COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.

THE VARIOUS ASPECTS OF THE IDEA OF JUSTICE IN INDIA- AMARTYASEN’S TREATISE

Justice is generally perceived to mean fairness and equity. The Aristotelian idea of justice
that helped build the foundation of most occidental theories of social justice means to give
each was is due as deserved by him/her. This did not mean equality for the person so
concerned but rather reward per merit or virtue. (When we shall study Nozick, Rawls and Sen
in the third, fourth and fifth week of the course, the pros and cons of such a line will become
clear to us.)

This Aristotelian idea of justice prevailed also in the ancient Indian tradition of the
Dharmashastras. However incidentally, in the modern context it would seem that both the
Dharmashastra and Aristotle himself had in parts misapplied the concept, (unless we assume
given the socio-political context of their times, this application was intended) by according
lower status to women, the labourers and permeating through the exploitative caste system in
India.

In the Indian context, Justice is broadly depicted as „Dharma‟. The concept of Dharma has
attained prominence in the era of the Epic Mahabharata and the Dharmashastra and the
Manusmriti, and in this era Dharma emphatically became synonymous to the idea of justice.
The Mahabharata says clearly, “Whatever has its beginning in Justice, that alone is Dharma.
Whatever is unjust and oppressive is Adharma (against Dharma).”1

Amartya Sen in his book „The Idea of Justice' discusses to aspects of Justice- (i)Niti and (ii)
Nyaya. Sen described Niti to mean ethical or moral wisdom and justice in general while
Nyaya refers to Justice as administered or realized. Thus while Niti means the behavioural
correctness, Nyaya refers to a „comprehensive concept of realized Justice' – comprehensive
because it encompasses not only the outcome but the entire process of justice administration. 2
The dichotomy between the two concepts, in fact, forms the foundation of Sen's treatise on
Justice, even though according to the Indian scripts Nyaya is a derivative of the ethics of Niti.

1
M.V. Nadkarni, Interrogating the Idea of Justice, 58, IEJ, (2010).
2
Amartya Sen, The Idea of Justice, 20 (2011).
 COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.

I. JUSTICE AS RATIONALITY

In fact, the dual use of the word Nyaya in India to mean both logic and also justice suggests
the very modern concept that justice is to be rational and non-arbitrary. Plato's
conceptualization of justice holds that there ought to be some consistency in the idea of
justice and goodness and that such cannot be entirely relative to different times, people and
places, and instead of being governed by capricious whim it ought to be governed by
rationality. In fact, the Platonic classification of the human soul into the three parts of
rational, spirited and monstrous is completely in sync with the Saankhya classification of
gunas (meaning attributes or qualities) into Satvik, Rajasik and Tamasik. Plato believes it is
only when the rational part of the soul controls the other two parts that justice and goodness
prevails. The problem with the platonic concept here is that for Plato the rational and the
moral are not entirely synonymous, which also makes the idea of justice a murky one. In
Sen's treatise, the first chapter is devoted by Sen towards the discussion of the role of reason
and objectivity in ascertaining the meaning of justice. He points out yet again that the
Mahabharata says that „Dharma and Cultured Conduct arise from intelligence (or rationality)
and it is from intelligence that they are known.‟ He further points out that the Mughal
Emperor Akbar also believed that the rule of intellect (rahiaql) to be the basic determinant of
good behaviour as well as of an acceptable framework of legal duties and entitlements.

The age of enlightenment in Europe, as we all know, too was based on the supremacy of
reason. A smart person, writes Sen, may not necessarily be a good person but being smarter,
he/she shall have greater clarity about the goals and objectives and values of his time and
situation. Thus, reasoning is the main tool which requires an end (which might be ethics) in
terms of which a policy or action can be rationally viewed. However, when the reasoning is
applied to achieve an immoral end (a perfectly reasoned argument in defence of a tax evader,
or a perfectly devised murder), it becomes clear to us, that reason cannot be however the sole
determinant of justice, as reason is a dangerous double-edged sword.

II. JUSTICE AND THE DEONTOLOGY OF DUTIFUL ACTION

 COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.

Sen‟s treatise on justice also in detail critiques the concept of deontology- or the concept of
doing one‟s duty as a candidate for the effective realization of justice. The Bhagwad-Gita is
taken as the greatest deontological document where the argument of duty-centric action is the
all-pervasive philosophy in the background of consequence independent reasoning. Hence no
matter what the carnage of war is, the argument of warrior‟s duty is compelling enough to
make Arjun fight a war against his fellow brethren. Doing one‟s duty irrespective of all
consequences is not acceptable to Sen. Though he is well aware that the Gita is not all about
deontology only, it bothers Sen that the Gita elevates the Niti of doing one‟s duty to a purist
absolute status. While he believes consequences are important, he believes and advocates
primarily the fairness of processes, from which the intended consequence or outcome would
generally be comprehensive if such processes had been fair and morally justifiable. This
comprehensive outcome hence becomes the key element in securing justice as Nyaya or
realized justice.

While there is no problem with Sen's emphatic focus on Nyaya over the deontological Niti,
certain critiques including M. V Nadkarni believes that Sen's idea of the Gita is perhaps too
one-dimensional and that Gita does not necessarily ask for a performance of duty with utter
disregard to consequences. Rather, Nadkarni believes Sen is correct rather when he says that
Gita wants a human rooting for moral duty bound action in an unselfish way.

Also, the Gita upholds the Dharmashastra ideals of social order in the terms that the society
runs smoothly because each of its structural and functional elements performs their own
functions within the social structure, through observance of different duties which have
evolved for beneficial consequences. While Sen believes in translating the deontological Niti
towards a rights-based concept of Nyaya or realized justice through fairness of processes,
Nadkarni believes and defends the deontology of the Gita saying the problem with a rights-
based approach is that to guarantee the rights, corresponding duties ought to be first enforced.

III. JUSTICE AS HAPPINESS

 COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.

Happiness, welfare and utility go hand in hand as a prominent claimant for the basis of
justice. Even in the Indian Tradition, Dharma has always been associated with the end of lok-
hita or peoples‟ welfare. However, a distinction is made between short-term happiness
(preyas) and long-term happiness (shreyas). It is because of its emphasis on the nature of the
effect of an action, an approach closely tied with consequentialism. However Sen rejects the
narrow utilitarianism of Bentham‟s “greatest happiness for the greatest number” as a guide of
social policy making, saying it leads to greater injustice than justice, especially taking into
consideration that the greatest happiness of the greatest number may be achieved at the cost
of the happiness of an individual or a minority people. Even if all policies aiming at such
utilitarian good seeks to compensate those adversely affected by the policy, it may not
necessarily do justice to the people bypassed by the policy-makers. These people may be
continuously denied access to opportunities, while the generic utilitarian aim would still
continue to be met. It might also lead the neglected section to downplay their difficulties,
making them appear happier than those with the access to opportunities who are empowered
to voice such difficulty. In fact, it is the general tendency of utilitarianism to reduce all
human values and objectives to something like preference satisfaction particularly meets with
great criticism. Hence happiness, if looked at through the narrow mould of classic
utilitarianism cannot be taken to be an effective indicator of justice.

IV. JUSTICE AS MUTUAL ADVANTAGE

Many believe justice as a mutual advantage to be no justice at all. This principle of justice
appears in bargaining games between two parties each having given endowments and
preferences. The main difficulty in this approach lies in the fact that the two parties
concerned might not at all be equal in their endowments or preferences. For example, a party
used to poverty may have very low expectations as preferences in the first instance. The
parties may not also have equal bargaining skills and informative equality. Thus bargaining
between parties of unequal power would lead to injustice.
 COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.

Thus if the game is to be impartial each must stand in the shoes of the other when indulging
in the bargaining, through a preferred dialogue and negotiating process. Moreover, it is not
enough that the agreement reached between the two parties are just to the two parties
involved in the negotiation but to all others, being consistent with the general principles of
ethics and being generally morally acceptable in nature.

V. JUSTICE AS FREEDOM, FREEDOM AS CAPABILITY

Freedom as an indicator and determinant of justice has become a cornerstone in modern

philosophy. On the value of freedom, Sen remarks, “First, freedom gives us more opportunity
to pursue our objectives…Second, we may attach importance to the process of choice itself…
to make sure that we are not being forced into some state because of constraints imposed by
others.” There is however a difference between the opportunity to choose an option freely
and merely an opportunity to that option. This importance on the freedom of choice making is
the cornerstone of Amartya Sen's capability approach to justice where an individual‟s
advantage is adjudged by “a person's capability to do things he or she has reason to value.”
Equality is a prominent determinant of justice everywhere in the world. The Gita too puts
great stress on the notion of equality by saying one should treat others in the same manner in
which one treats himself. Aristotle has the concept of distributive justice of equal reward for
those on an equal footing and greater rewards for the meritorious.

The capability approach deals with this distributive concept of justice. Sen's idea of
equalizing is based on the equalization of capabilities. Drawing attention to the huge
significance of the expansion of human capabilities of all members of the human society is
the crux of Sen's approach, beyond the goods-based allocative idea of distributive justice.
Hence instead of concentrating on the means of living, Sen is more concerned with the
opportunities of living, going beyond the realm of formal equality to a concept of formative
equality where the one's being treated unequally today or lacking equal-footed can be
empowered with greater access to opportunities to rise to the equal footing, compensating
them for their lower access options, in the end reducing manifest injustices of poverty,
 COURSE: LAW & JUSTICE IN A

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.

hunger, ailment, disability, social alienation rather than the transcendentalist aim of building
formally equal institutions for a society fraught with inequalities. This insistence on attending
to the manifest cases of inequality of opportunity and manifest injustice emanating from such
inequality brings us back to Sen‟s original idea of the Indian philosophy of Nyaaya, or justice
realized through fairness.

REFERENCES

1. Amartya Sen, The Idea of Justice, 20 (2011).

2. S.D Sharma, Administration of Justice in Ancient India (1988).
3. M.V. Nadkarni, Interrogating the Idea of Justice, 58, IEJ, (2010).

THINKING EXERCISE
What Comes first- the right or the duty? – Take any four rights you enjoy as an individual. They
may be fundamental rights, constitutional rights, or other rights socially recognized or recognized as a
part of the UDHR. Identify the corresponding duties to these rights. Debate with your friends on
which came first in law, the corresponding duty or the right. Identify the reasons for the same.