GPR 601:

JURISPRUDENCE LAW
LL.M 2009/2010
SEMINAR [V]
PRESENTED BY:
STEPHEN JALANG
CATHERINE !INYA
PHYLLIS MUTUA
PAUL MUSYIMI
JASPER MBIU!I
EDWIN LIBENDI
Follow justice and justice alone, so that you may live and posses the
land the lord your god is giving you.
1
INTRDUCTIN
Many peope throughout hstory have expored |ustce and have attempted to
dene t. Beow are a few of the more nterestng dentons of |ustce:
|ustce s a quaty reatng to |men| n socety, not n sotude."
2
"|ustce s a name for certan casses of mora rues whch concern
the essentas of human we-beng more neary, and are therefore of
more absoute obgaton that any other rues for the gudance of fe."
3

|ustce requres that the basc structures of socety be arranged
so as to benet the east advantaged.
4

"|ustce s the reatonshp that aows a fe to oursh accordng
to ts nature and abty."
5

Bbca |ustce: the |ustce of a communty s measured by ts
treatment of the poweress n socety. |ustce and equty requre...a
preferenta opton for the poor. The dgnty of the human person,
reazed n communty wth others, s the crteron aganst whch a
aspects of economc fe must be measured.
6


Behnd the concept of |ustce es the noton of baance, that peope get what s
rght, far and approprate. |ustce aso ncudes the noton of uphodng the aw,
as n the work of poce, |udges and the court. |ustce s aso often used to
descrbe the approprateness of punshments for crmes.
A races and regons ncude a denton of |ustce n ther codes of aw and
conduct. |ustce s, n fact, the gue that hods socetes together. Socoogsts
consder codes of |ustce one of the prncpa factors n descrbng an organzed
socety. How cutures dene |ustce dhers. The ancent Greek phosopher Pato,
1
Deuteronomy 16:20 Todays New International Version Bible
2
Hobbes
3
John tuart !ills
4
John "awls
5
Byron #lumley
6
Bisho$%s #astoral &etter
for exampe, dened |ustce as the proper and harmonous reatonshp between
the warrng parts of a person or cty. A man n hs rght pace and tme, workng
towards the proper goas, was sad to be |ust. Ths s qute unke our modern-
day percepton of one who s |ust beng one who treats peope fary.
Other concepts of |ustce throughout hstory ncude:
J"#$%&' (# ( )%*%+' &,--(+): |ustce commanded by a Dety, as
n the Mosac aw of an eye for an eye.
J"#$%&' (# -"$"(. (/0''-'+$: |ustce as a soca contract, or
when one person agrees to gve up or do somethng n exchange for
somethng ese. Ths denton ncudes the noton of beng far and
baanced.
D%#$0%1"$%*' 2"#$%&': Dstrbutve |ustce may aso be dened as
gettng what one deserves.
S"1#$(+$%*' and 30,&')"0(. 2"#$%&'.
Procedura or forma |ustce s concerned wth the crtera for far decson makng
processes. The concept of procedura |ustce s equvaent to deas of 4)"'
30,&'##5 or the 40".' ,6 .(75. The promugaton, enforcement and
admnstraton of aws s |ust ony f a ctzens are treated equay by the aw.
Substantve |ustce refers to the content of aw, poces or soca organzatons,
not ony the forma procedures by whch they are deveoped and apped.
|ustce tsef s a term used n varous senses; and the senses n whch n|ustce
s used vary correspondngy. In|ustce ncudes aw-breakng, graspng and
unfarness. Graspng s takng too much of what s good ony; unfarness s
concerned wth both what s good and what s n|urous. But n the ega sense,
whatever the aw ays down s assumed to be |ust. Law, however, covers the
whoe ed of vrtuous acton as t ahects our neghbours, so that n ths genera
sense |ustce s an ncusve term equvaent to rghteousness.
In the State, as such, |ustce s obtaned from the aw and ts admnstrators;
|ustce s the vrtue of the magstrate. Snce he has nothng to gan or ose
hmsef, t has been supposed that |ustce s 'another's good,' not our own. In the
famy, |ustce does not come n, as you cannot be un|ust to yoursef, you cannot
be un|ust to your househod. In the State, what s |ust s xed party by the
nature of thngs, party by aw or conventon.
As to ndvdua acts, n|ury may arse from a mscacuaton, or from an
ncacuabe accdent; t becomes a wrong when t was ntentona but not
premedtated, an n|ustce when premedtated. An act prma face un|ust s not
so f done wth the free consent of the person n|ured.
What we must ca equty may be opposed to |ustce but ony n the ega sense
of that term. It s |ustce freed from the errors ncdenta to the partcuar case,
for whch the aw cannot provde. In|ustce, agan, s found n sef-n|ury or
sucde; whch the aw penases, not because the ndvdua thereby treats
hmsef un|usty, but because he does an n|ustce to the communty. It s ony by
metaphor that a man may be caed un|ust to hmsef, an expresson whch
means that the reaton between one part of hm and another part of hm s
anaogous to the un|ust reaton between persons.
Many, many other phosophers descrbe codes of |ustce. Famous phosophers
who have tacked ths denton ncude Thomas Hobbes, |ohn Locke, |ohn
Raws, Pato and Socrates, to name ony a few.
THE C!""#C! $E%"$ECT#&E
|ustce has been tradtonay equated wth the Latn phrase suum cuique
tribuere, whch means to aocate to each hs or her own, or to gve to each ther
due. In the works of both Pato and Arstote ths amounted to gvng equas ther
equa share. One s to receve proportonatey to hs, her or ts nature or mert.
E!%' ()*E%+ THE)%#E" )F ,-"T#CE
The noton of a soca contract s most famousy assocated wth the work of
such eadng modern potca phosophers as Thomas Hobbes, |ohn Rocke, and
|ean |acques Rousseau. The basc shared argument s that soca arrangements
can be regarded as |ust to the extent that they genuney have the consent of
those nvoved. The |ustce of a partcuar socety derves from the members of t
havng entered nto a contract agreeng to ts rues and patterns, or at any rate
beng presumed to have done so.
Contractaran theores were usuay combned wth the dea of natura rghts.
The |ustce of a socety and ts aws s assessed by whether t respects or
nfrnges peopes natura rghts.
In Hobbes perspectve for nstance the soca contract s essentay the esser
of severa evs, representng a knd of rough but necessary |ustce. Wthout
reguaton n a state of nature, peope woud compete wth each other to such
an extent that they woud nevtaby nfrnge each others nterests, wth the
resut that fe woud be nasty, brutsh and short. The ony way out of ths war of
a aganst a s for peope to agree to a soca contract estabshng a soveregn
wth the power to contro conct. The nfrngement of natura rghts |usted the
wthdrawa of consent.
In a nutshe, |ustce s acton n accordance wth the requrements of some aw.
Whether these rues be grounded n human consensus or soceta norms, they
are supposed to ensure that a members of socety receve far treatment.
Issues of |ustce arse n severa dherent spheres and pay a sgncant roe n
causng, perpetuatng, and addressng conct. |ust nsttutons tend to nst a
sense of stabty, we-beng, and satsfacton among socety members, whe
perceved n|ustces can ead to dssatsfacton, rebeon, or revouton.
Each of the dherent spheres expresses the prncpes of |ustce and farness n
ts own way, resutng n dherent types and concepts of |ustce: dstrbutve,
procedura, retrbutve, and restoratve. These types of |ustce have mportant
mpcatons for soco-economc, potca, cv, and crmna |ustce at both the
natona and nternatona eve.
T'$E" )F ,-"T#CE
1. D%#$0%1"$%*' 2"#$%&'
Dstrbutve |ustce, aso known as economic justice, s about fairness n what
peope receve, from goods to attenton. Dstrbutve |ustce s concerned wth
gvng a members of socety a "far share" of the benets and resources
avaabe. However, whe everyone mght agree that weath shoud be
dstrbuted fary, there s much dsagreement about what counts as a "far
share." Some possbe crtera of dstrbuton are equty, equaty, and need.
Equty means that one's rewards shoud be equa to one's
contrbutons to the socety;
Equaty s a fundamenta prncpe whch means that everyone gets
the same amount, regardess of ther nput.
Dstrbuton on the bass of need means that peope who need more
w get more, whe peope who need ess w get ess.
Far aocaton of resources, or dstrbutve |ustce, s cruca to the stabty of a
socety and the we-beng of ts members. When ssues of dstrbutve |ustce
are nadequatey addressed and the tem to be dstrbuted s hghy vaued,
ntractabe concts frequenty resut.
If peope do not thnk that they are gettng ther far share of somethng, they
w seek rst to gan what they beeve they deserve. They may we aso seek
other forms of |ustce.
2. PRCEDURAL JUSTICE
The prncpe of fairness s aso found n the dea of fair play (as opposed to the
fair share of dstrbutve |ustce).
Procedura |ustce s concerned wth makng and mpementng decsons
accordng to far processes that ensure "far treatment." Rues must be
mpartay foowed and consstenty apped n order to generate an unbased
decson. Those carryng out the procedures shoud be neutra, and those
drecty ahected by the decsons shoud have some voce or representaton n
the decson-makng process.
If peope beeve procedures to be far, they w be more key to accept
outcomes, even ones that they do not ke. Impementng far procedures s
centra to many dspute resouton procedures, ncudng negotaton, medaton,
arbtraton, and ad|udcaton.
If peope beeve that a far process was used n decdng what s to be
dstrbuted, then they may we accept an mbaance n what they receve n
comparson to others. If they see both procedura and dstrbutve n|ustce,
they w key seek restoratve and/or retrbutve |ustce.
8. RESTRATIVE JUSTICE
The rst thng that the betrayed person may seek from the betrayer s some
form of resttuton, puttng thngs back as they shoud be.
The smpest form of resttuton s a straghtforward apoogy. Restoraton
means puttng thngs back as they were, so t may ncude some act of
contrton to demonstrate one s truy sorry. Ths may ncude acton and even
extra payment to the ohended party.
Restoratve |ustce s aso known as corrective justice.
However, because there s a tendency to sp from retrbutve |ustce to an
emphass on revenge, some suggest that restoratve |ustce processes are more
ehectve. Whe a retrbutve |ustce approach conceves of transgressons as
crmes aganst the state or naton, restoratve |ustce focuses on voatons as
crmes aganst ndvduas. It s concerned wth heang vctms wounds,
restorng ohenders to aw-abdng ves, and reparng harm done to
nterpersona reatonshps and the communty.
Vctms take an actve roe n drectng the exchange that takes pace, as we as
denng the responsbtes and obgatons of ohenders. Ohenders are
encouraged to understand the harm they have caused ther vctms and take
responsbty for t. Restoratve |ustce ams to strengthen the communty and
prevent smar harms from happenng n the future. At the natona eve, such
processes are often carred out through vctm-ohender medaton programs,
whe at the nternatona eve restoratve |ustce s often a matter of nsttutng
truth and reconcaton commssons.
9. RETRIBUTIVE JUSTICE
Restoraton may we not be enough for the betrayed person and they may
seek revenge of some sort, whereby they can fee the satsfacton of seeng the
other person suher n the way that they have suhered.
Revenge can be many tmes more severe than reparaton as the hurt party
seeks to make the other person suher n return.
Retrbutve |ustce appeas to the noton of "|ust dessert" -- the dea that peope
deserve to be treated n the same way they treat others. It s a retroactve
approach that |ustes punshment as a response to past n|ustce or
wrongdong. The centra dea s that the ohender has ganed unfar advantages
through hs or her behavor, and that punshment w set ths mbaance
straght. In other words, those who do not pay by the rues shoud be brought to
|ustce and deserve to suher penates for ther transgressons. Retrbutve
|ustce pays a centra roe n ega proceedngs, respondng to voatons of
nternatona aw and human rghts, and war crmes ad|udcaton.
JUSTICE AND LAW
WHAT IS THE RELATINSHIP BETWEEN JUSTICE AND LAW:
In essence, there are three ma|or conctng vews about |ustce and aw. |ustce
may be perceved to be somethng nherent n aw, or aw may be contrasted
wth |ustce or |ustce may be a measure for testng aw.
JUSTICE AS INHERENT IN LAW
The rst vew sees |ustce as no more or ess than what the current authorty
says t s. There are no unversa prncpes by whch |ustce or n|ustce can be
dened other than the way n whch the government has made ts aws. Thus, n
dherent socetes and under dherent authortes, |ustce s dherent. In ths vew,
the dea that there s some sort of unversa dea or natura aw s often seen as
|ust an argument by those who do not ke the aws of the government n power.
For exampe, death penaty s condemned n some |ursdctons as beng un|ust.
However, n countres where t s aowed by the aw, t s st practced wthout
queston. Ths concepton of the reatonshp between |ustce and aw seems to
be grounded n the postvst schoo of aw.
In a sense, under ths rst concepton, |ustce s somethng that s nherent n
aw. In other words, |ustce foows the aw. Thus, n every ega system (system
of rues), whatever the content of the aw, there are aspects of procedura and
forma |ustce nherent n t. Here are a few exampes of procedura and
forma |ustce:
(a) The far hearng requrement under the consttuton.
(b) The rue aganst retrogressve appcaton of the aw.
(c) No one sha be a |udge n hs own cause.
(d) |ustce must not ony be done but must be seen to be done (rue
aganst bas).
Ths concepton of the reatonshp between aw and |ustce s cosey reated to
ega reasonng and rue of aw. As regards ega reasonng, t s the case that t
ought to excude persona bas. On the other hand, questons of procedura
|ustce and forma |ustce are ntegra components of rue of aw. The foowng
has been sad of the rue of aw:
Strpped of a techncates t means that government n a ts actons s
bound by rues xed and announced beforehand. Rues whch make t
possbe to foresee wth far certanty how the authorty w use ts
coercve power n gven crcumstances and to pan ones ndvdua ahars
on the bass of ths knowedge.
7
Another commentator has argued that Rue of Law obtans when the foowng
aspects are present: (a) There are meanngfu and enforceabe aws mpyng
transparency, farness predctabty n decsons,(b) When there are enforceabe
contracts so that there s promoton of busness and commerce, (c) When there
s basc securty whch transates to persona securty and protecton of property
and asty(d) When there s access to |ustce whch n ehect ensures concrete
safeguards aganst abuse of power.
8
;LAW< IN CNTRAST WITH ;JUSTICE<
We turn to the cams of contrast between aw and |ustce. Ths cam grappes
wth the noton (whose veracty may be contested) that ega rues, however
good n themseves, may nonetheess ead to n|ustce n partcuar cases. In
other words, aws cannot be |ust n a cases and to a peope. The argument n
support of ths cam s that the nature of some of the stuatons n whch
ndvduas confront the aw are so unque that they cannot be captured by any
rue but can be captured by ths partcuar sense of |ustce. In terms of ths
concepton, there s smpy no rue that can do |ustce and hence the concepton
of |ustce appeaed to s ntutve.
Ths concepton of |ustce s what Roscoe Pound caed executve |ustce
contrastng t wth |ustce accordng to the aw. Accordng to Pound, executive
justice rees on traned ntuton and s partcuary mportant where |udgment
reates to human conduct and mora ssues. He ctes exampes where t s
apped n Ango-Amercan ega system to ncude equtabe remedes, genera
standards (e.g. reasonabeness), use of the |ury and assessors, |udca attude n
ndng the aw, nforma methods of |udca admnstraton, sentencng and
admnstratve trbuna. A perfect exampe s where a magstrate n the Cty
7
H.A Hayek, The Road to Serfdom (London, 1944) p. 54
8
Maria Dakolias (23), The role of the Judiciary for Economic and Social Development: A spee!" #o #"e $%
&'di!iaries( represen#a#i)es deli)ered a# *"e Ha+'e, *"e ,e#"erlands on ,o)e-.er 14, 23.
Court convcts and |ust cautons a pregnant woman accused of spttng n the
pavements. Appcaton: What crtera does the |udge use n sentencng persons
convcted of mansaughter so that one gets a fe sentence and another waks
away wth a patry 8 months?
JUSTICE AS A MEASURE = LAW
The thrd vew argues that there s a natura dea of |ustce that aw aspres to
that can be used as crtera to measure whether aws are |ust or not. Ths schoo
of thought s tradtonay descrbed as peope who support the concept of
natura aw or natura |ustce. The assumpton s that there s an dea of |ustce
that can be dscovered and be hed up as crtera wth whch to evauate current
ega arrangements.
When |ustce s used as a measure of the aw, the assumpton s that aw ether
does or coud conform to |ustce. In ths sense, |ustce s a substantve mora
crteron. The man premse s that aw ought to aocate rghts, dutes and
resources n a certan way, and f t does not, t s un|ust. Law may be
condemned as outng substantve |ustce n two respects:
(a) Remeda (or commutatve) |ustce
(b) Dstrbutve (or soca) |ustce.
REMEDIAL >R CMMUTATIVE? JUSTICE:@Here, aw s |ust where t ahords
remedes for, and ony for, a true wrongs by one man to another. Further, the
aw must ony attach |ust, and ony |ust retrbuton, retrbuton to crme. Thus,
the soe busness of the aw s to ay down rues of |ust conduct. It s |ust aw
that punshes fraud. It s |ust aw that punshes murder and excuses use of force
n sef defense. Appcaton: Is t un|ust aw that provdes for equa punshment
for a person who steas Kshs. 10/= and one who steas Kshs. 1 Bon? Is t |ust
aw that punshes same sex reatonshps between two consentng partes? On
what bass does such aw punsh the two ndvduas?
Substanta remeda |ustce seems to be the bass of the prncpe that there s
no wrong wthout remedy. In other words, t s what s meant by a |udge who
appeas to |ustce as a ground for ayng down some new rue. It s assumed
that such and such conduct s obvousy wrong and such and such redress
obvousy the rght remedy.
DISTRIBUTIVE >R SCIAL? JUSTICE:@Ths s many manfested n debatng
merts of a proposed b or crtczng egsaton or (n the case of Kenya at
present) anayzng the harmonzed draft consttuton n terms of |ustce. |ustce
of the aw s dependent on how t, aong wth other soca arrangements,
aocates a the good thngs of fe-such as weath, power and berty. The |ustce
appeaed to n ths case (as we as n anayzng tax, wefare or pannng aw) s
soca |ustce rather than remeda |ustce. Appcaton: How |ust s the
harmonzed draft consttuton of Kenya?
"CE$T#C#"( T).!%*" C)+CE$T#)+" )F "-/"T!+T#&E ,-"T#CE
Accordng to Af Ross, nvokng |ustce n a dscusson s same as bangng on a
tabe as t s a mere emotona outburst whch turns ones demand nto an
absoute supposton. As such, nvokng |ustce" makes t mpossbe to have
ratona dscusson as n ehect one says nothng that can be argued for or
aganst. However, the queston s, gven Afs argument what are we to abe the
mora crtera marshaed n potca controversy about the mert or demert of
aw, whch s tradtonay caed |ustce?
INTRDUCTIN T LIBERALISM
Lberasm features a strong beef n equaty and n a government roe n
reducng raca, cass, and gender nequates. Cassca berasm s a
phosophy that emerged n Europe and empowered the ndvdua and asserted
the rghts of the ndvdua aganst the heredtary prvege, and the regous
prvege of the cergy.
A Lberas agree on the prmacy of ndvdua freedom and ndvdua choce.
Ths s what dstngushes Lberasm from, for exampe, Socasm, Communsm
and other brands of Natonasm. But some Lberas argue n favour of the core
Lbera vaues --ndvdua freedom and ndvdua choce.
Wrters foowng one ne of Lbera thought hod that ndvdua freedom s
"God-gven" or corresponds to an orgna prncpe, a "aw of nature," from
whch concrete acton can be derved by purey ogca reasonng. Natura aw
doctrne s centra to ths concepton of Lberasm whch s manfested n the
works of |ohn Locke, Thomas Hobbes, and the phosophers of the French
Enghtenment.
Then there are those who argue that Lbera prncpes of government and
socety are founded on an orgna soca contract. Ths s ntegra to the thought
of Locke and, more recenty, |ohn Raws.
And nay, a certan breed of Lberas ceave to the doctrne of utty,
undertakng a cost-benet cacuaton of ndvdua uttes geared to
"maxmsng" soca wefare. Ths way of thnkng, nspred by |eremy Bentham,
s at the heart of neocassca wefare economcs and the work of Robert Nozck.
It s not hard to be sceptca of a these theores of Lberasm on the grounds
that they are too abstract and oversmped to be of reevance to concrete
practce. In ther desperate search for smpe, unversa prncpes appcabe
everywhere and n a ages, they negect the compextes of hstory and
crcumstance and overook dherences of tme and pace. Further, the
assumpton of extreme ndvduasm s unreastc gven the embeddedness of
the ndvdua n fames and wder soca communtes.
A THERY = JUSTICEA BY JHN RAWLS
Raws was born and rased n Batmore, Maryand on 21
st
February 1921. Hs
father was a promnent awyer, hs mother a chapter presdent of the League of
Women Voters. Raws studed at Prnceton and at Oxford, where he worked wth
H. L. A. Hart, Isaah Bern, and Stuart Hampshre. In 1962 Raws |oned the
facuty at Harvard, where he taught for more than thrty years. He ded on 24
th
November 2002 at the age of 81 years.
Raws's most sgncant achevement s hs theory of a |ust bera socety, caed
justice as fairness. Raws rst set out |ustce as farness n systematc deta n
hs 1971 book, A Theory of Justice. Raws contnued to rework |ustce as farness
throughout hs fe, restatng the theory n Political Liberalism (1993), The Law of
Peoples (1999), and Justice as Fairness (2001).
|ohn Raws (b. 1921, d. 2002) was an Amercan potca phosopher n the bera
tradton. Hs theory of justice as fairness envsons a socety of free ctzens
hodng equa basc rghts cooperatng wthn an egataran economc system.
Hs account of political liberalism addresses the egtmate use of potca power
n a democracy, amng to show how endurng unty may be acheved despte the
dversty of wordvews that free nsttutons aow. Hs wrtngs on the law of
peoples extend these theores to bera foregn pocy, wth the goa of magnng
how a peacefu and toerant nternatona order mght be possbe.
JUSTICE AS =AIRNESS
R(7.#5 fundamenta cam s that |ustce as farness can be dened by two basc
prncpes. Farness to Raws means neutraty, decdng what s |ust
ndependenty of any vested nterests, bas or partaty.
THE BRIGINAL PSITINB
Raws beongs to the soca contract tradton. He deveops what he cams are
prncpes of |ustce through the use of an entrey and deberatey artca
devce he cas the Oriinal position, n whch everyone decdes prncpes of
|ustce from behnd a veil of inorance. Ths "ve" s one that essentay bnds
peope to a facts about themseves that mght coud what noton of |ustce s
deveoped.
!no one "nows his place in society, his class position or social status, nor
#oes anyone "now his fortune in the #istribution of natural assets an#
abilities, his intellience, strenth, an# the li"e$ % shall even assume that
the parties #o not "now their conceptions of the oo# or their special
psycholoical propensities$ The principles of justice are chosen behin# a
veil of inorance$!
Accordng to Raws, gnorance of these detas about onesef w ead to
prncpes that are far to a. If an ndvdua does not know how he w end up n
hs own conceved socety, he s key not gong to prvege any one cass of
peope, but rather deveop a scheme of |ustce that treats a fary. In partcuar,
Raws cams that those n the Orgna Poston woud a adopt a maxmn
strategy whch woud maxmse the poston of the east we-oh.
They are the principles that rational an# free persons concerne# to further
their own interests woul# accept in an initial position of equality as
#e&nin the fun#amentals of the terms of their association
However peope n the orgna poston are deemed to have certan nformaton
about soca organzaton and human motvaton n genera, whch anmates ther
barganng. They know that there are partcuar prmary basc goods such as
rghts and bertes, opportuntes, powers, sef=respect, ncome and weath, that
hep anyone to fu ther specc content.
It s mportant to keep n mnd that the agreement that stems from the orgna
poston s both hypothetical and ahistorical. It s hypothetca n the sense that
the prncpes to be derved are what the partes woud, under certan
egtmatng condtons, agree to, not what they have agreed to. In other words,
Raws seeks to persuade us through argument that the prncpes of |ustce that
he derves are n fact what we woul# agree upon f we were n the hypothetca
stuaton of the orgna poston and that those prncpes have mora weght as
a resut of that. It s ahstorca n the sense that t s not supposed that the
agreement has ever, or ndeed coud actuay be entered nto as a matter of
fact.
THE RLE = JUSTICE
Raws argues that |ustce s the rst vrtue of soca nsttutons. Laws and
nsttutons no matter how emcent and we-arranged must be reformed or
aboshed f they are un|ust.
Prncpes of |ustce provde a way of assgnng rghts and dutes n the basc
nsttutons of socety and dene the approprate dstrbuton of the benets and
burdens of soca co-operaton.
A socety s we-ordered when t s not ony desgned to advance the good of ts
members but when t s aso ehectvey reguated by a pubc concepton of
|ustce. That s t s a socety whch (1) everyone accepts and knows that the
others accept the same prncpes of |ustce, and (2) the basc soca nsttutons
generay satsfy and are generay known to satsfy these prncpes.
THE SUBJECT = JUSTICE
The prmary sub|ect of |ustce s the basc structure of socety, or more exacty,
the way n whch the ma|or soca nsttutons (the potca consttuton and the
prncpa economc and soca arrangements) dstrbute fundamenta rghts and
dutes and determne the dvson of advantages from soca cooperaton. The
ntutve noton here s that ths structure contans varous soca postons and
that men are born nto dherent expectatons of fe determned, n part, by the
potca system as we as the economc and soca crcumstances. In ths way
the nsttutons of socety favor certan startng paces over others. These are
especay deep nequates. They ahect mens nta chances n fe; yet they
cannot possby be |usted by an appea to the notons of mert or desert. It s
these nequates, presumaby nevtabe n the basc structure of any socety, to
whch the prncpes of soca |ustce must n the rst nstance appy. These
prncpes then reguate the choce of potca consttuton and the man
eements of the economc and soca system.
LIMITATINS
1. These prncpes may not work for the rues and practces of prvate
assocatons or for those ess comprehensve soca groups. They may not
rreevant for the varous nforma conventons and customs of everyday
fe; they may not eucdate the |ustce, or perhaps better, the farness of
vountary cooperatve arrangements or procedures for makng contractua
arrangements. The condtons for the aw of natons may requre dherent
prncpes arrved at n a somewhat dherent way. I sha be satsed f t s
possbe to formuate a reasonabe concepton of |ustce for the basc
structure of socety conceved for the tme beng as a cosed system
soated from other socetes.
2. For the most part of the dscusson the prncpes of |ustce
examned are the ones that woud reguate a we-ordered socety.
Everyone s presumed to act |usty and to do hs part n uphodng |ust
nsttutons. Thus Raws consders prmary what he cas strct compance
as opposed to parta compance theory.
PRINCIPLES = JUSTICE
Raws cams that the partes n the orgna poston woud adopt two such
prncpes, whch woud then govern the assgnment of rghts and dutes and
reguate the dstrbuton of soca and economc advantages across socety.
THE =IRST PRINCIPLE = JUSTICE
'ach person has an equal riht to the most extensive system of equal basic
liberties compatible with a similar system of liberties for all
The basc bertes of ctzens are, roughy speakng, potca berty (.e., to vote
and run for omce), freedom of speech and assemby, berty of conscence,
freedom of persona property; and freedom from arbtrary arrest. It s a matter
of some debate whether freedom of contract can be nferred to be ncuded
among these basc bertes.
The rst prncpe s more or ess absoute, and may not be voated, even for
the sake of the second prncpe, above an unspeced but ow eve of economc
deveopment (.e. the rst prncpe s, under most condtons, excay pror to
the second prncpe). However, because varous basc bertes may conct, t
may be necessary to trade them oh aganst each other for the sake of obtanng
the argest possbe system of rghts.
THE SECND PRINCIPLE = JUSTICE
Soca and economc nequates are to be arranged so that

a) They are to be of the greatest benet to the east-advantaged members
of socety (the #i)erence principle*$
b) O+ces an# positions must be open to everyone un#er con#itions of far
equaty of opportunty
Raws' cam n a) s that departures from equaty of a st of what he cas
prmary goods - 'thngs whch a ratona man wants whatever ese he wants' -
are |usted ony to the extent that they mprove the ot of those who are worst-
oh under that dstrbuton n comparson wth the prevous, equa, dstrbuton.
Hs poston s at east n some sense egataran, wth a provso that equaty s
not to be acheved by worsenng the poston of the east advantaged. An
mportant consequence here, however, s those nequates can actuay be |ust
on Raws's vew, as ong as they are to the benet of the east we oh. Hs
argument for ths poston rests heavy on the cam that moray arbtrary
factors (for exampe, the famy we're born nto) shoudn't determne our fe
chances or opportuntes. Raws s aso keyng on an ntuton that we do not
deserve nborn taents, thus we are not entted to a the benets we coud
possby receve from them, meanng that at east one of the crtera whch coud
provde an aternatve to equaty n assessng the |ustce of dstrbutons s
emnated.
The stpuaton n b) s excay pror to that n a). 'Far equaty of opportunty'
requres not merey that omces and postons are dstrbuted on the bass of
mert, but that a have reasonabe opportunty to acqure the sks on the bass
of whch mert s assessed.
WHAT DES RAWLSC SECND PRINCIPLE MEAN:
It means that socety may undertake pro|ects that requre gvng some persons
more power, ncome, status, etc. than others, e.g., payng accountants and
upper-eve managers more than assemby-ne operatves, provded that the
foowng condtons are met:
(a) the pro|ect w make fe better oh for the peope who are now worst oh, for
exampe, by rasng the vng standards of everyone n the communty and
empowerng the east advantaged persons to the extent consstent wth ther
we-beng,
and (b) access to the prveged postons s not bocked by dscrmnaton
accordng to rreevant crtera.
CRITICISMS = THE THERY = JUSTICE
Femnst crtcs of Raws, such as Susan Moer Okn, argey focused on the
extent to whch Raws's theory coud account for (f at a) n|ustces and
herarches embedded n fama reatons. Raws argued that |ustce ought ony
to appy to the "basc structure of socety". Femnsts, rayng around the theme
of 'the persona s potca', took Raws to task for fang to account for
n|ustces found n patrarcha soca reatons and the gendered dvson of abor,
especay n the househod.
Some egataran crtcs have rased concerns over Raws's emphass on prmary
soca goods. For nstance, Amartya Sen has argued that we shoud attend not
ony to the dstrbuton of prmary goods, but aso how ehectvey peope are
abe to use those goods to pursue ther ends. In a reated ven, Norman Danes
has wondered why heathcare shoudn't be treated as a prmary good, and some
of hs subsequent work has addressed ths queston, argung for a rght to heath
care wthn a broady Rawsan framework.
The communtaran theorst crtcse Rawss bera-egataran concepton of
|ustce for ts emphass on ndvdua rghts at the expense of the good of the
communty. In hs book, Lberasm and the Lmts of |ustce (1982), Mchae
Sande, aso of Harvard Unversty, crtczes what he cas Rawss noton of
dsemboded or unencumbered sef or sub|ect, n opposton to whch he
advances the noton of the stuated sef, .e. the sef or sub|ect, who s nvaraby
a member of a communty. Whe, for Raws, the rght s pror to the good and
|ustce s the rst vrtue of a socety, for, Sande, |ustce s ony a remeda vrtue
that s needed n an ndvduastc socety. For Sande, moreover, the common
good of the communty s pror to the rghts of the ndvduas. Chares Tayor,
who too s a eadng communtaran potca phosopher, bemoans berasms
atomstc" concepton of the sef. Accordng to hm, the we-beng of the
ndvdua depends on the good of hs communty s not ess mportant than the
|ust dstrbuton of the freedom and equaty rghts to the ndvduas.
Rawss bera-egataran concepton of |ustce has been sub|ected to a rgorous
bertaran crtque by hs ate coeague, Robert Nozck. In hs book, Anarchy,
State and Utopa (1974), Nozck draws a dstncton between end-state" and
patternng" conceptons of |ustce on the one hand and hstorca" and
enttement-based conceptons of |ustce on the other. The former types of
|ustces ca for soca reconstructon or patternng by the state n the name of
some end-stage goa. Rawss concepton of |ustce s, accordng to Nozck, such
an end-state and patternng concepton, whch by undermnng the berty rghts
of the ndvduas s unfar or un|ust to them. Instead of prescrbng any end-
state or patternng prncpes of dstrbuton, Nozck ooks for |ustce or n|ustce
n the hstory of the acquston of the ttes to our property hodngs.
Accordng to hm, the ndvdua has absoute berty rghts, ncudng the rght to
own property and exchange t n the market, regardess of the end-states or
pattern of dstrbuton t may ead to. Ths enttement theory of |ustce, however,
ncudes a prncpe of rectcatory |ustce, whch s meant to correct past
n|ustces, f any, n the acquston or transfer of property. It can be seen that
Nozocks bertaran concepton of |ustce s a defense of free-market captasm.
Whe t s eoquent on the defense of ndvdua rghts from state nterference, t
s sent on the undermnng of ndvdua freedom and equaty by very rch
peope or corporatons.
RBERT NDIC! was born n Brookyn, New York n 1938, and he taught at
Harvard Unversty unt hs death n |anuary 2002. He was a thnker of the
prodgous sort who gans a reputaton for brance wthn hs chosen ed whe
st n graduate schoo. The rst and most famous book, Anarchy, ,tate, an#
-topia (1974), s an ngenous defense of bertaransm. The sad book was n
response to Raws theory of |ustce. The man pro|ect of the book was to defend
an mnmast state (a nght watchman state), defendng t on one sde aganst
anarchst who beeve that state power over ndvduas can never be |usted,
and on the other sde aganst theorst ke Raws who advocate an nterventonst
state that w redstrbute weath, hep the poor and the ke
9
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Anarchy, ,tate, an# -topia s, together wth Raws's A Theory of Justice,
generay regarded as one of the two great casscs of twenteth-century anaytc
potca phosophy. Indeed, these two works essentay revved the dscpne of
potca phosophy wthn the anaytc schoo, whose practtoners had, unt
Raws and Nozck came aong, argey negected t. Nozck's book aso revved
nterest n the noton of rghts as beng centra to potca theory, and t dd so n
the servce of another dea that had been ong negected wthn academc
potca thought, namey bertaransm.
#/E%T!%#!+#"(0(#+#(! "T!TE
Lbertaransm s a potca phosophy hodng that the roe of the state n
socety ought to be severey mted, conned essentay to poce protecton,
natona defense, and the admnstraton of courts of aw, wth a other tasks
commony performed by modern governments - educaton, soca nsurance,
wefare, and so forth - taken over by regous bodes, chartes, and other prvate
nsttutons operatng n a free market. Many bertarans appea, n defendng
ther poston, to economc and socoogca consderatons - the benets of
market competton, the nherent mechansms ncnng state bureaucraces
toward ncompetence and nemcency, the poor record of governmenta
attempts to dea wth specc probems ke poverty and pouton, and so forth.
Nozck endorses such arguments, but hs man defense of bertaransm s a
moral one, hs vew beng that whatever ts practca benets, the strongest
reason to advocate a bertaran socety s smpy that such advocacy foows
from a serous respect for ndvdua rghts
10
.
Nozck revves cam ong assocated wth |ohn Locke and Herbert Spencer that
mnma state mted to the narrow functon of protecton aganst force , theft ,
fraud, enforcement of contracts and so on , s |usted ;and that the mnma
state s nsprng as we as rght accordng to whch economc goods arse
aready encumbered wth rghtfu cam to ownershp."
11
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Frst, Nozck seeks to |ustfy the mnma state aganst the ndvduastc
anarchst who hods that when the state monopozes the use of force n a
terrtory and punshes others who voate ts monopoy, and when the state
provdes protecton for everyone by forcng some to purchase protecton to
others, t voates mora sde constrants on how an ndvdua shoud be treated",
thus concudng that the state tsef s ntrnscay mmora" To Nozck what s
attractve n hs scenaro s that the state grows by an nvsbe -hand process
and by moray permssbe means , wthout anyones rght beng voated"
12
Nozck then proceeds to defend the mnma state aganst arguments for more
extensve state. Frst, that the state s necessary, or s the best nstrument, to
acheve dstrbutve |ustce. Aganst ths he puts forward hs ;'+$%$.'-'+$
$E',0F< of |ustce as dscussed beow.
THE ENTITLEMENT THERY
Nozck's Enttement Theory s based on the dea that ony free market
exchanges respect peope as equas--for hm, as "ends n themseves". Indeed,
even f a free market dd not, for nstance, produce the most overa we beng
on Nozck's vew, t woud be |usted. Accordng to Nozck, the theory conssts of
three prncpes:
1. Transfer prncpe: Hodngs (actuay) freey acqured from others who
acqured them n a |ust way are |usty acqured.
2. Acquston prncpe: Persons are entted to hodngs ntay acqured
n a |ust way (accordng to the Lockean Provso).
3. Rectcaton prncpe: Rectfy voatons of 1 or 2 by restorng hodngs
to ther rghtfu owners, or"one tme" redstrbuton accordng to the
Dherence Prncpe.
If peope's current hodngs are |usty acqured, then the transfer prncpe
aone determnes whether subsequent dstrbutons are |ust.
Consequenty, any taxaton over the amount requred to preservng
nsttutons of |ust transfer, acquston and rectcaton--that s, preservng
enttements--accordng to Nozck, are un|ust.
12
4.id
SEL=@WNERSHIPA INDIVIDUAL RIGHT AND MINIMAL STATE
Nozck takes hs poston to foow from a basc mora prncpe assocated wth
Immanue Kant and enshrned n Kant's second formuaton of hs famous
Categorca Imperatve: "Act so that you treat humanty, whether n your own
person or n that of another, aways as an end and never as a means ony." The
dea here s that a human beng, as a ratona agent endowed wth sef-
awareness, free w, and the possbty of formuatng a pan of fe, has an
nherent dgnty and cannot propery be treated as a mere thin, or use# aganst
hs w as an nstrument or resource n the way an nanmate ob|ect mght be.
In ne wth ths, Nozck aso descrbes ndvdua human bengs as self.owners
(though t sn't cear whether he regards ths as a restatement of Kants
prncpe, a consequence of t, or an entrey ndependent dea). The thess of
sef-ownershp, a noton that goes back n potca phosophy at east to |ohn
Locke, s |ust the cam that ndvduas own themseves - ther bodes, taents
and abtes, abor, and by extenson the fruts or products of ther exercse of
ther taents, abtes and abor. They have a the prerogatves wth respect to
themseves that a savehoder cams wth respect to hs saves. But the thess of
sef-ownershp woud n fact rue out savery as egtmate, snce each
ndvdua, as a sef-owner, cannot propery be owned by anyone ese. (Indeed,
many bertarans woud argue that uness one accepts the thess of sef-
ownershp, one has no way of expanng why savery s ev. After a, t cannot
be merey because savehoders often treat ther saves bady, snce a knd-
hearted savehoder woud st be a savehoder, and thus moray bameworthy,
for that. The reason savery s mmora must be because t nvoves a knd of
steang - the steang of a person from hmsef.)
But f ndvduas are nvoabe ends-n-themseves (as Kant descrbes them) and
sef-owners, t foows, Nozck says, that they have certan rihts, n partcuar
(and here agan foowng Locke) rghts to ther ves, berty, and the fruts of
ther abor. To own somethng, after a, |ust s to have a rght to t, or, more
accuratey, to possess the bunde of rghts - rghts to possess somethng, to
dspose of t, to determne what may be done wth t, etc. - that consttute
ownershp; and thus to own onesef s to have such rghts to the varous
eements that make up one's sef. These rghts functon, Nozck says, as si#e.
constraints on the actons of others; they set mts on how others may, moray
speakng, treat a person. So, for exampe, snce you own yoursef, and thus have
a rght to yoursef, others are constraned moray not to k or mam you (snce
ths woud nvove destroyng or damagng your property), or to kdnap you or
forcby remove one of your body organs for transpantaton n someone ese
(snce ths woud nvove steang your property). They are aso constraned not
to force you aganst your w to work for another's purposes, even f those
purposes are good ones. For f you own yoursef, t foows that you have a rght
to determne whether and how you w use your sef-owned body and ts powers,
e.g. ether to work or to refran from workng.
So far ths a mght seem fary uncontroversa. But what foows from t, n
Nozck's vew, s the surprsng and radca concuson that taxation, of the
redstrbutve sort n whch modern states engage n order to fund the varous
programs of the bureaucratc wefare state, s moray egtmate. It amounts to
a knd of force# labor, for the state so structures the tax system that any tme
you abor at a, a certan amount of your abor tme - the amount that produces
the weath taken away from you forcby va taxaton - s tme you nvountary
work, n ehect, for the state. Indeed, such taxaton amounts to parta slavery,
for n gvng every ctzen an enttement to certan benets (wefare, soca
securty, or whatever), the state n ehect gves them an enttement, a riht, to a
part of the proceeds of your abor, whch produces the taxes that fund the
benets; every ctzen, that s, becomes n such a system a partial owner of you
(snce they have a parta property rght n part of you, .e. n your abor). But ths
s aty nconsstent wth the prncpe of sef-ownershp.
The varous programs of the modern bera wefare state are thus mmora, not
ony because they are nemcent and ncompetenty admnstered, but because
they make saves of the ctzens of such a state. Indeed, the ony sort of state
that can be moray |usted s what Nozck cas a minimal state or "nght-
watchman" state, a government whch protects ndvduas, va poce and
mtary forces, from force, fraud, and theft, and admnsters courts of aw, but
does nothng ese. In partcuar, such a state cannot reguate what ctzens eat,
drnk, or smoke (snce ths woud nterfere wth ther rght to use ther sef-owned
bodes as they see t), cannot contro what they pubsh or read (snce ths woud
nterfere wth ther rght to use the property they've acqured wth ther sef-
owned abor - e.g. prntng presses and paper - as they wsh), cannot admnster
mandatory soca nsurance schemes or pubc educaton (snce ths woud
nterfere wth ctzens' rghts to use the fruts of ther abor as they desre, n that
some ctzens mght decde that they woud rather put ther money nto prvate
educaton and prvate retrement pans), and cannot reguate economc fe n
genera va mnmum wage and rent contro aws and the ke (snce such actons
are not ony economcay suspect - tendng to produce bad unntended
consequences ke unempoyment and housng shortages - but voate ctzens'
rghts to charge whatever they want to for the use of ther own property).
NDIC! ARGUMENTS AGAINST PATTERNED DISTRIBUTIN
Nozck book, Anarchy, ,tate, an# -topia (1974)" chaenges the whoe concept
of dstrbuton. There s no such meanngfu concept as the goods of socety but
ony the goods of partcuar ndvduas and socety has no prma face rght to
shume those around between ndvduas". Nozck forces to ask not how
dstrbuton can be other than equa (Rawss premse), but why shoud there be
dstrbuton at a.
13
Nozck ponts out that any sort of patterned dstrbuton (e.g. |ustce requres
that everyone to have equa amount or that the dstrbuton of goods be
accordng to need, mert ntegence, abty, and ehort etc) w be vunerabe: t
w key be reguary and contnuay dsrupted by the vountary ndependent
choces of an ndvduas. He uses the exampe of star athete, workng after
hours, whch many peope w pay to see from whatever weath they have. Ths
type of transacton aong wth gfts, bequests, and prvate contractua
agreements w a serve to undermne whatever |ust patterns has been set.
(And how can anyone compan about resutng dstrbuton , whch was caused
by the vountary actons of peope deang wth ther own resources as they see
13
4.id
t?)Someone who beeves that |ustce requres a patterned dstrbuton w then
be eft wth two equay unpeasant optons: forbd a vountary ndependent
actons that ahect peopes hodngs, or mpose reguar, ntrusve redstrbutve
taxes.
14
JUSTICE IN HLDING
Nozcks aternatve approach s not so much |ust (re)dstrbuton but |ustce
n hodngs". Accordng to hm there are two ways n whch one can |usty own
somethng as enumerated beow:
P0%+&%3.' ,6 J"#$ A&G"%#%$%,+: A person can acqure an ob|ect consstenty wth
the prncpes of |ust acquston (the appropraton of unhed thngs e.g. camng
and workng uncamed and)
P0%+&%3.' ,6 J"#$ T0(+#6'0: A person can acqure a thng n accordance wth
prncpe of |ust transfer from someone ese who was hersef entted to own the
thng( .e. a vountary transacton , whether by exchange or gft , wth no fraud ,
duress or the ke.)No one s entted to own anythng where the ownershp
cannot be traced by the (perhaps repeated) appcaton of one or both prncpes.
Ths Nozck refers to as an hstorca" prncpe of |ustce, to be contrasted wth
end resut" or end state" prncpes. What foows from Nozcks anayss s that
socety /government has no rght to redstrbute goods, voatng peopes |ust
cams to the ob|ect they own, for some genera benet. However socety does
have arght -and probaby the duty-to redstrbute goods to correct some pror
n|ustce n hodng.
CRITICISM = NDIC!5S APPRACH
There are many questons and crtcsm eveed aganst Nozck theory of |ustce.
Frst, how s the mnma state to be controed? How s t to be kept mnma?
How are the economcay advantaged to be stopped acqurng potca power?
The mnma state and an aert ctzenry are supposed to stop ths from
happenng. How s desttuton to be prevented and reeved? Nozcks answer,
14
,o>i!k, 11Anar!"y, 5#a#e and %#opia((p. 149
nave n the extreme, ponts to the free operaton of the market, vountary
assocaton and prvate phanthropy.
The centra aw n Nozcks arguments s the abstractness of the ndvduasm
they presuppose" The ndvduas who conduct Nozcks thought experment are
neutered n the sense that they are de-psychooges, taken out of ther cuture
and envronment .Nozck assumes that t s possbe to soate peope n ths way,
whereas n reaty peope are consttuted by the socetes nto whch they are
socazed and ve. Lukes rghty observes of ths abstract ndvduasm that s a
dstortng ens whch satses the nteect whe smpfy the word." He
contnues wth remarks whch ths secton may concude :" Nozcks word not
ony excudes the ever growng roe of the state wthn contemporary
captasm ;t s aso radcay pre-socoogca, wthout soca structure , or raca
or cutura determnants of, constrant upon , the vountary acts and exchanges
of ts component ndvduas
15
MICHAEL SANDELA CMMUNITARIANISM AND CIVIC REPUBLICANISM
Communtaransm began n the upper reaches of Ango-Amercan academa n
the form of a crtca reacton to |ohn Raws' andmark 1971 book ! Theory o1
,ustice >R(7.# 19H1?. Drawng prmary upon the nsghts of Arstote and
Hege, potca phosophers such as Aasdar MacIntyre, Mchae Sande, Chares
Tayor and Mchae Wazer dsputed Raws' assumpton that the prncpa task of
government s to secure and dstrbute fary the bertes and economc
resources ndvduas need to ead freey chosen ves. These crtcs of bera
theory never dd dentfy themseves wth the communtaran movement (the
communtaran abe was pnned on them by others, usuay crtcs); much ess
oher a grand communtaran theory as a systematc aternatve to berasm.
In ths artce we sha partcuary ook at the crtque of Raws' Theory of |ustce
(1971) n hs Lberasm and the Lmts of |ustce (1982) by Mchae |. Sande .
Mchae |. Sande was born on Thursday March 5, 1953 s a potca phosopher
and a professor at Harvard Unversty. Hs books ncude Democracys
Dscontent, Pubc Phosophy: Essays on Moraty n Potcs, The Case aganst
15
6er L%@$5
Perfecton: Ethcs n the Age of Genetc Engneerng, and, most recenty, |ustce:
Whats the Rght Thng to Do? Hs wrtngs have been transated nto eeven
foregn anguages and have appeared n The Atantc, The New Repubc, and
the New York Tmes.
Sande has ectured wdey n North Amerca, Europe, Chna, |apan, Korea, Inda,
Austraa, and New Zeaand, on topcs ncudng democracy, berasm,
boethcs, gobazaton, and |ustce.
Communtarans argue that the bera vew of |ustce (where berasm s to be
understood broady as any approach whch emphaszes ndvduasm and
ndvdua rghts aganst the state) s vad ony to the extent that the bera
vew of ndvduas s correct; cut-oh peope who have no connectons wth one
another, who co-operate ony to the extent that t s usefu n achevng each
ndvduas short-term or ong term goas. Communtarans contest ths vew of
persons.
Lberas and bertarans ground ther theores of |ustce on an anayss whch
treats peope as essentay atomstc; n ths vew, an ndvdua s
essentaay,|ust a metaphysca w, an abty to choose any form of good, any
set of vaues and an abty to step back from such choces, evauate them, and
perhaps decde to modfy them.
Sande argues that t does not reect rea fe, at any eve. We come nto the
word as part of a famy, a communty, an ethnc and regous group among
others and ths s an essenta part of our dentty at a stages of our ves. What
foows ths? Sande suggests that |ustce/ethcs shoud centre on, or at east
take nto account, our connectons; our responsbtes as members of our
communtes, ctzens of a country etc.
Sande s suspcous of the vew of ndvduas of the vew of ndvduas that
underes Raws anayss, and s partcuary cear n the orgna poston". For
Raws, we can speak of the choosng ndvdua separate from hs or her vew of
the good, and ndeed separate from a of hs or her attrbutes, beefs,
attachments and amatons. Ths s a mnma sef or smpe w that makes
choces, a vew of human essentas that can be traced from Raws at east back
to Immanue Kant. For Sande and other communtarans, t s unwse and key
dstortng to vew ndvduas can make mature, nformed and automous choces.
Communtarans do not a beeve n the same thngs, and to the extent that
ther postons do converge, t tends to be on crtcsms of the basc ponts of
bera ndvduasm. The conventona vew of socety s that government s
there to protect ndvdua rghts (for some, the focus woud be on rghts of
berty and conscence, for others, on rghts of property and free contact) and to
resove dsputes between ndvdua cams.
The pubc good s dened as ether the protecton of the basc rghts and the
framework wthn whch they can be fuy reazed (e.g. the free market), or
smpy the summaton of (conctng) ndvdua preferences.Communtaruans
tend to emphasze the mportance of communty and the mportance of
(responsbe) membershp n a potca communty. The argument s the
membershp of a potca communty s a good that berasm negects,
gnores, or whose sense t cannot be successfuy capture by ts own terms. It s
mportant to recognze, respect and protect the ntermedate nsttutons that
pay such a arge roe n our denttes and our ves. In consderng prncpes
and ega rues, the focus shoud be on communtes, and on socety; how
adoptng one prncpe or rue rather than another mght hep or hurt socety,
not |ust how t mght ahect the autonomy of atomstc ndvduas. For exampe,
the advantage of free pubc educaton shoud be seen not prmary n how t
equps ndvduas to succeed n the market pace, but n how educated peope
w make better ctzens.
It s not |ust a dherent |ustcaton for the same rues. A focus on communtes
mght ead to dherent poces: communtarans are ess key than
conservatves to defend pornography and ess key than beras to defend
pornography and ess key than conservatves to defend corporaton rghts, e.g.
regardng the rghts of corporatons to move or shut down when ths means the
massve oss of empoyment and vtaty to the oca communty.
Mchae Wazer ohers another communtaran crtque of |ustce: those notons of
|ustce arse wthn a communty, a tradton, and a partcuar set of
crcumstances. Ths s a chaenge to a basc noton underyng conventona
theores of |ustce (and, ndeed, conventona theores of moraty): that what s
rght s unversay tght-for a peope, and for a tmes. One shoud not
overstate the dsagreements here; Wazer s wng to speak of a core moraty
dherenty eaborated n dherenty eaborated n dherent cuture" however, for
Wazer, crtca debate occurs wthn the thcker" cuturay-based morates.
The hope that mnmasm, grounded and expanded, mght serve the cause of
a unversa crtque s a fase hope" for wazer, questons of |ustce, and
responses to those queston w, and shoud, be debated wthn the context of a
partcuar communty and a partcuar tradton.
Communtaransm s a near reaton to an approach to potca theory known as
repubcansm" or cvc repubcansm" (not to be confused wth the
Repubcansm" potca partes n the US and esewhere).The connecton may
be ony ndrect, n the sense that one approach does not ogcay foow from
the other, but both are responses to and reactons aganst the same vews and
atttudes; that s, both oppose or queston the emphass on ndvduas and
ndvdua nterests at the heart of conventona theores of aw and |ustce. Cv
repubcansms s the dea that civic virtue ,the partcpaton n pubc, potca
fe, s an mportant vaue that shoud be empassed.Accordngng to ths
approach, one of the tasks of government s to make the ctzenry more vrtuous
and encourage partcpaton n the pubc good.
Cvc repubcansm has not a robust theory of the pubc good, and our dutes,
as ctzens or omcas, to serve that pubc good, whch paces t as the
dametrca opposte of pubc choce theory. Pubc choce theory argues, cams,
or assumes that there s no such thng as the pubc good(or at east the pubc
good" s rarey sought and even more rarey reazed);rather, there s opny,or
mosty, the conctng cams of dherent ndvduas and nterest group.
=EMINIST APPRACH T JUSTICE
Femnsm comprses a range of phosophca, potca, soca and terary
pro|ects and atttudes unted ony by the commtment to take serousy the
dstnct experences of women.
Femnsts who attack berasm argue that when beras nsst on equaty for a,
the ndvdua presupposed s amost aways a mae. They argue that women are
gnored atogether, and when probems of women are consdered, they are
depcted by reference to, and n contrast wth a standard fashonabe for
treatment of maes.
They argue that any adequate theory of |ustce must ncude womens
perspectves equay wth mens and that the famy whch s the nchpn of the
gender structure, must be |ust f we are to have a |ust socety.
Susan Okn, a strong proponent of the femnst theory denes gender as the
deepy entrenched nsttutonazaton of sexua dherence and that t s argey
socay produced.
She ays crtcsm to the tradtona/ conventona phosophes/theores of |ustce;
That not enough emphass has been put by those who have wrtten about |ustce
on the mpcatons of how the workpace s structured for famy fe, or famy
fe for the work pace. That some have treated the famy as beng beyond
consderatons of |ustce.
They aso argue that most theores have tended to be unfar aganst women on
the gendered dstrbuton of abour/roes.
However, Okns crtcsm of tradtona potca theores s not that the toos/
concepts of rghts and |ustce are ncorrect, but that they have not been apped
to the ssues of gender and the famy. Therefore her argument s not that t s
un|ust for women to work n the home rather than seek wage work, but that t s
un|ust to have ega or soca norms that state that women can or shoud ony
work n the home.
I%+5# &0%$%&%#- ,6 R(7.5# Theory of |ustce s how Raws assumes the famy
s |ust through psychoogca factors .e. moraty of authorty, moraty of
assocaton and moraty of prncpes. He does not recognze the possbty that
the famy s not |ust and f they are not |ust, how one ndvdua s supposed to
deveop a sense of |ustce.
The moraty of authorty s the rst stage n mora deveopment. In ths stage,
Raws assumes that teachng moras to chdren s a condton of human fe.
Okn argues that ths s an assumpton and peope often do not beeve they
have the duty or condton to teach moras. She nssts that Raws does not
expan or |ustfy the grounds for hs assumpton that fames are |ust.
Okn chooses to appy one of |ohn Raws eadng theores of dstrbutve |ustce
to the ssue of gender and the famy. That snce the woman s aways
dsadvantaged n the famy, then she shoud be compensated from the more
endowed.
Martha Fneman, another femnst has argued that bera ndvduasm whch s
but around a presumpton of sef sumcency s fase snce the reaty s that a
of us are nevtaby dependent on one another. They argue that women are
dsadvantaged n the famy structure snce they are the home makers; they
produce and are therefore key to change the whoe course of ther ves
because of famy commtments.
CRITICISMS = !IN5S THERY = =EMINISM
The respects n whch men change ther ves because of famy
commtments s not consdered by the femnsts. e.g. fathers may work
onger hours to cater for the famy or forfet evenng or weekend
meetngs wth peers |ust because of famy.
Okn beeves that the famy structure and reatonshps between
famy members are approprate sub|ects for |udgments of |ustce snce to
her women are dsadvantaged by the vew that the famy s not a t
sub|ect of |udgments of |ustce.-She msses the pont that vewng famy
reatonshps as beng beyond |ustce mght be beneca for women who
adopt a tradtona roe". Ths s because, f fames are vewed on the
bass of gvng each hs due, those who are ess nancay ndependent
may be dsadvantaged.
I%+5# (0/"-'+$ 6,0 ncuson of women nto bertaran potca
theores resuts n an obvousy unacceptabe consequence and, hence a
refutaton of bertaransm. When we attempt to modfy bertaran
theores to ncude womens perspectves n mens, we woud ncude ther
unque roe n reproducton. Ths woud resut n a moray repugnant
concuson that peope are excusvey owned by ther mothers. Ths s
because bertarans argue for Enttement to ones product: That one
owns what one produces.
Okns recommendaton for shared parentng w reman |ust that; a
wsh: She argues that both parents woud share parentng responsbtes,
both economc support and drect care, equay. She does though
apparenty assume that, upon dvorce, there w be a soe custoda
parent.
CNCLUSIN
In my vew, Okns percepton s couded by the thought that women have been
dsadvantaged n socety and therefore f we apped her percepton of |ustce,
then the men/boy chd woud suher the same dsadvantage she beeves women
are undergong.
THER RE=ERENCES
/$ Backs Law Dctonary.8
th
Edton, Bryan A. Garner
0$ Todays New Internatona Verson Bbe
1$ Maese, Mchee. "Types of |ustce." 2eyon# %ntractability. Eds. Guy
Burgess and Hed Burgess. Conct Research Consortum, Unversty of
Coorado, Bouder. Posted: |uy 2003
<http://www.beyondntractabty.org/essay/types_of_|ustce/>.
3$ Introducton to |ursprudence and ega theory commentary and materas
e#ite# by James Penner, 4avi# ,chi) an# 5ichar# 6obles
7$ Barry, B., 1995, Justice as %mpartiality (Oxford: Carendon Press)
8$ 9onow, James$ 0::1$ !;hich %s the Fairest One of All< A Positive Analysis
of Justice Theories$! Journal of 'conomic Literature 3/, no$ 3= pae //>>
?$ |ohn Raws, A Theory of Justice (revsed edn, Oxford: OUP, 1999), p. 3