LL.B.

(Honours) X SEMESTER

LAW AND CHALLENGES OF GLOBAL AND MODERN WORLD

UNIT I

TOPIC 1- RELATIONSHIP BETWEEN LAW AND POWER

NOTES
BACKGROUND

In a lecture from 1953, the political philosopher Hannah Arendt distilled the long history of
political theory to produce a powerful commentary on the rule of law versus that of power. A
government is good or bad based on “the role played by law in the exercise of power. In the
“exercise of power in the interest of the rulers,” we find bad government; good government “the
use of power in the interest of the ruled Therefore, is a lawless government in which decisions
are “bound only by its own will and desires” In such fundamental underpinnings of society and
government, we may hear echoes from the Founders. Alexander Hamilton wrote that
“Government implies the power of making laws . instituted . Because the passions of man will
not conform to the dictates of reason and justice without restraint” and that where “the whole
power of the government is in the hands of the people, there is less pretense for the use of violent
remedies in partial or occasional distempers of the State”
Law’s legitimacy springs from the process by which it is created and its general
applicability. The rule of law is not arbitrary, and it applies to every citizen, no one is above the
law or beyond its reach. The rule of power is its opposite. Our system of government was
designed to guard against the arbitrary creation and application of rules; a “barrier against
domestic faction” serving as a remedy for the “mortal diseases under which popular governments
have everywhere perished” A faction is some number of citizens united by self-interests adverse
to the rights of others or the collective interests of society. Those in power should “make no law
which will not have its full operation on themselves and their friends, as well as on the great
mass of society”. The rule of law can provide “one of the strongest bonds by which human
policy can connect the rulers and the people together, but without which every government
degenerates into tyranny”. That rules are wrong if applied only when convenient, or only when
they help those applying them, is a concept so basic that it is taught to and understood by
children.
The relationship between the law and power in a political community has not been without
controversies. This is not withstanding the conceptualization problems around the two concepts.
Hans Morgenthau for instance conceptualizes power as comprising ‘anything that establishes and
maintains the control of man over man’. This conceptualization is problematic in itself since it
leaves a lot of room for interpretation of what ‘anything’ could mean in regard to establishing
and maintaining rule of man over man. In similar vein, Thomas Hobbes in his conceptualization
of law has stated that, ‘law is a command of the sovereign’ (T. Hobbes, 1998). In trying to
establish the relationship between power and the law, then law becomes the expression of the
wishes of the sovereign/ruler. The ruler therefore in exercise of his powers formulate the law. This conceptualization of
the law by Hobbes perhaps represent the all-powerful sovereign which
could have probably made him name his work after the sea monster. However, contemporary
Law and Society scholars are increasingly paying attention to the idea of legal pluralism with the
view of “a multiplicity of legal orders that exists in every social arena” . To them, there are
different types of laws at different levels from village, national types as well as transnational and
international laws which have forced the nation-states to cede some of their monopoly and
autonomy. Consequently giving power to some regions, groups of people or institutions as well
as informing their behaviors. This even complicate the understanding of the relationship between
power and law.
Despite the intricacies involved, this paper weighs into to the debate of the relationship between
law and power. Subsequently, probing the proposition that law is the command of the sovereign
as put forth by Hobbes. In so doing, the paper answers the question: to what extent is law the
reflection of the wishes of political elites in a society? In answering this question, the paper
explores the sources of law and the manner in which the law is implemented with an aim of
understanding the prevalence of political elites’ interests in the processes. The task that is not
limited to the Hobbesian state where there is the all-powerful sovereign but also to the
democratic state with checks and balances put in place to guard against the use of power by the
political elites. This paper therefore seeks to establish link between power and the law bringing
into focus, the debates around these concepts and the empirical examples displaying the link both
in Hobbesian kind of states and the modern democratic states.

 Under the rule of law, power is the sovereign will of the people expressed as non-arbitrary laws that—theoretically, if not
perfectly in practice— apply to everyone equally.  This sovereign power also limits the exercise of governmental power
so that it does not exceed the authority granted to it by the people.

Divine Power and the Law

Scholars like Cicero have carried out more inquiries on what kind of laws should be obeyed with
reference to the origin of the law. Cicero for instance has argued that, “True law is right reason in
agreement with nature, it is of universal application, unchanging and everlasting; it summons to
duty by its commands, and averts from wrongdoing by its prohibitions” . In similar vein, Thomas
Aquinas has opined that, ‘positive law ’ is derived from natural law. To them, for any law to be
considered just and genuine its origin must be in harmony with nature. For instance since nature
supports life, then murder will be against nature hence not a positive law. Cicero continues that:
“We cannot be freed from [natural law’s] obligations by senate or people, and we need not look
outside ourselves for an expounder or interpreter of it” . This complicates the understanding of
the relationship of power and law especially by denying the senate and other political elites voice
on what becomes law.
It has been argued that, the actual duty of law is to guide individuals in their behavior and
interaction with one another. The fact that individuals are allowed to access this law from nature
means there is lack of standards which in turn undermines the main function of law. Despite
Aquinas arguing that at times, natural law leave room for human choices based on local customs
and policy raises further questions on who decides on local customs and policy giving room to
individuals. Subsequently, William Blackstone has argued that; validity of human law is based
on the harmony it enjoys with the law of nature. In similar vein, Aquinas has argued that, “Every
human law has just so much of the nature of law, as it is derived from the law of nature. But if in
any point it deflects from the law of nature, it is no longer a law but a perversion of law”
(Aquinas, 1993). This kind of claim makes a case for disobedience of the sovereign if his orders run counter to the natural
law. Just positive laws are therefore viewed as having “the power of
binding in conscience.” This law has to be “ordered to the common” with the lawgiver not
exceeding his authority and law’s
burdens are imposed on the citizens fairly (Aquinas, 1993). This notion has been faulted by
Austin who has argued that, in the case of an act whether beneficial or not is prohibited by the
sovereign under the penalty of death, if I commit that act and say it was not consistent with the
law of God I will still be punished. He says, “The Court of Justice will demonstrate the
inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have
impugned the validity” (Austin, 1995). Despite Aquinas insisting that unjust law-law not
consistent to natural law-should not be obeyed, he has warned that such a law can only be
resisted if there is no much scandal or greater harm to such resistance (Aquinas, 1993).
Consequently, softening the stand on the obedience of laws that may not be consistent to natural
law. In the end therefore, the orders of the sovereign backed with the sanctions must be obeyed
hence the display of law as an order of the sovereign.
Ten insights into the nature of power and its relationship with law are derived from the work of
Michel Foucault: (1) power is not a bad thing; (2) power cannot be abolished; (3) power is not
monopolized by the powerful; (4) power is everywhere; (5) power always provokes resistance;
(6) power shapes knowledge; (7) power determines truth; (8) law is a strategy of power; (9) law
is only one of the many strategies of power; and (10) power and discourse are non-subjective.

TOPIC 2- NEXUS BETWEEN LAW AND IDEOLOGY

If law is a system of enforceable rules governing social relations and legislated by a political
system, it might seem obvious that law is connected to ideology. Ideology refers, in a general
sense, to a system of political ideas, and law and politics seem inextricably intertwined. Both
legal systems and ideologies as liberal, fascist, communist, and so on, and most people
probably assume that a law is the legal expression of a political ideology. One would expect
the practice and activity of law to be shaped by people’s political beliefs, so law might seem
to emanate from ideology in a straightforward and uncontroversial way.
However, the connection between law and ideology is both complex and contentious. This is
because of the diversity of definitions of ideology, and the various ways in which ideology
might be related to law. Moreover, whilst the observation about law’s link with ideology
might seem a sociological commonplace, the link between law and ideology is more often
made in a critical spirit, in order to impugn law. At issue is an understanding of ideology as a
source of manipulation. Law as ideology directs its subjects in ways that are not transparent
to the subjects themselves; law, on this view, cloaks power. The ideal of law, in contrast,
involves a set of institutions that regulate or restrain power with reference to norms of
justice. Thus the presence of the ideological in law must, in some sense, compromise law’s integrity. Not only is the view
of law as ideology at odds with a lot of mainstream thinking
about law, it seems difficult to reconcile with the central philosophical positions on the
nature of law, e.g. a positivist conception of law as a set of formal rules, or a natural law
conception where law is identified with moral principles.

Law as ideology directs its subjects in ways that are not transparent to the subjects themselves. law, on this view,
cloaks power. The ideal of law, in contrast, involves a set of institutions that regulate or restrain power with reference to
norms of justice.

MARXIST THEORY OF LAW AND IDEOLOGY

The position occupied by law in capitalist society is contested by different strands of jurisprudential thought. Marxist
materialist theories relegate law to the ideological social superstructure and present law as an epiphenomenal and
derivative tool harnessed for unequal, oppressive and ideological purposes. This paper shall examine Marx’s class-mired,
material and dualist conception of the law through an assessment of central Marxist tenets, and the works of different
writers within the Marxist tradition. The tenets examined include historical (dialectical) materialism in Marxist thought
and the base-superstructure relationship to ascertain the autonomy or functionality of the law. The argument positing law
as ideology shall then be explored to pave the way for an analysis of the consequences and contemporary difficulties
posed by Marx’s theories. This paper shall culminate with an analysis of Marx’s solution in light of the ‘withering away’
of law claim.

TOPIC 3- GLOBALIZATION

HISTORY
For some people, this global phenomenon is inherent to human nature. Because of this, some say
globalization begun about 60,000 years ago, at the beginning of human history. Throughout time, human
societies’ exchanging trade has been growing. Since the old times, different civilizations have developed
commercial trade routes and experienced cultural exchanges. And as well, the migratory phenomenon has
also been contributing to these populational exchanges. Especially nowadays, since traveling became
quicker, more comfortable, and more affordable.
This phenomenon has continued throughout history, notably through military conquests and exploration
expeditions. But it wasn’t until technological advances in transportation and communication that
globalization speeded up. It was particularly after the second half of the 20th century that world trades
accelerated in such a dimension and speed that the term “globalization” started to be commonly used.
Globalization means the speedup of movements and exchanges (of human beings, goods, and services,
capital, technologies or cultural practices) all over the planet. One of the effects of globalization is that it
promotes and increases interactions between different regions and populations around the globe.
Globalization is the word used to describe the growing interdependence of the world’s economies,
cultures, and populations, brought about by cross-border trade in goods and services, technology, and
flows of investment, people, and information. Countries have built economic partnerships to facilitate
these movements over many centuries. But the term gained popularity after the Cold War in the early
1990s, as these cooperative arrangements shaped modern everyday life. This guide uses the term more
narrowly to refer to international trade and some of the investment flows among advanced
economies, mostly focusing on the United States.
The wide-ranging effects of globalization are complex and politically charged. As with major
technological advances, globalization benefits society as a whole, while harming certain groups.
Understanding the relative costs and benefits can pave the way for alleviating problems while sustaining
the wider payoffs.

IMPACT OF GLOBALIZATION ON LAW

Globalization impacts the legal field in manifold ways. It boosts international trade and commerce by
facilitating the simple movement of capital, labour, product, and services across national borders,
therefore driving economic process and they would like for trained legal professionals.
 Inadequate Infrastructure: Having a strong well-structured infrastructure plays a requisite role
in framing the legal education of a student. In comparison with international law universities,
India’s universities are far behind. Good infrastructure helps in shaping the overall life of a
student and providing thorough knowledge into the insights of legal education. Ample resources to the faculty as well as
to the students play a crucial role in moulding the
development of skills. The global legal practitioners and lawyers have put up a high standard
in the legal education system. India is still lacking behind in providing enough resources to
broaden the scope of the law and accommodate with the ability to level with the aforesaid
global lawyers who have been working and studying under the umbrella of learned law
experts and well-infrastructured universities. In India, many law universities are unable to
fulfil the minimum required infra and specialised law faculty because of insufficient funds.
 Foreign direct investments in education systems: Globalization has brought a whole lot of
revolution in society, polity, and professionalism which leads to the era of transformation.
Legal education in India has taken a dramatic turn in the last 30 years due to the globalization
of trade and business. FDI is enabled in the Indian law education system at the rate of 100%
by the automatic route. FDI has provided an edge to the Indian legal system to rise above their
standards as well as a challenge giving element. To keep up with the leading globalization,
developing nations like India, have concentrated more on establishing a global curriculum and
standardised legal education for qualitative legal education. FDI has created a sense of cut
throat competition among the institution. Therefore, Indian law schools are not only
centralizing in the studies on Indian laws but majorly in teaching and research in international
laws. Law students are taking an active part in national-international moot courts,
conferences, and webinars. The faculty are also expected to impart knowledge that can
expand the legal minds of students.
 Global programs and international experiences: Indian universities need to get indulge in
broadening their international connections by instituting programs like student exchange
programs in foreign countries as well as offer education that can stand equivalent to the
standards and norms of international universities.
 Continuous legal approach and research-based education: Theoretical knowledge is something
which any school can provide but be in a law school, having only theoretical knowledge is not
enough. To be able to have an edge over other students can only happen if one is having top
notch research skills. Continuing legal education (CLE) plays a vital element in the industry
for professional development, good delivery of legal services and is also a measure of the
accountability of the profession. Observation and active participation are something that
dearth in the law students under the Indian legal education system. If we observe the most
common skill that the top-most faculty possess is the ability to do better research and
publication among academics whereas in India not much emphasis is given on research skills
of a student or a faculty.

EFFECTS OF GLOBALISATION ON LAW

The globalization has also far-reaching ramifications on legal profession which has also increased the pace and complexity of
law practice. This has led to many lawyers who cannot cope to leave practice. Globalization has also increased the mobility of
lawyers with the right legal skills and experience. Many lawyers are practicing in offshore law firms in the major financial
centers of the world. Within India too, domestic lawyers can move to law firms located here, and litigation lawyers can move
sideways to non-litigation work or arbitration. In the last few years, many senior advocates have been devoting more time to
arbitration practice, especially to international arbitration. The new legal landscape has provided many more practice choices to
lawyers.
Globalisation in modern world effects law in very large sphere.

 Inadequate Infrastructure: Having a strong well-structured infrastructure plays a requisite role in framing the
legal education of a student. In comparison with international law universities, India’s universities are far
behind. Good infrastructure helps in shaping the overall life of a student and providing thorough knowledge
into the insights of legal education. Ample resources to the faculty as well as to the students play a crucial role
in moulding the development of skills. The global legal practitioners and lawyers have put up a high standard
in the legal education system. India is still lacking behind in providing enough resources to broaden the scope
of the law and accommodate with the ability to level with the aforesaid global lawyers who have been working
and studying under the umbrella of learned law experts and well-infrastructured universities. In India, many
law universities are unable to fulfil the minimum required infra and specialised law faculty because of
insufficient funds. 

 Foreign direct investments in education systems: Globalization has brought a whole lot of revolution in
society, polity, and professionalism which leads to the era of transformation. Legal education in India has
taken a dramatic turn in the last 30 years due to the globalization of trade and business. FDI is enabled in the
Indian law education system at the rate of 100% by the automatic route. FDI has provided an edge to the
Indian legal system to rise above their standards as well as a challenge giving element. To keep up with the
leading globalization, developing nations like India, have concentrated more on establishing a global
curriculum and standardised legal education for qualitative legal education. FDI has created a sense of cut-
throat competition among the institution. Therefore, Indian law schools are not only centralizing in the studies
on Indian laws but majorly in teaching and research in international laws. Law students are taking an active
part in national-international moot courts, conferences, and webinars. The faculty are also expected to impart
knowledge that can expand the legal minds of students. 

 Global programs and international experiences: Indian universities need to get indulge in broadening their
international connections by instituting programs like student exchange programs in foreign countries as well
as offer education that can stand equivalent to the standards and norms of international universities. 
 Continuous legal approach and research-based education: Theoretical knowledge is something which any
school can provide but be in a law school, having only theoretical knowledge is not enough. To be able to
have an edge over other students can only happen if one is having top-notch research skills. Continuing legal
education (CLE) plays a vital element in the industry for professional development, good delivery of legal
services and is also a measure of the accountability of the profession. Observation and active participation are
something that dearth in the law students under the Indian legal education system. If we observe the most
common skill that the top-most faculty possess is the ability to do better research and publication among
academics whereas in India not much emphasis is given on research skills of a student or a faculty.

TOPIC 4- LAW AND THE QUESTION OF PRIVACY IN 21 CENTURY

The Right to Privacy is the right to be left alone. Amongst the series of events followed by the global pandemic that has
been substantially challenging to uphold the fundamental rights of the citizens, the protection of the fundamental right to
privacy in these times, is imperative for the purposes of constitutional sanctity. Data is the new oil and is an important
game-changer to economic development in the 21st century. As judiciously quoted by William Edwards Deming, “In God
we trust; all others must bring data”. Data is pivotal to capitalism, however, the user’s entitlement to privacy must not be
disregarded in the due process. The Hon’ble Supreme Court has spelled out the individual’s Right to Privacy from Article
21 and Article 19(1) (d). This in consonance with Article 12 of the Universal Declaration of Human Rights, Article 17 of
the International Covenant on Civil and Political Rights, 1966 as well as the European Convention on Human Rights.
Although the Constitution of India did not specifically refer to the Right of Privacy in an express manner, it can still be
traced from the right to ‘life’ in Article 21. As decided under the case, Naz Foundation v. Government of NCT of Delhi
(2010), “A citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
childbearing, and education among many other matters”.

In the case of Maneka Gandhi v. Union of India (1978), the Hon’ble Supreme Court of India has held that the expression
“personal liberty” under Article 21 of the Constitution of India is of the widest amplitude and it covers a variety of rights.
It is imperative to note herein, as held by the Supreme Court, in the judgment KS Puttaswamy v. Union of India (2017),
the term Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an
origin in the notion that certain rights are natural to or inherent in a human being. Natural rights are inalienable because
they are inseparable from the human personality. The human element in life is impossible to conceive without the
existence of natural rights. This article presents an orchestrated sycophancy with the widespread criticism towards State
inaction to protect the fundamental rights of its citizens.

he Right to Privacy is the right to be left alone. Amongst the series of events followed by the global pandemic that has
been substantially challenging to uphold the fundamental rights of the citizens, the protection of the fundamental right to
privacy in these times, is imperative for the purposes of constitutional sanctity. Data is the new oil and is an important
game-changer to economic development in the 21st century. As judiciously quoted by William Edwards Deming, “In God
we trust; all others must bring data”. Data is pivotal to capitalism, however, the user’s entitlement to privacy must not be
disregarded in the due process. The Hon’ble Supreme Court has spelled out the individual’s Right to Privacy from Article
21 and Article 19(1) (d). This in consonance with Article 12 of the Universal Declaration of Human Rights, Article 17 of
the International Covenant on Civil and Political Rights, 1966 as well as the European Convention on Human Rights.
Although the Constitution of India did not specifically refer to the Right of Privacy in an express manner, it can still be
traced from the right to ‘life’ in Article 21. As decided under the case, Naz Foundation v. Government of NCT of Delhi
(2010), “A citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
childbearing, and education among many other matters”.

In the case of Maneka Gandhi v. Union of India (1978), the Hon’ble Supreme Court of India has held that the expression
“personal liberty” under Article 21 of the Constitution of India is of the widest amplitude and it covers a variety of rights.
It is imperative to note herein, as held by the Supreme Court, in the judgment KS Puttaswamy v. Union of India (2017),
the term Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an
origin in the notion that certain rights are natural to or inherent in a human being. Natural rights are inalienable because
they are inseparable from the human personality. The human element in life is impossible to conceive without the
existence of natural rights. This article presents an orchestrated sycophancy with the widespread criticism towards State
inaction to protect the fundamental rights of its citizens.

The incongruity between the Contract Tracing Methodologies To Curb The Spread Of Covid-19 and the Right to Privacy:

According to the landmark decision of the Supreme Court of India in, KS Puttaswamy v. Union of India (2017), the court
held that the right to privacy is a part of the right to life and personal liberty and is a fundamental right under the
Constitution of India. The pandemic is a public health emergency and individual rights may be restricted in the interest of
the greater good. However, the fact that the Indian government tends to view citizen’s data as a natural resource to be
exploited and monetized could not be disregarded. The Economic Survey of India 2018-19 mentions that citizens’ data
should be treated as a public good and a few sections thereto are ought to be adapted by offering admittance to privately
owned businesses to ease the pressure on government finances. There are all sorts of indispensable formalities to be
observed before offering admittance to privately owned businesses, a normal adjunct to it being the very notion that it is
unequivocally important to assure that the ministries and government agencies do not use this data as a way to underwrite.
In the fitness of the practice to generate a neutrally balanced opinion, the author places a due recognition to the fact that
the Supreme Court of India has also observed that the right to privacy is not absolute and allows room for reasonable
restrictions to be so placed in the interest of public order, however, any restriction is required to be reasonable i.e. within
the legal framework of the land. As held under, V.K. Javali v. State of Mysore (1966), the expression ‘In the interest of
‘gives a greater leeway to the legislature to curtail freedom of speech and expression, for a law penalizing activities
having a tendency to cause, and not actually causing public disorder, maybe valid as being ‘in the interest of’ public order.
The restrictions imposed must have a reasonable and rational relation with the public order, security of the state, etc. If the
nexus between the restriction and the public order etc. is farfetched, then the restriction cannot be sustained as being in the
‘interest’ of public order, etc.

UNIT II

TOPIC 1- RELATIONSHIP BETWEEN LAW AND JUSTICE

"LAW" — officially promulgated rules of conduct, backed by state-enforced penalties for their transgression.
''JUSTICE'' — rendering to each person what he or she deserves.

Justice and morality are commonly used in law. Although they are all a part of the same system and have many common
factors, it cannot be ignored that they imply different meanings in the legal term. Before understanding the inter-
relationship of law justice and morality, it is necessary to understand their personal meaning.

Case law under Law, Justice and Morality

1. Queen vs. Dudley and Stephen’s Case: 14 Queens Bench Division 273 (1884)
Facts of the case: – Defendant, Thomas Dudley (Mr. Dudley) and Edwin Stephens (Mr. Stephens) (Defendant), and two
other gentlemen, Mr. Brooks and the victim, Richard Parker (Mr. Parker), sat on the boat for several days. When it was
revealed that everyone would die of thirst and starvation, the defendants decided to sacrifice Mr. Parker for the good of
the rest. A man who, in order to avoid starvation death, kills another to eat his flesh, is guilty of murder; However at the
time of the act he is in such circumstances that he believes and has reasonable grounds to believe that it gives him the only
chance to preserve his life.
Judgment of the case: – In this case, the court applied the principle of ‘Ratio Decidendi’ which means one person cannot
sacrifice another person’s life to save his or her own. And on these facts, there was no evidence of any necessity that
could justify the prisoners in killing the boy and they were guilty of murder.
What is law and justice in simple words?
Law means Justice, Morality, Reason, Order, and Righteous from the view point of the society. Law
means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of legislature. Law means
Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges.
Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of
law or is simply a moral judgment about law. An example of the latter is when we speak of an "unjust law."
Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered
no reason to support a conclusion that justice is somehow part of law. This Essay attempts to reason toward
such a conclusion, arguing that justice is an inherent component of the law and not separate or distinct from it.
Given the history of the topic, I start with a disclaimer. The issues involved in these questions are as vast as they
are fundamental. I do not pretend to have a definitive solution. I do, however, attempt a suggestive solution
based on an extended hypothetical case. If you, the reader, are not persuaded by it, I hope at least that it will
have heuristic value for you. Justice to me is a personal thing as well as a concept worthy of study. I believe that
you cannot "do justice" to my arguments unless you "know where I am coming from." So I intend to be
personal as well as theoretical in this Essay, mingling the approaches shamelessly as I go along. I hope that the
casualness of my writing style will not signal to you that the ensuing analysis is easy or off-hand. In fact, the
choice of style is quite deliberate. For I believe that the most elusive and hardest ideas are best tackled by the
simplest and most direct kind of prose. This is in large part a reaction to my frustration over the years in reading
"heavy" prose which often, because of its convoluted style (such as the use of third-person, passive tense, and
overly long sentences), turns out to be ambiguous. When the subject of an article is difficult, the last thing we
need is an ambiguous analysis of it. The simpler the prose, the more naked are the ideas expressed in support of
the author's conclusion. I hope to convey precisely what I mean, and if there is illogic or incoherence in what I
say, it will be exposed to your scrutiny, not buried in a heavy style. Let me start by mentioning my current
project on justice. For the past decade or so I've been on something of a crusade to persuade law schools to
teach justice. Justice, I argue, is what law is for; justice is what lawyers should do; justice is what judges
[pg529] should render.FN1 "Law" is nothing but a set of tools—admittedly complex and intellectually
engaging. But we should not get so caught up in the intellectual interest of law that we forget that law in itself
cannot solve human problems. Like any other tool, law may facilitate the solution of a given problem. But we
cannot expect law to tell us how the problem ought to be resolved. Although I would never challenge the
proposition that the training of lawyers requires familiarization with the tools of the trade, I contend that simply
teaching students how to find and use the tools of the trade—including verbal and rhetorical skills—is hardly
ennobling, is hardly why we can call law a "profession," is hardly the reason students should study law or why
the best students come to law school in the first place. Nor can we cop a plea by saying that our duty is only to
serve our clients, because some desires of some clients (such as planning a crime) are and should be excluded
from a lawyer's professional responsibility. If serving a client is a lawyer's highest aspiration, then that lawyer is
just a hired gun. To the contrary, the reason law is properly called a profession is because our job is to help
achieve justice—justice for our clients, to be sure, but justice nevertheless. By achieving justice for our clients,
we simultaneously add a measure of justice to society.

Law and justice are two very different things that share a close relationship with each other. Law exists in a two-dimensional
spectrum, whereas justice, a socially constructed view, can never be so simply described. In modern society, there are social
institutions in place to enforce laws loosely guided by ethics and justice. Occasionally, laws may contradict each other, so as
a society we have created a hierarchy of laws: constitutional amendments, federal laws, states laws, etc. When overlapping
and contradicting laws simultaneously exist, it becomes the duty of the courts to decide, which law society is governed
under. Here in lies the problem with our modern system of justice.

TOPIC 2- HUMAN RIGHTS, LAW AND JUSTICE

Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any
other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and
expression, the right to work and education, and many more.  Everyone is entitled to these rights, without discrimination.

Economic, social and cultural rights

The International Covenant on Economic, Social and Cultural Rights entered into force in 1976. The human rights that the
Covenant seeks to promote and protect include:

 the right to work in just and favourable conditions;

 the right to social protection, to an adequate standard of living and to the highest attainable standards of physical
and mental well-being;
 the right to education and the enjoyment of benefits of cultural freedom and scientific progress.

Civil and political rights

The International Covenant on Civil and Political Rights and its First Optional Protocol entered into force in 1976. The Second
Optional Protocol was adopted in 1989.
The Covenant deals with such rights as freedom of movement; equality before the law; the right to a fair trial and presumption of
innocence; freedom of thought, conscience and religion; freedom of opinion and expression; peaceful assembly; freedom of
association; participation in public affairs and elections; and protection of minority rights. It prohibits arbitrary deprivation of life;
torture, cruel or degrading treatment or punishment; slavery and forced labour; arbitrary arrest or detention; arbitrary interference
with privacy; war propaganda; discrimination; and advocacy of racial or religious hatred.

Human Rights Conventions

A series of international human rights treaties and other instruments adopted since 1945 have expanded the body of international
human rights law. They include the Convention on the Prevention and Punishment of the Crime of Genocide (1948),
the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the
Elimination of All Forms of Discrimination against Women (1979), the Convention on the Rights of the
Child (1989) and the Convention on the Rights of Persons with Disabilities (2006), among others.

Human Rights Council

The Human Rights Council, established on 15 March 2006 by the General Assembly and reporting directly to it, replaced the 60-
year-old UN Commission on Human Rights as the key UN intergovernmental body responsible for human rights. The Council is
made up of 47 State representatives and is tasked with strengthening the promotion and protection of human rights around the
globe by addressing situations of human rights violations and making recommendations on them, including responding to human
rights emergencies.

The most innovative feature of the Human Rights Council is the Universal Periodic Review. This unique mechanism involves a
review of the human rights records of all 193 UN member states once every four years. The Review is a cooperative, state-driven
process, under the auspices of the Council, which provides the opportunity for each state to present measures taken and
challenges to be met to improve the human rights situation in their country and to meet their international obligations. The
Review is designed to ensure universality and equality of treatment for every country.

Human Rights Day is observed by the International community on December 10 every year. It commemorates the day
when the UN General Assembly adopted the Universal Declaration of Human Rights in 1948. The Declaration is not a
binding document but it has inspired more than 60 human rights instruments that constitute the international standard of
Human Rights. The UN Declaration of Human Rights set fundamental rights to which all of us are entitled. Here are the
10 basic human rights every individual must know.

THE RIGHT TO LIFE

Every individual has the right to live, which means it is the government’s responsibility to protect human rights and
safeguard human life.

THE RIGHT TO FREEDOM FROM TORTURE

THE RIGHT TO EQUAL TREATMENT

Irrespective of their colour, caste, religion, gender, every individual must be treated the same and this right reminds them
of it.

THE RIGHT TO PRIVACY

This right protects citizens from government or corporate overreach and surveillance.
THE RIGHT TO ASYLUM

The right to asylum is an old right dated back to ancient times when churches were allowed to protect anyone including
criminals who sought refuge in a church.

THE RIGHT TO MARRY

Every individual of legal age has the right to choose their life partners and marry them to start a family.

THE RIGHT TO FREEDOM OF THOUGHT, OPINION AND EXPRESSION

Every person has the right to hold opinions, follow a religion they want and change their beliefs.

THE RIGHT TO WORK

This right encompasses a variety of work-related concerns, which means everyone has the right to work but also has the
right to work in favourable conditions.

THE RIGHT TO EDUCATION

The right to education gives one the right to get educated. The UDHR states that education must be free till elementary
school.

THE RIGHT TO SOCIAL SERVICES

The right to social services ensure that an individual has a certain standard of living. This includes clothing, housing, food,
water, medical care and security.

Human Rights and Access to Justice

Enhancing access to justice and promoting human rights and fundamental freedoms for all, including women, children
and marginalized populations, are among the principal aims of ABA ROLI. ABA ROLI implements targeted strategies to
promote human rights worldwide while simultaneously applying human rights and gender perspectives across all its
programs and practice areas, in keeping with a general human rights-based approach to legal development. In doing so,
ABA ROLI is guided by human rights principles enshrined in the Universal Declaration of Human Rights and other
international human rights instruments.

Advancing human rights

Respect for civil, political, economic, social and cultural rights is a pillar of a strong rule of law culture, providing safety
and stability to communities and nations alike. Our programs encourage increased appreciation for and application of
regional and international human rights principles within national legal systems. Through customized trainings and
capacity building for lawyers, judges, government officials, law professors, law students, civil society organizations and
the public, ABA ROLI contributes toward the development of societies that can uphold and assert human rights. We also
promote and facilitate the documentation and investigation of human rights abuses, support strategic litigation and help to
protect human rights in the context of business and development.

Enhancing access to justice

International standards recognize access to justice as both a basic human right and a means to protect other universally
recognized human rights. Too often, even when rights exist on paper, enforcement of these standards is weak. Where
human rights protections are lacking, marginalized groups are often vulnerable to abuses and face significant challenges to
realizing their rights, including within the formal justice system. Our approach focuses on empowering individuals and
communities to assert their rights vis-à-vis the state, helping to nurture fairer, more accountable justice systems and
strengthening the frameworks that support human rights at the national, regional, and international levels.

Our expansive view of access to justice includes not only one’s ability to access the courts and legal representation, but
also one’s ability to engage effectively with law enforcement officials and to make use of informal, non-state justice
mechanisms. Civil society can provide important support for individuals and communities and offer an effective
counterbalance to the powers of the state and of the private sector. Thus, we often draw upon civil society organizations’
unique perspectives, grassroots-convening power and institutional knowledge to design and implement effective and
sustainable programs.

A lack of effective indigent defense services often results in a denial of full access to justice for all citizens. To help, ABA
ROLI programs promote better access to courts, legal representation and alternative dispute resolution mechanisms. ABA
ROLI has extensive experience with traditional legal aid approaches, such as legal clinics, traveling lawyer programs,
civil and criminal legal aid programs and pro bono assistance, and with advocating for laws to establish such services.
Additionally, we work to empower non-traditional legal resources, such as community-based paralegals, that often serve
as a primary means by which poor and marginalized people settle disputes. ABA ROLI also seeks to increase citizens’
understanding of their rights by incorporating civic education into legal services delivery.

Promoting sexual rights

Violence, discrimination, harassment and other egregious human rights violations against lesbian, gay, bisexual and
transgender (LGBT) communities and individuals are widespread across the globe. Some of these violations are
entrenched in highly punitive and restrictive laws that impede the rule of law, hamper access to healthcare and other
essential services and, in their extreme forms, lead to inhuman or degrading treatment and punishment by law
enforcement, justice system actors and government officials.

ABA ROLI actively promotes the rights of all persons, including LGBT people, to have control over and decide freely
and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion,
discrimination and violence. To that end, we train, support and empower local lawyers, paralegals, representatives of civil
society organizations and members of LGBT communities to advocate against violence and use national anti-
discrimination laws and international human rights treaties to protect and assert sexual rights. In parallel, we train justice
system actors on how to handle discrimination and hate crimes cases, and we work to broaden legal protections against
bias-motivated offenses through legislative reform efforts and strategic litigation. Finally, we conduct public awareness
efforts that challenge harmful biases and stereotypes and highlight the contributions of LGBT people to society.

Combating trafficking in persons

Trafficking in persons (TIP) is a multifaceted, highly complex phenomenon tightly interlinked with poverty,
unemployment, gender discrimination, social exclusion, globalization, displacement and foreign migration. Drawing on
the well-respected “four Ps” paradigm, ABA ROLI’s anti-TIP programs aim to partner with state and non-state actors,
prevent TIP, prosecute perpetrators, as well as identify and protect the victims. Our approach involves advancing
sustainable solutions through an array of technical assistance programs encompassing legislative drafting, policy
formulation, research and analysis, capacity building and training, strengthening multi-sectoral and international
cooperation, civic education, strategic litigation, trial monitoring and victims’ rights. We have been particularly successful
in responding to TIP in five priority areas, including legal and policy reform; enhancing victims’ access to justice and
essential services; criminal justice strengthening; prevention and risk mitigation; and facilitating multi-sectoral and
international cooperation.  

TOPIC 3- CRIMINAL LAW AND RESTORATIVE JUSTICE

“Restorative justice” focuses on the rehabilitation of offenders through reconciliation with victims, and with the
community at large. It has gained momentum as a justice reform movement in Western countries within the past three
decades, and it is estimated that up to one hundred countries worldwide utilize restorative justice practices .In India, study
has found that dispute resolution outside the formal court system was effective since time immemorial in some form or
other. The present system of court annexed settlement as well as outside court settlement provides a golden opportunity to
the disputant to resolve their dispute through the mechanism best suited to them. Such plenty of mechanism which have
the components of restorative justice help a large number of parties to settle their disputes outside court. Restorative
justice provides a large number of advantages in comparison to the adjudicatory processes, such as speedy disposal, cost
effectiveness, maintenance of good relationship and chances of continuity of relationship, less formality, more compliance
etc. In different parts of the world, people started using restorative justice system within criminal Justice System in
different ways, such as plea bargaining, Victim-Offender Mediation, out of court settlement etc. Benefits obtained by such
processes in other jurisdictions have compelled our legislature to use it within the Indian Criminal Justice System. The
result of such incorporation of different processes within criminal justice is emergence of ‘Plea Bargaining’ within
criminal procedure. Moreover, since the beginning of the criminal procedure in India there were provisions which could
have been instrumental for using restorative justice within CJS such as compounding of offence, withdrawing from
prosecution etc. Thus the study shows that out of court settlement within criminal justice system was not alien in India.In
sui generis Plea Bargaining process victims get rights to decide about the case, participate in the process along with other
stake holders and if their aspirations are fulfilled settled the case by virtue of ‘mutually satisfactory disposition’.

Restorative justice gives victims the chance to meet or communicate with their offenders to explain the real impact
of the crime – it empowers victims by giving them a voice. It also holds offenders to account for what they have done and
helps them to take responsibility and make amends.

This article explores the "5 R's" of restorative justice (originally identified by Beverly Title of ReSolutionaries). The 5 R's
include relationship, respect, responsibility, repair and reintegration. As this article points out, at the heart of every
restorative process is a damaged relationship between the person who caused a harm, the recipient of the harm, and the
community in which the harm was felt. Through restorative justice processes, these parties are able to communicate in a
respectful manner to identify the personal responsibilities of all involved, explore solutions for how to repair the harm that
was felt, and identify opportunities to reintegrate the individual who caused the harm back into the community . 

Restorative justice is a different way of thinking about crime and our response to crime. It focuses on repairing the harm
caused by crime and reducing future harm through crime prevention. It also requires offenders to take responsibility for
their actions and for the harm they have caused. However, it seeks redress for victims, recompense by offenders and
reintegration of both within the community through a co-operative effort by communities and the government.
Restorative justice is a different way of thinking about crime and our response to crime. It focuses on repairing the harm
caused by crime and reducing future harm through crime prevention. It also requires offenders to take responsibility
for their actions and for the harm they have caused.

In criminal justice, restorative practice is widely known as restorative justice. Restorative justice gives victims the chance
to meet or communicate with their offenders to explain the real impact of the crime – it empowers victims by giving them
a voice.

It also holds offenders to account for what they have done and helps them to take responsibility and make amends.
Government research demonstrates that restorative justice provides an 85% victim satisfaction rate, and a 14% reduction
in the frequency of reoffending. 

Restorative justice is about victims and offenders communicating within a controlled environment to talk about the harm
that has been caused and finding a way to repair that harm.

For offenders, the experience can be incredibly challenging as it confronts them with the personal impact of their crime.
For victims, meeting the person who has harmed them can be a huge step in moving forward and recovering from the
crime.
Restorative justice conferences, where a victim meets their offender, are led by a facilitator who supports and prepares the
people taking part and makes sure that the process is safe. Sometimes, when a face to face meeting is not the best way
forward, the facilitator will arrange for the victim and offender to communicate via letters, recorded interviews or video.

For any kind of communication to take place, the offender must have admitted to the crime, and both victim and offender
must be willing to participate.

Restorative justice can be used for any type of crime and at any stage of the criminal justice system, including alongside a
prison sentence. The RJC advocates the use of safe, high quality restorative justice wherever and whenever it is needed.

The evidence

Restorative justice works.  The evidence shows that restorative justice meets the needs of victims and reduces the
frequency of reoffending.

In 2001, the government funded a £7 million, seven year research programme into restorative justice. The independent
evaluation, published by the Ministry of Justice, found that in a randomised control trial of the use of restorative justice
with adult offenders:

 The majority of victims chose to participate in face to face meetings with the offender, when offered by a trained
facilitator.
 85% of victims who took part were satisfied with the process.
 Restorative justice reduced the frequency of reoffending, leading to £9 in savings to the criminal justice system
for every £1 spent on restorative justice.

The government’s analysis of this research has concluded that restorative justice reduces the frequency of reoffending by
14%.

A systematic review of the evidence on the effectiveness of restorative justice was published by the Campbell
Collaboration in 2013. It concludes that restorative justice both reduces reoffending and improves victim satisfaction. It is
available on the Campbell Collaboration’s.

TOPIC 4- GLOBAL DISTRIBUTIVE JUSTICE

Distributive justice, in its broadest sense, is about how benefits and burdens ought to be distributed among a set of
individuals as a matter of right and entitlement. Political philosophers have traditionally assumed that principles of
distributive justice apply only within the bounds of a given political community.

Global justice is a theoretical stand that addresses the issue of just distribution of benefits and burdens across the world
and looks at the viability of the institutions required to secure such a just distribution.
Distributive justice is concerned with the fair distribution of the burdens and benefits of social cooperation among diverse
persons with competing needs and claims. A theory of distributive justice must set out an account of political justification
specifying the weight to be assigned to various kinds of relevant considerations and providing an acceptable description of
the standpoint from which judgments are formed. The theory must employ these resources to justify an account of a just
distribution of social goods, determining, in the process, the priority to be assigned to considerations such as claims of
right, entitlement, efficiency, equality, fairness, and community .
Distributive justice refers to the perceived fairness of an allocation or, more broadly, to how people judge what they
receive. It was probably the first type of justice to gain the attention of organizational justice scholars and continues to
receive wide attention. In general, there are three rules that people can use to decide whether or not their outcomes are fair
– equity, equality, and need (Deutsch, 1985).
Equity allocations treat a fair allocation as one that pays individuals in accordance with their contributions. There are
different models of equity – Aristotle even had one – but by far the most influential is Adams' (1965) equity theory.
According to Adams, individuals calculate equity comparing two outcome/input ratios. The first ratio is their own
outcomes divided by their own inputs, while the second is a referent's outcomes divided by the referent's inputs. In order
for equity to exist, these two ratios should match. A counterintuitive prediction of equity theory is that people care about
overreward, as well as underreward. If an individual's ratio is larger than that of a referent person, this means that the
individual has greater outcomes given his or her inputs. In such a circumstance, Adams found that the individual will
attempt to restore equity by either raising performance (if pay is fixed) or lowering performance (if pay is piece rate). In
general, equity theory has received support, including predictions for overreward. But it is not the whole story.
An equality allocation provides everyone with the same amount, without regard to contributions. Equality allocations are
most likely to be used when the goal is to maximize group harmony; equity allocations are most common when the goal is
to maximize productivity. As such, equality is relatively common among close, communal groups. There is some
evidence that equality, as opposed to equity, is also preferred when decision making is allocating something negative,
such as budget cuts. If we must share suffering, it seems that individuals often prefer to suffer by the same amount or
percentage. Interestingly, equality may also have an information processing advantage, as it is a very simple allocation
rule that requires less effortful thought than others. In this regard, researchers have documented the existence of
an equality heuristic, whereby people simply divide things evenly unless they have the cognitive resources to consider a
more complex norm (such as equity).
A third allocation rule is need, which provides outcomes on the basis of a perceived deficit. Perhaps surprisingly, need
allocations have been less widely studied in the organizational sciences, although even profit-making firms make at least
some use of them. For instance, family leave policies are allocated to those who need them – only people with particular
needs (e.g., child care or elder care) receive time off.
In practice, when people are asked to make allocation decision, they often mix the rules together, such that they are not
always used in a pure form (Cugueró-Escofet and Rosanas, 2013). For example, one strategy might be to provide
‘necessities’ or a minimum income to all. This would be an equality allocation. However, above this equal minimum the
equity rule could be employed. In this regard, one might use merit to allocate additional payments. Another mixed
approach might be to allocate different goods in different ways. Among American employers, for example,
socioemotional goods indicative of group standing are often allocated equally, whereas economic goods are often
allocated through equity (Chen, 1995). These and other sorts of mixed approaches seek to balance the strengths and
weaknesses of the different allocation rules.
Rawls‘s development of his global theory of justice—the law of peoples—is based on his method for developing the
domestic principles of justice, a brief explanation of the original position with the veil of ignorance is in order. According
to Rawls, the original position (with a veil of ignorance), as described in A Theory of Justice and clarified in Political
Liberalism and Justice as Fairness, is the ideal model for determining the principles against which the organization of
society should be measured.4 This is a hypothetical meeting where the members of society are to come to an agreement
on the principles of just cooperation. These principles of justice are to be used as the foundation for the basic structures of
society. As we all know, however, an actual meeting of the individual members of society.
would not be likely to result in a fair arrangement which could be supported by all as the conditions of a just society; this,
of course, is where the veil of ignorance comes in. To prevent the wealthy from arguing that wealth is essential to a just
society, to prevent those with authority from arguing that authority is best unchecked, to prevent the poor from arguing
that all wealth should be redistributed, Rawls introduces the veil of ignorance to hide—in this hypothetical meeting—all
knowledge of personal characteristics from its participants. Rawls writes, Among the essential features of this situation is
that no one knows his place in society, his class position or social status, nor does any one know his fortune in the
distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do
not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen
behind a veil of ignorance.5 Together in this fair situation, where none know their place in the society which they are
discussing, the terms of justice are to be agreed upon. The principles of justice are determined by the ―choice which
rational men would make in this hypothetical situation of equal liberty.‖6 From this initial fair situation, not knowing who
they are, what would the people agree upon as the principles of justice? Rawls claims that they would agree on two
principles: first, since none would know their own position, each would want rights and duties to be spread equally
amongst all. Since any might be the unlucky ones overburdened with the responsibilities of society, or underprotected by
the rights of society, all would want these to be distributed evenly. Second, social and economic inequalities should only
occur if they are to the advantage of those in society with the lowest expectations, and furthermore these inequalities must
be associated with positions that have the potential to be attained by anyone with the talents and inclinations7—for
example, CEOs should only be able to increase their wealth if further income disparities benefit the economy in ways that
result in the poorest sectors of society increasing their own wealth as well, and it must be possible for someone from any
social position to secure the position.8 Rawls‘s claim is that by imagining a rational meeting behind the veil of ignorance,
we come to the conclusion that these principles would be agreed upon, and that these are the most rational principles of
domestic justice. In Political Liberalism, Rawls takes a more practical approach to the issues of the organization of
democratic society: namely, he turns his focus from the ideal to the legitimate.9 Although he still favors the difference
principle as ideal for determining the justice of social institutions, he turns his focus from what would be best to what is
necessary to satisfy the demands of public reason. In order for all members of a society to accept the system of
cooperation as fair, some baseline for basic needs is required, but ―the ‗difference principle‘ is more demanding and is
not.‖10 In his domestic theory, Rawls treats society as being a closed system.