Absolutely!

Here's a breakdown of the key points from the provided text:

1. *Distinction Between Justice and Fairness:*

- Justice is seen as grounded in fairness. The paper seeks to analyze justice through the lens of
fairness.
- Justice is considered as a virtue of social institutions or practices, not just of individual actions or
persons.

2. *Components of Justice:*
- Two principles are proposed to define justice:
- Principle 1: Equal liberty for all within a practice, as long as it does not infringe on others' liberties.
- Principle 2: Inequalities are acceptable only if they benefit everyone and if the positions/roles
leading to such inequalities are open to all.

3. *Understanding Inequalities:*
- Inequalities, as referred to here, are not just different positions but disparities in benefits and
burdens arising from those positions.
- The second principle insists that all parties involved should gain from the inequalities within a
practice.

4. *Merit and Fair Competition:*

- Special benefits or positions must be open to all through fair competition based on merit.
- The focus should be on the overall system's fairness rather than individual instances within that
system.

5. *Deriving Principles of Justice:*

- The principles are not derived from a priori reasoning or intuition but are instead seen as
established within a society's established practices.
- The society in question is viewed as consisting of self-interested groups/families bound by mutual
interests in their established practices.

6. *Rationality and Perceptions:*

- Rationality is seen as perceiving and pursuing self-interest but not necessarily envying others'
better positions, unless it's perceived as unjust or purposeless.

In an exam scenario, potential application questions might revolve around:

- Explaining the difference between justice and fairness.
- Discussing how the principles of justice apply to social institutions or practices.
- Analyzing inequalities within a given societal structure and evaluating whether they adhere to the
principles of justice proposed.
- Explaining the importance of fair competition and open access to positions within a societal
structure as per the principles discussed.
- Providing examples or hypothetical scenarios to illustrate the principles of justice outlined in the
text.

Certainly! Here are answers to potential application questions based on the text provided:

*Question 1: Explain the difference between justice and fairness.*

Answer: Justice is a concept embedded within social institutions, focusing on the fair distribution of
benefits and burdens. It revolves around the idea of eliminating arbitrary distinctions and establishing
a proper balance between competing claims within a practice. Fairness, on the other hand, is the
fundamental idea behind justice. It's the principle that guides the concept of justice, emphasizing
equal rights, opportunities, and considerations for all individuals or parties involved in or affected by a
practice.

*Question 2: Discuss how the principles of justice apply to social institutions or practices.*
Answer: The principles of justice outlined in the text establish guidelines for fair treatment within
societal structures. They emphasize equal liberty for all participants within a practice and permit
inequalities only if they benefit everyone involved and if the positions leading to such inequalities are
open to all through fair competition based on merit. These principles aim to eliminate arbitrary
distinctions and promote fairness in the distribution of benefits and burdens within a social system.

*Question 3: Analyze inequalities within a given societal structure and evaluate whether they adhere
to the proposed principles of justice.*
Answer: Inequalities within a societal structure should be assessed based on whether they align with
the principles of justice outlined in the text. Are these inequalities resulting in benefits or burdens
that are advantageous for all parties involved within the practice? Additionally, are the positions or
roles leading to these inequalities accessible to all through fair competition, ensuring a level playing
field and merit-based access? If the inequalities meet these criteria, they are more likely to adhere to
the principles of justice proposed.

*Question 4: Explain the importance of fair competition and open access to positions within a societal
structure as per the discussed principles of justice.*
Answer: Fair competition and open access to positions within a societal structure are crucial aspects
of ensuring justice. This approach allows individuals or groups to compete based on merit and skill,
ensuring that those who achieve certain positions or benefits do so through fair means. Open access
ensures that opportunities are available to all, reducing arbitrary distinctions and fostering fairness
within the social system, aligning with the principles of justice emphasizing equal rights and
opportunities for all participants.

*Question 5: Provide examples or hypothetical scenarios illustrating the principles of justice outlined
in the text.*
Answer: One example could be the education system within a country. If access to quality education is
open to all based on merit and not limited by arbitrary factors such as socio-economic status or
geographical location, it aligns with the principles of justice. Another scenario could involve the
distribution of resources within a community. If resources are allocated fairly and if inequalities
benefit the entire community while being accessible to all through fair competition, it demonstrates
adherence to the principles of justice outlined in the text.

Francis Bacon's perspective on the role of judges, emphasizing interpretation over the creation of law,
remains a fundamental principle in legal theory. However, the contemporary understanding of this
principle has evolved, leading to ongoing discussions and debates within legal circles.

In today's legal landscape, judges are generally expected to interpret and apply the law rather than
create it outright. The doctrine of stare decisis, which calls for courts to follow precedent and
decisions made in earlier cases, is one way this principle is upheld. This concept ensures consistency in
legal rulings and reinforces the role of judges as interpreters of existing law.

However, the reality is more nuanced. Judges often encounter situations where statutory law may be
ambiguous or insufficient to address current societal challenges. In such instances, judges may engage
in statutory interpretation or rely on legal principles to resolve cases. This interpretative process
sometimes leads to decisions that shape legal precedent and can be seen as contributing to the
development of the law.

For instance, in the case of *R v Brown* [1993] UKHL 19, the House of Lords ruled on the legality of
consensual sadomasochistic activities. The decision involved interpreting the scope of the offense of
assault under existing laws. The court's ruling not only applied the existing law but also contributed to
the development of legal principles regarding consent in cases of bodily harm.

Academic scholars have offered various perspectives on this issue. Ronald Dworkin, in his theory of
law as integrity, suggests that judges often engage in interpreting the law based on moral principles
and societal values. This interpretation, according to Dworkin, involves a creative process that goes
beyond mere application.

Additionally, legal realists like Oliver Wendell Holmes Jr. argue that judges do, in fact, shape the law
through their decisions. Holmes famously said, "The life of the law has not been logic; it has been
experience." This perspective acknowledges the inherent judicial discretion in interpreting and
applying the law.

In conclusion, while Bacon's view emphasizing the role of judges as mere interpreters of the law holds
true to a significant extent today, the reality is that judicial interpretation often influences legal
developments and contributes to the evolution of the law, especially in cases where statutory
provisions are unclear or insufficient to address modern issues. The interplay between interpretation
and lawmaking remains a subject of ongoing debate in legal theory and practice.

In the first chapter of "A Theory of Justice" by John Rawls, he introduces the fundamental concept of
justice as fairness. Rawls aims to explore principles that would establish a just society. He presents the
idea of the "original position," a hypothetical scenario where individuals create a fair society without
knowing their personal attributes or positions in society. This veil of ignorance helps ensure
impartiality and fairness in determining principles of justice.

Rawls argues that individuals in this original position would strive to develop principles that protect
basic rights and liberties, while also addressing social and economic inequalities in a manner that
benefits the least advantaged members of society. He suggests that these individuals, behind the veil
of ignorance, would agree upon principles that promote equal opportunities and fair distribution of
resources, ensuring justice for all.

The key points in Rawls' concept of the original position involve:

1. *Fairness without Bias:* Rawls proposes that behind this "veil of ignorance," where people don't
know their own status, they'd create fair rules because they wouldn't want to risk being in a
disadvantaged position in society. This ensures that the rules they create are impartial and fair to
everyone.

2. *Protection of Basic Rights:* He suggests that the rules created in this hypothetical scenario would
prioritize protecting fundamental rights and liberties for all individuals. These rules would ensure that
everyone has certain basic freedoms and protections.

3. *Addressing Inequalities for the Least Advantaged:* Rawls emphasizes addressing social and
economic inequalities in a way that benefits those who are the least advantaged in society. He argues
 that people in the original position would design rules to uplift and support those who are struggling
the most.

4. *Equal Opportunities and Fair Resource Distribution:* Individuals behind the veil of ignorance
would agree upon principles that promote equal opportunities for everyone. They would also strive
for a fair distribution of resources, aiming to create a society where everyone has a fair chance at a
good life.

Rawls' main idea is that by imagining a scenario where people create fair rules without knowing their
personal circumstances, we can better understand what justice and fairness in a society truly mean.
This helps in thinking about and designing a society that treats everyone fairly and justly, regardless of
their position or status.

In Chapter 2 of "A Theory of Justice," Rawls introduces the concept of the "original position" in more detail. He
expands on the principles guiding decision-making in this hypothetical scenario where individuals aim to create a just
society.

Key points in Chapter 2 include:

.
The Original Position Revisited: Rawls elaborates on how individuals in the original position act rationally and
reasonably to establish fair principles of justice. They operate behind the veil of ignorance, unaware of their personal
circumstances, to ensure impartiality in setting rules for society.
.
.
The Two Principles of Justice: Rawls proposes two fundamental principles that individuals in the original position
would agree upon:
.
 The First Principle: This principle emphasizes equal basic liberties for all individuals. It includes freedoms
such as freedom of speech, assembly, and equal political rights.
 The Second Principle: This principle focuses on fair opportunities and the distribution of social and
economic goods. It contains two sub-parts:
 The Difference Principle: It suggests that inequalities are acceptable only if they benefit the
least advantaged in society. This principle aims to improve the situation of the least well-off
members.
 Fair Equality of Opportunity: This principle ensures that everyone has an equal chance to attain
positions and resources based on their skills and abilities, not predetermined advantages.
.
Priority of Principles: Rawls discusses the priority of these principles. He argues that in cases of conflict, the first
principle (basic liberties) takes precedence, followed by the second principle's elements.
.

Chapter 2 establishes the framework of the original position more comprehensively and introduces the principles of
justice that individuals behind the veil of ignorance would select to create a fair and just society. These principles
emphasize equal liberties, fair opportunities, and the importance of benefiting the least advantaged.

In Chapter 3 of "A Theory of Justice," John Rawls delves deeper into the principles of justice introduced in the
previous chapter. He focuses on the idea of justice as fairness and aims to defend his principles against alternative
views of justice.

Key points in Chapter 3 include:

.
Critique of Utilitarianism: Rawls contrasts his theory of justice with utilitarianism, a prominent moral theory.
Utilitarianism prioritizes maximizing overall happiness or utility, often at the expense of individual rights or the well-
being of minorities. Rawls argues that this approach doesn't adequately protect the fundamental liberties of
individuals or address the fairness concerns related to inequalities.
.
.
Principles of Justice as Fairness: Rawls defends his principles of justice based on fairness against various critiques.
He explains that the two principles (equal basic liberties and fair opportunities, including the difference principle)
would be chosen by rational individuals behind the veil of ignorance because they ensure fairness and protect
everyone's rights, especially the least advantaged members of society.
.
.
Reflective Equilibrium: Rawls introduces the concept of "reflective equilibrium," which involves reconciling our
moral intuitions and principles to reach a coherent and just moral framework. He argues that his principles of justice
are reached through this reflective equilibrium, aligning with our considered moral judgments about fairness and
equality.
.
.
Justification for Principles of Justice: Rawls emphasizes that his principles of justice as fairness are based on
reasoning and rational agreement in a hypothetical situation, rather than on any particular moral or religious doctrine.
He believes these principles represent a consensus that rational individuals would come to behind the veil of
ignorance.
.

In Chapter 3, Rawls provides a defense of his principles of justice against criticisms and alternative views, particularly
utilitarianism. He underscores the importance of fairness, protecting basic liberties, and addressing inequalities for a
just and equitable society. The chapter also emphasizes the rational basis for selecting these principles through a
hypothetical scenario.

o Law and society/law and social change

Social justice is the overall fairness of the society in distributing rewards and burdens,
the
objective being to remove inequalities and afford equal opportunities.
Though law and morality are distinct, social morality is determined by the balance of
individual ethical pictures within it.
Social change always results where there is lack of conformity between a legal order
and
social effectiveness through legal revolution. Where there is dissatisfaction with a
social
order such as slavery, racial discrimination etc, there are legislative, administrative
and
judicial reforms which cause the law to keep pace with moral pressure. Sometimes,
the
change will be forced from the outside such as the toppling of the Nazi regime. The
normal
process however of change of legal order is evolution i.e. through instruments of legal
change. The intensity of this process is determined to a large extent by the level of
organisation of the society.
Where there is need for transition from one social order to another, the legal
machinery
becomes the tool of social change.
However, the power of the law to influence and change social morality is limited as
can be
seen by the failure of the law to change the caste system in India.
Most legal systems will oscillate between a minimum morality and a maximum
morality-the
former being the moral conditions crucial to the survival of the legal structure, the
latter
being the transformation of all or most of society’s norms into the law. What are the
minimum conditions for survival of a society?
o Law, religion and morality
Morality refers to ‘rules or principles governing human behaviour which apply
universally
within a community or class’.21
Religion, as defined earlier, refers to belief in or sensing of some superhuman
controlling
power or powers, entitled to obedience, reverence and worship, or in a system,
defining a
code of living, especially as a means to achieve spiritual or material improvement.
Two kinds of morality:
 Personal morality-ideal morality; conscience
 Social morality-a system of norms which governs the social conduct of a
community.22 It is a social balance and a choice between individual conflicting
values.
Though morality as a social order pursues the same purpose as the law, it does so by
very
different means. For a long time, the distinction made between law and morality is
that whereas the law is concerned with external conduct, morality concerns itself with
internal
conduct.23
 Whereas law is enforced by the administration of sanctions for deviation, morality is
enforced using the sanctions of censure, ridicule and contempt. Positive morality is
therefore enforced by public opinion.
 Whereas the law has the sanction of force behind it imposed by the State, public
opinion is unorganised and does not have the sanction of force.
 Morality is not necessarily enforced by the law unless it is declared to be a crime. It
is
not definite and it is not consistent.
 Morality is not altered by legislation-just because the law declares something to be
legal does not make it moral.
There has always been a close connection between morality and legal order and
according to
Friedman, there can never be a complete separation of law and morality.24 Any
historical and
ideological differences that may exist are therefore seen as differences of the extent to
which
morality influences the legal order. While previously, morality influenced legal order
more,
the law is now an increasingly major factor in the formation of social morality.
While there are differences between the law and these social orders, there is a close
relationship between law, ethics and positive morality and oftentimes, they agree.
However,
in controlled societies, the distinction between law, morality and ethics disappears as
social
behaviour is controlled and the individual is conditioned to accept socio-legal norms
as
controlling his entire life and precluding the formation of individual values.25
In conclusion, according to Ross, ‘the study of the law must in the final analysis be a
study of
social phenomena, the life of a human community; and jurisprudence must have as its
task
the interpretation of the ‘validity’ of the law in terms of social effectivity, that is, a
certain
correspondence between a normative idea content and social phenomena’.26
In most contemporary societies, however, there is some tension between these three
orders of
conduct as they differ considerably from one another because we live in an
individualistic
and pluralistic society. Though one is at liberty to live according to the ideal form of
life set
for himself, this is often limited by the constraints of social morality as well as the
ideological
constraints imposed by society on individuals. Law and morality also influence each
other in
a reciprocal manner. The influence of the law on behaviour is of course dependent on
the
reach of the law, and therefore the effect of the law is greater in concentrated and
modern
societies than it is in primitive ones. Moreover, whereas it is postulated that law is
concerned
with external conduct and morality with the inner man, legal order demonstrates an
interrelationship with morality where it makes punishment or civil obligation
dependent on
malicious intention or the capacity to control one’s actions-it looks beyond external
actions
towards the inner workings of man. In essence, it is therefore more accurate to
conclude that
there is an interrelationship between law, ethics and morality.
 Section 3 of the Judicature Act in Kenya establishes the reception of
English law as part of the laws applicable in Kenya. It states that in
cases where no specific law applies in Kenya, the law to be applied
shall be English law, including the rules of equity, as administered in
England on the 12th August 1897.

However, the provision doesn't mean that Kenya's legal system is

static or incapable of evolution. There is certainly room and
precedent for the development of a uniquely Kenyan tort law system,
considering various factors:

.
Common Law Adaptation: While the Judicature Act recognizes
English law, Kenyan courts are not bound to apply English law if it's
not suitable to the local circumstances. Kenyan courts have the
authority to adapt and modify English common law principles to align
with the country's legal, social, and economic context.
.
.
Legislative Authority: Kenyan Parliament has the power to enact
laws that modify or supplement existing legal principles, including
tort law. Statutory provisions can introduce new torts or modify
existing ones to address specific issues or developments within the
Kenyan society.
.
.
Judicial Precedent and Interpretation: Kenyan courts have the
power to create precedent and interpret laws in ways that reflect the
evolving needs and values of Kenyan society. Judicial decisions can
establish new principles or modify existing ones to suit the country's
unique circumstances.
.
.
Customary Law and Indigenous Practices: Kenya has a rich
diversity of cultures and customary practices. Courts can take into
account customary law and indigenous practices while developing
tort law principles that are more reflective of the values and traditions
of the local communities.
.
.
International Influence and Comparative Law: Kenya is part of the
global community and can draw insights and inspiration from
international legal developments and comparative law studies while
shaping its tort law system to align with international standards and
best practices.
.

While Section 3 of the Judicature Act recognizes English law as a

source, it does not restrict the evolution or adaptation of Kenyan law,
including tort law, to suit the country's specific needs and realities.
Through legislative reforms, judicial decisions, and considerations of
local customs and values, there is indeed room for the development
of a tort law system uniquely suited to the Kenyan context.
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