CHAPTER II

THEORY OF JUSTICE
RAWLS'

SYNOPSIS

"JUSTICE"
MEANING OF THE TERM
PROCEDURAL JUSTICE

LEGITIMACY

SOCIAL JUSTICE
JUSTICE
PRINCIPLES OF SOCIAL

deals with both

a theory of justice. His theory
John Rawls presented
social justice. In respect to
procedural justice, the
and the element of
procedural justice ideale thereof, which
are based on
various It also deals with
theory provides as a moral property.
"fairness". It also provides legitimacy which the citizens are
citizens and extent to
the nature of the duty of has formulated two
expected to obey. As regards social justice,to Rawlsmust be followed by a
which according him,
principlesof social justice,
sOciety.

MEANING OF THE TERM "JUSTICE"

But it may be called as
The term "justice" cannot be precisely defined.
a proper blend of the parameters
like fairness, equality, liberty and balance.
not constitute the
Some thinkers believe that these parameters alone would
do not
whole contents of justice. According to them, these parameters
correctly and accurately explain what justice is. They say that there are
several other conceptions to be considered, particularly when justice 15
looked in relation to the need and use by the State and society as agains
notions and their variants need to
the individual. Therefore,
considered in respect to justice.
several
urt
In National Legal Services Authority v. Union of India, the Apex ou
explained the conceptions of justice considering the views of Aristotle, a ess
Locke, Goodman and Rawls. It was held that conception of justice as fairn due

combined with distributive justice must be considered in granting

recognition to TGs.

PROCEDURAL JUSTICE
from
By procedural justice, Rawls meant the results that flow d s
procedure adoptedfor justice. He classifies procedural justice in four

1. (2014) 5 SCC 438 AIR 2014 SC 1863.

 RAWLS' THEORY OF JUSTICE 17

i) Perfect procedural justice;

(ii) Imperfect procedural justice;
(ii) Pure procedural justice; and
(iv) Quasi-pure procedural justice.
Perfect procedural justice
A perfect procedure is that which leads to a
contemplated and a just
outcome or state or affairs in every instance. In other words, if a procedure
generates just and expected results consistently without failure, it is a
perfect procedure and the outcome is perfect procedural justice. However, it
must be known as to which outcome or state of affairs shall amount to
justice and who ought to get what as matter of justice. If the same is
produced by a procedure, it is perfect procedurai justice. The essential
ingredients of perfect procedural justice are
(i) a particular outcome must be considered to be the justice e,g.
punishment to guilt;
(i) such a result must be contemplated, e.g., punishment to guilty
is reasonably and legitimately expected;
(ii) the same result must be produced by adopting a particular
procedure eg. the guilty is punished;
Civ) such a just outcome or state of affairs must be produced
consistently in every case i.e. the guilty must be punished in
every matter without a single instance of failure.

Imperfect procedural justice

An imperfect procedure is that which leads to a contemplated just
result, but not in every instance. In other words, if a procedure generates
just results in most of the cases but misses out sometimes, it is an imperfect
procedure and the outcome is imperfect procedural justice. For example if it
is known what justice demands and who ought to get what as a matter of
justice; and same is produced by a procedure most of the times but not every
time, then it is imperfect procedural justice. In a fair trial, it is expected that
ne guilty shall be punished. But sometimes the guilty goes unpunished or
an innocent person is punished. It reflects imperfectness of the procedure.
Such result is called imperfect procedural justice. The essential ingredients
of imperfect procedural justice are
()a particular outeome must be considered to be the justice eg.
punishment to guilty;
to guilty
(ii) such a result must be contemplated, e.g. punishment
is reasonably and legitimately expected;
a particular
(ii) the same result must be produced by adopting
procedure eg. the guilty is punished;
in most of the cases but
v) such a just outcome must be produced
must be few instances of failure
not in every case, and there
 18 is not
punished.

wherein
the guilty

what
Pure procedural justice o r who
ought to get a

what justice
demands to
to
arrive at
at substantive
substantive
arrive
not clear procedure
adoptod noh
results a r e not
it
If is
but a
fair
justice.
Here the Th
m a t t e r of
justice, procedural a fair procedure.
pure through
is a c h i e v e d e s t a b l i s h that justice has been
is called
justice, it
but the justice sufficient to
a m o u n t s to justice
contemplated,
itself is outcome
the procedure an
fairness of c o n s i d e r e d . If the
whether
determine
to to be
done. In other words, alone needs t h e n Justice is
the procedure result w a s 1ar,
the fairness of
or
not, arriving at a
certain

proced ure adopted in

deemed to have been achieved.

Quasi-pure procedural justice establish the justice, it

is sufficient to
f the fairness of the
procedure fairness of a procedure is
justice. But when the
amounts to pure procedural of the results,
it 1s called quasi-pure
insufficient to establish the justice
procedural justice.
imperfect procedural justice
Perfect procedural justice and
distinguished
require an expected just
Both perfect and imperfect procedural justices
But the distinction lies in the
result to flow from a particular procedure.
in each and every
consistency. If such results are produced consistentlyprocedural justice is
instance, the procedure is perfect and the perfect
are instances of failure, the
achieved. if
But the consistency is lost and there
procedure is imperfect and leads to imperfect procedural justice.

LEGITIMACY
Legitimacy is a moral property, clearly distinguishable from justice. A
coercive action of the State shall be just if it satisfies the demands of justice.
It is legitimate when its exercise is supported by right. A coercive action of
the State may be just but not necessarily legitimate. Conversely, a coercive
state action may belegitimate but unjust.
Obeying the law and civil disobedience
Rawls says that an ordinary citizen or subject is bound to comply with
the legitimate laws. It is his natural
duty. Whether he has taken any
voluntary undertaking relating to obedience of laws or no*, he must abide by
law. But in certain cases, obligation to observe the
law falls on a citizen or
subject by virtue of their voluntary undertakings. ¥or
Government officials are required to give undertaking to obey example, some
such cases the obligation to abide the law.
by law is by virtue of tucir
and not by their natural
duty. undertaking
The natural duty of citizen or a
and every law. There is no subject compels him to observe ea
scope of disobedience.
created by the voluntary
undertaking given by Similarly, the obligatio
a citizen or subject binds n
 RAWLS' THEORY OF JUSTICE
19
to abide by
each and every
r an obligation allows any
nor an oligation
law. Thus it is clear that neither the natural duty
15hedience and conscientiousdefiance
of any legitimate law.
d refusal are sometimes However, civil
may be even morally necessary. morally permissible, or
SOCIAL JUSTICE
John Rawls believed that a society is less
self-sufficient
more or a
aSSOciation of
persons and there is a system of
cooperation amongst
members. Theretore the members voluntarily accept and follow certian rules8
of conduct in their mutual relations. These rules lay foundation of
principles
of social justice. These principles govern the society as a whole, and not the
individuals. But being members of society, these individuals are als0
controlled by these principles, though indirectly.
The social justice therefore relates to a society. Each member of the
society is vested with certain right such as right of mutual equality, right of
protection; or a reciprocal right. In case of contravention of any right, the
aggrieved member may enforce the same against another member. While
claiming his right, the claimant shall legitimately expect justice and the
social justice shall have to be meted out.
But if there is no society and the individuals live singly, there can be no
right vested in the individual. As such, no question of enforcement arises
and consequently, there can be no expectation or demand of social justice.
Therefore, as long as individuals live singly, the social justice does not come
into play. But the moment the individuals join together and form a group,
which eventually turns into a society, the need for social justice is felt in
respect to their mutual equality, protection and reciprocal rights.

PRINCIPLES OF SOCIAL JUSTICE

Rawls applies his theory of social justice to the basic social
structure.
which
The-term "basic social structure" refers to the total set of institutions,
within
constitute the polity. It means a unified and rule-governed system
which the component institutions function. The
institutions which are part
of the basic social structure include the gurernment offices, the legal system,
the family etc.
the markets, the civil society, the business corporations,
in a society is to be achieved,
According to Rawls, if universaltojustice
be kept aside. Ordinarily, while
the element of self-interest has
individual is
contents of justice, every
COnsidering the parameters and interest. But as member ofa group
or
concerned about protection of his own who
about himself. One must disregard
0CIety, one must forget everything or wealthy. One must
Whether a male or a
female and whether poor
18, skills and his potential.
g n o r e his race, his position
in the society, his
to be
in his opinion, need
two principles which, The first
administration of justice.
followed Propounded
by a group or a society
for the
Drin distribution of
basic liberties amongst
nciple relates to equal second principle
relates to equal

constituent mem
distributi d e r s of
the society.
The
amongst the individuals
resources
forming
of
and
Dart 0 r opportunitiesprinciples maintain "fairness"
as the content
the society. These
 INTERPRETATION O F STATUTES

essen
essential to
20
these
principles are
inequalities o govern the
According
to Rawls,
social and
economic

by the
balance the
justice.
to
society and
laws and policies.
of liberty
principle
The principle of liberty demands equal basic liberties for evem.nscience,
First
principle-The

liberties like thought,

thought. ca member
speech, association, participation in political decsion-making
that the basic making ete
etc. 1st ene
must hav
of the society.
It means
st be
or society ma
a group
individual of
available to all.
Each liberties. However,
fundamental
such Dav
However, such libertiea
equally number of the samne.
denied
right to
maximum
individual is
no
can be availed
as long as constitutional protection of basie
protection
further requires system ta ensure
This principles
need of a recognized thatno
the must be adequate enor
liberties. It emphasizes
liberties. The system
dequate enough
one isdeprived of these ndamental int
These fundamental
of citizens. inter
fundamental interests
uphold the
two basic rights; firstiy,
to Iorm, revise and purs
of their
relate to exercise
secondiy, to propose
and honour fa
a conception of their own good and
with others.
terms of social cooperation
of opportunities
Second principle-The principle of distribution and

resources

This principle has two parts. The first part relates to distribution of
opportunities and the second part relates to distribution of resources.
The principle of distribution of opportunities demands that the laws
and policies must ensure equality of opportunity. It means that equal
number of opportunities shall be afforded to every individual member of the
s0ciety. No member shall be deprived of an opportunity.
The principle of distribution of
resources that in the existing
inequalities of the society, the least advantaged says
must receive the greates
benefits. In other words, the
weakest in the society. Thus, maximum benefits must go to those who ae
according this
to
allowed more benefits principle,
of the society must be the weaker secuo
than others.
Both the principles must be
The complied
together
two principles
They need to be complied put forth by John Rawls are order.
shall lead to violation together. Any contravention given in serial ol
second principle shall of the second. Similarly, ion of the first princi
the nrs of
and breach of first the
render the second parv
the

Principles apply directly to part contravened.

These two basic social
not to the principles apply to the structure
is constituents
complete set of institutions
thereof. As basic social structure as a whole and
already
forming a mentioned,
tioned, basic atruct
basic social struct
polity. so
 RAWLS' THEORY OF JUSTICE 21

Principles do not directly apply to the components of basic social

structure

These two principles directly apply to the basic social structure as a

whole but not to a particular element thereof, such as a family. Family is an
ingredient of basic social structure, but these principles shall not
directly
apply to it. However, it should not lead to an inference that family shall
always stay out of arena of these principles. Actually the question is of their
direct applicability. As far as family is concerned, these principles shall not
apply directly. Their direct application shall be to the basic social structure.
But family being a part of such basic social structure cannot remain
unaffected. Therefore, when these principles are applied to the basic social
structure, the family is automatically governed by them. Thus, these
principles indirectly apply to the family, being a component of the basic
social structure. It therefore be said that these principles apply directly
can
to the basic social structure and indirectly to the constituents thereof.

Sequence of four stages

The two principles
of justice formulated by Rawls apply to the basic
social structure, but their application may be secured stage-by-stage. It is
not possible to apply them in a single stroke. Therefore Rawls
sequence of four stages for the purpose of justice in a society.
presented
a

First stage.-The polity must choose the principles of

justice, which
best suited to their need in light of their own historical condition.
are

Second stage.-The polity must evolve a constitution and

develop a
system of laws and policies, in tune with the principles of justice adopted by
them. Such constitution and system must suit to their historical
and
economic conditions. The responsibility thereof falls on the law-makers.
Third stage.-The laws and policies must be enacted
limitation of the two principles of justice and the constitution. subject to

Fourth stage.-There must be adjudication of disputes

limitation imposed by the principles of justice, the constitutionsubject
to the
and the laws
and palicies.
 INTERPRETATION OF STATUTES
22
CHAPTER SUMMARY
John Rawls theory of justice deals with both procedural justin
ce and
social justice.
Procedural Justice.-Procedural justice means the results tho
from a procedure adopted for justice. The procedural
justice may hece O
kinds viz., (i) Perfect procedural justice; (11) Imperfect procedural i
(iii) Pure procedural justice; and (iv) Quasi-pure procedural justice,
Perfect procedural justice.-If a procedure generates just
and
expected results consistently without failure, it 1s a perfect procedure and
the outeome is perfect procedural justice. The essential ingredients of perfe
procedural justice are-(i) particular outcome considered to be the justic
eg. punishment to guilty; (i) such a result must be contemplated, eg
punishment to guilty is reasonably and legitimately expected, (1i11) the same
result must be produced by adopting a particular procedure eg. the guilty is
punished; (iv) such a just outcome or state of affairs must be produced
consistently in every case i.e. the guilty must be punished in every matter
without a single instance of failure.

Imperfect procedural justice.-If a procedure generates just and

expected results in most of the cases, but not in every cases, it is an
imperfect procedure and the outeome is imperfect procedural justice. The
essential ingredients of imperfect procedural justice are-i) particular
outcome considered to be the justice e.g. punishment to guilty; (1i) such a
result must be contemplated, e.g. punishment to guilty is reasonably and
legitimately expected; (ii) the same result must be produced by adopting a
particular procedure e.g. the guilty is punished; (iv) such a just outcome
must be produced in most of the cases but not in every case, and there must
be few instances of failure wherein the
guilty is not punished.
Pure procedural justice.-If it is not clear
what justice demands and
the results are not contemplated, but a fair
substantive justice, it is called pure procedure adopted to arrive at
procedural justice. The fairness of the
procedure itself is sufficient to establish that justice has been done.
Quasi-pure procedural justice.-When the fairness of a procedure is
insufficient to
establish the justice of the
procedural justice. results, it is called quas-pu
Legitimacy.-It a moral
is
justice. A coercive action of the Stateproperty, clearly distinguishable fron
shall be just if it satisfies
of justice but it is the demand
legitimate when its exercise is
Obeying the law and civil supported by rngnt.
bound to comply with the disobedience.-An ordinary citizen
sometimes a citizen legitimate
undertakes
laws. It is his natural
such cases the obligation to abide to obey the law e.g. Government duty., "Ta
and not by their natural by law is by virtue of their officiasd
duty. However, neither the
obligation allows any defiance underaa
natural duty an
of any
Social legitimate law.
justice.-In a society, every
follows certain s and
govern the society as aof conduct in mutualmemberons. voluntarily accep1
rules
whole. Social relations. THese rules act
justice comes into play when the vo"
2 s t e d
 RAWLS' THEORY OF JUSTICE
23

right of any member of society is infringed and the

enforces the same against another member, legitimatelyaggrieved
member
However, the question of social justice would arise only expecting justice.
when there is
society. If there is no society and tke individuals live singly, there can be no
right vested in the individual, no enforcement of such right and no demand
of social justice.
Principles of social justice.-Rawls applied his theory of social
justice to the basic social structure i.e. the total set of institutions which
constitute the polity. According to him, social justice may be achieved only if
"self-interest" of individual member is kept aside. One has to forget his
position in the society, his financial status, his skills and potential, his race,
sex, etc.

First principle -The principle of liberty. The principle of liberty

demands that basic liberties such as liberty of thought, conscience, speech,
association, participation in political decision making etc. must be available
to every member of the society. It further requires constitutional
protection
of basic liberties.
Second principle-The principle of distribution of opportunities
and resources.-The principle of distribution of opportunities demands
that the laws and policies must ensure equality of opportunity. The principle
of distribution of resources says that weaker sections of the society must be
allowed more benefits than othera.
Sequence of four stages--The application of the two principles of social
justice may be secured stage-by-stage. In the first stage, the
polity must
choose the principles of justice, which are best suited to their need in light
of their own historical condition. In the second stage, the polity must evolve
a constitution and develop a system of laws and policies, in tune with the
principles of justice adopted by them. In the third stage, the laws and
policies must be enacted subject to the limitation of the two principles of
justice and the constitution. And in the fourth stage, there must be
adjudication of disputee subject to the limitation imposed by the principles of
Justice, the constitution and the laws and policies.