JUSTICE AND ITS KINDS

JURISPRUDENCE

JAMIA MILLIA ISLAMIA

SUBMITTED BY:
Ojasvi Nautiyal
B. A. LL.B. (Hons.)
Class: 2nd yr

SUBMITTED TO:
Mr. Victor Vaibhav Tandon

ACKNOWLEDGEMENT
It is my imperative duty to thank the following people for
the successful completion of my project,
- Mr. Victor Vaibhav Tandon for the clarity he brings into teaching
thus enabling us to have a better understanding of his subject. I also
feel obliged to thank him for providing us with topics to choose
from.
- My resourceful classmates, who I ran into in the library, thus unexpectedly starting and successfully completing a rough handwritten
draft of this project.
- The very cooperative and friendly staff members in the Central and
Law Library who were instrumental in our finding the necessary
books without wasting much time.

TABLE OF CONTENTS
1. Introduction________________________________________________4
2. Concept of Justice___________________________________________5
3. John Rawls- A Theory of Justice________________________________7
4. Kinds of Justice_____________________________________________19
4.1.

Distributive Justice_____________________________________21

4.2.

Procedural Justice______________________________________23

4.3.

Restorative Justice_____________________________________25

4.4.

Retributive Justice______________________________________28

5. Conclusion_________________________________________________32
6. Bibliography________________________________________________33

INTRODUCTION
Since the dawn of human civilization, in the whole range of our legal, political and
moral theory, the notion of justice has always occupied a central place. Although any
attempt to define the term precisely, scientifically and exhaustively has presented a baffling
problem to scholars of all hues. Consequently on account of its multi dimensionality, its
nature and meaning has always been a dynamic affair. Besides, the problem of definition of
justice is beset with the problem of its normative as well as empirical connotations. While
in the normative sense it implies the idea of joining or fitting the idea of a bond or tie 1, in
an empirical context, it has its relation with the concept of positive law with the result that
law and justice becomes sister concepts. It is owing to this affirmation that the fundamental
purpose of law is said to be the quest for justice which is to be administered without
passion as when it (passion) comes at the door, justice flies out of the window.2
However, notwithstanding the problem of defining the term Justice, precisely,
scientifically and exhaustively, it is submitted that "Jurisprudence cannot escape
considering justice since justice is ideally the matter of law. But what if justice cannot be
known? Justice appears to be overburdened idea. Sometimes it is reduced to a question of
technique: it is thereby posed as the problem of what will guide the techniques of
constructing social order. At other times it appears as a problem of legitimacy or put
another way, as an answer to the question of what will provide a rational framework for
judging the adequacy of the regulation of human relations."3
According to Kelsen, there cannot be a formal science of justice since even if a
theory of justice were logically constructed it would be based on emotive premises. It is not
possible to identify in a scientific way the supreme values that a just order of social life
should attempt to provide. It therefore, appears that the concept of justice is not amenable
to rational determination. Consequently, notwithstanding the value and importance of the
concept of justice today, one of the central conflicts in legal moral and political philosophy
is between those who espouse rights based theories and those utilitarians in particular who
put forward goal based theories. A requirement is rights based when generated by a concern
1

Earnest Baker. Principles of Social and Political Theory, London: Oxford University Press, 1967, p. 102.

C.K. Allen. Aspects of Justice, London, Stevens & Sons, 1955, p. 34

Wayne Morrison. Jurisprudence From the Greeks to post modernism, Lawman (India) Pvt. Ltd., New
Delhi, Footnote 1 at p. 383
2

for some individual interest and goal based when propagated by the desire to further
something taken to be of interests to the community as a whole.

CONCEPT OF JUSTICE
The concept of justice is as old as origin and growth of human society itself. The
social nature of a man demands that he must live peacefully in society. While living so, he
experiences a conflict of interests and expects rightful conduct on the parts of others. This
is the reason why Salmond and Roscoe Pound have emphasised the importance of justice in
their definitions of law.
Salmond- Definition of law itself reflects that Administration of Justice has to be
done by the state on the basis of rules and principles recognized.
Roscoe Pound- He believed that it is the court that has to administer justice in a
state.
Blackstone Justice is reservoir from where the concept of right, duty and equity
evolves
Both, Roscoe Pound and Salmond emphasized upon the Courts in propounding
law. However, Roscoe Pound stressed more on the role of courts whereas Salmond stressed
more on the role of the State.
Salmond further opines that though every man wants to be righteous and just
towards him, he himself being 'selfish' by nature may not be reciprocal in responding justly.
This is why some kind of external force is necessary for maintaining an orderly society. For
Salmond, without justice, an orderly society is unthinkable.
The concept of justice became more conspicuous with the growth of State which
ensures justice to it people through the instrumentality of law. As the law grew and
developed, the concept of justice also expanded its tentacles to different spheres of human
activities. Thus for example, today we have civil justice, criminal justice, economic justice,
ditributive justice and so on.
The essence of legal justice lies in ensuring uniformity and certainty of law and at
the same time ensuring that rights and duties are duly respected by the people. In other
words the citizens are expected to shape their conduct so as to ensure that they do not
violate the rights of their other fellowmen and at the same time they abide by their duties
imposed on them by the law.
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Yet, another essential attribute of notion of justice is the element of impartiality

imbibed in it. One has to be just and fair not only to him but towards all the members of the
society. The violations of justice which is enforced by the law results into State sanction
which is generally called punishment. This is rather indispensable for sound administration
of justice. As Chief Justice Coke rightly pointed out, wisdom of law and justice is wiser
than a man's wisdom, meaning thereby that legal justice represents the collective wisdom
of the community which Rosseaue called as General Will of the people

JUSTICE ACCORDING TO LAW

The modern version of the concept of justice is expressed in terms of justice
according to the law'', which Dicey has called the Rule of law. This presupposes that law
and justice apply to all alike without any differentiation whatsoever that is no one is above
law. From this point of view, he considers it unnecessary to distinguish between civil and
criminal justice and treats them as violations of public justice.

JOHN RAWLS- THEORY OF

JUSTICE
John Rawls, a philosopher who held the James Bryant Conant University
Professorship at Harvard University, published several books and many articles. He is
chiefly known, however, for his book A Theory of Justice, an effort to define social justice.
The work has greatly influenced modern political thought.
Rawls was dissatisfied with the traditional philosophical arguments about what
makes a social institution just and about what justifies political or social actions and
policies. The utilitarian argument holds that societies should pursue the greatest good for
the greatest number. This argument has a number of problems, including, especially, that it
seems to be consistent with the idea of the tyranny of majorities over minorities. The
intuitionist argument holds that humans intuit what is right or wrong by some innate moral
sense. This is also problematic because it simply explains away justice by saying that
people know it when they see it, and it fails to deal with the many conflicting human
intuitions.
Rawls attempted to establish a reasoned account of social justice through the social
contract approach. This approach holds that a society is in some sense an agreement among
all those within that society. If a society were an agreement, Rawls asks, what kind of
arrangement would everyone agree to? He states that the contract is a purely hypothetical
one: He does not argue that people had existed outside the social state or had made
agreements to establish a particular type of society.

THE ROLE OF JUSTICE

Justice is the first virtue of social institutions, as truth is of systems of thought. A
theory however elegant and economical must be rejected or revised if it is untrue; likewise
laws and institutions no matter how efficient and well-arranged must be reformed or
abolished if they are unjust. Each person possesses an inviolability founded on justice that
even the welfare of society as a whole cannot override. For this reason justice denies that
the loss of freedom for some is made right by a greater good shared by others. It does not
allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages
enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as
7

settled; the rights secured by justice are not subject to political bargaining or to the
calculus of social interests. The only thing that permits us to acquiesce in an erroneous
theory is the lack of a better one; analogously, an injustice is tolerable only when it is
necessary to avoid an even greater injustice. Being first virtues of human activities, truth
and justice are uncompromising.

THE SUBJECT OF JUSTICE

Many different kinds of things are said to be just and unjust: not only laws,
institutions, and social systems, but also particular actions of many kinds, including
decisions, judgments, and imputations. We also call the attitudes and dispositions of
persons, and persons themselves, just and unjust. Our topic, however, is that of social
justice. For us the primary subject of justice is the basic structure of society, or more
exactly, the way in which the major social institutions distribute fundamental rights and
duties and determine the division of advantages from social cooperation. By major
institutions, it is understood, the political constitution and the principal economic and
social arrangements. Thus the legal protection of freedom of thought and liberty of
conscience, competitive markets, private property in the means of production, and the
monogamous family are examples of major social institutions. Taken together as one
scheme, the major institutions define men's rights and duties and influence their lifeprospects, what they can expect to be and how well they can hope to do.
The basic structure is the primary subject of justice because its effects are so
profound and present from the start. The intuitive notion here is that this structure
contains various social positions and that men born into different positions have different
expectations of life determined, in part, by the political system as well as by economic
and social circumstances. In this way the institutions of society favour certain starting
places over others. These are especially deep inequalities. Not only are they pervasive, but
they affect men's initial chances in life; yet they cannot possibly be justified by an appeal
to the notions of merit or desert. It is these inequalities, presumably inevitable in the basic
structure of any society to which the principles of social justice must in the first instance
apply. These principles, then, regulate the choice of a political constitution and the main
elements of the economic and social system. The justice of a social scheme depends
essentially on how fundamental rights and duties are assigned and on the economic
opportunities and social conditions in the various sectors of society.

THE MAIN IDEA OF THE THEORY OF

JUSTICE
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Rawls aim was to present a conception of justice which generalizes and carries to
a higher level of abstraction the familiar theory of the social contract as found, say, in
Locke, Rousseau, and Kant. In order to do this we are not to think of the original contract
as one to enter a particular society or to set up a particular form of government. Rather,
the guiding idea is that the principles of justice for the basic structure of society are the
object of the original agreement. They are the principles that free and rational persons
concerned to further their own interests would accept in an initial position of equality as
defining the fundamental terms of their association. These principles are to regulate all
further agreements; they specify the kinds of social cooperation that can be entered into
and the forms of government that can be established. This way of regarding the principles
of justice is what he called justice as fairness. Thus we are to imagine that those who
engage in social cooperation choose together, in one joint act, the principles which are to
assign basic rights and duties and to determine the division of social benefits. Men are to
decide in advance how they are to regulate their claims against one another and what is to
be the foundation charter of their society. Just as each person must decide by rational
reflection what constitutes his good, that is, the system of ends which it is rational for him
to pursue, so a group of persons must decide once and for all what is to count among them
as just and unjust. The choice which rational men would make in this hypothetical
situation of equal liberty, assuming for the present that this choice problem has a solution,
determines the principles of justice.
Injustice as fairness the original position of equality corresponds to the state of
nature in the traditional theory of the social contract. This original position is not, of
course, thought of as an actual historical state of affairs, much less as a primitive
condition of culture. It is understood as a purely hypothetical situation characterized so as
to lead to a certain conception of justice? Among the essential features of this situation is
that no one knows his place in society, his class position or social status, nor does anyone
know his fortune in the distribution of natural assets and abilities, his intelligence,
strength, and the like. He even assumed that the parties do not know their conceptions of
the good or their special psychological propensities. The principles of justice are chosen
behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the
choice of principles by the outcome of natural chance or the contingency of social
circumstances. Since all are similarly situated and no one is able to design principles to
favour his particular condition, the principles of justice are the result of a fair agreement
or bargain. For given the circumstances of the original position, the symmetry of
everyone's relation to each other, this initial situation is fair between individuals as moral
persons, that is, as rational beings with their own ends and capable, he assumed, of a
sense of justice. The original position is, one might say, the appropriate initial status quo,
9

and the fundamental agreements reached in it are fair. This explains the propriety of the
name "justice as fairness": it conveys the idea that the principles of justice are agreed to in
an initial situation that is fair. The name does not mean that the concepts of justice and
fairness are the same, any more that the phrase "poetry as metaphor" means that the
concepts of poetry and metaphor are the same. Justice as fairness begins, as he said, with
one of the most general of all choices which persons might make together, namely, with
the choice of the first principles of a conception of justice which is to regulate all
subsequent criticism and reform of institutions.
Then, having chosen a conception of justice, we can suppose that they are to
choose a constitution and a legislature to enact laws, and so on, all in accordance with the
principles of justice initially agreed upon. Our social situation is just if it is such that by
this sequence of hypothetical agreements we would have contracted into the general
system of rules which defines it. Moreover, assuming that the original position does
determine a set of principles (that is, that a particular conception of justice would be
chosen), it will then be true that whenever social institutions satisfy these principles those
engaged in them can say to one another that they are cooperating on terms to which they
would agree if they were free and equal persons whose relations with respect to one
another were fair. They could all view their arrangements as meeting the stipulations
which they would acknowledge in an initial situation that embodies widely accepted and
reasonable constraints on the choice of principles. The general recognition of this fact
would provide the basis for a public acceptance of the corresponding principles of justice.
No society can, of course, be a scheme of cooperation which men enter
voluntarily in a literal sense; each person finds himself placed at birth in some particular
position in some particular society, and the nature of this position materially affects his
life prospects. Yet a society satisfying the principles of justice as fairness comes as close
as a society can to being a voluntary scheme, for it meets the principles which free and
equal persons would assent to under circumstances that are fair. In this sense its members
are autonomous and the obligations they recognize self-imposed.
One feature of justice as fairness is to think of the parties in the initial situation as
rational and mutually disinterested. This does not mean that the parties are egoists, that is,
individuals with only certain kinds of interests, say in wealth, prestige, and domination.
But they are conceived as not taking an interest in one another's interests. They are to
presume that even their spiritual aims may be opposed, in the way that the aims of those
of different religions maybe opposed. Moreover, the concept of rationality must be
interpreted as far as possible in the narrow sense, standard in economic theory, of taking
the most effective means to given ends. He modified this concept to some extent, as
10

explained later, but one must try to avoid introducing into it any controversial ethical
elements. The initial situation must be characterized by stipulations that are widely
accepted. In working out the conception of justice as fairness one main task clearly is to
determine which principles of justice would be chosen in the original position. To do this
we must describe this situation in some detail and formulate with care the problem of
choice which it presents. It may be observed, however, that once the principles of justice
are thought of as arising from an original agreement in a situation of equality, it is an
open question whether the principle of utility would be acknowledged.
Offhand it hardly seems likely that persons who view themselves as equals,
entitled to press their claims upon one another, would agree to a principle which may
require lesser life prospects for some simply for the sake of a greater sum of advantages
enjoyed by others. Since each desires to protect this interest, his capacity to advance his
conception of the good, no one has a reason to acquiesce in an enduring loss for himself
in order to bring about a greater net balance of satisfaction. In the absence of strong and
lasting benevolent impulses, a rational man would not accept a basic structure merely
because it maximized the algebraic sum of advantages irrespective of its permanent
effects on his own basic rights and interests. Thus it seems that the principle of utility is
incompatible with the conception of social cooperation among equals for mutual
advantage. It appears to be inconsistent with the idea or reciprocity implicit in the notion
of a well-ordered society. He maintained instead that the persons in the initial situation
would choose two rather different principles: the first requires equality in the assignment
of basic rights and duties, while the second holds that social and economic inequalities,
for example inequalities of wealth and authority, are just only if they result in
compensating benefits for everyone, and in particular for the least advantaged members of
society.
These principles rule out justifying institutions on the grounds that the hardships
of some are offset by a greater good in the aggregate. It may be expedient but it is not just
that some should have less in order that others may prosper. But there is no injustice in
the greater benefits earned by a few provided that the situation of persons not so fortunate
is thereby improved. The intuitive idea is that since everyone's well-being depends upon a
scheme of cooperation without which no one could have a satisfactory life, the division of
advantages should be such as to draw forth the willing cooperation of everyone taking
part in it, including those less well situated. Yet this can be expected only if reasonable
terms are proposed. The two principles mentioned seem to be a fair agreement on the
basis of which those better endowed, or more fortunate in their social position, neither of
which we can be said to deserve, could expect the willing cooperation of others when
some workable scheme is a necessary condition of the welfare of all.
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Once we decide to look for a conception of justice that nullifies the accidents of
natural endowment and the contingencies of social circumstance as counters in quest for
political and economic advantage, we are led to these principles. They express the result
of leaving aside those aspects of the social world that seem arbitrary from a moral point
of view.

THE
ORIGINAL
JUSTIFICATION

POSITION

AN D

Rawls said that the original position is the appropriate initial status quo which
insures that the fundamental agreements reached in it are fair. This fact yields the name
"justice as fairness." It is clear, then, that he wanted to say that one conception of justice
is more reasonable than another, or justifiable with respect to it, if rational persons in the
initial situation would choose its principles over those of the other for the role of justice.
Conceptions of justice are to be ranked by their acceptability to persons so
circumstanced. Understood in this way the question of justification is settled by working
out a problem of deliberation: we have to ascertain which principles it would be rational
to adopt given the contractual situation. This connects the theory of justice with the
theory of rational choice. If this view of the problem of justification is to succeed, we
must, of course, describe in some detail the nature of this choice problem. A problem of
rational decision has a definite answer only if we know the beliefs and interests of the
parties, their relations with respect to one another, the alternatives between which they
are to choose, and the procedure whereby they make up their minds, and so on. As the
circumstances are presented in different ways, correspondingly different principles are
accepted.
The concept of the original position, as he referred to it, is that of the most
philosophically favoured interpretation of this initial choice situation for the purposes of
a theory of justice. But how are we to decide what is the most favored interpretation? He
assumed, for one thing, that there is a broad measure of agreement that principles of
justice should be chosen under certain conditions. To justify a particular description of
the initial situation one shows that it incorporates these commonly shared presumptions.
One argues from widely accepted but weak premises to more specific conclusions. Each
of the presumptions should by itself be natural and plausible; some of them may seem
innocuous or even trivial. The aim of the contract approach is to establish that taken
together they impose significant bounds on acceptable principles of justice. The ideal
12

outcome would be that these conditions determine a unique set of principles; but he was
satisfied if they suffice to rank the main traditional conceptions of social justice. One
should not be misled, then, by the somewhat unusual conditions which characterize the
original position. The idea here is simply to make vivid to ourselves the restrictions that
it seems reasonable to impose on arguments for principles of justice, and therefore on
these principles themselves. Thus it seems reasonable and generally acceptable that no
one should be advantaged or disadvantaged by natural fortune or social circumstances in
the choice of principles. It also seems widely agreed that it should be impossible to tailor
principles to the circumstances of one's own case. We should insure further that
particular inclinations and aspirations, and persons' conceptions of their good do not
affect the principles adopted. The aim is to rule out those principles that it would be
rational to propose for acceptance, however little the chance of success, only if one knew
certain things that are irrelevant from the standpoint of justice. For example, if a man
knew that he was wealthy, he might find it rational to advance the principle that various
taxes for welfare measures be counted unjust; if he knew that he was poor, he would
most likely propose the contrary principle. To represent the desired restrictions one
imagines a situation in which everyone is deprived of this sort of information. One
excludes the knowledge of those contingencies which sets men at odds and allows them
to be guided by their prejudices. In this manner the veil of ignorance is arrived at in a
natural way. This concept should cause no difficulty if we keep in mind the constraints
on arguments that it is meant to express. At any time we can enter the original position,
so to speak, simply by following a certain procedure, namely, by arguing for principles
of justice in accordance with these restrictions. It seems reasonable to suppose that the
parties in the original position are equal. That is, all have the same rights in the procedure
for choosing principles; each can make proposals, submit reasons for their acceptance,
and so on. Obviously the purpose of these conditions is to represent equality between
human beings as moral persons, as creatures having a conception of their good and
capable of a sense of justice. The basis of equality is taken to be similarity in these two
respects. Systems of ends are not ranked in value; and each man is presumed to have the
requisite ability to understand and to act upon whatever principles are adopted. Together
with the veil of ignorance, these conditions define the principles of justice as those which
rational persons concerned to advance their interests would consent to as equals when
none are known to be advantaged or disadvantaged by social and natural contingencies.
There is, however, another side to justifying a particular description of the
original position. This is to see if the principles which would be chosen match our
considered convictions of justice or extend them in an acceptable way. We can note
whether applying these principles would lead us to make the same judgments about the
13

basic structure of society which we now make intuitively and in which we have the
greatest confidence; or whether, in cases where our present judgments are in doubt and
given with hesitation, these principles offer a resolution which we can affirm on
reflection. There are questions which we feel sure must be answered in a certain way.
For example, we are confident that religious intolerance and racial discrimination are
unjust. We think that we have examined these things with care and have reached what we
believe is an impartial judgment not likely to be distorted by an excessive attention to
our own interests. These convictions are provisional fixed points which we presume any
conception of justice must fit.
But we have much less assurance as to what is the correct distribution of wealth
and authority. Here we may be looking for a way to remove our doubts. We can check an
interpretation of the initial situation, then, by the capacity of its principles to
accommodate our firmest convictions and to provide guidance where guidance is needed.
In searching for the most favored description of this situation we work from both ends.
We begin by describing it so that it represents generally shared and preferably weak
conditions. We then see if these conditions are strong enough to yield a significant set of
principles. If not, we look for further premises equally reasonable. But if so, and these
principles match our considered convictions of justice, then so far well and good. But
presumably there will be discrepancies. In this case we have a choice. We can either
modify the account of the initial situation or we can revise our existing judgments, for
even the judgements we take provisionally as fixed points are liable to revision. By going
back and forth, sometimes altering the conditions of the contractual circumstances, at
others withdrawing our judgments and conforming them to principle, he assumed that
eventually we shall find a description of the initial situation that both expresses
reasonable conditions and yields principles which match our considered judgments duly
pruned and adjusted. This state of affairs, he referred to as, reflective equilibrium.
It is an equilibrium because at last our principles and judgments coincide; and it
is reflective since we know to what principles our judgments conform and the premises
of their derivation. At the moment everything is in order. But this equilibrium is not
necessarily stable. It is liable to be upset by further examination of the conditions which
should be imposed on the contractual situation and by particular cases which may lead us
to revise our judgments. Yet for the time being we have done what we can to render
coherent and to justify our convictions of social justice. We have reached a conception of
the original position. He did not, of course, actually work through this process. Still, we
may think of the interpretation of the original position that I shall present as the result of
such a hypothetical course of reflection. It represents the attempt to accommodate within
one scheme both reasonable philosophical conditions on principles as well as our
14

considered judgments of justice. In arriving at the favored interpretation of the initial

situation there is no point at which an appeal is made to self-evidence in the traditional
sense either of general conceptions or particular convictions. He did not claim for the
principles of justice proposed that they are necessary truths or derivable from such truths.
A conception of justice cannot be deduced from self-evident premises or conditions on
principles; instead, its justification is a matter of the mutual support of many
considerations, of everything fitting together into one coherent view.

TWO PRINCIPLES OF JUSTICE

He then in a provisional, form the two principles of justice that he believed would
be chosen in the original position. He wished to make only the most general comments,
and therefore the first formulation of these principles is tentative. The two principles read
as follows.
First: each person is to have an equal right to the most extensive basic
liberty compatible with similar liberty for others.
Second: social and economic inequalities are to be arranged so that
they are both (a) reasonably expected to be to everyone's advantage, and (b)
attached to positions and offices open to all.
By way of general comment, these principles primarily apply, as he said, to
the basic structure of society. They are to govern the assignment of rights and duties
and to regulate the distribution of social and economic advantages. As their
formulation suggests, these principles presuppose that the social structure can be
divided into two more or less distinct parts, the first principle applying to the one, the
second to the other. They distinguish between those aspects of the social system that
define and secure the equal liberties of citizenship and those that specify and establish
social and economic inequalities. The basic liberties of citizens are, roughly
speaking, political liberty (the right to vote and to be eligible for public office)
together with freedom of speech and assembly; liberty of conscience and freedom of
thought; freedom of the person along with the right to hold (personal) property; and
freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.
These liberties are all required to be equal by the first principle, since citizens of a
just society are to have the same basic rights.
The second principle applies, in the first approximation, to the distribution of
income and wealth and to the design of organizations that make use of differences in
15

authority and responsibility, or chains of command. While the distribution of wealth

and income need not be equal, it must be to everyone's advantage, and at the same
time, positions of authority and offices of command must be accessible to all. One
applies the second principle by holding positions open, and then, subject to this
constraint, arranges social and economic inequalities so that everyone benefits.
These principles are to be arranged in a serial order with the first principle
prior to the second. This ordering means that a departure from the institutions of
equal liberty required by the first principle cannot be justified by, or compensated
for, by greater social and economic advantages. The distribution of wealth and
income, and the hierarchies of authority, must be consistent with both the liberties of
equal citizenship and equality of opportunity.
It is clear that these principles are rather specific in their content, and their
acceptance rests on certain assumptions that he eventually tried to explain and justify.
A theory of justice depends upon a theory of society in ways that will become evident
as we proceed. For the present, it should be observed that the two principles (and this
holds for all formulations) are a special case of a more general conception of justice
that can be expressed as follows.
All social values liberty and opportunity, income and wealth, and the bases
of self-respect are to be distributed equally unless an unequal distribution of any, or
all, of these values is to everyone's advantage. Injustice, then, is simply inequalities
that are not to the benefit of all. Of course, this conception is extremely vague and
requires interpretation.
As a first step, suppose that the basic structure of society distributes certain
primary goods, that is, things that every rational man is presumed to want. These
goods normally have a use whatever a person's rational plan of life. For simplicity,
assume that the chief primary goods at the disposition of society are rights and
liberties, powers and opportunities, income and wealth. These are the social primary
goods. Other primary goods such as health and vigour, intelligence and imagination,
are natural goods; although their possession is influenced by the basic structure, they
are not so directly under its control. Imagine, then, a hypothetical initial arrangement
in which all the social primary goods are equally distributed: everyone has similar
rights and duties, and income and wealth are evenly shared. This state of affairs
provides a benchmark for judging improvements. If certain inequalities of wealth and
organizational powers would make everyone better off than in this hypothetical
starting situation, then they accord with the general conception.
16

Now it is possible, at least theoretically, that by giving up some of their

fundamental liberties, men is sufficiently compensated by the resulting social and
economic gains. The general conception of justice imposes no restrictions on what
sort of inequalities are permissible; it only requires that everyone's position be
improved. We need not suppose anything so drastic as consenting to a condition of
slavery. Imagine instead that men forego certain political rights when the economic
returns are significant and their capacity to influence the course of policy by the
exercise of these rights would be marginal in any case. It is this kind of exchange
which the two principles as stated rule out; being arranged in serial order they do not
permit exchanges between basic liberties and economic and social gains. The serial
ordering of principles expresses an underlying preference among primary social
goods. When this preference is rational so likewise is the choice of these principles in
this order.
In developing justice as fairness he, for the most part, left aside the general
conception of justice and examined instead the special case of the two principles in
serial order. The advantage of this procedure is that from the first the matter of
priorities is recognized and an effort made to find principles to deal with it. One is led
to attend throughout to the conditions under which the acknowledgement of the
absolute weight of liberty with respect to social and economic advantages, as defined
by the lexical order of the two principles, would be reasonable. Offhand, this ranking
appears extreme and too special a case to be of much interest; but there is more
justification for it than would appear at first sight. Or at any rate, so he maintained.
Furthermore, the distinction between fundamental rights and liberties and economic
and social benefits marks a difference among primary social goods that one should
try to exploit. It suggests an important division in the social system. Of course, the
distinctions drawn and the ordering proposed are bound to be at best only
approximations. There are surely circumstances in which they fail. But it is essential
to depict clearly the main lines of a reasonable conception of justice; and under many
conditions anyway, the two principles in serial order may serve well enough. When
necessary we can fall back on the more general conception.
The fact that the two principles apply to institutions has certain consequences.
Several points illustrate this. First of all, the rights and liberties referred to by these
principles are those which are defined by the public rules of the basic structure. Whether
men are free is determined by the rights and duties established by the major institutions
of society. Liberty is a certain pattern of social forms. The first principles imply requires
that certain sorts of rules, those defining basic liberties, apply to everyone equally and
that they allow the most extensive liberty compatible with a like liberty for all. The only
17

reason for circumscribing the rights defining liberty and making men's freedom less
extensive than it might otherwise be is that these equal rights as institutionally defined
would interfere with one another.
Another thing to bear in mind is that when principles mention persons, or
require that everyone gain from an inequality, the reference is to representative persons
holding the various social positions, or offices, or whatever, established by the basic
structure. Thus in applying the second principle, he assumed that it is possible to assign
an expectation of well-being to representative individuals holding these positions. This
expectation indicates their life prospects as viewed from their social station. In general,
the expectations of representative persons depend upon the distribution of rights and
duties throughout the basic structure. When this changes, expectations change. He
assumed, then, that expectations are connected: by raising the prospects of the
representative man in one position we presumably increase or decrease the prospects of
representative men in other positions. Since it applies to institutional forms, the second
principle (or rather the first part of it) refers to the expectations of representative
individuals. Neither principle applies to distributions of particular goods to particular
individuals who may be identified by their proper names. The situation where someone
is considering how to allocate certain commodities to needy persons who are known to
him is not within the scope of the principles. They are meant to regulate basic
institutional arrangements. We must not assume that there is much similarity from the
stand-point of justice between an administrative allotment of goods to specific persons
and the appropriate design of society. Our common sense intuitions for the former may
be a poor guide to the latter.
Now the second principle insists that each person benefit from permissible
inequalities in the basic structure. This means that it must be reasonable for each relevant
representative man defined by this structure, when he views it as a going concern, to
prefer his prospects with the inequality to his prospects without it. One is not allowed to
justify differences in income or organizational powers on the ground that the
disadvantages of those in one position are outweighed by the greater advantages of those
in another. Much less can infringements of liberty be counterbalanced in this way.
Applied to the basic structure, the principles of utility would have us maximize the sum
of expectations of representative men (weighted by the number of persons they
represent, on the classical view); and this would permit us to compensate for the losses
of some by the gains of others. Instead, the two principles require that everyone benefit
from economic and social inequalities.

18

KINDS OF JUSTICE
Justice is action in accordance with the requirements of some law. Whether these
rules be grounded in human consensus or societal norms, they are supposed to ensure that
all members of society receive fair treatment. Issues of justice arise in several different
spheres and play a significant role in causing, perpetuating, and addressing conflict. Just
institutions tend to instil a sense of stability, well-being, and satisfaction among society
members, while perceived injustices can lead to dissatisfaction, rebellion, or revolution.
Each of the different spheres expresses the principles of justice and fairness in its own
way, resulting in different types and concepts of justice: distributive, procedural,
retributive, and restorative. These types of justice have important implications for socioeconomic, political, civil, and criminal justice at both the national and international level. 4
Distributive justice, or economic justice, is concerned with giving all members of
society a "fair share" of the benefits and resources available. However, while everyone
might agree that wealth should be distributed fairly, there is much disagreement about what
counts as a "fair share." Some possible criteria of distribution are equity, equality, and need.
(Equity means that one's rewards should be equal to one's contributions to a society, while
"equality" means that everyone gets the same amount, regardless of their input. Distribution
on the basis of need means that people who need more will get more, while people who
need less will get less.) Fair allocation of resources, or distributive justice, is crucial to the
stability of a society and the well-being of its members. When issues of distributive
justice are inadequately addressed and the item to be distributed is highly valued,
intractable conflicts frequently result.
Procedural justice is concerned with making and implementing decisions
according to fair processes that ensure "fair treatment." Rules must be impartially followed
and consistently applied in order to generate an unbiased decision. Those carrying out the
procedures should be neutral, and those directly affected by the decisions should have some
voice or representation in the decision-making process. If people believe procedures to be
fair, they will be more likely to accept outcomes, even ones that they do not like.
Implementing fair procedures is central to many dispute resolution procedures,
including negotiation, mediation, arbitration, and adjudication.

More for information on justice, see: Morton Deutsch, "Justice and Conflict," in The Handbook of Conflict Resolution:
Theory and Practice, Morton Deutsch, Peter T. Coleman, Eric C. Marcus, eds. (John Wiley & Sons, 2011).
<http://books.google.com/books?id=rw61VDID7U4C>.

19

Retributive justice appeals to the notion of "just desert" -- the idea that people
deserve to be treated in the same way they treat others. It is a retroactive approach that
justifies punishment as a response to past injustice or wrongdoing. 5 The central idea is that
the offender has gained unfair advantages through his or her behaviour, and that
punishment will set this imbalance straight. In other words, those who do not play by the
rules should be brought to justice and deserve to suffer penalties for their transgressions.
The notion of deterrence also plays in here: the hope is that the punishment for committing
a crime is large enough that people will not engage in illegal activities because the risk of
punishment is too high. In addition to local, state, and national justice systems, retributive
justice also plays a central role in international legal proceedings, responding to violations
of international law, human rights, and war crimes.
However, because there is a tendency to slip from retributive justice to an emphasis
on revenge, some suggest that restorative justice processes are more effective. Restorative
justice aims to strengthen the community and prevent similar harms from happening in the
future. At the national level, such processes are often carried out through victim-offender
mediation programs, while at the international level restorative justice is often a matter of
instituting truth and reconciliation commissions.6

See the chapter "Retributive Justice and the Limits of Forgiveness in Argentina," in Mark R. Amstutz, The Healing of
Nations: The Promise and Limits of Political Forgiveness, (Rowman & Littlefield, 2005).
<http://books.google.com/books?id=gTFnh2GuD8EC>.
6
For further clarification of the different forms of justice, including retributive, restorative, and procedural, see Jeffrey A.
Jenkins's discussion on "Types of Justice," (Jones & Bartlett Publishers, 2011)

20

DISTRIBUTIVE JUSTICE
Distributive justice is concerned with the fair allocation of resources among diverse
members of a community. Fair allocation typically takes into account the total amount of
goods to be distributed, the distributing procedure, and the pattern of distribution that
results.
In Global Distributive Justice, Armstrong distinguishes between distributive justice
generally and principles of distributive justice. Armstrong defines distributive justice as the
ways that the benefits and burdens of our lives are shared between members of a society or
community. Principles of distributive justice tell us how these benefits and burdens ought to
be shared or distributed.7
Because societies have a limited amount of wealth and resources, the question of
how those benefits ought to be distributed frequently arises. The common answer is that
public assets should be distributed in a reasonable manner so that each individual receives a
"fair share." But this leaves open the question of what constitutes a "fair share."
Various principles might determine of how goods are distributed. Equality, equity,
and need are among the most common criteria. If equality is regarded as the ultimate
criterion determining who gets what, goods will be distributed equally among all persons.
(In other words each person will get the same amount.) However, due to differences in
levels of need, this will not result in an equal outcome. (For example, every incoming
freshman to a local college with a grade point above 3.0 might be offered a $500
scholarship. This is a nice reward for students and parents who can afford the remaining
tuition, but is of no help to families that cannot afford the additional $6000/year fee to
attend the school.)
Another possibility is to proceed according to a principle of equity, and distribute
benefits in proportion to the individuals' contribution. Thus, those who make a greater
productive contribution to their group deserve to receive more benefits. (Thus, in theory,
people who work harder in more valuable jobs should earn more money.) This sort of
distribution is typically associated with an economic system where there is equal
opportunity to compete. In competitive systems, wealth or goods might also be distributed
according to effort or ability.

Nicolas Rescher, Fairness: Theory & Practice of Distributive Justice (Transaction Publishers, 2002).
<http://www.amazon.com/Fairness-Theory-Practice-Distributive-Justice/dp/0765801108>.

21

Or, we might distribute goods according to need, so that an equal outcome results.
Those who need more of a benefit or resource will receive more, as occurs when colleges
offer needs-based scholarships, or states provide welfare payments to the poor.
Some suggest a system of competition that includes safety nets for those who
cannot compete. This sort of system combines the principle of equity with that of need. It
attempts to reward people for their productivity at the same time that it ensures their basic
needs are met.
Finally, we might distribute resources according to social utility, or what is in the
best interests of society as a whole. This is the argument that is frequently made by highpaid executives, who not only argue that they deserve their high salaries because of their
contributions to their businesses, but they also argue that they are the "job creators," thus
paying them highly benefits society as a whole. Others, however, think taxing them highly
and using the income to provide services to the less fortunate would be of greater overall
benefit to the society.

The Significance of Distribution Procedures and Outcomes

Different sorts of distributions advance different social goals. For a society to
function effectively, it must keep its membership, engage in efficient and effective
production, and sustain the well-being of its members. The principles of distributive justice
arise out of these concerns. Equal distribution is thought to give people a sense of fullfledged membership. Equity fosters the motivation to produce, to be rewarded for one's
productivity. Lastly, distribution according to need ensures that everyone's basic and
essential needs are met, which is not only good for the individual, but makes criminal and
political violence less likely as well.
Because these principles are often in tension with one another, one of them is
typically regarded as the central criterion of distribution. Depending on which principle is
adopted, an economic system characterized by equality, competition, or social welfare
safety nets will arise. Some believe that what makes a distribution just is the final outcome,
while others believe that what matters are the rules followed in determining that
distribution. Even in those cases where the outcome is a fair distribution of resources, the
procedures used to arrive at that distribution might be unjust. Conversely, a fair procedure
might result in an unfair distribution.
In his Theory of Justice, John Rawls claims that one's place of birth, social status,
and family influences are matters of luck that should not unduly influence the amount of
benefits we receive in life. He maintains that the job of distributive justice is to limit the
22

influence of luck so that goods might be distributed more fairly and to everyone's
advantage.
Robert Nozick, on the other hand, believes that distributive justice is a matter of
setting down rules that individuals should follow in acquiring and transferring resources
and benefits. The aim of distributive justice is not to achieve any particular outcome of
distribution, but rather to ensure a fair process of exchange.
Others think that distributive justice must be a matter of both process and outcome.
They believe that the processes of distribution must be fair in order for people to feel that
they have received a fair outcome. Insofar as it is linked to the notion of fair processes,
distributive justice has ties to concerns about procedural justice.
In some cases, the thing to be distributed is not a benefit, but a burden. For
example, one might be concerned with the fairness of allocation of punishments, which is
connected to retributive justice. Or one might be concerned about the fairness of
distribution of burdens--such as who should pay for medical care for the uninsured, or who
should have to live next to a dump or a jail.

PROCEDURAL JUSTICE
The notion that fair procedures are the best guarantee for fair outcomes is a popular
one. Procedural justice is concerned with making and implementing decisions according to
fair processes. People feel affirmed if the procedures that are adopted treat them with
respect and dignity, making it easier to accept even outcomes they do not like. 8
But what makes procedures fair? First, there is an emphasis on consistency. Fair
procedures should guarantee that like cases are treated alike. Any distinctions "should
reflect genuine aspects of personal identity rather than extraneous features of the
differentiating mechanism itself."
Second, those carrying out the procedures must be impartial and neutral. Unbiased
decision- makers must carry out the procedures to reach a fair and accurate conclusion.
Those involved should believe that the intentions of third-party authorities are benevolent,
that they want to treat people fairly and take the viewpoint and needs of interested parties
into account. If people trust the third party, they are more likely to view the decisionmaking process as fair.
8

Morton Deutsch. "Justice and Conflict, M. Deutsch and P.T. Coleman (San Francisco: Jossey-Bass Inc. Publishers,
2000)

23

Third, those directly affected by the decisions should have a voice and
representation in the process. Having representation affirms the status of group members
and inspires trust in the decision-making system. This is especially important for weaker
parties whose voices often go unheard.
Finally, the processes that are implemented should be transparent. Decisions should
be reached through open procedures, without secrecy or deception.
Many believe that procedural justice is not enough. Reaching fair outcomes is far
more important than implementing fair processes. Others maintain that insofar as fair
procedures are likely to "translate" into fair outcomes, they are of central importance. 9

The Many Realms of Procedural Justice

Fair procedures tend to inspire feelings of loyalty to one's group, legitimize the
authority of leaders, and help to ensure voluntary compliance with the rules. This is true in
a variety of settings, from the work place, to political organizations, to legal contexts.
Issues of procedural justice thus arise in the making of many different types of
decisions. In the context of legal proceedings, procedural justice has to do with ensuring
that a fair trial takes place. The application of law is supposed to ensure impartiality,
consistency, and transparency. In order to ensure that retributive justice is served and that
offenders receive fair punishments, judges, and juries must be unbiased and even-handed in
their sentencing.
In the realm of distributive justice, implementing fair procedures is a matter of
setting down rules that everyone should follow in acquiring and transferring goods. Many
believe that following certain rules of allocation will lead to the fairest distribution of
wealth.
There is also an important relationship between justice-based principles and
negotiation. Fair processes yield reliable information that can be used in the decisionmaking process. Participants must agree beforehand to the processes of dialogue or
exchange that are being used, and be given an equal voice in any decisions that are made.
Fair rules of collaboration are central to successful mediation or negotiation
processes, insofar as they are the best tools for reaching a decision acceptable to all parties.

William Nelson. "The Very Idea of Pure Procedural Justice," Ethics, vol. 90, no. 4 (July 1980): 506.
<http://www.jstor.org/stable/2380450>.

24

Fair procedures of negotiation or legal proceedings are also central to

the legitimacy of decisions reached. In those cases where parties feel forced to accept the
results of a decision-making process they think was unfair, there may be a backlash effect.

The Importance of Fair Processes in an International Context

In any instance where nations come together to negotiate or make decisions about
international policy, fair processes of collaboration are crucial. Fair procedures, ones that
allow all parties to voice their interests, should be adopted in developing treaties, and other
international agreements. Even the military must take care to follow standard procedures.
In those cases where standard military or arms-control procedures are not followed,
a crisis situation may result. For example, nations who conduct military exercises without
following agreed-upon notification procedures may escalate a conflict.
Even in war, there are standard procedures to be followed. Terror tactics, for
example, do not qualify as a fair process of warfare. Innocent civilians cannot be military
targets. The rules of jus in bello can thus be thought of as a special instance of procedural
justice.
When fair procedures of warfare are not followed, and human-rights
violations result, international tribunals often intervene to address these transgressions.
Any war crimes adjudication that takes place should, like legal proceedings at the local or
national level, follow established procedural rules.

RESTORATIVE JUSTICE
Restorative justice is concerned with healing victims' wounds, restoring offenders
to law-abiding lives, and repairing harm done to interpersonal relationships and the
community. It seeks to involve all stakeholders and provide opportunities for those most
affected by the crime to be directly involved in the process of responding to the harm
caused.
A central premise of restorative justice is that victims, offenders, and the affected
communities are all key stakeholders in the restorative process. Victims include not only
those directly affected by the offense, but also family members and members of the
affected community. The safety, support, and needs of these victims are the starting points
for any restorative justice process. Thus a primary objective is to attend to victims' needs:
material, financial, emotional, and social. Addressing these needs and the needs of the
25

community is necessary if public demands for severe punishment are to be quelled.

This requires the assumption that crimes or violations are committed against real
individuals, rather than against the state. Restorative justice, therefore, advocates restitution
to the victim by the offender rather than retribution by the state against the offender. Instead
of continuing and escalating the cycle of violence, it tries to restore relationships and stop
the violence.10
A restorative justice process also aims to empower victims to participate effectively
in dialogue or mediation with offenders. Victims take an active role in directing the
exchange that takes place, as well as defining the responsibilities and obligations of
offenders. Offenders are likewise encouraged to participate in this exchange, to understand
the harm they have caused to victims, and to take active responsibility for it. This means
making efforts on their parts to set things right, to make amends for their violations, by
committing to certain obligations, that may come in the form of reparations, restitution, or
community work. While fulfilling these obligations may be experienced as painful, the goal
is not revenge, but restoration of healthy relationships between individuals and within
communities that have been most affected by the crime.
Restorative justice is a forward-looking, preventive response that strives to
understand crime in its social context. It challenges us to examine the root causes of
violence and crime in order that these cycles might be broken. This approach is based on
the assumption that crime has its origins in social conditions, and recognizes that offenders
themselves have often suffered harm. Therefore, communities must both take some
responsibility for remedying those conditions that contribute to crime and also work to
promote healing.
Healing is crucial not just for victims, but also for offenders. Both the rehabilitation
of offenders and their integration into the community are vital aspects of restorative justice.
Offenders are treated respectfully and their needs are addressed. Removing them from the
community, or imposing any other severe restrictions, is a last resort. It is thought that the
best way to prevent re-offending is re-integration.
The justice process in this way strengthens the community and promotes changes
that will prevent similar harms from happening in the future. It is generally thought that
restorative justice should be integrated with legal justice as a complementary process that
improves the quality, effectiveness, and efficiency of justice as a whole. Because they focus
10

Peggy Hutchison and Harmon Wray. "What is Restorative Justice?" (New World Outlook, 1999). <http://gbgmumc.org/nwo/99ja/what.html>

26

on the needs of the victim, the offender, and the community, restorative processes can help
to determine how the law should be applied most fairly.

Processes at the National Level

Restorative justice at the national level takes on various forms. Victim-offender
mediation is perhaps the most common, and involves face-to-face dialogues between
victims and offenders. Victims' needs, including the need to be consulted, are the focus. In
victim-offender meetings, offenders have a chance to take active steps to make reparation
to their victims. This extends further than monetary compensation, and includes
an apology and an explanation of how the crime occurred. The offender might also do some
work for the victim, or for some community cause selected by the victim.
In addition, offenders have to listen to victims' stories and face up to the reality of
what they have done. They are often deeply affected by this experience, and have positive
motivation to make reparations. Because this process brings victims and offenders together
and enables them to talk to one another, it can allow them to see the other as a person rather
than a stereotype. For this process to be effective, a skilled mediator should facilitate these
meetings.
Group conferencing is an extension of victim-offender mediation and includes
more parties, such as family members of the victim or offender, community contacts,
teachers, neighbours, or counsellors. The involvement of extra parties can make
conferencing more forceful than one-on-one mediation.
Community victim-support organizations work to provide victims with material,
psychological, and social support and aid in the healing process. Other organizations offer
support services for offenders, including literacy education, relationship counselling, drug
counselling, and housing accommodation. Some agencies assist in reintegration for
offenders and help them to find employment. Still other groups work to help communities
as a whole become less prone to crime.

Restorative Justice at the International Level

Restorative justice might also have an important role in responding to
severe human rights violations or cases of genocide. A crucial step toward restorative
justice is taken when governments tell the truth about past atrocities carried out by the state.
[10] It is thought that true healing requires three steps:
27

1.
2.
3.

Remembering the atrocities committed,

Repenting, and
Forgiving.

War crimes inquiries and truth commissions can aid in the process of memory and
truth telling, and help to make public the extent to which victims have suffered.
Restoration often becomes a matter of restitution or war reparations. In cases where
clear acts of injustice have taken place, some type of compensation can help to meet the
material and emotional needs of victims and begin to remedy the injustice. Repentance can
also help to re-establish relationships among the conflicting parties and help them to move
toward reconciliation. In some cases, conflicts can end more peacefully when parties
acknowledge their guilt and apologize than when formal war crimes adjudication or
criminal proceedings are used.
In cases of civil war, because the line between offenders and victims can become
blurred, a central goal of peace building is to restore the community as a whole. In
Northern Ireland, for example, the adoption of restorative justice techniques and practices
helped transform destructive practices of punishing various actors into more constructive,
non-violent mechanisms of dispute resolution. Restoration often becomes tied to
the transformation of the relationship between the conflicting parties. However, such
restoration cannot take place unless it is supported by wider social conditions and unless
the larger community makes restorative processes available.
Restorative justice in the international context is therefore linked to social
structural changes, reconstruction programs to help communities ravaged by
conflict, democratization, and the creation of institutions of civil society.

RETRIBUTIVE JUSTICE
Central to retributive justice are the notions of merit and desert. We think that
people should receive what they deserve. This means that people who work hard deserve
the fruits of their labour, while those who break the rules deserve to be punished. In
addition, people deserve to be treated in the same way that they voluntarily choose to treat
others. If you behave well, you are entitled to good treatment from others.
Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens
in a society enjoy the benefits of a rule of law. According to the principle of fair play, the
loyal citizen must do their part in this system of reciprocal restraint. An individual who
28

seeks the benefits of living under the rule of law without being willing to make the
necessary sacrifices of self-restraint is a free rider. He or she has helped themselves to
unfair advantages, and the state needs to prevent this to preserve the rule of law.11
In cases of wrongdoing, someone who merits certain benefits has lost them, while
someone who does not deserve those benefits has gained them. Punishment "removes the
undeserved benefit by imposing a penalty that in some sense balances the harm inflicted by
the offense." It is suffered as a debt that the wrongdoer owes their fellow citizens.
Retributive justice in this way aims to restore both victim and offender to their appropriate
positions relative to each other
Retributive justice is in this way backward-looking. Punishment is warranted as a
response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been
broken and balance the scales of justice.

Why Retributive Justice Matters

Protracted conflicts often involve violence or cruelty suffered by innocent civilians.
In some cases, this violence is carried out systematically, in the form of genocide, ethnic
cleansing, enslavement, or systematic racial discrimination. In other cases, rapes, murders,
and acts of torture may be carried out more haphazardly.
In those cases where the parties involved are "at war," such actions violate the war
convention and the rules of jus in bello. They are war crimes. But even when a war has not
been officially declared, these cruel acts of murder and torture constitute human rights
violations, prohibited by international law.
Many believe that those who perpetrate such war crimes, or crimes against
humanity, should be brought to justice. This is typically accomplished through international
courts or tribunals that carry out war crimes adjudication.
Retributive justice is a matter of giving those who violate human rights law and
commit crimes against humanity their "just deserts." Punishment is thought to reinforce the
rules of international law and to deny those who have violated those rules any unfair
advantages. Together with restorative justice, retribution is concerned with restoring
victims and offenders to their rightful position.

11

Murphy, Jeffrie G. Retribution Reconsidered (Norwell, Massachusetts: Kluwer Academic Publishers, 1992), 23.
<http://books.google.com/books?id=p2EeefbHk-QC>

29

The Negative Side of Retributive Justice

The idea that we should treat people as they deserve is commonly accepted. We do
not think that war criminals should be allowed to live carefree lives after committing
unspeakable crimes against humanity.
However, there is a dangerous tendency to slip from retributive justice to an
emphasis on revenge. Vengeance is a matter of retaliation, of getting even with those who
have hurt us. It can also serve to teach wrongdoers how it feels to be treated in certain
ways. Like retribution, revenge is a response to wrongs committed against innocent victims
and reflects the proportionality of the scales of justice. But revenge focuses on the personal
hurt involved and typically involves anger, hatred, bitterness, and resentment. Such
emotions are potentially quite destructive. Because these intense feelings often lead people
to over-react, resulting punishments can be excessive and cause further antagonism.
In addition, punishments dictated by revenge do not satisfy principles of
proportionality or consistency. This is because revenge leads to punishments that vary
according to the degree of anger provoked. Wrongs that do not provoke anger will receive
no response. Acts that provoke a great deal of anger will, on the other hand, provoke an
overly intense response and lead to reciprocal acts of violence.
For example, resentment about past injustice can "motivate people who otherwise
live peaceably to engage in torture and slaughter of neighbors identified as members of
groups who committed past atrocities." Devastating inter-group violence in the form of
mass killings can result.
It is not surprising that revenge seldom brings the relief that victims seek. The
victim simply gets caught up in feelings of hatred. Vengeful motives lead individuals to
exact more than necessary, causing even further harm and setting in motion a downward
spiral of violence. Once there is this sort of violence break over, it is difficult to break out
of the cycle of revenge and escalation. Overly harsh punishments do not make society any
more secure and only serve to increase the level of harm done. In addition, in an
atmosphere of heightened violence, there is little room for apology or forgiveness for
wrongs committed.
Many believe that "the victim should not seek revenge and become a new
victimizer but instead should forgive the offender and end the cycle of offense." However,
forgiveness does not take the place of justice or punishment, nor does it rule out giving the
30

wrongdoer their just deserts.

Justice, Not Vengeance

The idea that wrongdoers should be "paid back" for their bad deeds need not lead
to a demand for primitive vengeance.
Retributive justice requires that the punishment fit the crime and that like cases be
treated alike. Wrongdoers deserve blame and punishment in direct proportion to the harm
inflicted. Retribution can therefore be seen as vengeance curbed by outside intervention
and the principles of proportionality and individual rights.
Indeed, one way to avoid the escalation of violence is "to transfer the
responsibilities for apportioning blame and punishment from victims to public bodies
acting according to the rule of law. It is commonly thought that formal institutions with
trained judiciaries are best equipped to carry out just retribution. Such institutions can
effectively bring offenders to justice by giving them the punishment they deserve.
In the context of international affairs, there is a need to give wrongdoers what they
deserve, but in a way that avoids further escalation of the conflict. War crimes
adjudication carried out by international courts is one avenue of retributive justice. The
International Criminal Court (ICC), for example, operates on the premise that impunity for
perpetrators of genocide, crimes against humanity, crimes of aggression, and war crimes is
unacceptable. In March 2012, the Court convicted Thomas Lubanga Dyilo, a major player
in the Democratic Republic of the Congos Ituri conflict, of the war crimes of enlisting
and conscripting of children under the age of 15 years and using them to participate
actively in hostilities. Lubanga was the first person to be convicted by the tribunal.
Trials for war crimes can convert the desire for revenge into state-managed
punishment that is proportional and fair. However, in some cases of large-scale war
violence such trials may be unlikely or ineffective. Restorative justice, through reparations
or compensation, might often be the more effective option.

31

CONCLUSION
Ethical theories have a function that Rawls helped remind us of: to bring
order and coherence among our different moral beliefs, thus helping to settle our
practical conflicts. Justification by reflective equilibrium is an important insight,
which can be applied to ethical theories in general, not just to Rawls' theory of
justice. Other theories that seek to answer other questions, may make use of parts
of Rawls' theory, just as he built on what he saw as valuable in earlier political
philosophy. For instance, many regard the idea of an original position as a fruitful
tool to address other moral issues. The theory of justice as fairness has not refuted
utilitarianism or other political theories once and for all. Still, Rawls' theory is a
thorough and systematic attempt to solve one of the major policy issues we
disagree about. Reflective equilibrium and overlapping consensus show how
values can be justified, even in a society with diverse beliefs, so that we can treat
each other as free and equal human beings, in spite of all our differences.

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BIBLIOGRAPHY
BOOKS
John Rawls, Theory of Justice (Universal Law Publishing, 1st Edition)
Ian McLeod, Legal Theory (Palgrave Macmillan Law Masters, 4th Edition)
S.N. Dhyani, Fundamentals of Jurisprudence (Central Law Publishing, 3rd
Edition)
O.P. Guaba, An Introduction to Political Theory (Macmillan Publishers
India Ltd, 5th Editon)

WEBSITES
http://www.follesdal.net/ms/Follesdal-2014-Rawls-JasF.pdf
http://www.enotes.com/topics/theory-justice
http://www2.econ.iastate.edu/classes/econ362/hallam/Readings/Rawl_Justic
e.pdf
http://www.beyondintractability.org/essay/justice

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