing the demands of justice regarding “women’s
equality and women’s human rights.” The feminism she
embraces has five key dimensions: (1) an
internationalism, such that it is not limited to any one
particular culture; (2) a humanism, such as affirms a
basic equal worth in all human beings and promotes
justice for all; (3) a commitment to liberalism as the
perspective that best protects and promotes the “basic
human capacities for choice and reasoning” that render
all humans as having an equal worth; (4) a sensitivity to
the cultural shaping of our preferences and desires; and
(5) a concern for sympathetic understanding between
the sexes. She expresses an appreciation for the
primary goods at the core of Rawls’s theory, while
asserting that his analysis does not go far enough. She
offers her own list of ten “central human functional
capabilities” that must be respected by a just society:
(1) life of a normal, natural duration; (2) bodily health
and integrity, including adequate nourishment and
shelter; (3) bodily integrity regarding, for example,
freedom of movement and security against assault; (4)
freedom to exercise one’s senses, imagination, and
thought as one pleases, which includes freedom of
expression; (5) freedom to form emotional attachments
to persons and things, which includes freedom of
association; (6) the development and exercise of
practical reason, the capacity to form one’s own
conception of the good and to try to plan one’s own life,
which includes the protection of freedom of conscience;
(7) freedom of affiliation on equal terms with others,
which involves provisions of nondiscrimination; (8)
concern for and possible relationships with animals,
plants, and the world of nature; (9) the freedom to play,
to seek amusement, and to enjoy recreational activities;
and (10) some control over one’s own political
environment, including the right to vote, and one’s
material environment, including the rights to seek
meaningful work and to hold property. All of these
capabilities are essential to our functioning as flourishing
human beings and should be assured for all citizens of a
just society. But, historically, women have been and still
are short-changed with respect to them and should be
guaranteed their protection in the name of justice (Sex,
pp. 24, 6-14, 34, 40-42).

(6) Boylan

Boylan has recently presented “a ‘rights-based’

deontological approach based upon the necessary
conditions for human action.” In A Just Society, he
observes that human goods are more or less deeply
“embedded” as conditions of human action, leading to a
hierarchy that can be set forth. There are two levels of
basic goods. The most deeply embedded of these, such
as food, clothing, shelter, protection from physical harm,
are absolutely necessary for any meaningful human
action. The second level of basic goods comprises (less)
deeply embedded ones, such as basic knowledge and
skills such as are imparted by education, social
structures that allow us to trust one another, basic
assurance that we will not be exploited, and the
protection of basic human rights. Next, there are three
levels of secondary goods. The most embedded of these
are life enhancing, if not necessary for any meaningful
action, such as respect, equal opportunity, and the
capacity to form and follow one’s own plan of life and to
participate actively and equally in community,
characterized by shared values. A second level of
secondary goods comprises those that are useful for
human action, such as having and being able to use
property, being able to benefit from one’s own labor, and
being able to pursue goods typically owned by most of
one’s fellow citizens. The third level of secondary goods
comprises those that are least embedded as conditions
of meaningful action but still desirable as luxuries, such
as being able to seek pleasant objectives that most of
one’s fellow citizens cannot expect to achieve and being
able to compete for somewhat more than others in one’s
society. The more deeply embedded goods are as
conditions of meaningful human action, the more right to
them people have. Boylan follows Kant and Rawls in
holding an ultimate moral imperative is that individual
human agents and their rights must be respected. This
is a matter of justice, distributive justice involving a fair
distribution of social goods and services and retributive
justice involving proper ways for society to treat those
who violate the rules. A just society has a duty to
provide basic goods equally to all of its members, if it
can do so. But things get more complicated with regards
to secondary goods. A just society will try to provide the
first level of secondary goods, those that are life
enhancing, equally to all its members. Yet this becomes
more problematic with the second and third levels of
secondary goods—those that are useful and luxurious—
as the conditions for meaningful human action have
already been satisfied by more deeply embedded ones.
The need that people have to derive rewards for their
work commensurate with their achievement would seem
to militate against any guarantee of equal shares in
these, even if society could provide them, although
comparable achievement should be comparably
rewarded. Finally, in the area of retributive justice, we
may briefly consider three scenarios. First, when one
person takes a tangible good from another person,
justice requires that the perpetrator return to the victim
some tangible good(s) of comparable worth, plus
compensation proportionate to the harm done the victim
by the loss. Second, when one person takes an
intangible good from another person, justice requires
that the perpetrator give the victim some tangible good
as adequate compensation for the pain and suffering
caused by the loss. And, third, when one person injures
another person through the deprivation of a valued good
that negatively affects society, society can justly
incarcerate the perpetrator for a period of time
proportionate to the loss (Society, pp. x, 53-54, 56-58,
131, 138, 143-144, 164-167, 174-175, 181, 183).

In conclusion, we might observe that, in this rights-based

alternative, as in the previous five (the libertarian, the
socialistic, the communitarian, the globalist, and the
feminist) we have considered, there is an attempt to
interpret justice as requiring respect for the dignity of all
persons as free and equal, rational moral agents. This
historical survey has tracked the progressive
development of this Kantian idea as becoming
increasingly prominent in Western theories of justice.

UNIT 3 JUDICIAL PROCESS IN INDIA :

Procedural Justice and Distributive Justice
Distributive Justice