This article is written by Shreya Patra. This article covers the meaning of justice, the different views and concepts underlying justice, the elements of justice, the theory of justice written by Rawls with a special focus on distributive justice, Nozick’s views on justice as an entitlement, a comparison of Rawls and Nozick’s view on justice, Frontier’s of Justice: The Capabilities Approach vs. Contractarism, Justice as rights, and feminism, Economic theories of law and justice, Global Justice and Corrective Justice.

Introduction

“Conscience is the chamber of justice”

  • Origen of Alexandria

Equitableness, fairness, impartiality, and righteousness are some of the terms that have been interchangeably used with justice. The fact that it reflects the same meaning makes it pertinent for us to understand the meaning of justice. Justice means the idea of being treated fairly. Justice cannot be confined to a single term or definition that perfectly defines it, but it can be simply understood as described earlier. As such it encompasses several definitions. Therefore, in order to understand the true essence that underlies justice we have to understand how justice has evolved over the years through the several philosophies attached to it. 

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Justice: meaning

The word justice has its origins from the Latin word “jus” which signifies “right or law”.  The Oxford English Dictionary defines “justice” as “seeking truth while ensuring fairness, impartiality and equity in all decisions taken or imparted”. Amongst the various definitions, the definitions of philosophers have to be discussed as they go beyond the ordinary textbook definitions or meanings. Their definitions and views of justice truly shaped the understanding we have today of justice. 

Some philosophers have discussed the meaning of justice in relation to other subjects like ethics, economics, feminism while others have argued it to be separate and non-interfering from the other subjects. Justice has been tied to ethics, law, social science, and even other contemporary and societal issues like the rights of women, capital punishment etc. Philosophers such as Plato and Aristotle gave some of the greatest philosophies of justice of Ancient Greece during their time. Augustine and Aquinas have their theories regarding justice during the time of medieval Christianity. 

Hobbes and Hume gave more modern philosophies and theories related to justice. Whereas Kant and Mill showcased the relation of justice to the modern era. Rawls brought in a new scope of justice by tying it with contemporary ideas. Therefore, justice can hold different meanings to different people and different categories of people but justice can simply be understood to be when individuals are treated without any partiality, fairly without any judgment and as per law reasonably. The idea of justice is to ensure that there should be fair and just treatment of people. 

Justice is discussed in most spheres of subjects, making it a cross-curricular subject. It holds great weightage in ethics, law and politics. The sphere of law and politics aims to maintain peace, law and order, which is preferable in a society. In order to do so they have ensured that justice has been attained. Thus we cannot understand law without understanding justice. It becomes essential to map the meaning of justice as it has evolved and taken on several meanings and ideas over the years.

Mapping the meaning and its elements

Justice and Aristotle 

With several ideas, meanings and interpretations encompassing justice, it becomes difficult to actually pinpoint the true and actual meaning of justice. Justice has often been confused with the idea of being right. Aristotle was of the view that universal justice stands apart from particular justice. In addition to this, he wrote about justice being a complete virtue which was always read with it being related to another person. It can be said in a way that it can be recognized through morality, in a way of what we owe to each other.

The journey of understanding what justice means does not end just with the writing and sayings of Aristotle. His views have been carried forward for centuries and gone on to take new meanings and interpretations. Thus, the meaning of justice is diverse and in order to truly understand it we have to go through the history of how justice has come to be perceived over the centuries. 

Justice and individual claims

The issue with Aristotle’s view of justice is how it has been advanced as a claim not to people but rather to other topics such as freedom, feminism, rights, opportunities and even resources. Thus we can understand it to be topics concerning other people such as justice concerning the entitlement of a person in relation to their freedom and so on. Hume further dissociates from Aristotle’s view of justice. 

He believes justice cannot take any place between personal relationships and because there is no requirement for any person to make a claim of personal entitlement. Thus, this view is subject to controversies and fallacies. The idea of justice revolves around the kind of treatment individuals receive, but as far as justice is for groups, we have to understand the different meanings it takes on.

Thus, justice cannot be said to be for only personal claims as they can extend to groups as well. So in order to enforce justice for all, it is necessary to ensure that it can be applied to groups as well as they have the requirements for justice as well. In order to accommodate the groups claiming for justice, the claims of the groups can be treated as individual claims to ensure that justice is achieved, 

Justice, charity, enforceability and obligation 

Justinian believes the meaning of justice should highlight the just treatment that is something due to each individual. In simple words, it means that we can bring forward a claim of justice before the rightful person, here the rightful person refers to the agent who disburses justice, and it does not matter if it is disbursed to a person or an institution, as, both can bring forward such a claim. This implies that justice is basically an obligation. Such obligations are required to be enforceable in order to be delivered as it stands due to others. 

However, there are certain claims that exist without any need for enforcement. For example, when a birthday celebration happens and the guests receive a party favor, it is given to all of those who have attended fairly without any biases. Here it becomes impossible to how we could possibly and rightfully enforce justice. However, it is generally understood that the concept of obligation that exists in justice and enforceability go with one another. But there are certain situations of urgency wherein it becomes necessary and even justifiable to do more justice than that which is required. This is to be a situation of exception and is not applicable to all cases.

Justice and impartiality

Justinian also defines justice by linking its impartiality and the enforcement of rules for a uniform period. Arbitrariness and justice are the exact opposites of each other. That is if there are two instances, both of which bear similar aspects, then there must not be any difference in treatment and they must be treated alike. Basically, the treatment must be stable and consistent for similar circumstances and there must be no variation, any variation would result in arbitrariness that implies the absence of justice. Thus justice is illustrated through laws that have been enforced over time. If we were to go outside the sphere of law, individuals and even institutions 

Justice and agency

Justice has also been tied to agencies and agents depending on whose will the situation of the object is changed. The agent or agency here could be an individual or even an institution of the state or even consist of a group of individuals. We cannot say that there is any injustice as no agent has worked towards it as it could have been a will of the Divine Being, a judgment known as cosmic injustice is made. It is our inherent human nature that compels us to make a wish to make some judgment about the will of the Divine Being, but we must refrain from doing so.

However, the condition that underlies agencies and agents should not limit it. It does not factor out the possibility that the agent or agency could indulge in injustice through their omissions, like failing to create the appropriate institutions or effectively enforcing the policies that are necessary for those who are in need of resources. This is also known as systemic injustice to most people. Thus agents would have to act together to reverse the injustice that has been caused.

Thus we can understand that there are several elements to justice that give it the structure and help us to better understand it. The views of philosophers and theorists have to be taken into consideration because they have provided us with the elements and characteristics which would determine the true meaning of justice which surpasses most definitions. 

Rawls and distributive justice

Life of John Rawls

Before we begin to understand what distributive justice is, we have to understand the life of Rawls which shaped his ideas behind justice. John Rawls was an American political philosopher. He wrote several articles during his lifetime from 1921 to 2002. Most of which were influential and highly regarded and focused on justice, politics and philosophy.

War also had a hand to play in Rawls’ writing. World War II and the Vietnam War shaped his ideas as they exposed him to the horrors that are present in the world. This helped him examine the flaws in the political system present in America at the time including discrimination among groups of people. 

He also went on to publish several other works including Law of People (1999), Lectures on the History of Moral Philosophy (2000); Justice as Fairness: A Restatement (2001). Thus, Rawls built a great part of his entire career on understanding justice and defining justice for others. 

Distributive justice 

Distributive justice as the name suggests means the goods that exist must be distributed in a fair and just manner among the people in the society. The distributive theory does exactly the same. It distributes resources amongst individuals while applying principles like equity and fairness. But before going on to understand distributive justice. We have to understand what equality and liberty mean as they form an essential part of understanding distributive justice. 

Liberty has been associated with two aspects namely ownership, which relates to the rights that one person would hold to one’s body, or the fruits of the labor borne by them. 

One of his notable and recognized works stands to be “A Theory of Justice” where he highlights how distributive theory would function. While the liberalist view of it factors into several considerations including any characteristics of personal nature, the free actions of individuals and the preferences of individuals and they all can be said to be morally arbitrary in nature. 

In this, he outlines the need to preserve the idea of justice to be fair. He highlights that justice cannot depend on the concept of utilitarianism. This is so because utilitarianism aims to ensure happiness is attained to the maximum level. In doing so it prioritizes the requirements of the majority and fails to recognize the interests and rights of the minority groups who are thus left neglected as a result, this is not applicable here.

Rawls also argues that there are some basic principles of the government or the appropriate authority should have been enshrined in justice, and, that is what any rational and free-minded individual would have agreed to as well in a perfectly hypothetical situation. Rawls goes on to create such a kind of world in order to elaborate and explain the theory better.

Rawls creates a kind of utopian world. In this world, there exist a group of individuals. They come from different backgrounds and circumstances. Each of them is identified by the preferences they hold. They choose to ignore all such differences that exist between them, may they be social, historical, economic, or ethical. 

They also choose to turn a blind eye towards those factors that make life good. Further, the ignorance that veils them, and they have no way in which they can be influenced by their own desires and benefits at the expense of others. The facts (such as age, gender etc.) about those individuals exist to be unknown to that very group of individuals.

Rawls further states that such a group of individuals would be influenced by the cause of reason and self-interest to agree to two principles. 

  • The first principles state that there must be no encroachment of the basic liberty that is available to them, which introduces the freedom of ideas and thoughts to provide us with other rights and liberties. 
  • The second principle states that if any unequal social or economic circumstances exist between individuals, they must be made so that the one in the most disadvantaged position has the maximum benefit. 

Rawls asserts that the concept of communism or even laissez-faire (French term which means “allow to do”) capitalism cannot be applied herein as they are incompatible with such ideas and undesirable. He talks about the existence of a society that is just. In such a society, there would not be any unjust distribution of society but rather a fair and equal distribution of wealth. No one would be filthy rich. In such a society, there would be a widespread distribution of ownership and wealth. Thus, it can also be referred to as “property owning democracy”. He basically highlights four theories of justice in which this situation would play out which are as follows:

  • In justice as fairness, there would be a just distribution of food amongst the individuals. It would be said to be just if the one with the least food would get the most benefit out of it, this is not achieved freely. Subsidies, taxes and income play a huge role in allowing for this. Inequalities, if any, are allowed to exist as they allow for the benefits to play out. Under justice as fairness, the ownership of self and resources is preserved, but there is no responsibility. 
  • In the Dworkinian theory, also known as the theory of egalitarianism, there must be a just distribution of the resources available. That is, it would be said to be a just distribution if the same amount of food would be given amongst the resources that exist or are available. For example, the same amount of work would guarantee the same amount of food to them. This is also achieved through taxes, subsidies, and the income of the individuals. In this case, any responsibility that exists is acknowledged. The right of ownership of self is preserved, but not that of ownership of resources.
  • As per the theory of ownerships that are in common, a just distribution would amount to when all the individuals have land and transactions equal to one another and all such transactions are on the basis of free consent of individuals. Any adjustments made are not on the basis of preference but rather for the just distribution. Corrections to any acquisition or transfer of an improper nature are the only adjustments that can be made. In order to achieve it, individuals would have to reallocate the property and the land they have access to. The right of ownership of self is preserved, but the right of ownership of resources is not preserved under such a theory.
  • In the theory of entitlement, a just distribution would amount to be when the land that had been distributed has been done so on the basis of historical justifications, or when the distribution of land has taken place through appropriation, that is, when any land which is not owned by any person has been transferred voluntarily between persons, and any other subsequent transfers to the persons are voluntary as well. No institution would be required to carry out such a process. Then, in such a case, any differences that might exist would be accepted. Both the right of ownership of self and ownership of resources are preserved.

Thus, these four theories, in their own way, form a ranking as they gradually decline in respect to the characteristics of personal nature, each of which is considered to be morally arbitrary for which changes would be made accordingly. Whereas the four theories can be seen to have a gradual increase in progression if we were to look at them with respect to the liberties that they aim to preserve and maintain. 

In fairness and equal distribution of resources, there is an emphasis paid to the result and the outcome to signify the just distribution. Whereas in the other two theories of common ownership and entitlement theory, there is an emphasis paid to the institutions which would impart the just and fair distribution. Each of the theories is unique in its own manner and addresses what would be distributive justice, depending on the theories of other theorists. 

Nozick: Justice as Entitlement

Life of Robert Nozick

Before we go on to understand justice as an entitlement, we have to understand the one who created it. Robert Nozick was an American philosopher having Russian origin. He humbly declined to be termed as a political philosopher, even though he is recognized for his contributions to it. He wrote several celebrated articles and books and contributed to several other spheres of topics during his lifetime until his death in 2002. He passionately gave it all and completed his bachelor’s, Ph. D. through his dissertation, and even became the youngest professor to be teaching at Harvard, where he continued with his teaching career. 

One of his most recognized works happens to be Anarchy, State and Utopia (1974), which he created in collaboration with his acquaintance, who happens to be none other than John Rawls. But both of them stand apart from each other. Rawls openly accepted political philosophy as an intrinsic part of him and his career but Nozick did not feel the same about it, and he had something different planned for himself, including answering important philosophical questions and making notable contributions to this field itself. As a result, he remains the strongest critic of Rawls’ work.

In Anarchy, State and Utopia (1974), Nozick argues that there must be a minimal state. This is justified to be morally right. He states that the relationship between the state and citizens can be defined as that of a night watchman overseeing what it was appointed to protect, that is the citizens. The only function it has is to protect such citizens against crimes like theft or violence, etc. In addition to this, he describes the state as having the powers to distribute any wealth, supervise activities of an economic nature and provide basic facilities such as healthcare and education among other such facilities to its citizens.

Justice as entitlement 

Fundamental outline

Justice as entitlement has been highlighted in his celebrated work Anarchy, State and Utopia (1974), by referring to it as the “entitlement conception of justice”. Nozick’s entitlement theory believes that no personal attribute is to be treated as arbitrary, and that justice is to be regarded as laissez-faire, as in a free enterprise, and that there should be no infringement of the rights of individuals in any manner. If we apply this to distributive justice, it would mean that the distribution would amount to be a just one if the person has the right to all those things they have in their possession.

Nozick advances the concept of distributive justice by stating that it is not a neutral term but rather, can be marked by the existence of some kind of central authority which is processing the distribution. It is quite deceptive to suppose that there is no such authority. All the property held onto is distributed or allocated through labor or in exchange for some other goods or services, but not through a central authority that plans it out. 

Thus, in such a situation, in order to determine the entitlement of such holdings of such individuals as a part of the state affairs, certain principles play a role in determining their entitlement. Nozick has designed two principles (the Patterned principle and the Entitlement principle which will be discussed further) that determine the entitlement and they are regarded as the “justice in acquisition” and “justice in transfer”. These rules originate from the principles. The rules are read as follows:

  1. Any person who has obtained the holding as per the principle of justice acquisition would be entitled to that holding.
  2. Any person who has obtained the holding as per the principle of justice in transfer, from another person entitled to the holding, would be entitled to that holding.
  3. Any other holding except those in 1 and 2 would not be an entitled holding. 

Nozick further points out that it is not possible to accommodate all the situations that take place in real life in these three points. Not all situations pay out according to the above-mentioned points. Therefore, in order to give a wide application to justice in holdings, the point of “rectification of injustice in holdings” has been introduced to allow for the corrections to be made to un-entitled holdings. 

Patterned principles and entitlement principles

Nozick draws a stark distinction between the principles of justice from that of patterned principles. A patterned principle basically means there would be some kind of fluctuation among the distributions that would be made along the natural dimension or its sum. As a result, such a distribution is governed by the age of individuals, their skin color, their requirements, and even their accomplishments, or a blend of any such factors that results in a pattern. 

Thus, he describes all those principles that have been drawn up in distributive justice to be patterned except those entitlement principles which he has proposed. 

If the principles have some pattern, there is no problem but, it could result in hindering the liberty that should naturally exist. David Hume, a Scottish philosopher and historian, has gone on to describe it as “if the possessions are rendered to be equal, the differences between men with regard to industry, care, and art will make it so such that the equality is immediately broken off”. 

Nozick further expands on this idea for us by using Wilt Chamberlain, the famous basketball player, as an example. If we suppose that there exists a patterned principle of distributive justice, then, the share of wealth amongst the individuals has to be equal or there might be a fluctuation in the distribution of the wealth in the form of patterns. Now we bring Wilt into the picture. Wilt has an average earning, but he possesses a superior ability with him, which makes him stand out in basketball games. Because of this, he is able to grab a contract with his employer. The employer sets the terms of the contract to be such that he can earn 25 cents per admission ticket of his that has been sold. Now, if Wilt somehow manages to bring in a million people to watch him, he would earn a value of money amounting to $250,000. 

Under the new distribution mechanism that is proposed, would Wilt be better off than the original distribution, and would it be just and fair? One of the conclusions we can definitely arrive at is that the original distribution is not any different from the new distribution and that the original distribution is the only one that is fair and just in this case. 

Even though both the distributions are just and fair, people still moved on from the original distribution to the new distribution on their own will. Similarly, this applies here as well, people made the choice on their own free will to purchase the tickets to watch Wilt play.  People moved from the old to the new distribution system of their own free will. No other person was affected by the choice of free will of the other.

Any holding made in the original system was fair and just. Such people made sure to use it for their benefit, if such people were not allowed to do so, then it is quite confusing as to why the holdings would be awarded to them through the original means of distribution. Thus, we can basically conclude that if people moved from the just original distribution to the new distribution, then it also must be just. 

Justice in acquisition

The concept of justice applies to acquisition as well. In the case of acquisition of material that is freely available, it is said to be just after such acquisition if there is enough material left for others as well. As far as what would amount to freely available material, the process of how enough material is left for others is an interpretation given by Nozick that has to be read with Locke’s views on it. 

Locke terms acquisition as something you mix with your own labor. Thus, if you acquire something no one owns, with your own labor that would mean you make that acquisition your own. However, this interpretation causes a series of confusion and conflicting ideas in our minds. It is not exactly clarified how mixing something I own with something I don’t would amount to a gain rather than a loss.

Nozicks provides an example of his own. We know generally, the sea exists as an unowned property. Here, we disregard the state’s ownership over the water in case of a dispute for our better understanding. Now if we go on to spill a can of tomato juice in the sea, would I gain ownership of the sea having mixed something I own with something I don’t own or did I act foolishly and lose my tomato juice is the question. 

Locke has defined “freely available” as “anything that nature has provided”. Thus Nozick follows this same trend and, as a result, equates “freely available” to mean “unowned”. There are possibilities of different kinds, such as those of virgin resources which are usually commonly owned or owned jointly in the form of equal shares.

Locke further defines “leaving sufficient for others” to mean good and enough in common for others”. Thus, this well-known Lockean principle draws us to two different interpretations. The interpretations basically are that A person may end up in a worse position due to the appropriation of land or property that he or she is not able to appropriate themselves or they no longer are able to make use of it. Nozick endorses the weaker and the second interpretation of the principle is that the property is of no use to them.

Justice in transfer

Justice can exist in transfers as well. Nozick applies his principles to the scheme of justice in transfer as well. A transfer made with the consent of the parties would amount to be a just and fair transfer. The Lockean principles and provisions have to be satisfied in the case of justice in transfer as well, which may be direct or indirect. If anything is not rightfully in my possession or ownership of that person, that person cannot make a legitimate transfer to myself or another person as it would amount to a violation of Lockean principles and provisions. This is the indirect application of it. At the same time, I cannot make a continuous series of transfers, each being legitimate but failing to leave enough for others. This is the direct application. 

Justice in rectification

While Nozick applies his views in a world that is completely just, it is possible that the world may not be what he imagines it to be. It is also possible that there are people who are violating the property or land in the principle of justice in acquisition. Like appropriating a property to such an extent that there is nothing left for the others to gain or obtain. This would not be just and fair application of the provision. There might also be a violation of the principle of justice in transfer. The transfer might have been taken in an unjust manner, that is, through theft or fraud. Thus, Nozick does not disregard this situation. 

Taking it into consideration, he proposes the third point, which allows for rectification to be made to the injustice in any holding. In relation to such instances, he raises several important questions that are to be answered, like if there has been any injustice committed in the past that has not been recognized, how would it be possible to determine what is to be done and how should the victims receive the compensation for the injustice committed by the violators; whether there would be any change in the position of the parties if the victim is not alive; if there is injustice in holding which itself is related to the injustice in the appropriation as well.

Questions like whether the injustice would lose its weight over time and what steps the victims must adopt in order to prevent such injustice from happening and rectify it. Nozick gives no such solutions to this and admits that he has no idea about what could possibly be the solution to such questions. 

Nozick presents to us his entitlement theory of justice with absolute priority being given to personal liberty. As a result of this, he is able to pass through the obstacles that generally arise in a patterned approach to justice. We cannot avoid these obstacles. If we avoid such obstacles, we are presented with other new obstacles related to how the distribution has been made, compelling us to divert from the main issue, that is, analyzing the distribution that has been made. Thus, Nozick’s theory fails to satisfy us and provides us with a clear idea of how the initial acquisition came into being and how, if any injustice has occurred, could be rectified, as in the means of rectification have been left up to our imagination. He did not make any further revisions like Rawls nor did he attempt to amend or defend or revise it in any manner whatsoever. 

Differences and similarities between Rawls’ and Nozick’s theory of justice

Similarities

Rawls and Nozick both have the primary and common goal to achieve justice through their means different from one another. Nozick very selectively retained very few principles that Rawls presented to us. He retained liberty while disregarding the differences. Nozick believed that his own theory of entitlement was inadequate for the government to redistribute wealth as there would have been some holdings that would have been obtained in an unjust manner. 

In order to resolve this issue, Nozick brings in an idea similar to Rawls’ principle of difference. It basically states that there must be some rectifications made to make it morally acceptable. This is all based on the assumption that those who are well-positioned now are in such a position because of the injustice they have committed on the previous victims, and there is a high chance this has happened. 

In addition to this, both of them shared very abstract concepts and theories in relation to political philosophy, both of which lacked any practical grounding of the justice that would exist against humans naturally. The theories measured success in society by how closely the models made were able to abide by the laws and provisions rather than having the laws produce an outcome that is maximized morally. They made sure that “justice would succeed even if the world would perish”, as per Immanuel Kant.  

Differences

Nozick remains one of the strongest critics of his colleague, Rawls’ work brought out his strong opinions and they are present in Anarchy, State and Utopia (1974) as entitlement theory of justice. Nozick’s understanding and approach towards justice is much different from his colleague, Rawls who gave distributive justice as one of his important conceptions of justice. Nozick’s work is born out of his criticism of Rawls’ work which sacrifices individual liberty in order to attain socio-economic equality. Nozick did not accept this and thus introduced the entitlement theory of justice. 

Rawls believed that as long as there is a benefit to the society or even to the less advantaged people of the society, it would amount to being fair and just for such economic inequalities and this is also known as the difference principle. Rawls believed that states would hold all the powers which would help to endorse his view of the distribution theory. Even though Rawls saw that he was disregarding individual liberty to prevent the tragedies of inequality, end poverty and attain a life free of misery and full of wealth and happiness. 

Such a view, in the end, had its own share of issues and problems as it avoided pursuing individual liberty. Rawls, however, was concerned only with the final result the theory would have on the people. A fair distribution of resources which ultimately results in justice. Rawls believed that such inequalities are desirable and they can be used to the advantage by making adjustments in the form of distribution, which would result in attaining justice. 

Rawls was of the view that any economic inequality can be used to ensure the greatest benefit is achieved in society, especially for those in a disadvantageous position. Nozick, on the other hand, believed that the way to do what Rawls proposed was through voluntary exchange and liberty. Nozick believed that individual priority is one of the key aspects of attaining justice and cannot be disregarded. It can be said after looking at the Wilt example given by Nozick, was towards the same end result that Rawls reached at when he used the distributive theory of justice. Thus, both Rawls and Nozick were taking two different paths to reach the same destination. 

Frontiers of justice: the capabilities approach vs. contractarianism 

Martha Nussbaum is an American philosopher. She was a staunch supporter of the rights of humans, animals, women and LGBTQ groups and made several contributions to these spheres as well. She remains one of the notable female philosophers and legal scholars whose views and dissents changed our understanding of justice and helped us develop new thoughts and ideas.

Martha is the author of several works, including but not limited to her most notable being The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (1986), which addresses the philosophical idea of what would amount to a meaningful life and sides with Aristotle in it. In Sex and Social Justice (1999), Martha arrives at the conclusion that the capabilities and needs of a human are a universal requirement. This book lays down for us all the capabilities and needs of a woman while supporting the fact that the current legal system in place is not equal across genders. 

In expressing her view as a critical assessment of Rawls’ work in Frontiers of Justice, Martha draws out the capabilities approach. The capabilities approach is a revised extension of the works of Aristotle and Amartya Sen. Sen highlights the inadequacies of the current economic measures of quality of life, which fail to take into account the distribution of weather, income and utility across individuals, and there exist different rates of conversion for the income and resources. 

Income can also not be an adequate measure for determining the quality of life or well being of a person. We cannot classify the same income group of people to have the needs and requirements same as one another. For example, there are two people who annually earn $100,000. However, one of them is a deaf person. So it is not possible for that person to physically have the same quality of life as the other person because of his disadvantage even though they belong to the same class of income group. 

Thus, Martha attempts to resolve this by introducing the capabilities approach. The capabilities approach provided by her remains to be incomplete to our understanding. It provides us with an understanding of how the least conditions have to be met for a person and is basically an account of the minimal social justice that is to be ensured and met. Each person has their own unique set of capabilities that they require for their functioning.

Martha takes on a more humanistic view that requires the achievement of human rights in order to fulfill the capabilities theory. To do so, she provides us with some required conditions that are a moral right available to every individual on Earth. However, Martha does not answer all the questions related to economic justice and social justice that Rawls did in his works. So, even if Martha’s conditions are satisfied, and the capabilities are met, society might still not be just one. Thus, Martha lists out the ten pivotal human capabilities that are essential for functioning as a human. They are as follows:

  1. A normal span of life
  2. Health body (with the right to sufficient nourishment)
  3. The integrity of the body (with the right to move freely, protect yourself against assault, select reproductive partners and engage in such relations)
  4. The ability to use our senses, including imagination and thought (with the right to have the freedom to express oneself, exercise our religious belief, and obtain sufficient educational qualifications and have the opportunity to experience pleasure)
  5. The ability to experience the emotions of a normal human, including but not limited to love, anger, grief, and emotionally attaching ourselves to others
  6. The ability to develop your capacities, including but not limited to self-reflection and critical assessment of your decisions (with protection being granted from our conscience and religious beliefs, among other rights that exist)
  7. The capability to affiliate with others for various reasons (with the right to ensure that there is no discrimination on any basis of race, sex, origin, etc.)
  8. To live with the other species that live on Earth
  9. The ability to enjoy activities of recreation and playing around
  10. The ability to have control over the environment we are in (with the right to property, association, and the freedom to affiliate among other rights, there must be an equal basis and there must exist equal opportunities for all)

Martha believes that in order to ensure the basic moral value of human dignity, it is necessary that the threshold of the capabilities (elaborated above) are met. These capabilities, if met, ensure that the life of the person is worthy enough to be dignified. It basically signifies the dignity of a person, and a life worthy of such dignity and truly allows the person to function as a human is an idea that underlies the capabilities approach. By attaining this basic threshold, we can attain justice and fairness in our lives. The functioning must not be on a biological basis but on what we need to function as a human. 

Martha, through the capabilities approach, aims to acknowledge human rights to be a major chunk of forming an understanding of justice. Martha relates this rights theory to give some meaning by relating it to major aspects of a human, such as their life, health, senses, ideas, thoughts, emotions, and other such factors. She labels such factors as “central human capabilities” and also extends their functioning to include having control over us and our environment as well. 

Thus, achieving the basic level of these factors would help to attain human dignity which implies that they would lead a good life, which leads us to the conclusion that the basic human rights have been ultimately achieved. The efforts of Martha through this approach are a wonderful attempt which highlight the issues with Aristotle. Aristotle neglected several dimensions of the self-realization of humans. 

Justice as rights

Right is a term used to show what is owed to us or what we are allowed to do. So it becomes necessary to understand its significance and how it is related to justice. Principles of legal, social or ethical nature (also ingrained in rights) which describe what is owed to the individual(s) and/or allowed to them. Rights can be fundamental rights, social rights, civil rights, political rights, or even cultural rights, and thus are of several different kinds. 

Rawls made a keen observation in A Theory of Justice, by stating that one of the important conditions for justice is that the individuals must equally bear some rights amongst themselves. On a level of comparison, each individual in society must have the same rights and liberties made available to them as others in the same society, to the maximum extent possible. In doing so, he presented to us two important principles:

Principle of equal liberty

The principle of equal liberty is one of the first theories that Rawls conceptualized. It ensures that all individuals or citizens have access to and equal rights to most of the basic liberties that should be available to them. This includes the right to expression, the right to association and the freedom of conscience. Rawls further included the right to personal property to be one of the rights which is fundamental to an individual, and there must not be any infringement or amendment to it by the State or government, but does not include the absolute right. 

Principle of equality

The principle of equality is the other theory which had been conceptualized by Rawls. As per the principle of equality, there must be such an arrangement as per the economic principles that allow us to meet two important requirements. The first requirement is that any group of society that is in a disadvantaged position should have the opportunity to avail a greater number of benefits, that may be in the form of rights as well. 

The second requirement is that any inequalities of economic nature must not be so that they prove to be an obstacle in the individual from obtaining a position or office, on the basis of their background, sex, ethnicity, etc. According to Rawls, all people in the society should be able to avail the free and fair opportunity to obtain the job or the position. According to him, all those having a similar natural ability must be able to have an equal chance at it. 

Feminism as justice

There have been so many theories of underlying justice. The definition of justice has expanded to curriculums like economics, rights, distribution, and entitlement among others. Thus, justice is omnipresent, universal, and applicable to all. In addition to this, it was contended that there must be a feminist theory of justice which ultimately led to its inception. Feminism as justice has recently become a concept that has drawn several theorists to present their ideas on it, including the likes of Rawls, whose work has become a point of criticism. 

Rawls highlights that there must be no discrimination and that equality is to be ensured. This is not the real scenario. There continues to be discrimination across genders, and women are subject to it across all spheres of life. From failing to draft themselves for the military service even if they wish to, to their career being on hold due to having children, it is easy to say that there is a requirement for justice for women in all areas of life.

This is all put on hold due to the fact that most of such decision making power is given to their male counterparts, who have not gone through the same struggles as these women. Therefore, it becomes essential that, instead of listening to such male voices,  more women are given the chance to represent themselves in all spheres.  

Rawls did introduce substitution and the idea of the original position to better understand this. The question before is what changes would take place if such women were included. Okin answers on the basis of Rawls’ theory that it is not that when thinking about such issues, the answer we arrive at must not be only on the basis of interest to men only, but rather to the whole society of humans. It is that they know themselves to be men and women respectively, or even if they are ignorant of it, the principles of justice will apply to all so Okin fails to understand why women demand to be in the original position. 

Elizabeth Spelman in “Inessential Woman” states that womanism is faced with several dilemmas. It becomes necessary to isolate sex from race and even class. It also becomes necessary to talk about the oppression of women that they face in society as women, as honestly and openly as possible, if it is not done, the foundation of feminism will be lost as it is to cease to exist. Thus, it becomes essential for us to revisit most of the theories that have been presented before us as they fail to address and acknowledge the burdens and obstacles that women face in society in their lifetime.

Economic theories of law and justice

It was in the 1910s and 1920s that we observed a great interest in bringing economic theories into law and justice. If we were to talk about economic theories of law and justice, it relates to the tools of macroeconomic theories which are analyzed through regulations of law and its institutions. There are several theorists who brought economic theories into the sphere of law and justice. Some of them include John R. Commons, Guido Calabresi, Robert Hale, and Ronald Coase among others. 

Posner’s economic analysis of law

Richard Posner helped to draw attention to economic theories of justice. He addressed the great interests of economists and lawyers towards understanding each other’s areas of work including clubbing them together. His interest towards it also drew from the great number of books and articles that were being written and published that intended to apply economics to law. It slowly expanded to teaching it in law schools and incorporating as subjects necessary to understand the law in depth as law schools moved from the traditional subjects and teaching styles. But applying economics to the law brought in its own list of supporters, who celebrated this idea, and critics, who were skeptical and against such ideas. 

While the rational maximization of satisfaction forms the ground basis of the application of economics to law, it is definitely not the case. For example, if we were to give the parties the choice between settling the dispute amongst themselves or litigating by moving to the Court, there is a factor of uncertainty that has to be taken into consideration. If litigation draws the desired outcome of the dispute and the litigants behave rationally, then predictions can be made by applying the economic theory as to whether it would be wise to litigate or settle. 

These predictions play a role in determining the behavior that individuals would experience if they approached an attorney. If there are more frequent litigations, we can assume that the stake in the dispute is greater than one can assume or that some uncertainty exists in the outcome of the dispute. Thus, this shows to us that the application of the economic theory to law is definitely a fruitful one because it helps us to understand and explain the behavior we explain in real life. Thus, it can be summed up through Posner making two claims (positive claim and normative claim)

  • The first is the positive claim of common law that reflects the fact that such rules are efficient. 
  • The second claim is the normative claim, which proclaims the fact that common law needs to be efficient. 

His perception of the meaning of efficiency was that there must be a social willingness to make a payment that must be maximized. Some other theorists and writers instead exchanged this term with Pareto efficiency to make more sense as it involves economics. These claims existed before the behavioral economic analysis of law came into existence. Thus, they rely on the classical approach. 

Preferences and rationality

The ‘rationality’ in economics reflects actions that agents undertake to maximize their preferences in the environment they are in. Such preferences are many in number and thus a preference basically is a hierarchy of ranking amongst other such preferences that exist in their area. In such an area, the preferences refer to all the things that matter to them on a ground level that are fundamental to them. The situation is much more complicated than it appears to be. The agent appears to have some preferences in a certain set of results that might be related to their health, salary, etc. 

However, there is one issue that arises in such a process, they make a choice much different from their preference. This is so because there exists a term “strategy” which affects their preference and ultimately determines the result. At an abstract level, the inception of rationality is adaptable as the restrictions on the preferences are purely formal.

Behavioral economic analysis of law

The behavioral economic analysis of law is explained through three different forms it takes on. The first form acknowledges the rational choice that exists in the formal framework but it does not acknowledge the preferences that are regarded as self interest in such a framework. This is also known as the “board RCT” of behavioral economics. As it takes on the classical model, the narrow interpretation of the preferences which are regarded as self-interested is rejected. Individuals are said to have preferences of non-interested nature. Their preferences may also be based on their concern for others in society and thus be pro-social. They might agree to volunteer to help out a family who has lost their house due to a fire. Additionally, their preferences may reflect the fairness of choice by choosing to have the benefits and burdens to be distributed equally amongst them all in the society.  

The second and third forms of behavioral economics aim to comprehend the processes that go on in the mind while drawing reference from psychology of course, that agents apply and that determine the decisions they make. The school of ecological rationality does acknowledge the classical model as a standard to analyze the behavior of an individual but it does not acknowledge this model for describing the procedures that an individual goes through to arrive at a decision. If they were to apply it to agents, they generally do not solve the issues that the broad RCT model and classical model posed before it. 

J.R. Commons theory on law and economics

J.R. Commons was an American economist and historian. He was responsible for the early stages of the inception of the ideas and theories related to law and economics. He describes the important term “market” to us before going on to explain the theory. He defines it to be a process that is accompanied by transactions that flow through it. As per him, there exist two transitions that can be categorized as the actual transaction that takes place and the next best choice or alternative. These two transactions work together and allow for the existence of the market. 

In addition, there existed a system of pricing that took place between the parties. It was decided on the basis of the inequalities and differences that existed between the parties. The differences that arose were all subject to the distribution of economic power amongst individuals in the society. The transactions that took place between those of the legally and economically superior strata and those of the inferior strata were not in the market but rather the economic institutions. Thus, legal power, if any, was actually influenced by economic power, leading to the increasing disparity. 

Ronald Coarse’s theory on law and economics

Ronald Coarse was a British-American economist. He was the winner of the Nobel Prize in 1991. He had a unique approach to economics and had very few works to his name. He shared many views and ideas similar to those of Commons. 

Commons highlighted the difference between bargaining and managerial transactions, something which even Ronald agreed on. According to him, the rights that have been assigned become irrelevant because of using the zero transaction costs (ZTC), which basically assume the economic result to occur if there are no transaction costs, regardless of whom the ownership and the rights of the property are with. 

General Equilibrium Model 

The general equilibrium model was first created by Leon Walras, a French economist and mathematician.  The model reduces the costs that arise during the transaction. It does so by ensuring a market is replaced by a firm. A firm is said to have its own hierarchy of authority and it has the ability to make its own decisions. Thus, the law acts as a bridge and creates a framework through which the economic system can function properly. The framework in place determines the legal position by setting a threshold for any legal decisions related to the instrument. 

Global justice

While global justice is often confused with international justice, they are not the same, and therefore, it becomes important for us to understand and distinguish the meaning of both. 

While global justice relates to breaking the shell of the state and finding out more about the justice that is to be present among human beings, international justice relates to justice taken up by a central institution or authority of a nation or a state. There are several actions, agents and relationships involved in the creation of global justice. The theory of global justice can be encapsulated as follows:

  1. To determine what would account to be an important issue of global justice
  2. To provide solutions to each issue that has been identified
  3. To identify the one holding the responsibility for the determined problem
  4. To determine the extent to which of these agents is responsible and what they are required to do to solve the issue
  5. To provide more of a normative view

A problem becomes an issue of concern for global justice when it-

  • negatively affects the agents or institutions, or 
  • becomes unresolvable by them, or 
  • actions are not taken by them to counter the issue, or 
  • there is a requirement to obtain permission and co-operation which they have failed to do so. 

After the problems have been identified, they have to proceed with finding different solutions to them, each of which holds one person or institution accountable, which has to be identified as well. It is possible there are several persons accountable, but one has to truly identify the accountability and determine the plan of action for that person to work on to resolve the issue posing before global justice. These theories help us to better understand what our duties are and how the world actually is. 

Corrective justice

Corrective justice is based on the concept that culpability or liability can correct and fix the injustice inflicted on one person by another person. It does so by making sure that the parties are back in their original positions. The concept of corrective justice can be found in the ideas of Aristotle and Kant, who are also referred to as the pioneers of it, as we will be discussing it further. 

Aristotle on corrective justice

The earliest origin of corrective justice can be found in Nicomachean Ethics V, written by Aristotle, in which he presented his views on justice and further characterized it into distributive justice and corrective justice. In his book, he states that a person may be held responsible for their unfair behavior. This unfair behavior of violating law, fairness and equality, is the exact opposite of what justice stands for, as it amounts to injustice. His thoughts on corrective justice are similar to that of an arithmetic proportion. He talks about corrective justice playing an important part in enhancing the transactions that take place. He elaborates by classifying the transactions in public to be voluntary, and those that take place in private to be involuntary. 

While there exists no distinction between the nature of parties being good or evil in voluntary transactions, the general meaning of corrective justice is ensuring equal treatment of the parties, ensuring that the parties are made liable for their actions, and the responsibility of the judge is to assess the same. The judge may also provide a punishment to ensure the party that has taken unfair advantage. 

Hans Kelsen criticized the view of Aristotle because it was a futile attempt. He also stated that it is formalistic and it does not take into consideration the existing social order and justice system. Both the injustice caused and the suffering cannot be formulated and they did not make any sense to him. He believed that any injustice caused results in the suffering of others. 

Henry Weinrib on corrective justice

Henry Weinrib further enhanced the view that Aristotle provided on corrective justice. According to Henry, equality, which is conjuncted with corrective justice, is proportional equality of distributive justice. Corrective justice actually provides us a clarification of the relationship that exists between the parties. He also states that as complex as Aristotle is with creating mathematical formulas, and though that remains to be one of the advantages of it, he takes on a much easier approach to understanding it better. 

Henry tells us to focus on the external things to better understand justice. He states that the extreme nature of corrective justice allows us to classify and categorize the different situations of interactions that take place between the claimant, who has become a party to the loss and the defendant, the party who has caused such a loss. It also helps the parties who have suffered such a loss recover from it.

Conclusion

When we began to explore this article, we observed that justice encompasses several meanings. In understanding this meaning, we have to go through several theories which aim to describe justice in an efficient manner. 

While Rawls describes justice as a distributed system, Nozick, his counterpart, takes a different approach and states justice to be an entitlement. Martha Nussbaum describes justice through her capability approach. Theories of economics given by Posner, J.R. Commons, and Ronald Coarse have also been used to describe justice. Justice has also been described as a corrective measure by Aristotle and Henry Weinrib. Though it is still not the most perfect definition, it most definitely brings us closer to the true meaning it aims to hold and identify itself with. 

Frequently Asked Questions (FAQs)

What is justice?

Justice is described by Merriam Webster dictionary as “the maintenance or administration of what is just, especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments”. Justice is defined by the Collins dictionary as “the quality of being righteous; rectitude”. 

What are the four major dimensions in which justice exists?

There are four major dimensions, all of which are interdependent and inter-related. They are social justice, economic justice, political justice, and legal justice. Justice actually exists in all of these four dimensions. 

Why do we need justice in our lives?

Justice forms an important part of our lives. It ensures that there is trust among individuals, it promotes the well-being and security of people, and it helps to build communities. It also provides an outline to resolve conflicts and helps to promote the good of all. It recognizes any wrongdoing and punishes those responsible for it. 

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