2ND MODULE

CONCEPT OF JUSTICE-RELATIONSHIP WITH LAW-INDIVIDUAL AND SOCIAL

JUSTICE-DISTRIBUTIVE AND CORRECTIVE JUSTICE-COMMON BUT
DIFFERENTIATED RESPONSIBILITY.

INTRODUCTION

Justice is a universal aspiration, and the sense of injustice is a powerful human emotion. It is
strongest when a person’s own interests are harmed but is also aroused in civilized people when
they witness wrongs done to others. Widespread and unrequited injustice inevitably leads to
conflict. A society that does not have justice as a governing principle is an unstable society that
will be held together, if at all by force. Justice is also a perennially controversial idea in human
affairs. People are united in their belief in justice as an ideal, but are divided on what justice
means or requires. 1

CONCEPT OF JUSTICE

“Justice” is understood by everyone in their own perspective but is difficult to be put into words.
Justice is defined by the relationship that exists between the individual and the state. Justice
means that the state treats every person equally and seeks to resolve disputes on the basis of the
facts and compared to objective criteria rather than a subjective determination.

Justice cannot assume that every dispute comes out “correctly” or that no mistakes are made, but
it should be such as to assure that the process by which decisions are made and goods allocated is
fair and produces an acceptable result in the aggregate, even if an individual case justice might
fail. Justice occurs when the distribution of political power and economic opportunity is as
uniform as possible or when the social and political system is such that they tend toward a just
distribution even if it is not achieved. Justice is clearly an ideal, and ideals are to be sought but
may not be achievable. Justice is thus not defined by outcome but by the fairness of the process
leading to an outcome.

1
Suri Ratnapala, “ jurisprudence”, Cambridge University Press, New Delhi 2009

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 Justice has been a primary concept to be examined and defined by political and philosophical
thinkers throughout history, and many have tried to develop a concept of an ideal state that
would be based on justice.

DIFFERENT CONCEPTIONS OF JUSTICE

PLATO ON JUSTICE:

Plato took the view that everything and everyone has an appointed purpose within the scheme of
the universe and therefore each has a peculiar excellence. Justice means to serve that purpose and
strive for that excellence.2Justice according to him is non- interference with the duties of another
but to do his duty in the appointed place. One man should practice one thing which to his nature
was best suited to. The excellence of the mind consists in balancing and harmonizing the three
elements of Human nature corresponding to classes: reason, appetite and spirit. Like,
philosophers representing reason, Warriors representing the spirit, and Artisans representing
appetite. The most important principle of his concept of justice is the Functional Specializaion.
Plato compared the state with human body, Like the human body is divided into three distinct
parts- head, stomach and hands& feet, the population of the state is divided into three parts
namely philosophers, soldiers and peasant and workers. If any one of them encroaches on the
other, it causes imbalance in the state, the state shall fall sick and ultimately dies.

ARISTOTLE’S THEORY OF JUSTICE:

The term “just” used by Aristotle,’ has two separate meanings : in its first meaning it is
principally used to describe a conduct in agreement with the “law”;’ a conduct, therefore, which
conforms to an established, a rule of human conduct formulated which has a proper authority; in
short, it is used to describe a conduct which conforms or acts according to whatever constitutes
an authoritative instrument of social and moral control. Justice denotes a “moral disposition
which renders men fit to do just things and which causes them to act justly and to wish what is
just.” It refers primarily to the application or observance of certain authoritative rules of human
conduct and should, consequently, rather be called the virtue of “righteousness” or of “moral
ustice” – a virtue ‘ displayed towards others, a social virtue.
2
Griffith, Tom (2000). “Plato: The Republic” Cambridge university press.

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In its second meaning ‘ Justice signifies Equality,’ or, to be exact, a “fair mean.” It is this second
meaning of Justice – “Justice in the narrower sense” in which we are primarily interested, since it
constitutes that concept by means of which the law in action, and not merely the moral conduct
of man, can be more specifically evaluated. In order to make clear the distinction between
“Justice according to an authoritative rule” and Equality, Aristotle states that a person whose
conduct is “unjust,” are those who acts contrary to certain moral principles “and, therefore, lacks
virtue, is not necessarily unjust as far as the principle of Equality is concerned:’ that is to say, “he
need not be one who has or claims more than his fair due.”
Thus, for Aristotle law in its true sense is law that is just. He considers the ethical values
including justice, temperance and courage as rational, emotional and social skills. One needs
these skills to put his general understanding on well- being to practice. If justice is a virtue, then,
it must be a type of mean or a midway between two extremes, one of excess and other of
deficiency.3 Aristotle acknowledges that the concept of justice is inaccurate and thus seeks to
specify the features of injustice, just as we attempt to determine what constitutes a healthy
person; we recognize when someone is unhealthy and will be able to identify its opposite. Hence,
a lawless individual is unjust and one who obeys law is just.

RAWL’S THEORY OF JUSTICE: JUSTICE AS FAIRNESS

John Rawls offered a conception of justice as an alternative to the doctrine of utilitarianism in
his 1971 book, “A Theory of Justice”. John Rawls states two principles of justice which
according to him are provisional. The first of these states that each person is to have an equal
right to the most basic liberty compatible with a similar liberty for others. The second states that
social and economic inequalities are to be arranged so that they are both a) reasonably expected
to be to the advantage of everyone also to the greatest benefit of the least advantaged, and b)
attached to positions and offices open to all under conditions of fair equality of opportunity.
Rawls says that these principles refer to the basic structure of society and that they are to govern
the rights and duties and to regulate the distribution of social and economic advantages. He also
says that individuals begin from an original position of equality, which is the source of the two
principles noted above. Rawls’s views on justice are embodied in his conception of political life

3
Raymond Whacks; “Understanding jurisprudence- An introduction to legal theory”, pg.212

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and the formation of government. For Rawls, the act of entering into a social contract does not
entail setting up a particular form of government as it does for Locke and Rousseau. Rather, he
sees the nature of the agreement as being on the questions of justice, with the contract
concerning an agreement on how issues between members of society are to be decided. The
principles agreed to are to regulate all further agreements and specify the types of cooperation
that can be entered into and the forms of government that may be established, all based on the
concept of justice as fairness.

Justice as fairness begins with the general choices a group of persons makes together with the
choice of the first principles of a conception of justice that will regulate all subsequent criticism
and reform of institutions. The concept of justice must be deterred before the people choose a
government or other institutions, and justice is the basis for all the later choices. Rawls considers
the conditions under which this choice of justice is made and notes again the hypothetical nature
of the state of nature that serves as the point of origin. The fact that the group remains ignorant of
individual advantages is what makes their decision rational and fair at the same time, for if they
knew what their positions would be, they would shape the concept of justice to fit their particular
place and their particular circumstance and so would obviate the necessary fairness. The parties
in the original agreement must be assumed to have been equal, with all having the same rights in
the process of choosing principles of justice. This equality is represented in a conception of
human beings as moral persons, as creatures with a conception of the good and able to have a
sense of justice.

BENTHAM’S THEORY OF UTILITY

Jeremy Bentham’s utilitarianism is based on the perception that the human being is governed by
the opposing principles of pleasure and pain: “It is for them alone to point out what we ought to
do, as well as to determine what we shall do”. Bentham offers the principle of utility as the
foundation for his philosophy of utilitarianism and for the ethical actions that flow from it.
Bentham is in fact interested not merely in showing that human action derives from a desire for
pleasure and a fear of pain. He is also interested in developing a set of objective criteria of
morality and for making moral decisions regarding human actions. Pain and pleasure are the
determinants of right and wrong as well as being in a chain of cause and effects. This is the

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principle of utility, as Bentham states it: “By the principle of utility is meant that principle which
approves or disapproves of every action whatsoever, according to the tendency which it appears
to have to augment or diminish the happiness of the party whose interest is in question; or, what
is the same thing in other words, to promote or to oppose that happiness”.

The utility principle, which is also called the greatest happiness principle, holds that achieving
the greater happiness is what is right and proper. To determine the morality of an action, it is
necessary to estimate the amount of pleasure and pain from the action.

JUSTICE ACCORDING TO LAW

Most of the time people look to the law for justice. The demand for justice is made in the form of
a legal or moral claim. A person accused of a crime claims the right to fair trial or procedural
justice. People’s demand for punishment of a criminal act is a demand for justice. A citizen’s
claim to equality before the law is also a claim of justice.

Law governs the conduct of a society while justice is a fundamental concept which everyone in a
nation wishes to achieve through the means of law. Function of law is thus to administer justice
to everyone who seeks it, as, a just law will only allow its citizen’s to fulfill their needs and in
the society.

Though, Law and justice are not synonymous, they are inseparable. Law itself is a means to an
end, justice being the goal4. Laws are tools in the hands of the government in order to regulate
the behavior and to ensure compliance from the subjects being the members of the society. Laws
have the backing of courts and police .The entire legal system that includes laws, lawyers, and
the courts is based upon the concept of justice. Though the laws are to render justice, for the
people justice is not just a sentence from a court of law but hat verdict which appears to them as
fair and just and not just legally correct.

INDIVITUAL JUSTICE

4
“social justice- sunset or dawn”; by V.R. Krishna Iyer ,p2

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Individual justice is all about “equality before law”. It concerns a particular person or individual
only and not an entire society. It stresses on enabling the individuals to develop their personal
faculties where the role of state is minimal interference.

Adam Smith in his “Wealth of Nations”, (1776) highlights that self interest of individuals
automatically promotes the common interest, and thus the state has three roles: 1. Protection, 2.
Justice, 3. Policy decisions. Bentham also shared a similar view and says that every Policy must
ensure “greatest number.” For this purpose the main function of the Government is to make such
laws which do not interfere in free activity of individuals.5

According to Berlin, In order to achieve justice in an entire society, the individuals should be left
to their own discretions and the availability or non- availability of means is primarily, the
concern of the individuals and the state is not responsible for making them available to the
individuals.6

Hayek holds the view that; all individuals have different talents and skills and thus their equality
before the law is actually bound to create inequality. 7

Thus, Government should not exercise arbitrary control on the individuals as a society is always
judged by the extent of freedom enjoyed by the individuals and they should take up only those
functions which cannot be tackled or solved by the society or which includes a heavy
expenditure.

SOCIAL JUSTICE

It concerns with the relationship between individual and the society in fair and just means. Social
justice assigns rights and duties in the institutions of the society which includes taxation, social
insurance, public health, public school, public services, labor law and regulation of markets, to
ensure fair distribution of wealth and equal opportunity. Justice is that part of human virtue that
binds man together in society.

5
“Introduction to the principles of morals and legislation”; by Jeremy Bentham (1789)
6
“Two concepts of liberty”; by Isaiah Berlin (1958)
7
“law, legislation and liberty” ;by Friedrich Hayek (1973)

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Social justice has been attained in the Indian by abolition of all sorts of discrimination which
originates from wealth, race, caste, religion or title. It is these factors which tend to increase
exploitation of one class by another. By giving social justice in the shape of various Articles this
has been avoided. Social justice tends to harmonize the rival claim and interests of different
classes in society. It is only by giving social justice to masses that we can really fulfill the dream
of welfare State.8

Social justice can be attained only when equal people are treated equally without any
discrimination based on caste, sex, place of birth, income, class, occupation, etc. Mr. Justice K
Ramaswamy has expounded the concept of social justice as essential for the growth and
development of every citizen in the consumer education research centre v. union of India9.

CONCLUSION

The ultimate aim of every legal system is to ensure justice. The understanding of justice is
different for different persons. Everyone wishes to attain justice, but the justice for one may not
be justice for another as people are driven by conflicting interests. The ancient concept of
Dharma is the concept of righteousness, which includes Justice. To understand justice, it is
important to deal with injustice.

DISTRIBUTIVE JUSTICE:

"Distributive" or even "social" justice to designate a more equitable sharing out of income and
wealth. When a group of individuals composes a communion, properly speaking, (e.g. labour
union and a crowd at an accident), certain common goods and charges arise, and distributive
justice calls for equivalence between what is due to or from each and what is received or
contributed. The obligation to ensure distributive justice falls primarily on those in authority;
citizens for their part have the duty in social justice of complying with the just decisions of
government and its executive arm.

THEORIES OF DISTRIBUTIVE JUSTICE:

8
Crown Aluminium Work v. Workmen (1955) 1 SCR 991
9
AIR 1995 SC 929(938)

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A. Utilitarian

Utilitarian theories assert that people ought to act so as to maximize some function which is
monotonically increasing in the utility of each of the members of society

Each person's utility is independent of any other person's utility, person's utility weights his
own utility more heavily than the utility of anyone else. This self-regarding version of
utilitarianism suggests that subjects will regard any distribution in which they have more money
as more desirable.This version of utilitarianism generates the paradigm of the "economic man,"

B. Egalitarian:

Egalitarian theories all posit that a just distribution gives everyone an equal share of resources.
The theories differ over what exactly should be equalized. For example, needs theories claim
that people who are equal in terms of their needs for resources should get equal holdings.

C. Natural Law/Desert

Natural law/desert theories assert that, as a matter of natural law, someone or other deserves
resources. The only variant of this group of theories of distributive justice that we explore is
Locke's. The Lockean theory posits that an individual deserves, as a matter of natural law, a
property entitlement in resources that have been accumulated or developed through the
individual's expenditure of effort.

Non-Value-oriented Explanations:

The three classes of theories of distributive justice discussed above utilitarian, egalitarian, and
natural law/desert-all represent value oriented explanations. In contrast, pure authoritarian and
sociobiological explanations of morally relevant behavior as nonvalue oriented. The purely
authoritarian explanation posits that people will behave as if they are morally justified in treating
their entitlements as rights whenever an authority (herein termed a moral authority) tells them
that their entitlements are rights. Similarly, the sociobiological theory posits that genetic material
governs much morally relevant behavior and that genes producing behavior that enhances
survivability of the line (maximizes inclusive fitness across generations) will eventually
predominate.

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RAWLS THEORY OF JUSTICE:

The theory of justice pioneered by John Rawls explores a simple idea–that the concern of
distributive justice is to compensate individuals for misfortune. Some people are blessed with
good luck; some are cursed with bad luck, and it is the responsibility of society all of us regarded
collectively–to alter the distribution of goods and evils that arises from the jumble of lotteries
that constitutes human life as we know it.

Distributive justice stipulates that the lucky should transfer some or all of their gains due to luck
to the unlucky

Rawls attacks the idea that notions of merit or deservingness should be included among the
values that the principles of justice should assert as fundamental. He urges that the principle of
distribution according to merit must in the end reward individuals for inherited traits for which
the bearers of these favoured traits can claim no credit.

Rawl’s two principles of justice:

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 liberties to all.

Second Principle: Social and economic inequalities are to be arranged so that they are both

a) To the greatest benefit to the lease advantaged, consistent with the just saving principle
and
b) Attached to the offices and position open to all under conditions of fair equity
opportunity.10

RONLAND DWORKIN’S THEORY:

Dworkin proposes equalizing shares of resources and Rawls proposes maximinning resource
shares. His initial formulation of equality of resources stipulates that equality of resources
obtains among persons when each starts with a share of resources dictated by a theoretical equal
auction and any subsequent inequalities in their resource holdings arise through option luck.

10
LLOYD’S INTRODUCTION TO JURISPRUDENCE,8TH EDITION, M.D.A FREEMAN

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ROBERT NOZICK: ENTITLEMENT THEORY

He introduced the principle of liberty and believed that liberty is the most important thing.
Freedom should be preserved; any other pattern would be continuously interfering with people’s
liberty Nozick is against redistributed of wealth and considers it to be against his entitlement
theory. He says that taxes are form of bad governance. Preservation of justice for few would
serve injustice for numbers. Further he states that we do not have an obligation to help poor
people. Further to proceed with his thought he opines that one is entitled to everything which is
his and no one has the right to take it away from you, this is entitlement theory.

THE IMPORTANCE OF DISTRIBUTIVE JUSTICE

It has been noted that people begin to feel a sense of injustice when they believe that their
condition or outcome is not in balance with the conditions of other people in similar situations.
The perception of being at some kind of unfair disadvantage, or of not receiving a “fair share” of
resources, often leads to feelings of despair. This is especially true when a person feels his
fundamental needs are not met. A gulf between the “haves” and “have nots” of society
sometimes drives people to challenge the system, pushing for change.

Distributive Justice in Contemporary Times

Appropriate principle of distributive justice for the present generation and a principle
establishing the extent of this generation’s obligation to save for the future.

Indian Perspective:

Earlier period

Promotion of justice was the part and parcel of 'Raj Dharma'

Distributive Justice in Medieval Era:

Muslim period marks the beginning of a new era in the legal history of India. Distributive justice
during the medieval period revolved around the philosophy of Shariat laws.

Distributive justice: Post Independence:

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The term 'Justice according to law' was popularly coined "to meet the needs of the people.
According to this philosophy the notion of justice was subordinated to the suzerainty of 'law.

The idea of rule of law, freedom of personal liberties, natural justice, equality before law in
modern India

The Preamble to the constitution, the Fundamental rights and the Directive Principles of State
policy rest on the solid foundation of political liberty and socio-economic equality for all the
teeming millions in rags, tatters and tears.

CORRECTIVE JUSTICE:

Corrective justice is the idea that liability rectifies the injustice inflicted
by one person on another. This idea received its classic formulation in Aristotle's treatment of
justice.' Aristotle's account presents corrective and distributive justice as two contrasting forms
of justice. Corrective justice, which deals with voluntary and involuntary transactions (today's
contracts and torts), focuses on whether one party has committed and the other has suffered a
transactional injustice. Distributive justice deals with the distribution of whatever is divisible
(Aristotle mentions honors and goods) among the participants in a political community. For
Aristotle, justice in both these forms relates one person to another according to a conception of
equality or fair ness Injustice arises in the absence of equality, when one person has too much or
too little relative to another.

Distributive justice divides a benefit or burden in accordance with

some criterion that compares the relative merits of the participants. Distributive justice,
therefore, embodies a proportional equality, in which all participants in the distribution receive
their shares according to their respective merits under the criterion in question. Corrective
justice, in contrast, features the maintenance and restoration of the notional equality with which
the parties enter the transaction. This equality consists in persons' having what lawfully belongs
to them. Injustice occurs when, relative to this baseline, one party realizes a gain and the other a
corresponding loss. The law corrects this injustice when it re-establishes the initial equality by
depriving one party of the gain and restoring it to the other party, As its name indicates,
corrective justice has a rectificatory function. By correcting the injustice that the defendant has

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inflicted on the plaintiff, corrective justice asserts a connection between the remedy and the
wrong.

Aristotle's account makes it clear that this rectification operates correlatively on both parties. A
remedy directed at only one of the parties does not conform to corrective justice. For the court,
merely to take away the defendant's wrongful gain does not suffice because then the plaintiff is
left still suffering a wrongful loss. Nor does it suffice for the court merely to make good the
plaintiff's loss, for then the defendant is left still enjoying his or her wrongful gain. The remedy
consists in simultaneously taking away the defendant's excess and making good the plaintiffs
deficiency. Justice is thereby achieved for both parties through a single operation in which the
plaintiff recovers precisely what the defendant is made to surrender.

From these two features of the corrective justice remedy - that it

responds to the injustice and is correlatively structured - a third follows. A correlatively
structured remedy responds to and undoes an injustice only if that injustice is itself correlatively
structured. In bringing an action against the defendant, the plaintiff is asserting that the two are
connected as doer and sufferer of the same injustice. What the defendant has done and what the
plaintiff has suffered are not independent events. Rather, they are the active and passive poles of
the same injustice, so that what the defendant has done counts as an injustice only because of
what the defendant has suffered, and vice versa. The law then rectifies this injustice by reversing
its active and passive poles, so that the doer of injustice becomes the sufferer of the law's
remedy. Only because the injustice is the same from both sides does the remedy treat the parties
as correlatively situated. Thus, throughout the transaction, from the occurrence of the injustice to
its rectification, each party's position is normatively significant only through the position of the
other, which is the mirror image of it.

Thus, in specifying the nature of the injustice, the only normative

factors to be considered significant are those that apply equally to both parties. A factor that
applies to only one of the parties - for example, the defendant's having a deep pocket or being in
a position to distribute losses broadly - is an inappropriate justification for liability because it is
inconsistent with the correlative nature of the liability. Accordingly, corrective justice not only
rectifies injustice in transactions; by structuring the justificatory considerations relevant to
transactions, it is also regulative of the notion of injustice that is applicable to them.

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Distributive and corrective justice: common but differential responsibility:

The regulative function of corrective justice is also reflected in the

contrast with distributive justice. Corrective and distributive justice embody categorically
different structures of justification. Corrective justice links the doer and sufferer of an injustice in
terms of their correlative positions. Distributive justice, on the other hand, deals with the sharing
of a benefit or burden; it involves comparing the potential parties to the distribution in terms of a
distributive criterion. Instead of linking one party to another as doer and sufferer, distributive
justice links all parties through the benefit or burden they all share. The categorical distinction
between correlativity and comparison is made clear in the difference between the numbers of
parties that each admits. Corrective justice links two parties and no more because a relationship
of correlativity is necessarily bipolar. Distributive justice admits any number of parties because
in principle, no limit exists for the number of persons who can be compared and among whom
something can be divided. The consequence of this contrast between corrective and distributive
justice is that no distributive consideration can serve as a justification for holding one person
liable to another. The correlative structure of liability entails the irrelevance of any factor that is
normatively significant only because of its possible role in a distributive comparison. For
purposes of justifying a determination of liability, corrective justice is independent of distributive
justice.

The idea of correlativity brings out the interior structure of

justification applicable to the relationship between a particular plaintiff and a particular
defendant. In considering liability, we might wonder: Why is the plaintiff entitled to recover
from this defendant rather than from someone more evil, or why is the defendant held liable to
this particular plaintiff rather than to someone more needy? The correlative nature of liability
shows that such questions are misplaced. Evil and need are moral categories that may well figure
in other contexts, but they are not pertinent to liability. It may make sense as a matter of
distributive justice, for instance, to divide benefits or burdens on the basis of a comparison of
relative virtue or need. Virtue and need, however, do not connect any two particular persons as
correlatively situated.

Negligence law provides a paradigmatic example of the operation of such

correlativity in the common law. For the defendant to be held liable, it is not enough that the

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defendant's negligent act resulted in harm to the plaintiff. The harm has to be to an interest that
has the status of a right, and the defendant's action has to be wrongful with respect to that right.
As Justice Cardozo stated in Palsgrafv. Long Island Railroad Co., a leading judgment explicating
the notion of tortious wrong, 'What the plaintiff must show is "a wrong" to herself; i.e., a
violation of her right, and not merely a wrong to someone else, nor conduct "wrongful" because
cause unsocial but not "a wrong" to any one.' Under the condition stated by Cardozo, freedom
from the injury of which the plaintiff is complaining is both the content of the plaintiffs right and
the object of the defendant's duty.11

According to Stephen Perry for example “the two principles have

different normative functions. One is concerned with the just distributions of resources, while the
other is concerned with remedying harmful interactions between persons.” John Gardner
similarly claims that, while distributive and corrective norms both regulate the allocation of
goods, they do so in distinct ways:

Norms of distributive justice regulate the allocation of goods among people together with the
grounds of such allocations (“division”). Norms of corrective justice regulate the allocation of
goods back form one person to another together with the grounds of such allocations back
(“addition and subtraction”).

Principles of corrective and distributive justice might well bear on the justification of a single
institution, but they can only do so in their own distinct corrective or distributive ways.

11
Corrective Justice in a Nutshell Author(s): Ernest J. Weinrib Source: The University of Toronto Law Journal, Vol.
52, No. 4 (Autumn, 2002), pp. 349-356

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