THEORIES OF JUSTICE

INTRODUCTION.
oJustice is a commonly encountered term of legal rhetoric
and to deal justly is held out as a fundamental aspiration
of a legal system.( J.E. Penner, 2002)
oThe concept of justice is based upon and is equated with
moral rightness (ethic), rationality, natural law, fairness,
righteousness, equality and equity
oWhat constitutes justice varies from society to society,
person to person, from time to time and from place to
place. It has thus been subject to various philosophical,
legal and theological reflection and debate.
oFor jurisprudence, it is a reflection on the viability of the
claims made for law .

Form and Variation of the

Concept of Justice

Utilitarianism
Retributive justice- administer proportionate response to crime proven
by the lawful evidence, o that punishment is rightfully imposed and
considered a morally-correct and fully deserved
The Law of retaliation [lex talionis]- this theory state that reciprocity
should be equal to the wrong suffered
Distributive justice- this is directed at the appropriate allocation of
thing meaning equal distribution among the equals, as just law in this
case will be one which treats like situations alike, and unjust law would be
one that allocates rights and duties unequally without a plausible ground.
Corrective justice- it seeks to reinstate equality when this is disturbed.
This comes into play when a norm of distributive justice has been
breached or infringed by a member of the community. This type of justice
is generally administered by the court or other organs invested with
judicial or quasi-judicial power

John Rawls

Professor of Philosophy at Havard Universirty who set out principles of

justice which derive from a form of argument almost similar to the social
contractarian thinkers.
According to Rawls, justice is what free and equal persons would agree to
as basis terms of a social cooperation in conditions that are fair for this
purpose.
In his work, A Theory of Justice 1973, he employs the device of the
original position in which persons who select principles of justice are
placed behind a veil of ignorance (Justice as fairness)
The basic principle is that the choice of just principles for social
organisation is to be made by persons who do not know what actual
position they are to occupy in the society, nor what their particular
interests and inclinations will be.
Rawls states that, .those a person would choose for the design
of a society in which his enemy is to assign him in place.
The actors are thus seen as hopeful pessimists who seek the best but
prepare for the worst in designing their principles of justice.

He considered the 2principles of justice as:

Equal liberty which implies that each person is to have an equal right to the
most extensive total system of equal basic liberties compatible with a
similar system of liberty for all.
Social and economic inequalities are to be arranged so that they are both to
the greatest expected benefit to the least advantaged and attached to
positions and offices open to all under conditions of fair equality of
opportunity.
o From these two principles, Rawls derives an egalitarian conception of
justice that will allow the inequality of conditions implied by equality of
opportunity but will give more attention to those born with fewer assets and
in less favourable social positions.
oHe proposed a four-staged sequence for attainment of a just society:
1. The enunciation of the principle of just society from the original position
2. A partial lifting of the veil of ignorance o far as the general
circumstance of the society but not the individual circumstance of the actor,
the devising of a constitutional system dealing with the power of the
government and the right of citizen
3. Having established a constitutional legislation in accordance with the
principle of justice as well as the constitutional procedure. The legislators
are intended to act in the light of the general interest rather than to their
personal advantage.
4. Application of the law and the rule by judge and administrator and their
working in the action of the general public

Rawls also looked at justice theory in light of two historical experiences in

America: the rise of mass consumption economy and the adoption of the
civil rights movement as a model of thinking about social relations , which
led to the need to redistribute resources to the less disadvantaged in the
society.
Rawls opines that utilitarianism does not take seriously the distinction
between persons and recognizes that each person posses inviolability
founded on justice that even the welfare of the society as a whole cannot
override.

Criticism of Rawls theory

The assumptions of the original position, have been criticized with the
implication that Rawls' selection of parameters for the original position was
result-oriented, i.e., calculated to derive the two principles that Rawls
desired to advance
Some egalitarian critics have raised concerns over Rawls' emphasis on
primary social goods arguing that we should attend not only to the
distribution of primary goods, but also how effectively people are able to
use those goods to pursue their ends.
Philosopher and Nobel Prize-winning economist Amartya Sen faults Rawls
for an over-emphasis on institutions as guarantors of justice not
considering the effects of human behaviour on the institutions' ability to
maintain a just society
His work has been criticised in detail by Robert Nozicks work presented as
different theory of justice.

ROBERT NOZICKS
THEORY

Nozicks fundamental presumption is the primacy of certain Natural

rights, including the right to acquire property legitimately
Nozick claims that the only state that could satisfy this condition is a
minimal night watchman state, offering protection against violence,
theft and the breach of agreements
According to Nozick, property can only be acquired legitimately in one of
the 3 ways;
Just initial acquisition- in rare circumstances (primarily in a state of
nature) a person can acquire property not yet belonging to anyone else.
Following Locke, Nozick holds that this can be appropriated justly,
provided a remainder is left for others.
Legitimate transfer- most goods now do not exist unencumbered by
existing rights of ownership. They can only be acquired justly through a
voluntary transfer from the owner i.e. gift, exchange or sale.
Rectification of past injustices- if a person acquires property unjustly, for
example by force, fraud or theft, and then it can legitimately be taken
away and restored to the proper owner.

The minimal state

Nozick argues that a night watchman state could emerge from a state of nature
without harming anyones rights. He construes a hypothetical Historical of an
invisible hand, process whereby the night watchman state could be evolved
through a series of stages, without overall conscious design but with full
consent of each step.
. Nozick illustrates this argument with the example of the famous Wilt
Chamberlain, the Basketball player.
He postulates that, suppose the Rawls difference principle was to be applied, if
a million fans are eager to pay $1 each to watch Wilt Chamberlain play.
He will probably end the season a multi-millionaire as the result of entirely
voluntary transfers. Nozick claims that it would be unjust to force him to give up
any of this money as taxation in order to restore this initial pattern.
Transfer of Holding
Concerns the transfer of holdings from one person to another, the processes by
which a person can use to transfer the said holdings, how a person can acquire
a holding from another who holds it and how a person can divest himself of a
holding, passing it into an unheld state.
Rectification of justice in holding
Not all actual situations are arrived at through the two principles of justice in
holding- that is the principle of justice in acquisition and the principle of Justice
in transfer. This is as a result of the other unscrupulous means people use to
acquire property, for instance, stealing, defrauding, enslaving, seizing, forcibly
excluding others from competing in the market, historical injustices inter alia

The principle of rectification presumably makes

use of its best estimates of subjective
information about what would have occurred
( or a probability distribution over what might
have occurred, using the expected value) if the
injustice had not taken place.

The general postulation of theory of justice in

holdings, are that holdings of a person are just if
he is entitled to them by the principles of justice
in acquisition and transfer, or by the principle of
rectification of justice. If each persons holdings
are just then , then the total set(distribution) of
holdings is just

UTILITARIANISM

This is a theory of justice which is based on the principle of utility approving every action
that increases human happiness and disapproving every action that diminishes it. The
fundamental objective of morality and justice is that happiness should be maximized. The
utilitarian view is that justice should seek to create the greatest happiness of the greatest
number. This idea of justice connects morality to law, economic distribution and politics.
The essence of utilitarianism is its consequentialism. This is the opposite of deontology
that provides that; the rightness or wrongness of an action is logically independent of its
consequences. Utilitarianism is concerned to maximize happiness or welfare or some
other good.
We have two types of utilitarianism; act and rule utilitarianism. Act utilitarianism provides
that, the rightness or wrongness of an action is to be judged by the consequences, good
or bad of the action itself. Rule utilitarianism on the other hand provides that; rightness or
wrongness of an action is to be judged by the goodness or badness of the consequences
of a rule that everyone should perform the action in like circumstances.
This conception of justice is founded in the works of John Stuart Mill on Utilitarianism. He
says, that justice is a subset of morality. Injustice involves the violation of the rights of
some identifiable individual.
According to him, morality is larger than justice because it induces us to act beyond the
call of duty to help others and such acts arent described as examples of justice. Hence
we should have rights when we can legitimately make demands on the society on grounds
of general utility

Separable features of utilitarianism

Monistic
Proposes one supreme principle of utility as the one governing all moral questions. Other
non-utilitarian theories are pluralistic in that, they may hold there to be a number of
distinct principles that must be weighed against each other, such as equality, liberty and
economic efficiency are values when they conflict we should strike a balance without any
determinate principles but utilitarianism would treat them as important insofar as they
bear on maximization of welfare and will apply this supreme principle.
It is also monistic in that its basic principle i.e. principle of utility requires us to maximize
a single goal which is, increasing happiness for utilitarian and that of social welfare for
modern utilitarian.

Consequentialism
Utilitarianism is a version of consequentialism. Consequentialist claim that, the moral
goodness of an action is the function of its expected consequences. Utilitarians evaluate
actions solely by reference to their likely consequences.
Individualistic
It is individualistic in the sense that, it judges actions, laws and institutions by their
impact upon the lives of individuals. To them, collective goals e.g. creation of a
flourishing sense of national identity is accepted as valuable to the extent that they have
positive consequences for the lives of individuals.

Concrete utilitarianism to improve the economy

Mill argues we should reduce the division between workers and owners who oftenly
engage in class warfare which can be done by sharing profits with the workers.
Promote greater equality of income to them. The luxuries enjoyed by the rich are
much less important than the necessities that could be enjoyed by others if that
wealth is shared. If we force the rich to help the poor, then we could expect that
greater goodness would result
In applying Mills theory of justice we need to understand what rights will probably
lead to greater happiness.
Secondly figure out whether the rights are being violated in a given situation.

Utilitarianism as a theory of justice.

What rights will likely lead to greater happiness? According to mills rights that could
be justified are those listed in Universal Declaration of Human Rights. They include:

Right to property

No one should be arbitrary deprived of his property. This is because;

People have various needs and property is helpful to fulfill those needs

We need to make plans concerning our future

It often makes people upset when they ate robbed, even when only luxuries are
stolen.

The right to make a profit ON ones labor can be an incentive to work hard and be
productive, which can help create a greater prosperity to society at large.

Right to social welfare

Everyone has the right to a standard of living adequate for health and well-being of
himself and of his family e.g. food, clothing and the right to security in the event of
unemployment, sicknesses or disability in circumstances beyond his control. One
would object that the right to social welfare violates property rights, but it is quite
possible for peoples rights to conflict.

Utilitarians can justify when one right overrides another if we know that greater

Mills doesnt make it entirely clear when we have an obligation to help other people, but redistribution of
wealth certainly seems to imply that we can have such obligations because people can be punished if
they refuse to pay their taxes and so on.
Right to education
Education shall be free, at least in the elementary and fundamental stages. Elementary education shall
be compulsory. Technical and professional education shall be equally accessible to all on the basis of
merit. Education will help the society in many ways:
It helps people know how to better productive and attain higher positions in society
Without right to education many people could be stuck being poor without much of a better chance at
attaining a beret position in society.
Article 26

Situations when rights are violated

A corporation sells TV sets that dont work and scams people out of their money because people assume
that the set works when they buy it. Mill argues that this is a violation of ones rights because a persons
property rights entail that property is transferred given an agreement and no one agreed to buy a broken
TV stet. Buying a TV set implies that it works unless its explicitly made clear that the set is broken.
The government taxes all profits 10% to help poor families buy the necessities of life. Anyone who
doesnt pay their taxes can be punished. Was any right being violated? It seems obvious that the right to
property was violated in this case, but mill could argue that such a violation is necessary for ethical
reasons- either because of conflicting rights or other moral considerations to the greater good. It is
possible that a utilitarian could argue that taxing profits by 10% isnt enough.

Critiques of utilitarianism
It fails to recognize the separateness of persons and treats humans as means rather than ends in
themselves.
Why should we seek to satisfy peoples desires e.g. sadists? Benthams catalogue includes pleasure of
malevolence.
Utilitarianism defines what is right in terms of what is good, it begins with a conception of what is good
and then concludes that an action is right in so far as it maximizes that good. This should not be case as
just should come prior to determining something is good.
Utilitarianism is concerned only with maximizing welfare instead of just distribution of welfare.
Impracticality of calculating consequences of ones actions as the consequences are something in the
future

Our wants and desires are manipulated by persuasion, advertising etc. so how do we separate our real
preferences from our conditioned ones?
Is it possible or desirable to balance ones pleasure against your pain? Or weight majoritys happiness
against minoritys misery?
How far into the future do we extend the consequences of our actions?
Many philosophers who reject utilitarianism are deontologists who generally agree that utilitarianism has
much to say about morality thats relevant, but utilitarianism is too simple as it ignores some moral
principles.
It fails to account for the need to be respectful. Its not clear that utilitarians can fully account for why we
need to respect people. There are some counter examples philosophers often give against utilitarianism
and they often argue that it might be wrong to hurt someone even if it promotes the greater good.
It ignores personal relationships. Some philosophers argue that personal relationships provide us with
unique obligations that utilitarianism cant account for, for example, parents have a duty to protect and
feed their children; e.g. those of strangers.
Its too demanding. Some philosophers argue that utilitarianism implies that we have a duty to promote
goodness as much as possible, but thats too hard. Mills utilitarianism in particular says its wrong to do
something that maximizes happiness less than an alternative course of action.

Economic analysis of law

This is a modern form of utilitarianism. A rational man or woman always chooses to do what will maximize
his or her satisfactions. If they want something so badly they will be prepared to pay for it. Most common
law subscribe to this fact. Judges decide hard cases by choosing an outcome which will maximize the
wealth of society. Wealth maximization means resources are in the hands of those who value them the
most. Approach allows a reconciliation among utility, liberty and equality as competing principles.
Critiques
Is wealth a value? Presumption is that wealth maximization is a value. Theory has not achieved the
beginning of a beginning.
Over simplifies what is a complex matter.
Analysis merely reflects a particular ideological preference reinforces and advances the capitalist, free
market system.
What does it have to do with justice? It presupposes an initial distribution of wealth which may be wholly
unjust.
Is it possible to reduce life to the solitary consideration of money