CHAPTER/

THE CONCEPT OF JUSTICE

The concept of justice has generated serious controversies in the realm of political
philosophy because of the complexities and intricacies involved within the concept itself.
Indeed, among all the evocative ideas, that of justice appears to be one of the most
eminent and the most hopelessly confused.l The very attempt to define justice has
become a very risky venture partly because of the ambiguity inherent in the concept itself
and partly because of the various interpretations of the concept by different philosophers
at different times. From the time of Plato down to the present day no consensus and no
satisfactory definition of justice could emerge due to its abstract, universal and all
pervasive characteristics. 2 In all the normative disciplines which directly or indirectly
govern action in regard .to others -whether it be law or political philosophy, ethics or
religion, justice constitutes a central value.3
In this chapter an attempt has been made for a conceptual exploration and analysis
of the concept of justice. But the objective is not to prescribe or recommend an ideal form
of justice. The thrust is to examine different theories i.e. representative of liberal concept
of justice and to point out their shortcomings. This Chapter has been divided into five

1. See Perelman, 1963:5.

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

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

12
 parts. The first part deals with how the concept of justice originated in human society. The
second part analyses different theories of liberal justice and its inadequacies. The third
part discusses the origin of compensatory justice within the liberal theory and the purpose
it serves. The fourth part examines whether justice is essentially a moral or normative
, concept and can morality be based on objective criterion. The last part provides a critical
evaluation of the liberal concept of justice. It tries to explore the intrinsic i'nadequacy and
deficiency of the liberal concept of justice as a result of which it has failed to achieve its
basic objectives.

ORIGIN OF THE CONCEPT OF JUSTICE

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

Plato 1 and Aristotle 2 regard justice as a supreme virtue, the source of all others and
encompassing within itself the whole of morality. For Kant3 and Rawls4 justice is a very
important aspect of human existence, the first virtue of society. Hume,S a"nd Marx and
Engels denigrate the concept of justice; and for them it is unnecessary if not entirely
irrelevant. Nonetheless, the very charge of inadequacy or redundance or superfluity
against justice presupposes its meaningfulness and worth otherwise, all the charges would

1. See Plato, 1937.

2. Aristotle, 1966.

3. Immanuel Kant, 1974.

4. John Rawls, 1972.

5. David Hume, 1911.

13
be irrelevant. 1
Common usage continues to treat justice, despite all its inadequacies and
limitations, as denoting some of the greatest human needs. Man's longing for justice is
explained as the active process of preventing or remedying what would arouse the sense of
injustice.2 This consciousness of injustice arises in society in the context of a prevailing
system of human relationship. The origin of justice therefore, is traced to man's
consciousness of injustice in society and consequently to his urge for change in the
situation towards a better and desirable one. In other words man's craving for what is good
and what ought to be is the perennial experience that gives rise to the concern for justice.3
Justice presupposes the existence of conflict and it is called upon to harmonise
antinomies. 4 It is only in the realm of moral that the synthesis and perfect harmony
between personal and transpersonal values is possible, but in actual world they are in
intense conflict. And it is precisely this hiatus between the harmony of the moral ideal and
the disharmony of reality .that gives rise to the problem of justice.s Justice harmonises the
conflicting interests and tends to bring out a balance. Justice in its true and proper sense is
a principle of coordination between subjective beings and the idea of justice only manifests

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

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

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

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

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

14
and can manifest itself in relation to persons but not between· objects of any kind. 1 Justice

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

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

its origin in man's life in society.

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

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

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

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

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

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

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

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

II

UBERAL THEORIES OF JUSTICE

In the beginning of recorded ethical and legal thought the term justice was used as
equivalents to righteousness in general, virtue par-excellence and sovereign amongst all

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

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

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

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

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

15
and all- comprehensive. I The liberal theory of justice subscribing to the same kind of view
has obscured the meaning of justice. The liberal thinkers have abstracted the concept of
justice from the concrete reality by defining it in a highly metaphysical way. 2 Being so wide
and general, the concept of justice admitted into its sphere a series of distinctions and
postulates varying greatly in content.
Justice as righteousness or an ethical concept has found it supreme manifestation in
the writings of Plato.3 Plato rejects the particularistic and specific conception of justice
and uncompromisingly makes it too broad a concept that regulates -the whole of life. In
envisaging a theory of justice he divides the entire society into three classes i.e., the ruler,
the soldier and the producer representing three qualities: reason, spirit and appetite
respectively which are intrinsic to the soul of man. 4 Such a division of the society based on
functional specialization is founded on innate potentialities. According to Plato's
conception of justice the soul, instead of rushing everywhere for its satisfaction, should
work out its own appoint~d function singly and quietly.s Justice meant, in his eyes, that a
man should do his work in the station of life to which he is called by his capacities.

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

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

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

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

5. E. Barker, 1959:86.

16
 For Plato justice meant the maintenance of social equilibrium and rational
coordination and harmonisation of the acts of the both individuals and congregated
multitudes by assigning each class of citizens and every faculty its proper direction and
function and by forbidding one to interfere on the task of other.l Any changing or
intermingling within three classes must be injustice. 2 For the principle that every class
should attend to its business means, briefly and bluntly, that the state is just if the ruler
rules, if the worker works and if the slave slaves.3 Plato does indeed conceive of a unity of
the soul, but it is a unity not of reconciliation but of subjugation.4
D. D. Raphel treats Plato's concept of justice as a version of aristocratic justice.
What Plato does is to take over this aristocratic sentiment and make it seem more
palatable by labelling it justice instead of discipline and order.s The Platonic division of
citizen into different classes contains so many arbitrary elements that it is in itself the best
demonstration of the inadequacy to solve the problem of justice.6 Plato's view of justice is
inequitious and abstract.1 The strict adherence to one's own duty and non-interference in
others activity that Plato meant by justice inspires and rationalises despotism and

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

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

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

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

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

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

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

17
manipulation of human beings. According to Karl Popper equalitarianism was his arch-
enemy and he was out to destroy it. 1 Plato successfully enlisted the humanitarian
sentiment, whose strength he knew so well, in the cause of totalitarian class rule for a
naturally superior master race.2
After Plato there developed a narrower concept of justice tending to regard it more
as a social principle but keeping intact the Platonic concept of justice as universal virtue
with some triffling variations.3 Aristole's concept of justice does not differ substantially
from the Platonic one although it has a somewhat more precise mathematical expression,
which is probably of Pythagorean origin.4 Improving on Plato's nation, which appeared to
stress more on internal order of harmony, Aristotle suggested that while justice might be
an internal condition, it looked directly toward the outside world and objective behaviour.
For Aristotle justice is an internal state of mind or state of character that disposes one to
perform external just actions, behave in a just manner and desire what is just.
Aristotle discriminated justice as a special concept to be distinguished from morali-
ty in general, 5 thus making it clear something which Plato had obscured or ignored. Aris-
totle was aware of the polysemic character of the notion of justice and clearly distin-
guished the different uses of this term. Nevertheless, amongst these distinctions he pre-

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

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

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

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

5. Aristotle; 1966: 11308 10-15.

18
served intact the ethico-political concept of justice. 1 Aristotle distinguishes three kinds of

justice - General or Universal justice, Particular justice and Commutative justice.2 Aristotle
modified the purely hierarchicai conception of Platonic justice by admitting that justice
implies a certain degree of equality; this equality however, be either arithmetical or
geometrical, the first based on identity and the second on proportionality or equivalence. 3
Aristotle further distinguishes particular justice into different kinds. 4 The first, the
most relevant and cardinal among them, is distributive justice which is manifested in distri-

bution of honour and goods, and aims at giving each member of community a share
proportionate to his merit. Aristotle attaches considerable significance to proportional
equality and his whole theory of distributive justice is based on it. Distributive justice
consists in proportional relation which Aristotle defines a geometric proportion. 5 The
second variety is equalizing or corrective or rectificatory or synallagmatic that regulates

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

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

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

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

5. Ibid., 1131b 10-20.

19
relations of exchange. I
Aristotle believed in a natural hierarchy or inequality of persons and insisted on
appropriate differences of treatment for each of its various levels. His theory of justice is
predominantly based on the principle that equals must be treated equally and unequals
unequally. The liberal theory of justice is primarily based on this Aristotelian dictum. But
does it really mean that two persons are equals or, for that matter, unequals. People
conspicuously differ from one another and each and every person is unique in his/her own
way. On what ground the people can be compared? And again human beings cannot be
quantified (and not at least without considerable impairing the value of such
quantification). Hence it would be more than ridiculous for us to go by the assumption
that some people are equal (i.e., to establish an equation that A=B=C) or similarly to .
assume that among those some few are more equal (i.e., to establish that A> B >C). It will
also be equally erroneous to argue that the statement 'equals should be treated equally
and unequals unequally' refers not to two persons as a whole but some particular aspect or
aspects of them. Because as human beings we have certain essential commonality among
us. We share certain characteristics and certain essential properties with each and every
human being. Hence the dilemma and paradox of the formal or abstract justice.2
The Aristotelian dictum i.e, equals to be treated equally and unequals unequally

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

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

20
(proportional equality), which has been accepted as cardinal virtue of liberal theory of
justice, also raises the implicit question: who can treat whom equally or unequally? Under
the conditions of an all-embracing social hierarchy or asymmetry, both being just and
unjust are prerogatives allotted to the repositories of social authority. Hierarchical
relations imply inequalities which are due to the very existence of lower and higher social
clusters to which different sets of norms and rules apply. 1 As a result several social
conflicts emerge, in connection with the formal concept of justice, from the hierarchical
and asymmetrical relation of social clusters. Aristotle paid much attention and attached
considerable significance to merit. He believed that people differ in merit and if equal
rewards are allotted to equal merit principle of justice is satisfied. But it is also equally
true that people differ according to their need. Now the question is raised that in a
hierarchical and asymmetrical society can the distributive justice ignore the principle of
need?
vThe social contractualists, Hobbes, Locke, Rousseau, despite their difference,
accept justice as a social concept which can only be realised in and through society.
Hobbes was nonetheless rooted in the Aristotelian tradition, both in discussing justice and
in relating righteousness to the observance of socio-political norms.2 Hobbes Worked with
an ethico-political concept of justice. The mechanistic individualism of Hobbes led to the
identification of justice with the commanding will of the state. Hobbes maintains that

1. See Agnes Heller, 1987 : 19.

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

THESIS
344.54012596
7. M7255 Ju
21
1111111111111111111111111
TH5007
there lies no contradiction between natural and positive laws. It is the sovereign who
establishes the laws, the rules of lawful and unlawful, of good and evil. Hobbes's political
set-up performed two tasks concurrently. First, legal and moral norms is one and the same
and law should promote righteousness. Secondly, the maximum liberty of individual is
accomplished by absolute obedience to laws and norms. Nevertheless, this substantive
model was already highly speculative, being constituted by a subjective design, through. a
deductive procedure, and not being rooted in the preexisting forms of collective morality. 1
>~Macpherson remarks that the received concepts of commutative and distributive
justice, as Hobbes describes them, are concomitants of the model of a customary society.
Hobbes's scorn for these concepts remain unconcealed. In treatment of commutative
justice (i.e., in the equality of value of the things contracted for) and distributive justice .,
(i.e., in the distribution of equal benefit to men of equal merits), Hobbes is drawing the
logical conclusions from his model of society: where all values are reduced to market
values, justice itself is reduced to market concept.2 This market assumption, argues
Macpherson, also gets reflected in Hobbes concept of equality.3

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

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

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

22
 -vFor Locke justice is not an exclusive product of social contract rather it
presupposes justice. Locke subordinated civil laws to natural laws. A set of positive laws
are valid and just only when they correspond to the dictates of reason or morality (the
other name of justice) that is natural law. For Locke justice is the observance of the

natural law and positive laws are just or unjust to the extent of their approximation to
natural laws. Natural laws are regarded as the ultimate stand. 1 So also the natural right is
held supreme over civil right. The natural right i.e., right to life, liberty and property are
inalienable in civil society and the society is just which secures these rights. Locke's
contract was indispensable for deterring criminal acts in the state of nature in order to
protect the natural right to property. 2 Locke insisted that not all kinds of civil
governments (like the absolutist state) are proper remedies. Thus, he applied the concept
of deten-ence justice in both of its understandings.
vHeller remarks that Locke cleared the way for dismantling of the ethico-political

concept of justice. It is in Locke that the retributive and distributive aspects of justice are (if
not completely) severed from the general (ethico-political) context and that the formal
characteristics of the good state for substantive qualities.3 Locke cont-ributed to the
emergence of the concept of retributive justice rather than. distributive justice. However,
Locke in a very sophisticated way rationalised inequality in property ownership by relying

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

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

3. Sec Agnes Heller, 1987 ; 78.

23
on the labour theory of value. 1 Morality became a science (like mathematics) and was to
be the same for all human kind. Locke was not in favour of the idea of each according to
his entitlement and never claimed that entitlement was the main issue but was concerned
with the only lone issue of justice.
./Rousseau constantly alternated between enthusiastic rapture and spiteful contempt.
For Rousseau that society is just and perfect which alone can provide the most congenial
atmosphere to the natural perfection of human potentialities and true realisation of
freedom. But he could not find the state of nature as the most conducive for true
realisation of human freedom. He moved from the basic premise that the human being is
essentially good but the art, culture, science and the progress of civilisation have
dehumanised him and deteriorated the basic human qualities within him. Rousseau posits
a gulf between what is and what ought to be i.e., utter degradation and perfect elevation. So
he wanted a more perfect civil society based on general will whkh would her~!d ~ !'!!!'.-':'

realm of freedom and justice. 2

,/ For Rousseau, civil law and justice are co-extensive and logically inseparable.
Justice accrues to the individual in his obedience to the laws of the state or dictates of

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

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

24
general will. For him there is no contradiction between the realisation of freedom and
obeying the dictates of general wil/ 1 or law since man do~s not submit to any alien or
external authority but to himself and freedom lies in obeying himself. 2 Rousseau argues
that law is nothing but the execution of the universal voice - the voice of reason and ..

morality. It cannot be immoral, unjust and harmful since the executors of the law are the
law makers. Law, being the voice of general will is always infallible and always does justice.
He implicitly states that it is justice what the general will, the collective conscience of
humankind, does or allows to do, and anything against it is unjust.
There was a kind of coalescence of virtue and freedom in case of Rousseau.
Rousseau held that man has been denaturalised in a competitive, divided and oppressive

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

the common reason of human kind or a human community which would perfect the man
by ridding his self from all impurities. Right reason cannot be the expression of the
particular will, just as it cannot be the expression of the sum total of particular will (the will
of all). Hence it must be the expression of the right reason, i.e. general wi//3
Rousseau problemises reason and contrasts theoretical and practical reason: will

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

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

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

25
and understanding are thus divided. I Ideas of justice coincides with the principle of
general will, which represents the juridical consciousness, that reasons in the silence of
passion. The question which Rousseau himself has raised i.e., 'what interest I have in being
just'2 remain unanswered in an unambiguous term. No room remain for pluralism and
discourse in the model of Social Contract; there are only uniform duties. The general will
becomes an externalised and alienated self, the embodiment of 'alienated conscience'.
Even Rousseau introduced the concept of 'forced to be free' which is a violation of, what
Rousseau himself strongly advocated i.e, moral freedom.
The attempt to solve the problem of the concept of justice ends in the destruction
of the very idea the project originally stood for: the idea of free morality, a morality based
upon the power of conscience. By refuting the infallibility of general will Rousseau
justified all the acts of it in all circumstances. Justice becomes institutionalised and
&--- ... 1! .... -A
J.U1111Qilo3~U.
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1YJU1 Q1HJ 11Qo3 U~~~~ o3UUj~\.UV 1o3~U
,._,1 L...,,.. 1.. .......... - - ..... - - - - .... - .. A ... !- _,.,...,.f,.., .. .......-an+:""
QUU 11Qo3 U~\.U111~ 111\.1¥ WUl Uo3 Ill \,VlU.VllUUUVU

to the voice of general will. Hence the obedience to the dictates of general will is moral
otherwise immoral. The general will, the externalised self h;1s been accorded primacy and
supremacy over the individual being. The paradox of reason has become the paradox of
freedom that men must be forced to be free was the paradox in which the project resulted.
The utilitarians approach justice from a different angle. They envisage that the
ultimate end is and ought to be the greatest happiness of the greatest number and those
actions are right and just which serve this end.3 It is David Hume who is regarded as the

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

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

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

26
precursor of utilitarianism; and utilitarianism as a theory was first formulated distinctly by
Bentham and followed by fundamental modification in the hand of J .S. Mill. 1
Utilitarianism as a theory of justice regards actions of individual being as well as of state to
be just, virtuous, moral or legal if they achieve. general happiness. Justice and morality of
an action depends on its being socially good and beneficial. 2
Hume, the forerunner of utilitarianism, insists that public utility is the sole origin of
justice. For Hume, the rules of justice are not natural but artificial, though he does not
mean that they are baseless for they essentially are useful.3 Justice, Hume held was
conventional in the sense of being necessary to society. Men's ideas on justice arose from
needs and these rules were binding by custom and convention but were justified by their
utility. Hume deduced justice from 'public utility'. Hume's view is, therefore, utilitarian.
Hume noted that rules of justice are intended as a remedy to SOf!le inconveniences which

external object.4
Hume limited justice to the regulation of questions of private property. According
to him property and property alone is the subject matter of justice. He also held that
inequality in property ownership is just because it is useful. For Hume justice would be
irrelevant in both the extreme cases i.e., the situation of absolute abundance and of

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

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

3. Harisson, 17, 24.

4. Cited in Ibid., 24.

27
absolute scarcity, since justice presupposes scarcity. 1 Thus Hume reduced the concept to
'
the idea 'to each according to his property entitlement'; all other notions of justice are
seen as relating to the suspension of justice. Hume has not dealt elaborately with tbe
problem of justice rather has paid a scant attention to it; the problem of justice has been a
peripheral issue for him.
The most characteristic features of the utilitarian view found its greatest expression
in Jeremy Bentham's work. Since pleasure is good and pain is evil, the consequences
rather than motives are considered as more important than moral considerations.2
Bentham accepts the principles of utility to be self-evident, the rectitude and purity·of
which is never questioned and stands supreme over all other moral principles.3 Bentham's
utilitarianism is based purely on quantitative ground. The precision and clearness of
mathematical calculation was introduced by Bentham into the fields of morality and
iustice. AccordinQ
., u to Renth::~m
· -- the
- - cnnrno~e
-~c --- ~nrl in~tifir.~tion of
----- J--------.------ -- rnen~l
------ l~w~
----- were
- - not
.:

different from those of the secondary principles of morality - they required justification by
the general happiness principle i.e., the greatest happiness of the greatest number'. 4

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

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

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

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

28
 J.S. Mill, being a thorough-going utilitarian, subsumes justice to utility making the
just only a special genus or class of the useful. Justice, for him, is merely a name for certain
social utilities that the most vital and imperatives to human well-being. According to Mill
'it has always been evident that all classes of justice are also cases of expediency : the
difference is in the peculiar sentiment which attaches to the former, as contradistinguished
from the latter. 1 Mill valued justice as the most important and the most privileged of
social utilities, adhered nevertheless, to an intransigent individualism, identifying justice
with the affirmation of liberty of every individual and making it thus irreconcilable with
anything but a formal egalitarianism. Starting with an individualist philosophy Mill arrived
at a social theory of justice.
Mill, realising defects in Bentham's principle of the quantitative pleasure, modified
it accordingly so as to keep the utility principle still be the first principle of all justifications
..,._....J +L ......... 1 .. :-...,..., ...... - - - - ........ 1 -& ..... 11 ..... -•!--~ 2 ~6!11 C- ... - • L - - ..l!C.C--.... &--- 0 . - - • L - . - ! - • - ...........
•!-- _....,._
auu Ull;; Ul ~llllaLI;; app~;;al Vl au cl\..LlUIJ;), lV.lllJ lUl Lll\;;1 Ullll;;l;) 11 V l l l Ul;;lHllcllll 111 U ~auu 0 lUau

not as a self-centered but altruistic imbued with motive of sacrifice. Mill's utilitarian
morality recognises the good in human beings as the good for others.3 Mill noted that
justice is regarded as the chief part and incomparably the most scared and binding pact, of
all morality, not by reason of abstract right, but simply because the requirements of justice
stand higher in the scale of social utility and are, therefore, of more paramount obligation
than any other.4

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

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

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

4. Cited in Michael Sandel, 1982: 3.

29
 Mill, despite all his efforts, could not retrieve utilitarianism from its inherent
weakness. For utilitarians (including Mill) it is utility but not justice which plays a decisive
role in human society and justice is to be understood only in the light of utility that it
produces in society. The utilitarians try to enclose the whole of justice in a corner of the
utilitarian domain. Mill finds himself compelled to hold that wherever two men advance
opposite and irreconcilable claims concerning what is just, social utility alone can decide
the preference. How can justice, which Mill tries to identify with utility, in its most vital
and indispensable manifestation be adjudged according to some other - necessary lesser-
type of utility. The theory of utilitarianism is faulted for giving insufficient weight to
consideration of justice, and more especially for its lack of a strong principle of equality. 1
The empiricistic bias of the utilitarians is reflected in their attempt to measure
pleasure in concrete terms. But human society and human behaviour with their wide
variations and intricacies
--- · · cannot --- adP.nn~tPiv
--·-·---- hP ---,-----., llnriPro;:tnnri
--·--·-·----- Ulith
·· ···· thP hPin
···- ··-·r nf rioid nrinrinJpo;:
~· · ·o·- r· ···-·r·--

of scienticism and causal terms. By making man subservient to the goal of the general
happiness, utilitarianism robs man of his intrinsic worth by subjecting him to an alien end
wherein, instead of being a free agent, he becomes a helpless victim in the hands of the
government seeking general good.
The utilitarian philosophy treated man primarily as consumer of utility,2 pursuing
pleasure and avoiding pain. What appeared, therefore, was a timeless theory of human
nature in which history was denied and reduced to a habit of particular time and cultural
determinants were ignored. Even the claim to maximise utilities and the claim to do so
equitably, which forms the core of utilitarianism, both fail in a hierarchic and inequitious
social system. It also ignores the ethics of self developmental i.e., man is a bundle of

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

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

30
conscious energies seeking satisfaction. The free and equal development of essential

humanity has not been paid attention.

Immanuel Kant tries to formulate the universal criterion for a non-existent
(empirically) justice. 1 But Kant himself did not dismiss the concept of justice totally but
kept it within the framework of the doctrine of law. The concept of justice is derivative of
Kant's concept of law and morality. According to Kant, whatever meets the percept of law

is just and whatever violates them is unjust. Only a union as an end in itself which ought to
be shared by all and which is thus an absolute and primary duty in all external relationship
whatsoever among human beings can secure justice and avoid the coercion of some by
conviction of others.2

For Kant the source of moral laws lies in the sphere of noumenal world (in which
the categories of scientific cognition have no applicability) whereas moral actions are

and noumenal) at the same time and as the noumenal world is the foundation of the laws
of the world of sense, it imposes its laws upon man's sensuous nature and makes him
conform to its laws thereby giving rise to categorical imperative and duty.3 The categorical
imperative is the moral law itself; it commands categorically and unconditionally; it does
not say: Do this if you would be happy or successful or perfect; Do it because it is your

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

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

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

31
duty to do it i.e., duty for duty's sake like its stoic modei. 1 This law or categorical
imperative is universal, necessary law, a priori inherent in reason itself. Implied in this law
or rather identical with it another law i.e., every man in every case is an end-in-itself and
not merely a means.
In Kant Law is morality in its entirety. There is no conflict between moral law and
positive law since they originate from the same source i.e., categorical imperative or
reason. 2 The categorical imperative manifests as morality in internal sphere and exposes
itself in the external sphere. Justice and law operate, according to Kant, in the external
sphere only. These are concerned with the external relation of man with his fellow beings
in the society and the transactions of society. Justice is essentially based on respect for
autonomy of each human being.
For Kant nothing is absolutely good except the good will. By it Kant understands

objective good will is the means to achieve an objective end: the end of humanity. Will, the
activity of reason, is determined by reason itself. In a strictly moral action nothing
determines the will except objectively the law and subjectively pure respect for this law. 3
Freedom, says Kant, consists negatively in resisting the solicitations of the senses and
positively in the will willing itself. A man is free when he is governed by moral laws not by
his impulses. The inner self of man expresses itself in moral htws. 4
The disciplined citizen does not find problem in obeying the laws of the state

1. See Frank Thilly, 1984: 442.

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

3. Frank Thilly, 1984 : 423.

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

32
because the laws are also the dictates of his own reason. For Kant a course of action is
lawful if the liberty to pursue it is compatible with the liberty of every other person under
a general rule. 1 This Kantian formula expresses that the demand for equality is identical
with the demand for a general rule. The liberty of action is restrained in consideration
with the right of others.
The basic limitation lies in the attempt of separating what ought to be from what is,
willing from action, and freedom from necessity. The consequence of such separation is

that Kant regards the willing of a maxim as the absolute criterion for judging the goodness
or badness of moral actions without taking into account the objective reality and its
knowledge where the willing of a maxim can possibly be actualized. Mere willing without
the efforts on the basis of the cognition of objective reality cannot be excluded from the
criterion of morality. As a result his moral laws are purely formal which excludes all
specificity and contents.
It is also argued that none of these moral rules can really be universalised in
practice. We can argue that some actions are there which would be universally recognized
as good and yet which could not possibly be universalized, where the attempt to
universalize them would lead to great logical absurdities.2 Hence Kant's principle is
abandoned.
Again Kantian dismissal of empirical nature man from the realm of moral
motivation is rigid and not compatible with the pluralism of moral personality. In Kant the
concept of absolu.te freedom as absolute autonomy was meant to rescue morality after the
fragmenting of the ethico-political concept of justice. Heller contends that absolute
freedom as absolute autonomy destroys human morals completely and hence there is

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

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

33
paradox of freedom (if freedom is interpreted as autonomy). 1
In Kant's view the goodness and badness of moral actions depends on the willing
and if the willing is good then it continues to have its unique goodness even if it produces a
bad result. It becomes evident that Kant's definition of good is circular because it assumes
the definiendum in the definieus. But the important point is that Kant confines the
goodness of good will within its ideality and does not attempt towards actualizing it by
creating an objective condition where it can possibly be realized.
In contemporary western ethical philosophy, John Rawls's A Theory of Justice is also
an attempt to create a comprehensive normative theory of justice. It has been claimed to
be one of the best representative and most influential liberal theory of justice. Rawls'
concept of justice has been subject to a thorough and penetrating criticism from various
philosophical and ideological positions. His theory of justice needs careful and systematic
critical evaluation since it has created much controversy in the academic circle.2
Rawls rejects the methodological distinction between ethical and mataethical
discourse. His theory is very much akin to the contractarian theory of justice. In Rawls'
version of contract parties select principles of justice from a hypothetical original position
much as parties contracted to form civil society in Locke, Rousseau (and ·also Kant). 3 The
linking of Kant's theory of social contract with contemporary theory of decision making is
an original idea.
Rawls rejects the methodological distinction between ethical and mataethical
discourse. His theory is very much akin to the contractarian theory of justice. In Rawls'
version of contract parties select principles of justice from a hypothetical original position

1. Agnes Heller, 1987: 105.

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

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

34
much as parties contracted to form civil society in Locke, Rousseau (and also Kant). 1 The
linking of Kant's theory of social contract with contemporary theory of decision making is
an original idea.
Rawls claims his theory to be deontological one (which is not teleological) based on
the deontological tradition of Kant. Justice is justified in a way that does not depend on
any particular vision of good. It is a form of justification that does not presuppose any final
human purpose or end nor any determinate conception of human good. For which the
teleological theories like intuitionism and more specifically the utilitarianism had to bear
the worst kind of onslaught of Rawls. His main concern is to show that a natural right or
contractarian concept of justice is preferable to utilitarian because of the incongruities
between its implications and our moral sentiment.2
The two principles of justice, central points of his entire theory, are as follows:
i) First Principle: Each person is to have an equal right to the most extensive total
system of equal basic liberties compatible with a similar system of liberty of all.
ii) Second Principle: Social and economic inequalities are to be arranged so that they
are both:
a) to the greatest benefit of the least advantaged, consistent with the just saving
principle, and
b) attached to offices and positions open to all under conditions of fair equality
of opportunity.3
But the first principle has been accorded priority and the second one subordinated
because the first principle of justice is a formulation of the basic ethical postulate of

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

2. Ibid., 22-23.

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

35
classical liberal doctrine. Hence Rawls' theory is a liberal theory of justice. In relation to
classical liberal doctrine it is a revisionist theory. The second principle i.e. the difference
principle, is the principle of social justice 1 which is a purely distributive justice relevant for
non-egalitarian class structured societies. It is mainly redistributive, in fact, implying an
implicit acceptance of the existing patterns of the original distribution of primary goods,
with its creation of naturally privileged or underprivileged groups. Wolf argues that by

focussing exclusively on distribution rather than on production, Rawls obscures the real
roots of distribution.2

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

concrete model for reducing a relative complex problem (the social choice of principle of
justice) to a more manageable problem, the rational individual choice of principle, and it
plays its role as a justificatory device. Thomas Nagel4 claims that Rawls' original position
clearly shows a kind of- bias which is an unavoidable drawback of all contract theories.
Nagel argues that the original position contains a strong individualistic bias which is
further strengthened by the motivational assumptions of mutual disinterest and absence of

· envy. The original position seems to suppose not just a neutral theory of the good but a
liberal individualistic conception (typical to the contract theorists) according to which the
best then can be wished for som~one is the unimpeded pursuit of his own path, provided it
does not interfere with the right of others.5 Again he says that the theory is thin since
parties do not know their full conception of the good and if differing full conception of

1. Ibid., 65-82.

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

3. See Rawls, 1972: 118-94.

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

5./bid., 9-10.

36
good were allowed unanimity in principles is impossible. 1
Milton Fisk,2 from a Marxist point of view points the Rawlsian bias in the original
position. Fisk claims that Rawls justified the contract position by reducing them down to
their natural characteristics offreedom and equality which reflected his liberal
individualistic bias. The abstraction of individual from real historical condition and
treatment of human being independent of historically specific factors is an unfortunate
distortion and incurs a fallacy of misplaced concreteness3 This distortion ieads to choosing
particular ideologically biased principle. Liberal principle of freedom of thought serves the
dominant class,s interest and provides a cover for the hidden persuaders that aid
oppressing group. It results in a misleading description of the state (which is more a
coercive and oppressive than a liberating one) which is viewed as a stumbling block to
individual selfishness rather than as an instrument of class oppression. 4 Fisk severely
criticises the model of the· individual who makes the choice as itself ideologically biased.
David Lyons5 poirits out that the question of justification is complicated by the fact
that Rawls seems simultaneously to rely on two different sorts of justification, one
appealing to the method of reflective equilibrium, the other to the tradition of the social
contract and sorting out their respective roles poses certain difficulties. Contrary to Rawls,
argument Lyons suggests that there may not be so clear-cut a difference in the degrees to
which utilitarianism and Rawls, principle of justice match our considered judgment when

1. Ibid., 8-9.

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

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

4. Ibid., 61-63.

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

37
we apply the coherence principle.
The priority of the first principle of justice over the second (especially of the
difference principle) implies two assumptions which are intrinsic to traditional bourgeois
liberal doctrine: (1) that liberty is more important and higher value than actual equality,
(2) that political liberty is quite independent of the distribution of primary goods. The
empirical criteria needed for practical interpretation and application of the difference
principle are vague. Rawls also does not formulate any criterion on the basis of which one
could empirically determine whether this principle in a given social arrangement is
justified, that is, whether it fulfills the requirements of the difference principle. 1 Norman
Daniels 2 argues that Rawls arbitrarily excludes economic factors from among the

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

much like the legal restrictions and public pressures which Rawls accepts as defining
constraints.
There lies a serious incongruity between first principle: demand for equal liberty
and the second principle: justification of inequalities, even significant inequalities, in
wealth and liberty. Since inequalities in wealth and power always produce inequalities in
basic liberty, Rawls' reconciliation of two principles is a failure. Rawls' theory is a non-
egalitarian and conservative theory in double sense: first, it assumes a non-egalitarian
structure of society with regard to the distribution of primary goods as an indispensable
condition of the economic productivity of the social system (an unequal distribution as an
incentive to productive work). Secondly, it assumes that a large society consists of non
comparing groups and that this helps to keep down envy, for people will not resent
inequalities they do not notice.

1. Chapman, 1975: 589-90.

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

3H
 Rawls' definitions of each of the three crucial concepts namely, interest, reason and
maximisation presuppose a specific conception of the good life. He defines interest in
terms of what he calls primary goods and these are all derived from a specific conception of
good life. It is also striking that Rawls' primary goods are almost all privately enjoyable
and do not include a single public good that can only be enjoyed by men together. Rawls
theory of justice does not adopt a neutral stance between the different conceptions of the
good life but is deeply biased towards liberal bourgeois individualism.
When carefully examined, claims Bhikhu Parekh, 1 Rawls theory turns out to have a
marked utilitarian orientation. Rawls whole mode of reasoning about justice is in terms of
individual interest, personal benefits, maximization, instrumental rationality,
compensation, justification in terms of consequence, a view of moral principles as devices
for the protection of long term' interest and so on, all of which are distinctive to the
utilitarian form of thought. Though he criticizes the fundamental categories and
assumptions of utilitarianism, though he is able to detect and reject its Benthamite and
other crude forms, he has not been able to remove their subtle and more elusive cousins.
Since Rawls' entire mode of political reasoning is based on certain ideal
assumptions about man and society, a lot of contradictions are surfaced when his theory is
confronted with real world characterised by class-interests, the pressures of organized and
dominant interest, and less than ideal citizens and legislators. His theory also becomes
irrelevant for a society whose language of public discourse is distorted and biased. Rawls
design turns out to be largely redundant to the real political world and does not offer us
much practical guidance. Since justice as fairness seeks to restore the separateness of
individuals in the way they enter into a theory of justice,2 it makes itself powerless to

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

2. See John Rawls, 1972: 23.

39
explain how individuals are vulnerable to social relations of power and subordination. It
inherits the weakness, as well as the insights of a contra~t theory. There is no way of
situating individual moral experience within larger and historical relationship of power

and sub-ordination.
The deontological theory of Rawls that is based on the Kantian conception of
morality has also been challenged and criticized. Michael Sandel argues that for justice to
be primary we must be independent and distinct from the ends and values we hold. As
subjects we must constitute independently our ends and desires. He seeks the limits of
justice in the partiality of this self-image (which is inherent in deontological ethic) and

argues that deontological liberalism cannot be rescued from the difficulties associated with
the Kantian subject. 1 Strongly criticising the deontological liberalism, Sandel says that this
assumes that what separates us as individuals is in some important sense prior to what
connects us. This is an epistemological as well as moral priority. 'We are distinct
individuals first and then form relationship and engage in co-operative arrangements with
others. We are barren subjects of possession first and then we choose ends we would
possess; hence the priority of self over its ends'. 2 This deontological ethic, also generates
an inability to address issues of substantive justice, namely questions about the justice or

otherwise of social relationship.

C.B. Macpherson3 remarked that the two principles are inconsistent in capitalist
market society where class in-equality in power reaches to the liberties, rights and
essential humanity of the individuals in those classes. Rawls could not visualize that this
class inequality in this market system is bound to be an inequality of power as well as of

1. Michael Sandel, 1982: 13.

2. Ibid., 133.

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

40
income that allows one class to dominate another. According to Macpherson it is justified
to conclude that any theory such as Rawls' whose horizon is for the most part bounded by
the supposed wants of man as consumer or which ignores the satisfaction of those wants
that constitute the main ingredient of moral freedom or maximization of power, is not
adequate as a liberating or developmental theory rather a possessive individualistic one
representing a capitalist market society.
Rawls' theory is a plea for distributive justice only within the framework of

inequalities in the class structure. Moreover, as one critic of Rawls bluntly points out, that
the capacity of the capitalist to hoodwink the masses, all in. the interest of profits, despite
appeal to common principles of justice 1 is almost infinite. In real life, such a prescription

would be least adhered to by person who is clearly cherish the sustenance of inequality .
under capitalism. Rawls theory is essentially a neo-liberal plea for capitalism. In Rawls
deliberations there appears an undeniable preference for the capitalist economic system
connected with the private ownership of means of production, the market economy and a
liberal democratic political system. The ideological character of the max-min rule as a
directive of rational choice is beyond doubt. Only with a capitalist socio-economic order
may the max-min rule be represented as a rational directive for choosing principles of
justice, though even within these ideological assumptions the scope of its application is
limited.

Ill

COMPENSATORY JUSTICE

In late nineteenth century and early twentieth century some changes in the society
were thrusting themselves on the attention of the liberal thinkers; changes which required

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

41
a quite different approach. It was no longer a question of popular discontents surfacing in
occasional eruptions of anger and desperation, but the people as a constant force to be
reckoned with, conscious of their rights and demands. Class consciousness among the
working class developed and threatened the legitimacy of the political system thereby
appearing hazardous to the socio-economic system. The conditions of the large mass of the
people was becoming so blatantly inhuman that sensitive liberals and socialist could not
accept it either morally justifiable or economically inevitable or immutable. As a result
there developed the liberal and socialist critique of capitalism coupled with the demand
for social and economic changes which challenged the very basic principles of the liberal
capitalist economy with its unconcern for gross injustice prevalent in society.
The social impact of the consistent and unbridled capitalist policy and growing
criticism of it by both the socialist movement and conscious liberals led to a reapprisal of
its ideological basis. The emergence of the capitalist sociat" philosophy which exalted the
homo-economics as the true representative of humanity and made economic success the
measure of this value no longer held good. Towards the end of the nineteenth century,
liberalism was becoming ideologically bankrupt and was running out of ideas and steam. It
was preoccupied with political forms and failed adequately to take account of their
dependence on the economic foundation they expressed. Due to the resultant class
relation and its consequent contradictions liberalism could not maintain a balance
between the power to produce and the power to distribute. The close of the nineteenth
century saw the fortunes of great liberal movement brought their lowest ebb; its faith in
itself was waxing cold and it had the air of a creed that is becoming fossilized as an extinct
form. 1

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

42
 The perilous socio-economic scenario in late nineteenth century and early
twentieth century provoked theoretical changes within liberal parameter which marked the
beginning of its developmental variety i.e., welfarism. It emerged more as a theory of crisis
management. The major problem was to make the new liberal philosophy coherent and
humanitarian rather than rely on its ideological function to remove the repressive
institution of the past. There was also a resultant reformulation and revision in the liberal
concept of justice. The form of inequality once viewed as something natural or divinely
ordained was challenged as unjust. Thus as a part of broader strategy of welfare measures
one witnessed the emergence of compensatory justice or affirmative discrimination which ·
is a relatively a recent innovation of liberal theory. It represented the liberal crisis, and
one kind of liberal response to it.
In the contemporary political theory the debate over justice has mostly focussed on
social justice. Social justice is the nearly unanimous answer given to the question 'what is
justice', in the contem~orary literature on justice. Rawls's 1 original position, Robert
Nozick's,2 experience machine and Bruce Ackerman's3 spaceship are among the striking
thought experiments in this literature. These writers largely agree that social justice is
nothing more than distributive justice and they limit distributive justice to the distribution
of the benefits, ignoring the burdens of social life. Most contributors to the contemporary
debate over justice are individualists of a kind. They are philosophical individualists in that

1. John Rawls, 1972.

2. Robert Nozick, 1974.

3. Bruce Ackerman, 1980.

43
they conceive of rationality (and hence of procedural justice) in individualistic terms. 1 The
atomistic individual is the receiver of material primary goods. These goods are tailored to
the use of an individual who is devoid of any particular social relations, including
especially the burden of labouring to produce these goods. The most bald presentation of
this individualism in the contemporary literature on justice is Robert Nozick's Anarchy,
state and Utopia.2
These thinkers also treat justice literally beyond politics.3 Rawls requires justice to
be determined in perpetuity prior to the institution of a government and the initiation of
politics, as does Bruce Ackerman.4 The root of politics in values and in interminable
conflict is discounted.s The search for transcultural criteria of justice may be
philosophically relevant, but is politically irrelevant. Historically, political philosophers
have addressed the first order of question of how social co-operation is possible, but to-day
the methodological strategy, of justice is to assume that social co-operation is flourishing.
Then the only problem for self-interested people is how to divide their gains among

1. Specifically John Rawl's original position is composed of atomistic, antonomous and amonymous individuals
who all think alike and who arrive at unanimous conclusion as though they were a single.person (John Rawls;·
1972:564). It is important to note that they arc anonymous even to themselves behind the veil of ognorancc.
Jackson argues that if the contributors to the contemporary debate over social justice arc
philosophical individualists, they are also psychological individualists. That is they think we are psychological
and ethical egoists depicted by Thomas Hobbes (see M.W. Jackson,1986:16-17; also sec Macpherson, 1973).
The final ingredient to the abstract national individualism of so much of social justice is its deontological
character.

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

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

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

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

44
themselves. 1 Consequently, contemporary thinkers does not and cannot explain and
justify soci(J.l co-operation. It is a measure of the political irrelevance of justice that it
disregards actual performance in preference to promise and moots a technological
rationality unacceptable to any one2 since our lives are ruled by political performance and
not by philosophical promise.
However, liberal justice could not be retrieved from its orthodox and formalistic
bias. It still remains imbued with its own inherent weakness i.e., despite all changes
inequality based on social hierarchy continue to be justified as natural and beneficial. The
political and legal aspects of equality has been accorded primacy over social and econ<)mic
counterpart. The liberal notion of justice is treated as a concept of harmony, equilibrium,
stability and reconciliation of interest. Affirmative discrimination has arisen a crisis-
management mechanism to avert the ensuing socio-economic impasse and to rescue
political order from impending crisis of legitimisation. It does not try to strike at the root
of those social and economic forces in society which breeds injustice, perpetuates
inequitious system and causes misery to the poor. The liberal theory of justice emphasises
the political aspect of justice ignoring the more important socio-economic dimension. The
disingenuous and superficial approach to justice based on charity and pity without any
space for structural transformation failed to achieve the objectives. The liberal concept of
justice is used more as a balancing mechanism to harmonise existing conflict than to
change the impoverished condition of the beneficiaries. As a result of which the poor
remain unsalvaged, inequality gets accentuated and injustice is perpetrated.

1. John Charvct, 1981: 110.

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

45
 IV

THE ISSUE OF MORALI1Y

Now the question arises that: Whether justice is essentially a moral (or normative)
concept? How and why the concept of justice gets related to moral judgment? Can
morality be based on objective criterion?

The moral or ethical thought is concerned with the question how we should live,
not how things are. The necessity of moral judgment arises in society because of

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

ought to be. 'Ethics proper begins, says Howard Selsam, when men seek to find ratiopal
grounds for accepted rules of conduct and do not merely .follow the rules because they are

sanctified by tradition. 1 This awareness of contradiction between is and ought is not the
subjective phenomenon rather is determined by the objective circumstances in society. A
fundamentally natural condition becomes a moral problem, wh~n we discover the means
of controlling it and thereby make it a problem for man to think about it. 2 And the
problems, like natural problem, which are beyond our actual or possible control are not
subject to moral judgment.

The concept of justice reflects the necessity of having a better and equitious society
by resolving this contradiction between how a man lives and how he should live. Hence

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

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

The necessity of justice reflects the objective historic necessity of resolution of this conflict.
Hence the concept of justice cannot be made completely subjective by abstracting it from
objective situation which gives rise to it.

1. Howard Sclsan, 1965: 8.

2. Ibid., 23-24.

46
 Of course, morality is the consciousness of suhject hut it depends how one
interprets this consciousness. A. Alexandrov puts it rightly that awareness is simply the
transition from perception or emotional experiences to knowledge. 1 Knowledge also is
objective and contains the element of science. As Alexandrov explains that the distinction
between morality and science does not consist in the assertion that science reflects reality
whereas morality does not, rather the difference is to be viewed dialectically in the sense
that the difference resides in the nature of this reflection. Knowledge - the statement of
objective being - is the product of science and in turn morality, through knowledge,
develops imperatives.
It is because of this failure of the whole liberal tradition to find out the roots of
moral opinion and justice in the objective contradiction in social life, th~ liberal thinkers ·
have abstracted justice from social reality and put it in a co~pletely subjective domain i.e.,
a world of metaphysical.abstraction. As a result liberalism fails to provide any scientific
understanding. The liberal thinkers try to treat the conflict of interests (from which the
idea of justice originates) as essentially a moral problem. The logical outcome of such
ethical interpretation of conflicting interest, as Maurice Cornforth points out, gives rise to
the idea that rational moral judgments are those that promote the reconciliation of
interests and mutual tolerance of ideals. 2 This lack of scientific interpretation of problem
of justice leads the liberal thinkers to find out a solution which is to be necessarily a moral

and metaphysical one. Thus C.K. Allen admits that it is the concept of harmony, stability,
balance or reconciliation of interests that has heen the primary and dominant theme in the
treatment of justice from Aristotle to Roscoe Pound.3 And again since the problem of

1. A. Alcxandrov, 1975: 35.

2. Maurice Cornforth, 1967: 219.

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

47
justice is interpreted essentially as a normative one, the thrust of inquiry is directed
towards the maintenance of status-quo, of inequality and thereby justifies and rationalizes
liberalism and its philosophy.
A scientific and objective understanding of the concept of justice as well as morality
needs an inquiry into the nature of social reality that gives rise to the conflict of interest
and contradiction of values in social life. It has been explained earlier that any effort to
solve this problem with reference to moral judgment necessarily leads to ethical
subjectivism and provides no real solution for resolution of this contradiction. For which
liberal conception of justice fails to serve its purpose but instead tries to rationalize the
contradiction and justify the social inequality.
Especially in this context the Marxian contribution to the understanding of the
problem of justice and morality is highly relevant and pertinent. According to Marx, the
ethical and philosophical. concepts had no independent history, no development of their
own; but they were relative to every age depending on its mode of production. Differences
in the content of ethical expression largely reflect differences in the economic ordering of
this or that society or differences in the economic role of this or that group within the
same society.l
It is usually possible to show that the solution of particular problem is not to be
sought at the level of ideas but depends on resolving same basic social conflict which those
ideas reflect. In saying that philosophical concepts reflect the material conditions of life, it --
is not meant to suggest that this reflection is passive and mirror like rather, on the
contrary, it is dynamic reaction' dialectically on the human situation it originally imaged. 2
The very realization that being determines consciousness itself an alteration in being

1. William Ash, 1964 : xi.

2. Ibid., 4.

48
which must be registered by a 'yet more comprehensive consciousness. For Marx theories
of value and theories of knowledge do not belong to separate mental compartments and
that adopting any particular form of the one has implication pf the other.
Marxism's first contribution to the problem is to order and systematize the chaotic
and conflicting moral standards by showing that different classes have had their distinctive
norms of conduct in different times thus reflecting the mode of production prevailing at
that time. Marxism is a completely radical approach to the whole question of morality.
Since the exploitation of man by man is the basis of divisions in society and the source of
class subjectivism or morality, an objective ethical attitude depends on eliminating such
exploitation. It strikes at the very root of liberal morality and points to the necessity of
emphasising rationality and objectivity in ethics. Marxism has no faith in the efficacy of
preaching brotherly love in material circumstance which goes against it. Instead, Marxism
considers how those cinmmstances themselves can be changed by studying the means
whereby the foundations for a classless social order can be set up.

IV

CRITICAL EVALUATION

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

conservative idea which is primarily concerned with the virtue for enhancing the moral
worth of man and the performance of one's duty attached to him determined by prevalent
notion of morality, law, social customs and mode of thought. This notion of justice
continued to reign supreme in the ancient and medieval societies which were designed to
support and preserve the status quo. Only with the dawn of modern era - age of science
and technology - the old orthodox ideas of justice were challenged and sought to be
changed yielding place to the new idea of social justice. Bottomore has rightly observed

49
that during the greater part of human history the inequality, based on hierarchy of wealth,
prestige and power, among men has been generally accepted as an unalterable fact. Only
in the modern times since the American and French Revolutions, has social class, as a
stark embodiment of the principle of inequality, become an object of study, and at the
same time of widespread condemnation in terms of new social doctrines. 1
All through the time the philosophers (specifically liberals) have viewed inequality,
based on social hierarchy, as natural and beneficial to society and also rationalized the

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

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

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

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

advancement. National, racial and sex prejudices find themselves confronted with a moral
protest. The issue of the contest is not yet decided - and will not be until the ethical

importance of equality is more clearly defined - but enough has been established to con-
fute the easy view of the comfortable that inequality is inherent in progress. 2
It is to be pointed out that the changes in the liberal idea of justice i.e., towards
more egalitarianism was not voluntary but was the need of the hour. Towards the later
part of the 19th cel}tury some changes in the society were thrusting themselves on the

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

ing in occasional irruptions of anger and desperation, but the people as a constant force
was to be reckoned with, conscious of their own distinctive existence and confident of the
legitimacy of their rights and demands. Class consciousness among the working class
developed and it began to appear perilous to property. The condition of the working class

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

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

50
was becoming so blatantly inhuman that sensitive liberals and socialist could not accept it
either morally justifiable or economically inevitable. As a result there developed the liber-
al and socialist critique of capitalism coupled with the demand for social and economic
changes which challenged the vary basic principles of the liberal conception of justice.
The perilous socio-economic scenario of the mid-19th century was of crucial impor-
tance for liberalism that provoked fresh doubts in theoretical rethinking which marked the
beginning of developmental liberalism. Liberalism, being unable to absorb this crisis
within itself took the help of a technique of crisis management i.e. welfarism. The major
problem was to make the new liberal philosophy coherent and humanitarian rather than
rely on its ideological function to remove the repressive institutions of the past. Hence
there was the emergence of social justice that emphasised the egalitarianism and the
emancipation of human beings. But despite the attempts of the liberal thinkers, the con-
ception of justice remains as conservative and as status-quoist as it was earlier. The liberal
conception of justice was unable to provide a congenial atmosphere, towards which it aims
at, for the true development of human being. Still it remains imbued with its own inherent
weakness and still it justifies the inequality based on social hierarchy among men as natu-
ral and beneficial to society.
The liberal concept of justice has tried to maintain and justify existing inequality by
abstracting the concept from socio-economic reality. The liberal notion of justice is ortho-
dox and conservative which is primarily concerned with the virtue for enhancing the moral
worth of man and the performance of one's duty attached to him determined by prevalent
notion of morality, law, social customs and mode of thought. It has never tried to attack
the socio-economic roots which gives rise to and rationalises injustice. The priority has
always been given to liberty over equality. Moreover, the legal or formal and political
aspects of liberty as well as equality have been accorded primacy over the substantive or
socio-economic dimension of it. Even sometime the inequality, based on social hierarchy,

51
is justified as natural and beneficial to society. The liberal concept of justice is formal and
abstract in the sense that it means applying one rule to all members of a category irrespec-
tive of their differential needs and observing a rule which lays down the obligation to treat

in a certain way all persons who belong to a given category. Even though more importance
has been attached to equity and distributive aspect of justice in contemporary political
philosophy, the liberal concept of justice could not be retrieved from its earlier equilibria!

and comprising nature. Because the concept of justice has been adjusted within the exist-
ing system without any specific socio-economic or structural transformation. The liberal

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

bringing an artificial balance or compromise between the conflicting interests of the privi-
leged and underprivileged without eradicating the roots of evil. Due to its equilibrial,
individualistic and formalistic approach, the liberal theory of justice has been an apologia
of the prevalent inequitious social order.
The formal and abstract concept of justice without talking note of differential needs
cannot rectify injustice. The formal and procedural concept of justice visualises man as an
isolated and atomistic individual devoid of any particular social relation. The balancing
and compromising approach justifies the existing inequality since objectives of justice can

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

be realised and understood in terms of changing the social relation of man and the ab-
stracting of it from social reality in its denial. The liberal thinkers have tried to rationalise
the existing inequalities by abstracting it from ground reality. By giving importance on

formal and procedural part of justice and ignoring its substantive content, the liberal
theory has made the concept empty and ineffective. The overwhelming importance on the
liberty at cost of equality and the primary to formal aspect over substantive one has denied

justice to the underprivileged section of society and provided all the rationale to the pos-.

sessive individualism and the hierarchic structural inequality.

52