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UNIVERSITY OF BOTSWANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 439: GENDER AND THE LAW

ACADEMIC YEAR 2023/2024

LECTURER: Prof. Kenneth A. ACHEAMPONG

GENDER-RELATED CONCEPTS

THE CONCEPTS OF JUSTICE AND EQUALITY

The concepts of justice and equality are intimately related to one another.
However, they do not admit of easy definitions or agreement among
philosophers, especially legal and political.

JUSTICE – Generally, this concept may be deemed as the fair treatment of people
or the quality of being fair or reasonable. Fairness/Reasonableness usually
related to the distribution or apportionment of societal resources and
opportunities and the settlement of disputes between individuals, groups or
individuals and groups. [“Fair” – Treating everyone equally and according to the
rules or law”] [“Reasonable” – “Fair, practical and sensible].

MAXIMS OF JUSTICE – (i) Justice delayed is justice denied; (ii) Fiat Justitiae (Let
justice be done); (iii) “Justice must not only be done but should manifestly and
undoubtedly be seen to be done” (R v. Sussex Justices, Ex Parte McCarthy).
ARISTOTLE AND JUSTICE – (i) Justice is either what is lawful or fair; (ii) “Justice
considers that persons who are equal should have assigned to them equal things”.
[The Politics of Aristotle, Book V., trans. Ernest Barker, Oxford University Press,
Oxford, 1946, p.1301a].

DIVISIONS OF JUSTICE – [a] Most famous: Aristotle - Distributive Justice and

Corrective Justice. (i) Distributive (or Proportional) Justice – Equal distribution
among those who are equals. (ii) Corrective (or Remedial) Justice – The
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restoration of equality when such equality has been tampered with or disturbed
to create an unequal situation. This involves rectification between two parties
when one has taken from another or harmed this other. [Example – RSA – The
attempt by the ANC Government to restore equality in land ownership, which was
disturbed by the Land Act, 1913, which gave 85% of RSA land to the minority
White population and 15% to the majority Black population (the so-called
Bantustans); BEE Programme]. [b] Another Division: (i) Natural Justice – Justice
that applies across the globe, i.e., universally; (ii) Conventional Justice – Justice
that applies or takes effect from a specific or particular authority.

PRINCIPLES OF NATURAL JUSTICE: (i) Audi alteram partem, i.e., listen to the other
side. The human right to a fair trial emanates from this principle. (ii) Nemo judex
in causa sua, i.e., one cannot be a judge in his/her own cause.

FORMS (TYPES) OF JUSTICE – (i) Formal (or Static) Justice – Equality of treatment
in accord with the classification(s) stipulated or mandated by the law for such
treatment. [E.g., LAW 439 students should, for purposes of that particular Course,
be treated alike or equally in all respects]. (ii) Substantive (Substantial) Justice –
This refers to the content or substance of decisions taken in matters affecting
apportionment of societal resources and opportunities and involves normative
principles such as equality, need, rights and deserts. [Normative: “describing or
setting standards or rules of behaviour] [Deserts: What somebody deserves].
IMPLICATIONS OF FORMAL JUSTICE – (i) The legal system must state rules
indicating how people are or must be treated in given cases or situations. (ii) The
rules of the legal system must be cast or framed in general terms (apply to groups
or classes of groups and not individuals). (iii) The rules must be applied in an
impartial manner to all those who are within the scope of the rules.

JOHN RAWLS THEORY OF JUSTICE

UNDERPINNINGS OF RAWL’S THEORY OF JUSTICE: (a) “The Original Position” –

The starting point of imagined negotiators attempting to adopt principles of
justice to regulate/organize their society; (b) “Veil of Ignorance” – Imagined
negotiators lack of self-interested bias and their ignorance of their
views/perspectives of the good life; (c) “Justice as fairness” – The legitimate
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principles of justice that would be adopted by these imagined negotiators to

organize their society in their hypothetical negotiation.

RAWLS’ TWO PRINCIPLES OF JUSTICE – The imagined negotiators would agree to

the following TWO Principles of Justice: (i) The 1st Principle - “Each person is to
have an equal right to the most extensive system of equal basic liberties
compatible with a similar system of liberty for all”; (ii) The 2nd Principle (“The
Difference Principle”) – “Social and economic inequalities are to be arranged so
that they are both: (a) to the greatest benefit of the least advantaged, … and (b)
attached to offices and positions open to all under conditions of fair equality and
opportunity.”

RAWLS - REQUIREMENTS OF JUSTICE – (i) The maximization of liberty with

restrictions of such liberty only when necessary to protect liberty itself. [“Liberty”
– General – The freedom for one to live as he/she chooses without too many
restrictions] (ii) Equality for all people in society in terms of both basic liberties
and the distribution or apportionment of all societal goods (e.g., resources and
opportunities). Inequality in such distribution or apportionment may be allowed
only if it produces the greatest benefit for those who are least well off in a
particular scheme of inequality. (iii) Fair equality of opportunity. (iv) The
elimination of inequality of opportunity that is rooted in or based on
circumstances of birth or wealth. [John Rawls, A Theory of Justice (Harvard
University Press, Cambridge, Mass., 1971, rev. ed., 1999)].

EQUALITY – Generally, the term ‘equality’ stands for the fact of being equal, i.e.,
the same, in rights, status, advantages, etc., that society offers to its members.
CONCEPTIONS OF EQUALITY - There are basically two senses in which the term
equality has come to be used, viz., formal conception of equality; and substantive
conception of equality. (i) Formal Equality (Numerical Equality/Mathematical
Equality/Absolute Equality) – This means all persons should be treated in the
same way in all respects. This sameness-of-treatment idea is the basis of
Aristotle’s contention that “Justice considers that persons who are equal should
have assigned to them equal things” (op. cit.). (ii) Substantive Equality (Relative
Equality) – [Aristotle refers to this as “equality proportionate to deserts” (ibid.)]
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This means differentiation in treatment proportionate to concrete individual

circumstances. [“Concrete” – Based on facts not on ideas or guesses]. It permits
the institution of special measures, such as affirmative action programmes, to
elevate underprivileged persons or groups in society to a level in society which
ensures them real or genuine equality with other persons or groups in such
society. (E.g., BEE – Black Economic Empowerment Programme in RSA]

END