JUSTICE

Uttarakhand Landslides
Exorbitant prices fixed by locals on basic necessities during the calamity. Those who believe
in the free market would say the prices were just and did not merit state intervention, even in
such calamitous times. There is no intrinsic moral value in any price. Each price is
determined by the forces of demand and supply and these forces must remain undisturbed.
Those who believe that the prices were unjust would advocate for state intervention in this
situation. Some commodities are essential for livelihood and must be accessible to all persons
at reasonable rates.

Income Inequality
There exists a massive difference between the income of the average Indian farmer and that
of, say, Mukesh Ambani. Those who believe that the income distribution is just would
advocate against taxation and wealth redistribution. Those who think it is unjust, would
advocate for taxation and income redistribution.

Donald Trump’s Ban on Muslim Immigrants

People who feel the ban is just would believe that a Govt. has the absolute right to exclude
people from other countries from entering its territory. Those who feel it is unjust would say
that people have the right to ask for refuge in other countries, at least in dire conditions.

Mr. X v. Hospital Z
An HIV+ person’s condition was revealed by doctors to his fiancé. As a result, his marriage
broke off and he was ostracised by the society. In this matter, the patient’s right to privacy is
in conflict with the fiancé’s right to know about his condition. The SC held that the doctors’
step was justified, since in such situations, the right which furthers public interest and
morality must be given preference to. The SC went on to say that it is the duty of every HIV+
persons to not marry.

DK Basu v. State of WB
The SC held torture, even to extract information from a suspect, to be unconstitutional. It said
that ends cannot justify means and that individual liberties must be protected.

1
There exists an inconsistency in the approach of the SC in the two examples given above,
since it places public welfare over individual liberties in one, but not in the other. This is a
problem in deciding upon theories of justice. Some jurists say that each situation merits its
particular solution, while others believe that theories of justice must be uniformly applicable.

SUMMARY
To ask whether a society is just, is to ask how it distributes the things we prize – income and
wealth, duties and rights, powers and opportunities, offices and honours. When resources are
distributed, the question of justice comes up.

A question of justice is a question of how the society must be organised. This problem
involves three objectives.
 Maximisation of collective welfare
 Protection of individual freedoms
 Promotion of virtues

When the state makes provisions focusing on welfare, individual liberty gets disturbed and
vice versa. Thus, there cannot be total ignorance of any one of these factors, by giving
absolute importance to the other. A balance must be struck.

In addition, some thinkers say that actions instilling virtues are just. In such cases, even if
public welfare lies in the performance of an act (employment of a child who needs the work
to earn his livelihood), the state would demand its non-performance (since employment of a
child seems like an inherently unjust activity). These ideas affect policies governing labour
relations, homosexuality, etc.

Which of the three factors must take precedence over the others is a difficult question. No
uniform formula seems to appropriately cover each situation. In some situations, welfare may
be preferred, in some, liberty, while in others, promotion of virtues.

IMPORTANCE OF THE STUDY

Legal theory tells us why law exists. This justification lies in a philosophy – a legal principle.
This could be based in the idea of equality, liberty or any other principle. But this legal
principle in turn is based in a moral claim – the justification of why the legal principle exists.

2
Finally, the moral principle is based on how the idea of self is understood. The final
justification takes this form.

What is this fundamental moral principle? How should be discover this principle? What must
the conception of self be? These are questions relevant to the study.

3
 UTILITARIANISM
JEREMY BENTHAM – INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION
Principle of Utility
All humans are governed by two sovereign masters – pleasure and pain. Thus, all human
actions are taken with the objective either of enhancing pleasure or diminishing pain. The
direct purpose behind any action may not appear to be the maximisation of pleasure or
minimisation of pain, but if we persistently look for the real purpose and follow the chain of
reasoning, we would discover one of these two to be at the root of our actions. All other
objectives behind our actions are intermediate.

Utility is the tendency to maximise pleasure and minimise pain. The principle of utility
approves of all actions having the tendency to augment pleasure and disapproves of all
actions having the tendency to diminish happiness of the party in question. Bentham believed
that if we’re designed to act in this way, then it is just for us to conform to the principle of
utility. Thus, justice is conformity with the principle of utility.

Purpose of the State

Bentham then extended the same idea from the individual to the collective. Thus, any state
policy or action which resulted in increasing collective pleasure was deemed to be just, while
any state policy or action which diminished collective pleasure was deemed to be unjust. In
other words, utilitarianism advocates for the greatest good of the greatest number.

Bentham says the principle of utility is so profound that it cannot and need not be proved. Mr.
X v. Hospital Z seems to be a decision based on utilitarian ideas.

Merits of Benthamite Utilitarianism

Collective pleasure is calculated with each individual taken as a unit. Everyone is counted in
the calculation, making the theory inclusive and egalitarian. This does not allow
marginalisation of any person or community by distancing them from the calculation.

No pleasure is worthier, nobler or more valuable than another and everyone’s pleasure
is given equal importance. This is because there exists no qualitative difference between
the pleasures of different persons. Thus, there exists no qualitative difference between
4
different actions either. Similarly, there exists no qualitative difference between the reasons
behind the pleasure. All reasons for an action are equally valid as long as they provide
pleasure. This makes the theory objective and adds to it an egalitarian charm.

Additionally, the theory explains the essence of human existence to some extent.

Demerits of Benthamite Utilitarianism

Bentham’s idea of utilitarianism is quantitative and not qualitative. The only distinction
between pleasures or actions can be made quantitatively, on the basis of the total pleasure
derived. He makes no distinction between pleasures or actions qualitatively, meaning that no
activity is inherently just or unjust. This becomes problematic since we feel that certain acts,
like appreciating a good book, seem to be superior in quality to others, like tripping on
cocaine.

Katrina Kaif or Sujata Mohapatra?

If it is found that Bollywood item dances are more pleasurable to the majority than
classical dance forms, and the state, with limited resources, must promote one of the
two, Benthamite utilitarianism would opt for item dances. Thus, is there no qualitative
difference in pleasures?

Bentham does not take into account different magnitudes of pleasures for an individual either.
Each person is taken as a unit – experiencing either pleasure or pain. When two persons
experience pleasure, they may not experience the same amounts of pleasure, but this is not
accounted for.

Bentham does not provide any conception of individual rights or liberties. Thus, Benthamite
utilitarianism justifies majority rule and oppression of minorities. If the majority finds
pleasure in oppressing a group of persons in the minority, there is no philosophical reason for
the majority to not oppress the minority. This justifies such things as genocide, ethnical
cleansing, riots, persecution, etc.

5
 JOHN STUART MILL - UTILITARIANISM
Principle of Utility
Mill, too, believes in the principle of utility. He believes that the ultimate goal of our actions
is to maximise pleasure and minimise pain. Thus, he, also, believes that an action is just if
it maximises the happiness of community.

Inculcating a Qualitative Difference in Pleasures

Mill does not agree with Bentham’s premise, that all kinds of pleasures are qualitatively
identical. According to Mill, humans possess more advanced faculties than those possessed
by animals. Thus, humans are capable of enjoying two kinds of pleasures. Base pleasures,
involving physical gratification derived from food, sex, etc., and higher pleasures, involving
intellectual, moral and imaginative gratification. Animals are capable only of enjoying the
base pleasures. However, these higher faculties expose humans to feelings of despair,
disappointment and failure as well. Most animals, like pigs, can experience greater overall
pleasure than humans, since only humans are exposed to these negative feelings. Yet, humans
would not opt to live the inferior life of a pig. This is because humans crave experiences of all
kinds in their lives, involving both higher pleasures and pain.

Therefore, Mill concludes that greater happiness can be achieved by pursuing higher
pleasures. It serves utilitarian goals to recognise this qualitative difference. Despite this
qualitative difference, there is no intrinsic value in pursuing higher pleasures. Mill proposes
pursuing higher pleasures because doing this would provide humans with greater happiness.
But if there is evidence to show that base pleasures provide greater utility, then there is no
need for pursuing higher pleasures.

Inculcating Virtues
Additionally, Mill believes that by inculcating the ability of appreciating higher pleasures in
people, people with a noble character are created. And people with a noble character behave
in a manner which would make others happier. Thus, it is in conformity with the principle of
utility to have greater number of noble persons in society.

Purpose of the State

However, the ability to appreciate higher pleasures does not come naturally, unlike the ability
to appreciate base pleasures. This ability must be inculcated. As a utilitarian, Mill, too,

6
believes that the purpose of the state is to maximise the community’s happiness. And the state
can do this by inculcating the ability of enjoying higher pleasures in all people. The state
must allow all persons to appreciate all kinds of pleasures and then let them decide for
themselves about the kind of pleasure they prefer.

Bentham’s theory inculcated both objectivity and equality. In Mill’s theory, since a subjective
difference can be drawn between different kinds of pleasures, objectivity is absent. However,
Mill, too, inculcates equality, since he involves all people in the calculation of the overall
pleasure, and he believes that all people are capable of appreciating higher pleasures.

Inculcating Liberties

Anti-Sikh Riots, 1984

There are moments in the life of a nation, when the majority finds pleasure in the
oppression of the minority. 1984 is a clear example of this. By and large, the
sentiment was against the Sikh community. Bentham would say that the riots were
just, since the principle of utility was adhered to.

In Benthamite utilitarianism, there is no scope for recognition of individual liberties. There,

a person can enjoy liberty only till the majority directly derives pleasure out of such
enjoyment. Mill recognised the chance of the tyranny of the majority in such a situation.
Oppression of an individual or of a minority community could take place in many ways,
either through the legal system itself, or extra-judicially.

Mill felt that oppression of the minority by the majority would make people in the minority
insecure and unhappy. Further, he felt that the majority-minority divide is not permanent.
This divide could exist along various lines, like religion, gender, race, creed, political
ideology, etc. Thus, each person would be in the minority at some point of time in his life.
Thus, if oppression is allowed, each person would feel insecure about his own self,
resulting in a lower level of happiness overall, in the longer run.

In order to remedy this, Mill propounded that there exists a domain of human life which is
sacrosanct and cannot be violated. In this area, the person cannot be interfered with,
irrespective of whether such interference gives pleasure to the majority. This, was Mill’s idea
of liberty. He outlined some particular freedoms, like the freedom of opinion and expression,

7
freedom of tastes and pursuits, freedom to unite, etc. which must be protected. Protection of
these liberties would increase the overall happiness of the community in the long run.

By inculcating the dimension of time into utilitarianism, Mill’s idea of utility can be
expresses as the greatest happiness of the greatest number in the long run.

However, these liberties cannot be enjoyed absolutely. Interference by the community in

individual liberties is justified if such interference is necessary for the preservation of the
community as a whole. Thus, if it is shown, for example, that enforcing the death penalty is
necessary for the preservation of the community, then intrusion into the liberty through the
death penalty is justified. However, when the life of the community is not in danger, there is
no justification for any interference. Thus, paternalistic policies interfering with liberty
cannot be justified.

Mill, however, reiterates that all ethical questions are grounded in the principle of utility.
Thus, he inculcates the idea of liberty only because such a conception enhances overall
happiness. He does not believe in the abstract concept of rights, with such rights having any
intrinsic value. Rights, according to Mill, hold only an instrumental value in maximising
utility.

In conclusion, it can be seen that Mill inculcates all three factors of justice – public welfare,
individual freedoms and virtues. However, freedoms and virtues are subservient to the
broader goal of maximising utility.

Types of Legislations in Utilitarianism

Paternalistic
Individuals can be directed to do or to forbear from doing something to protect their self-
interest, including their physical interest. The individual’s rights may be restricted by the
state. examples would be laws requiring seatbelts, insurance, etc.

Moral
Legislations furthering public morality are justified. State gives a voice to these feelings.
Thus, ban on homosexuality may be justified.

8
Wealth Redistribution
All people benefit from some basic essentials like infrastructure, electricity, water, hospitals,
etc. Generating these essentials increases collective happiness. Thus, a common pool of funds
is created from the resources of those who can contribute. Those who cannot contribute need
not pay. Taxation in order to redistribute wealth is justified. This also justifies progressive
taxation – the more you have, the more you must contribute.

Conception of Ownership of the Individual

Encounter Killings
Extra-judicial killings of members of the underworld took place, at the hands of the
Crime Intelligence Unit of the Mumbai Police. This drastically reduced the crime rate,
but at the cost of departure from established procedure. Assuming no innocent was
killed extra-judicially, and only gangsters were executed, were these killings correct?
Both Bentham and Mill might conclude that these killings were just, since they do not
believe in rights having any intrinsic value.

A theory would believe in liberty having or not having an intrinsic value on the basis of its
conception of the ownership of the individual. In an ownership relationship, you can do
whatever you want to with the thing you own, without the consent of the thing. Thus, the
concepts of ownership and consent and closely related.

Utilitarianism believes in ownership of the individual by the society. Since the individual
does not own himself, there is no intrinsic value in liberty and rights. Interference is
permissible without consent. Whether rights must be accorded is a question for the society to
answer. Thus, utilitarianism allows the usage of an individual as a means towards the
betterment of the society, which is the end. Thus, this conception would allow something like
encounter killings.

The conception of rights in the Indian Constitution is utilitarian. This can be seen in the kinds
of permissible restrictions on the rights. Such restrictions are permissible in the public
interest.

However, if a theory were to believe that each individual owns himself, then an intrinsic
value in liberty and rights could be recognised. Each person would have liberties and rights

9
not because such liberties and rights make the collective happier, but because that person
alone has ownership of his self and of such things as life, property, faith, etc. Nothing could
be done in interference of such liberty or rights by any outside entity. All interference would
require consent of the person concerned. Thus, such a conception gives great importance to
the idea of consent.

And even in such a theory, lawful interference with individual liberties could be justified on
the premise that each individual has already given consent to such interference by living
within the legal system. In India, for example, each person consents to the Constitution and
by virtue of Art. 21, interference in life and liberty can take place through lawful procedure.
Thus, each person in India has consented to lawful interference with his liberty. Such a
conception would not find encounter killings to be just.

Problem in the Conception of Self Ownership

Mehrangarh Burial
Consent to be buried alive. Rajiya Bambi (Meghwal) voluntarily accepted to be
sacrificed and was buried alive in the foundation of the fort.

Right to do whatever I want with myself – should there be any limits to the absolute consent
theory?

10
 LIBERALISM
JOHN LOCKE – SECOND TREATISE OF GOVERNMENT
Conception of Ownership of the Individual
Life is given to man by God. When we take birth and when we die is decided by God.
Ownership of the individual lies with God. The individual is merely the custodian of his life.
The individual doesn’t own himself. The community doesn’t own the individual.

From life emerges liberty. It is God who gave each individual liberty, and thus, it is God who
owns each person’s liberty. Similarly, the individual is merely the custodian of the liberty he
enjoys. The community does not own the individual’s liberty.

Since the individual and the community do not own life or liberty, they cannot interfere with
life or liberty. The community cannot use the individual for the collective happiness
(utilitarianism rejected) and the individual cannot do whatever he wants to on the basis of the
idea of consent (consent-based idea rejected).

Natural Rights – Life, Liberty and Property

Originally, man was in the state of nature. Since rights constitute that aspect of an individual
which cannot be interfered with, absence of interference gave life and liberty the status of
rights, even in the state of nature.

But these are not the only two pre-government rights. Since individuals possessed their life
and liberty, they were in control of their labour. By applying this labour to the materials
around themselves, they created property. Thus, property was nothing but an extension of life
and liberty, and was another right present in the state of nature.

Life, liberty and property, therefore, were the three unalienable, natural rights residing in man
in the state of nature.

Problems in the State of Nature

There existed two kinds of problems in the state of nature.

First, rights did not have sufficient security. Others could easily interfere with any
individual’s rights and there was no mechanism to deal with this. Second, the individual’s

11
retaliation to this interference could be disproportionate. Thus, excessive punishment was
possible.

To solve these problems, individuals came together to form a government by consent.

Purpose and Functions of the State

Government is formed by surrendered of the individual’s control over his rights to the
government. However, the government is formed for a specific purpose, i.e., for the greater
protection of the rights of life, liberty and property.

Not any and every type of government can be formed. Since man emerged from the state of
nature only to improve his condition in this specific sense, only the formation of such a
government can be justified, which accords more protection to life, liberty and property than
they enjoyed in the state of nature. Thus, a communist government, for example, which does
not recognise the right to property, cannot be formed.

The government formed has a clear purpose and it can undertake no action outside the scope
of this purpose. Any state action which makes individual rights worse off is unjust.

Government actions must conform with four principles.

 No action can be arbitrary. All actions must be taken in accordance with promulgated
laws. Retrospective application of laws is strictly prohibited.
 Justice must be dispensed by neutral and impartial judges according to promulgated
laws.
 Property cannot be taken away without consent.
 Duties of the government cannot be delegated to an unauthorised entity.

In order to justify any government action, therefore, it must first be shown that the action
results in a better protection of rights and that it does not violate any of these four principles.

Rights Under Lockean Liberalism

Locke believes life is equally valuable in all humans and all life must be equally protected.
Thus, individuals enjoy an absolute right to equality. The concept of ethnic cleansing,
therefore, based on the idea of racial or ethnic superiority, is discounted by Locke. This

12
conception of the right to equality is seen in the Indian constitution, with Article 14 having no
permissible restrictions upon it.

However, any individual’s right to life, liberty and property is not absolute. It is not each
individual’s rights which are unalienable. Rather, the principles of life, liberty and property
are absolute. Restrictions on individual rights can be placed when such restrictions are aimed
at protecting the principles of life, liberty and property at a larger level. However, restrictions
must only be placed to uphold these principles. “Reasonable restrictions” in the name of
morality cannot be justified. The state must be able to justify that laws infringing upon rights
protect, on a greater level, life, liberty, property. Thus, if it is shown that death penalty for
heinous crimes protects the principle of life at a broader level, it can be justified. However, a
death penalty for petty thefts cannot be seen to protect the life, liberty and property of
individuals in a better manner. Thus, such a provision cannot be justified.

Within the three principles, life is more important than liberty, which is more important than
property.

Law and Policy

Policy of the state must always be to uphold the principles of life, liberty and property. Law
forms the instruments used by the state to fulfil this policy.

Locke’s model of government forms the foundation of all modern democracies. Its principles
were adopted for the first time by the American Declaration of Independence on July 4, 1776.
The language used in the DoI is almost identical to the language Locke used.

Justness of Some Actions from Liberal Perspective

 Encounter Killings
Might be justified, provided that the state demonstrates that it improves the condition of the
rights and is carried out under a promulgated law.
 Torture
Might be justified, provided that the state demonstrates that it improves the condition of the
rights and is carried out under a promulgated law.
 Death Penalty

13
Might be justified, provided that the state demonstrates that it improves the condition of the
rights and is carried out under a promulgated law. Obviously, it can be awarded only for
offences which seriously endanger life and liberty.
 Acceptance of Death by Consent
Not justified. It does not help protect rights better.
 Right to Die/Euthanasia/Santhara
Not justified. It does not help protect rights better.
 Ban on Prostitution or Homosexuality
Restriction of rights on the basis of public morality not justified.
 Abortion
Involves a conflict between pro-life (protection of life) and pro-choice (protection of liberty)
views. If the foetus is shown to not have life during a specified period, abortion in that period
would be justified. If the baby is shown to have life beyond a particular period, abortion
cannot be justified. In fact, it cannot be justified even if abortion prevents the baby from
having a short, brutish life. As custodians of life, we can’t decide to give up life simply
because that life may not be particularly pleasant.

14
 LIBERTARIANISM
ROBERT NOZICK – ANARCHY, STATE AND UTOPIA

Wealth Redistribution
A person like Salman Khan may be paying upwards of Rs. 16 crores in various taxes.
Is taxation justified? Is collection of wealth or wealth redistribution justified by any
moral reasons? Is it morally justified to take away a person’s wealth by force?

Conception of Ownership of the Individual

Nozick’s libertarianism is an extreme form of liberalism.

He believes in the idea of complete self-ownership. The individual owns himself, his labour
and his time. By combining labour and time with materials, the individual creates property.
Thus, property is a manifestation of the labour and time of the individual, and must be
considered to be an extension of the self. It follows that all property is completely owned by
the individual. All the money that an individual earns by employing his labour and time is
entirely owned by him.

Taxation
Nozick addresses the idea of taxation in particular. He believes that taxes are unjust for two
reasons.

By taxing individuals, the state confiscates a part of his wealth. Thus, if by working for 12
months, a person earns Rs. 100, and if the state takes Rs. 33 from this total amount, in effect,
the person would’ve worked for 8 months for himself and for 4 months for the state. This
shows that the state has control over a part of the labour and time of the individual. This is
equivalent to slavery, where one person owned the labour of another. There is no difference in
coercing someone to work for 4 months and to confiscate 4 months’ worth of income.
Therefore, taxation amounts to saying that the state has a moral right over a portion of the
property of the individual. This is not consistent with the idea of complete self-ownership of
the individual. Thus, taxation is unjust.

Further, all individuals are entitled to the right to life, liberty and the pursuit of happiness.
The right to pursuit of happiness is an unalienable right. Different people pursue happiness in
different ways. Some pursuits do not require expenditure of money, like appreciating a
15
sunset. Other pursuits require expenditure of money, like eating food in a good restaurant.
When the state takes a part of the individual’s wealth, the people who pursue happiness by
spending money get restricted in their pursuits. For example, a person who could have had 50
meals in a restaurant with the money he earned can have, say, only 30 meals after being
taxed. On the other hand, people who pursue happiness without spending money are not
restricted in their pursuits at all. Thus, not only does taxation violate the right to pursuit of
happiness, it also violates the principle of equality by differentiating between pursuits.

Thus, redistributive taxation or progressive taxation are violative of rights and cannot be
justified.

Principles of Justice
1. Justice in Initial Acquisition – When holdings are created using personal skills and
capabilities, they belong to the individual.
2. Justice in Transfer – Transfer of holdings only on the basis of consensual transactions
can be deemed to be legitimate.
3. Rectification of Injustice – No person is entitled to any holding except through the
repeated application of Principles 1 and 2. Any holding acquired in another manner is
not legitimately owned.

Taxation laws help the state acquire wealth without the application of either Principle 1 or 2.
Thus, they’re unjust.

Conception of State – the Minimal State

Government is formed to protect life, liberty and pursuit of happiness. The state must
undertake only such activities as are necessary for its own existence. It must provide only the
most basic services like military, police and judiciary. This is the minimal state. Any state
working more extensively than this is unjust. The minimal state must collect money only to
carry out these basic functions. This money must be collected through voluntary, consensual
transactions and not through coercive taxation.

The state must not undertake any welfare work. All activities falling outside the scope of the
minimal state must be left to the private sector. Due to demand for various essentials like
infrastructure, education and health, the forces in free market would automatically create the
corresponding supply.
16
Criticism in Nozick’s Libertarianism – Do We Morally Deserve Who We Are?
Whatever an individual owns is a result of the combination of three factors – The time in
history in which he lives, the kind of society in which he lives and the inherent qualities (his
skills and talents) that he possesses. Virat Kohli is wealthy because he lives in a time and in a
society where his inherent skills of cricketing talent and hard-work are valued. Further he was
fortunate enough to have the opportunity to exploit these talents. A ragpicker may be poor
because he was born in such a condition and maybe because he has no inherent qualities
which the society values.

If Nozick is correct in believing that the individual owns himself and all his property
exclusively, then he believes that the individual morally deserves to have what he has. This
means the individual morally deserves to be who he is. Only then can he have a complete
moral claim over all of himself. Thus, from Nozick’s point of view, Rahul Gandhi deserves to
be in the position he is in and so does a child labourer.

Nozick builds his theory by accepting that the starting point for all individuals is a just
starting point.

17
 JUSTICE AS FAIRNESS
JOHN RAWLS – JUSTICE AS FAIRNESS
Natural Inequalities
Inequalities amongst individuals are natural. They are nothing either to be proud of or guilty
about. Nature is neither just nor unjust. Inequalities are facts. However, what is just or unjust
is the way that institutions deal with these facts. State is an organisation in which people
agree upon some basic terms of cooperation. These terms of cooperation must aim to reduce
the natural inequalities in society. The constitution states the principles that this organisation
follows in reducing the natural inequalities.

Nozick does nothing to neutralise these inequalities. In his system, inequalities will flourish.
Rawls objects to this and proposes a structure in which individuals can both enjoy their
natural endowments if they’re privileged and get support if they’re naturally disadvantaged.
This is his idea of a just system.

Method for Discovering Just Principles – Original Position and the Veil of Ignorance
Rawls rejects the manner in which other theorists arrive at guiding principles of justice. For
example, utilitarians begin with the premise of utility and somehow arrive at the conclusion
that utilitarianism is a just guiding principle. Similarly, libertarians begin with the premise of
self-ownership and arrive at the conclusion that libertarianism is a just guiding principle.
Principles of justice cannot be found in these ways. Every person would choose a principle of
justice guided by personal circumstances. An underprivileged person would choose
utilitarianism. A wealthy person would choose libertarianism.

Principles of justice must be discovered in a manner which neutralises personal conditions.

This can be done only by parties in the original position. Original position is a concept
created by Rawls as a thought experiment.

Original position is a situation in which parties are unaware of their natural endowments,
personal characteristics, social positions and all other things like race, ethnic group and sex.
These limits in information are figuratively expressed by saying that the parties are behind a
veil of ignorance. The individual only knows that he is rational, but is unaware of all those
personal factors which can influence his choice of a principle of justice.

18
From this position, parties must be asked to make a constitution, i.e., choose a guiding
principle of justice, after which the veil of ignorance would be lifted. In this position, the
individual would consider the possibility of falling within the whole range of circumstances.
He has an equal chance of being in any situation.

The individual would choose a principle which would protect his interests without knowing
himself. It is assumed that he would not act like a reckless risktaker, but will rather be
rational. Once the principle of justice has been chosen, the veil of ignorance will be lifted and
the individual would become aware of himself.

What this ensures is an initial equality between all parties. There would be no inequality in
bargaining positions. Only when this is ensured, can a fair principle of justice be chosen. The
principle would protect the interests of all individuals in all kinds of circumstances. And a
governing principle chosen in this manner would automatically ensure justice. This is why
Rawls calls his theory Justice as Fairness.

Principles Rejected
From the original position, the following principles will be rejected.

Utilitarianism
A rational bargainer would know that there is a chance that he would find himself in the
minority. Since utilitarianism forgoes individual liberties for the pleasure of the majority, this
principle would be rejected.

Feudal Aristocracy
The individual would know that there is a small chance of being born in a privileged position.
Since all other positions would be inferior and there would be no equality of opportunity, this
principle will be rejected.

Libertarianism
Under this system, there is formal equality of opportunity. However, life circumstances are
arbitrary. This results in creation of natural inequalities. People born in socio-economically
backward situations, or those without valuable talents suffer. Formal equality can be
exploited only by those who are naturally advantaged. Since the individual would know that
there is a chance of being naturally disadvantaged, he would reject utilitarianism.
19
Meritocracy
This system removes all initial inequalities and gives all persons an equal opportunity. After
this point, however, the state does not interfere and it’s up to the individual to exploit the
opportunity. As a result, people with greater skills and abilities excel, while those without, are
left behind. Natural inequalities are allowed to determine socio-economic conditions. Since
the state does not aim at reducing these natural inequalities, the rational individual would
reject this principle as well, knowing that there is a chance that he might not be endowed with
talents.

Principles of Justice Accepted

1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic
liberties, which scheme is compatible with the same scheme of liberties for all; and

2. Social and economic inequalities are to satisfy two conditions

a. First, they are to be attached to offices and positions open to all under
conditions of fair equality of opportunity; and
b. Second, they are to be to the greatest benefit of the least advantaged members
of the society.

These principles are in lexical priority. They need to be satisfied strictly in the order in which
they appear. Principle 1 has to be satisfied before Principle 2a and Principle 2a before
Principle 2b.

Principle 1 – The Libertarian Principle

This is the typical libertarian principle, similar to what Locke and Nozick have propounded.

In the original position, each individual would consider having favourable conditions of birth
and natural talents. Thus, the individual would want to protect the prospects of utilising these
prospects. There must be some mechanism to allow fortunate persons to become successful
and to allow people to achieve their goals on the basis of their own qualities. Additionally,
considering that people have different conceptions of happiness, there must be a mechanism
to allow each person to pursue his own idea of happiness. To allow this, all persons need to
be granted equal basic liberties – equal space and opportunity, within which individuals can
pursue their own goals on the basis of their own abilities.

20
Under Principle 1, the state has only a minimal, negative role. The state must ensure formal
equality. Any opportunity or position, obtaining which can create inequalities, need to be kept
open to all. Thus, the state must ensure that provisions like those restricting access to
education to Brahmin men, or restricting eligibility to political offices to men must not be
present. Economically, this provides for a free market society.

Principle 2a – The Meritocratic Principle

The state, under Principle 1, does not play any role in neutralising differences arising from
conditions of birth and natural talents. Ensuring formal equality alone does not ensure actual
equality. The libertarian model allows social and economic inequalities to flourish. According
to Rawls, people who are more advantaged do not have any moral claim over their position,
since the reason behind the inequalities are arbitrary differences in conditions of birth and
natural inequalities. It is impossible to have a society without any social and economic
inequalities. But the state must strive to reduce these as much as possible.

Principle 2a talks about fair equality as opposed to formal equality. Fair equality refers to
liberal equality. All individuals must have fair access and opportunities to positions and
offices. The market must be restructured in such a way that concentration of wealth and
power with a few cannot take place. Basic facilities must be provided to all, so that they can
compete equally in the competition provided for in Principle 1. For example, these basic
facilities can include things like security, medical services and education. Thus, under
Principle 1, no child would be formally barred from attending schools. However, school
under a free market society will be opened only in areas where it would allow gaining profits.
Under Principle 2a, it must be ensured that all children in all parts of a country have real
access to education. Fair equality neutralises inequalities due to differences in conditions of
birth. This ensures a meritocratic system.

Here, the state is given a positive, proactive role to perform. Principle 1 becomes meaningful
only when read with principle 2a. Fair equality needs to correct the defects of formal equality.

Principle 2b (The Difference Principle) – The Egalitarian Principle

Even after application of 2a, differences in society will persist, because of different inherent
capacities of people. The net difference in income and wealth of differently endowed persons
will gradually increase. According to Rawls, since these natural endowments are also

21
arbitrary differences, persons in a better position would still have no moral claim over their
self or their position. The differences existing are a result of these arbitrary natural
endowments, and it is the duty of the state to neutralise these differences. In order to reduce
these inequalities, the state must impose policies which are to the greatest advantage of the
least advantaged persons in the society.

In order to define a group of persons as the least advantaged section, Rawls introduces the
idea of Primary Goods. Primary Goods comprise those goods which all persons behind the
veil of ignorance think of as necessary. This would be the lowest common multiple of
essential, basic goods upon which all persons agree. Thus, Primary Goods are what free and
equal persons, as specified by the political conception, need as citizens. These would include
things like basic rights and liberties, freedom of movement, economic security, physical
security, etc. Rawls defines the least advantaged as those who believe that they cannot secure
their Primary Goods. They form the group which has the least expectation regarding Primary
Goods. The most disadvantaged must be identified on the basis, only, of income and wealth.

In order to reduce the inequalities still persisting after the application of Principles 1 and 2a,
therefore, the state must redistribute income and wealth, either directly or indirectly. For
pursuit of happiness, income and wealth needs to be generated. This happens through
production of goods and services. This production takes place through application of
Principles 1 and 2a. All goods and services are produced through cooperative activity.
However, due to inherent differences, cooperation takes place at different levels. In any
industry, for example, sweepers and executives cooperate towards the same goal, but they
work at different levels. As a result, classes of least advantaged persons and most advantaged
persons will exist. Thus, the question of how should Principle 2b be applied essentially
becomes this – once the industry earns wealth, how should this wealth be distributed?

The net take-away for any class of persons is the net income and wealth gained after
application of all state schemes. Thus, application of Principle 2b includes within its fold all
state schemes which play a role in redistribution of income and wealth. It would include
everything from tax deductions and subsidies to rationing and caps on permissible
expenditure. This would constitute a complex web of policies working in different ways.

First, Rawls provides that the take-away of the most advantaged group must always be more
than the takeaway of the least advantaged group. This is important to incentivise economic
22
activity in society, which would in turn be advantageous for all groups. Second, Rawls
believes that that scheme must be adopted which provides the least advantaged with the
greatest amount. This approach can be differentiated from many other systems, all of which
must be rejected, according to Rawls. (In the utilitarian approach, the state would look to
maximise overall income generation, without paying regard to net take-aways of individual
groups. In the feudal approach, the state would look to maximise the take-away of the most
advantaged class. Under John Nash’s approach, a distribution somewhere in between Rawls’
distribution and Bentham’s distribution is to be adopted, since this would be the optimizing
condition for the economy.)

Here, again, the state is required to play a positive role. The difference principle neutralises
inequalities created due to differences in natural endowments. This creates an egalitarian
society. The difference principle is the most controversial component of Rawls’ theory.

Permissible Constitutional Setup

Property Owning Democracy v. Welfare State Capitalism

For the successful application of Principle 1, Right to Property is a necessity. A POD ensures
that the right to property is secured. Principle 2a envisages redistribution of property before
generation of wealth. Principle 2b envisages redistribution of property after generation of
wealth. A POD redistributes property both before and after generation of wealth. Thus, a
POD must be preferred, since it allows for application of all three principles. To a large
extent, India is not a POD, since it doesn’t give primacy to the Right to Property (FR
abolished). However, redistribution of property takes place in India in line with redistribution
in PODs.

WSC also allows for the Right to Property. This is not the differentiating feature between the
two. However, redistribution of wealth in a WSC takes place only after completion of the
cycle through which generation of wealth takes place. Thus, a WSC allows for the application
of Principles 1 and 2b, but not 2a. Therefore, this is not an ideal system.

Procedural Democracy v. Constitutional Democracy

For the application of Rawlsian principles, certain essential ideas must be enshrined in the
constitution. For example, the constitution must recognise that all persons are entitled to
Primary Goods. A CD enshrines certain values from which the state would not deviate. A PD,
23
on the other hand, does not include any predetermined constitutional guarantee. It provides
for a majority rule, without any fixed subscription to specific ideals. Ideals change with
elected governments. Thus, Rawls says that CDs must be preferred over PDs.

24
 ARISTOTLE
NICOMACHEAN ETHICS

Caste Based Reservation

As a criterion for reservation, people who say income-based classification is fine but
caste-based classification isn’t, believe that income-based marginalisation
disadvantages people and caste-based marginalisation does not. Where does the nexus
exist? Between caste and disadvantage or class and disadvantage or both?

We accept that the broader objective of classification is to integrate. But even after
reservation, integration does not take place. Different groups often exist in institutions
with reservation. People from reserved and people from non-reserved categories form
different groups. People who perform better and people who perform worse form
separate groups. This might even go to the extent of direct conflict. Is the purpose of
reservation being satisfied?

Why do we establish like institutions like IITs? If the purpose of these institutions is
excellence, is reservation for both students and professors justified? Is reservation in
promotions justified?

Principles of Justice
Justice is giving someone that which is due to him. To determine what is due to someone, we
must recognise that justice has two dimensions.

Teleological Justice
This principle provides that defining rights requires us to figure out the telos/purpose/end
/essential nature of the social practice in respect of which we’re defining rights.

Honorific Justice
This principle provides that to reason about the telos of a social practice, or to argue about it,
is at least in part involved with arguing about what virtues that social practice should honour
and reward.

Thus, we must define rights in accordance with the purpose of the institution and it is wrong
to dilute this purpose. Accordingly, what is due to someone must be given to him. It is an

25
insult to the talent of a person, if he deserves a position in an institution which values such
talents, but is not given this position. Who should get the best flute? The flute should go to
the person capable of creating music. The purpose of having the flute is defeated unless it
goes to the best flute player. Identify who is gifted, who is most suitable for a job. And do
justice according to the telos.

Reservation and Affirmative Action

The Indian conception of reservation focuses on strengthening individuals. Thus, in the
process of strengthening individuals, reservation does harm to the purpose for which the
institution is created. According to this theory, therefore, reservation cannot be justified.

Affirmative action in the US, however, is different. The focus there is on making the
institution stronger. Affirmative action aims at increasing diversity in institutions and thereby,
improving its overall character. This approach does not focus on the individual.
Consequently, this approach does not dilute the purpose of the institution either. Hence,
affirmative action can be justified under this theory.

Criticism
The idea that some people are born to rule and others are born to serve can precipitate from
the principles expounded by Aristotle. The idea of telos was used by Aristotle and many
others to justify institutions like slavery.

26
 IMMANUEL KANT
GROUNDWORK FOR THE METAPHYSICS OF MORALS

The Doctor’s Dilemma

Example: Doctor diagnoses a patient, with a serious illness and that he will die in 4
months due to the same – but if he informs him of this diagnosis, the patient will die
earlier. So, should he tell the patient? Both sides to this say the same thing – this
decision of telling/not telling is in the best interest of the patient. Therefore, the
argument revolves around the welfare of the patient i.e. it is a utilitarian argument as
we are trying to maximise the happiness of the person. The right path would be
empirical, and we would mathematically have to find which would make the patient
happier. If the doctor does something to make the patient happy, is it a morally good
act? Bentham related the idea of morality and happiness i.e. an act which makes
someone happy is a morally good act. Kant tries to show Bentham’s principles are not
like earth, as he claimed – they are movable.

Example: What is the moral worth of a rich person giving food to someone who is
poor and starving? It is morally good due to the motive of the rich person. There were
people trying to help the examinees in the Bihar Board exams. This would help them
do well, and then get proper jobs etc. Is this morally good then due to the motive?

Breaking Down Utilitarianism

According to Kant, the motive does not bring any morality to the acts. Break down of
happiness: We are a bundle of organs, and when we say we are happy it is basically the
messages from our sensory organs interacting with our central nervous system, which are
appealing to this system – it is merely reception of a combination of information which
appeals to our central nervous system. Do we choose which information appeals to us? Do we
choose to like sweet over salty or blue over pink? No, what makes us happy, is not chosen by
us, but we want to perpetuate it. Nature designs us within a range [similarity], and within that
range we are different. But this difference, is not our choice.

We want to perpetuate such happiness, and therefore keep performing the same act – as per
Bentham this is morally good. But Kant says, this is irrelevant – we are bound by an
inclination, and if we repeat the same act, we are merely reinforcing the same inclination – it

27
is not necessarily morally good. It is basically slavery. Serial killers get happiness from
killing.

Basing morality on interests and preferences destroys its dignity. It doesn’t teach us how to
distinguish right from wrong, but only to make better at calculation. Thus, there is no moral
worth in utilitarian ideals. Kant does not ask us to not make these calculations. But we cannot
say that it gives our actions moral worth. Torturing a suspect may be the better calculation
sensibly, but it would not be a moral idea simply because it saves lives. To make a moral
choice is to make a profound, principled choice. Right and wrong is moral. Good and bad is
utilitarian.

Summary
Heteronomy (to act according to laws that I have not chosen) – inclinations (doing something
because it gives us pleasure) – sensible realm (the area where I am unfree) – hypothetical
imperatives (a moral obligation which applies only if we desire the ultimate goal – the
principles that I have chosen in the sensible world) – absence of moral worth.

Autonomy – duty – intelligible realm – categorical imperatives (an unconditional moral

obligation which applies in all circumstances, irrespective of our inclinations) – presence of
moral worth.

Our liking is not autonomous. We are wired or designed in a way. So to like something, is just
to be a slave. Nothing wrong with this. But choices made to satisfy likes is not a moral
choice.

Outside the sensible world, you are a rational person with a pure reason. Reason can be pure
or affected by the sensible realm. In the sensible realm, you reason according to your senses.
Pure sense has to be not bound by our physical senses. In the intelligible world, all of us
become the same. Differences exist only at the physical level. At the intelligible level, all of
us are the same. By applying pure reason, the things that we choose will be the final answer.
Categorial imperatives are the chosen principles to govern morality.

These are an end in themselves. You don’t need to look for an end. In the sensible world,
reasoning comes to end at the happiness point, but this happiness is not under our control.
Idea of morality cannot be linked with that. To claim moral worth is not able to act freely.

28
Morality has to be something over and above our inclinations and senses. Everyone exists in
2 different worlds at the same time:

Sensible Realm
We are unfree in this state. None of our actions in this world are autonomous. At the surface
level you believe you are making choices. But according to Kant, some senses are inherently
appealing to us and therefore we are not making choices – there is heteronomy i.e. we follow
our inclinations [designed by nature] – in the sensible realm the choices we make are
hypothetical imperatives i.e. at the highest level of abstraction this has no moral value, as we
are unfree in this state. In this realm we are slaves, and are bound to do certain things.
Therefore, nothing is morally good/bad as we are just acting upon our inclinations. For
example, in this realm, a serial killer may not be morally bad, even though legally liable.

Intelligible Realm
If we shed all our physical things, we discover ourselves in the intelligible realm. Once these
physical inclinations are gone, in the intelligible world everyone is equal. Similar to Rawls’
idea of veil of ignorance. In this world, we are free as we have gotten rid of all those things
which make us unfree i.e. bodily desires, preferences etc. In this zone, if you make choices,
they are categorical imperatives – these choices give moral worth to the acts of people i.e.
this is because these choices are not controlled by our natural desires and body. We are in
autonomy. There is thus a presence of moral worth. Kant gives us 2 categorical imperatives.

Categorical Imperatives

Universalize Your Maxim

Only do things, you want others to do – ask yourself, if I am doing an act, will I be
comfortable if others also do it? Will the act have the same meaning if everyone starts doing
the same act? The idea of equal basic liberties for Rawls emerges from here. One can only
put themselves above another in the sensible realm – in the intelligible realm, since we are
equal, I cannot put my interests above yours. No one’s claim is above another’s. It says
everyone should be counted. Objection: This is nothing but the abstract form of
utilitarianism. But this is not true, as this principle works in conjunction with the 2 nd principle
also.

29
Treat Persons as Ends
Everybody is the bearer of humanity, so you as a person are not only carrying your organs,
tastes etc., according to Kant we are carrying humanity in us and we are equal carriers of
humanity. We understand this when we are outside our body in the intelligible realm. He says
humanity is an end in itself i.e. if your action is out of respect for the humanity for another,
then it is morally good. Do not think of the consequences. You must be motivated towards
service of the humanity you or others carry in themselves. Example – the dishonest
shopkeeper. If he does not cheat. Is his action morally worthy? Depends on whether he
applies only 1 or both 1 and 2. Only applying 1 is utilitarian. But using both. Looking at the
child as a carrier of humanity. Not respecting the humanity in a person. Treating the person as
a means to become rich.

The two categorical imperatives have to be seen in conjunction. In isolation, the first may
seem like a refined version of utilitarianism. These are chosen in the intelligible world. These
are not simply inclinations. Second may be applied without first. But first cannot be applied
without second.

New Shit
Kant divides the individual into the biological and the non-biological entity. The biological
level is the one in which differences exist. The other realm is one which allows universality,
neutrality, etc.

In isolation, CI-1 is essentially a utilitarian principle. Thus, this has to be joint with CI-2.

FB data leak example.

Why should we treat persons as ends? Because otherwise we cannot achieve the ends of
humanity, that is, the fullest employment of our humanity-defining power, our rational
autonomy.

How do we know that humans are capable of pure reason and not just mere human reason? It
is not only a requirement of the utmost necessity in respect of theory, where our concern is
solely with speculation, but is also of utmost practical importance, to draw these concepts and
laws from pure reason. Essentially, that it is an assumption important to sustain the theory.

30
What is the intelligible realm? How do we know that we are free in the intelligible world?
What is the nature of the self? Another assumption. We have no knowledge of this realm. We
cannot know.

Assumptions in Kantian Philosophy

 There are some essential ends of humanity.

 Humans are capable of rational autonomy – pure reason.
 Pure reason is possible in the intelligible realm.
 We are free in the intelligible realm.

What utilitarians discovered was never duty, but inly the necessity of acting from a certain
interest and this cannot serve as the moral law.

Particular Instances
Maximisation of happiness v. consent v. treating persons as ends

Bentham v. Nozick v. Rawls v. Locke v. Kant

Casual sex

Yes – yes – yes – maybe (mostly yes) – motive is biological inclinations (morally neutral).

Homosexuality

Depends on the majority view – yes – yes – maybe (mostly yes) – dunno.

31
 COMMUNITARIANISM
CHARLES TAYLOR – SOURCES OF THE SELF: THE MAKING OF MODERN IDENTITY
ALSDIAR MCINTYRE – AFTER VIRTUE
REPUBLICANISM
MICHAEL SANDEL – LIBERALISM AND THE LIMITS OF JUSTICE
Rawls is a representative case of liberalism. Rawls finds his principle by doing a thought
experiment. He relies on the assumption that the human is not just a physical, material being
but, in addition, a rational being as well. There exists a self, independent of other selfs, yet
identical to all others selfs. Here, the human can find just principles and the same just
principles. Similarly, pure reason for Kant. These principles are then applied to life in the
physical world.

Principle 1 says that there is a claim for it to protect its separateness or distinctiveness. That
we may have different pursuits if happiness and must have equal opportunity to follow the
path. Right/claim is very important. This is necessary to protect distinctiveness of individuals
– this is the crux of libertarianism – this is the reason why utilitarianism, a system where
general happiness can trump individual happiness, is rejected.

We’re not only separate and distinct, but also detached. Thus, no other person can ever tell
me what I should do, unless by so doing I interfere with your right. You don’t have a claim
over me. I have a claim over the state.

Rawls then goes on to establish that any talents that an individual has is accidental. Since this
is accidental, there exists no complete moral claim over these talents, or the wealth earned
with their help. Thus, he allows redistribution. This is the idea of communitarian good. Note,
however, that this communitarian good finds its place only after the adequate satisfaction of
libertarian right.

Communitarian Objection
DP is a principle of justice which says that I only own my talents accidentally, and thus, don’t
have a claim over them. If my talents are accidentally mine, are they not also only
accidentally residing in the community? I have accidentally been born in the society. If I
don’t have a moral claim over myself, then how does society have a moral claim over my
right? Thus, DP fails as a principle of justice. there is a contradiction within the theory.
32
Communitarians are not dissatisfied with the difference principle. They, in fact want it to be
the fundamental principle of justice. Should right come prior to good or should good come
prior to right? Who are we? What is the self? Are we separate and distinct from the
community? Principles of justice are necessarily connected with the conception of self. This
is the next step after moral principle. The fundamental justifying principle. All of it springs
from the conception of self.

Communitarian Conception of Self

The central belief is that we are not separate and distinct from each other.

All of us are born in time, history and space completely beyond control of ourselves. This is
true for all of us. No one decided this. This arbitrary birth creates an unavoidable relationship
between people. An individual is unavoidably linked to community. This attachment is
perennial and unavoidable. The individual is not a pure entity. She has layers. These layers
come from attachments. And these attachments are what makes us us. If you take away these
layers from the self, there would remain no self at all. You are either a complete person or no
person at all. If this is true, the entire idea of separate and distinct existence is rejected. If
there is a necessary connection between the individual and community. Thus, good must
come before right.

In the liberal pint of view, the society does not have any say in what one does. The fallout is
that neutral institutions of justice have to be established. There is a need to establish
institutions which are neutral to our separate pursuits of happiness. They have to be neutral to
conflicting values within the society. However, when these neutral institutions are developed,
the result is confusion. On the one hand, the entire system requires interaction and
cooperation within the community. Examples are the duty to maintain children and elderly
persons along with their right to not be told what to do. Similarly, individuals pay taxes to
others. Yet no one is accountable to anyone. But the system also expects a lack of
interference. This, from the communitarian perspective is a dichotomy. Advocating both
interaction and separateness. This leads to a situation of lack of attachment and increase in
entanglement. This is the result of the conception of self as distinct and separate. Libertarians
want relationships to arise only from consent. No other natural duty to any other. But
communitarians say it is impossible to imagine any existence without mutual rights and

33
obligations other than contracts based in consent. If the collective existence is allowed, then
we would be attached and not entangled.

Thus, from a communitarian perspective, neutral or universal principles of justice are

impossible. Good must come before right. Community must come before right.

Libertarians – certain individual rights are so important that they trump general welfare.
Rights prior to good. Communitarian stand – the notion of justice is relative to good and not
independent of it. It would depend on the particular community. Good is prior to right.
Republican stand – the notion of justice is relative to good and not independent of it. It would
depend on the particular community. Good is prior to right.

Libertarians – principles of justice that govern our rights do not depend for their justification
on any particular conception of the god life. Communitarian – principles of justice that
specify our rights derive their moral force from values commonly espoused or widely shared
in a particular community or tradition. Republicans – principles of justice that specify our
rights derive their moral force from the intrinsic good of the ends they serve.

Difference between utilitarianism and communitarianism

Utilitarians do not believe we’re necessarily attached to each other. Utilitarians believe that
each individual is a distinct pleasure seeking entity. However, since this idea is accepted, the
result is that the majority happiness must prevail. Consequence – majority value to be upheld.
The result it to see what the totality wants. Communitarians also see the consequence as the
same. But the conception of self is completely different.

Problem with this idea of communitarianism

Communitarian values at times might be irrational. Should we still consider communitarian
values as having primacy. For example – where the community does not allow a book like
Satanic verses to be published. Sandel departs here. He says we do not have to see the
communitarian value itself but the intrinsic value behind this idea. If what the community
wants is actually good then it cannot be departed from. But if it is intrinsically bad, then it can
be departed from. The case for the right cannot wholly be detached from a substantive
judgement about the moral worth of the practice it protects.

34
Example – why should we protect right to religious liberties. Libertarian – the free and
independent self has the right to claim this. Communitarian – it has to be protected because
community wants it. if religious liberties are not protected, there would be conflict.
Republican – it has to be protected because religion in itself is admirable and it fosters the
qualities of character that make good citizens.

Example – why should we protect the right to free speech. Libertarian – we cannot impose on
some the values of others. Respecting each self requires allowing them to express themselves.
Martin Luther King Jr. and neo-nazis both allowed. Communitarians – hate speech can be
banned if the community gets offended. If the majority does not want that speech. MLK and
neo-nazis would both not be allowed. Republican – we need to look into the moral worth of
the speech. Even a morally good speech may appear to be offending to the community but
this is not enough to ban it. Allow MLK but not neo-nazis.

Subjective moral worth – how can this be decided

This is the problem of republicanism. In theory it seems correct. But in reality, defining moral
worth for many activities is extremely difficult. Take for example – beef ban. This is a major
flaw in the argument.

Nahid Afreen
A number of clerics have issued fatwas against the 16 year old singer. Should she
have a right to sing?

This question boils down to how ewe define this individual. If we subscribe to the
libertarian viewpoint, she can be recognised as separate and distinct, and then can be
allowed to do what she wants as a right.

If we subscribe to the communitarian conception, we cannot separate the individual

from their various identities in society. The self exists only in context of the society.
Thus, the claim of the individual comes second to the claim of the community. This
might seem like a utilitarian approach. However, it is so only in the final result and
not in the conception of the self.

In the republican understanding, the conception of self is the same as that of the
communitarian understanding. However, whether the claim of the community must be

35
 upheld depends on the content of the claim. This claim is not to be upheld if the
community demands something immoral.

The communitarian understanding of justice cannot be universal. The principles of justice are
subjective. They depend upon the community. Additionally, the communitarians find fault in
establishing neutral institutions for determination of questions of justice, like the Supreme
Court. However, this takes away from the fact that it is for the community to decide through
debate, discussion and deliberation and not by application of any neutral, universal norms.

36
 FREE WILL
SAMKHYAN PHILOSOPHICAL SYSTEM
One of the 6 systems of philosophy within Hinduism, the other 5 being Nyaya, Vaiseshika,
Yoga, Mimansa, Vedanta, etc. Samkhya, however, is considerd to be probably the most
profound.

This system is based on an assumption. It is assumed that before the universe existed, i.e., in
the un-manifested condition, two elements existed.

Purusa – Pure consciousness. No potential of creation.

Mulaprakrti – Primordial nature. This has the potential of creation.

These two elements fuse to form other elements. Internal organs – operate in past, present and
future.

Buddhi – the sense of right and wrong.

Ahamkar – the idea of self. The ego.

Manas – the one which fantasises. This is the basis of creation. This is not information
assimilating. It imagines.

Following this, external organs get created. Operate only in present. Eye, ear, nose, tongue,
skin – the sense organs. Helps understand non specific subtle elements.

Voice, hands, feet, organs of excretion and organs of reproduction.

37
 RIGHTS
HOHFELDIAN ANALYSIS OF RIGHTS
Situation 1 – After the arrival of the date of payment, a creditor says he has the right to
recover money from the debtor.
Situation 2 – A student, owning four shirts, says he has the right to wear the shirt of his
choice.
Situation 3 – A policeman finds somebody over speeding. He says he has the right to impose
a fine on that person.
Situation 4 – After the passage of the limitation period on a debt, a debtor says he has a right
not to make any payment to the creditor.

Hohfeld says that the word ‘rights’ is given different meanings in different contexts. This
usage is incorrect and has led to ambiguity. In order to dispel this ambiguity, we must use
precise expressions, instead of using the broad term ‘rights’.

Jural Correlatives
The word ‘rights’ can be seen to include four different senses – Claim, Liberty, Power and
Immunity. This classification can be made by looking at the correlative of the ‘right’ in the
particular situation. The ‘right’ lies in one entity, while the correlative would lie in another
entity. These entities may be natural persons, juristic persons, state, etc. By analysing the
correlative, we can understand the true nature of the ‘right’ we’re talking about. Thus, rights
necessarily come in such pairs and each element of a pair is the Jural Correlative of the other.

Claim – Duty
A right can be called a claim if the presence of the right in one entity indicates a correlative
duty in another. The duty must require the other entity to do something or perform some
action. Thus, in Situation 1, the creditor has a claim over the debt and the debtor has a duty to
pay the debt. Claim is the JC of Duty and Duty is the JC of Claim.

Liberty – No Claim
When a right in one entity indicates the absence of a claim over that entity by all the other
entities, then the right is in the form of liberty. In Situation 2, no entity has a claim over the
student with respect to his clothing. Thus, he has liberty. On the other hand, for example, a
policeman does not have the liberty to wear any shirt of his choice while on duty, because the

38
police department has a claim over him with respect to his clothing. Liberty is the JC of No-
Claim and No-Claim is the JC of Liberty.

Power – Liability
When the exercise of right by one entity will affect or alter the position of another entity, the
right is in the form of power. The exercise of power affects other entities without requiring
them to perform any action. In Situation 3, the policeman has the power to impose a fine.
Such an imposition will negatively affect the position of the driver. The JC of Power is
Liability and the JC of Liability is Power.

Immunity – Disability
When some entity has a disability in performing an action, the right lying with the other
entity is called immunity. Disability is the lack of one entity to perform some action or to take
up a process. In Situation 4, the creditor has a claim while the debtor has a duty. However, the
law of limitation introduces a disability in the creditor to extract such payment and a
corresponding immunity in the debtor to make the payment. Here, the immunity-disability
relationship simply eclipses the claim-duty relationship but does not extinguish the claim. If
even after passage of the limitation period, the debtor voluntarily pays an amount, the creditor
would have a claim over the sum paid. Immunity is the JC of Disability and Disability is the
JC of Immunity.

Jural Opposites
We can divide the four pairs of Jural Correlatives into two parts.

 Part I consisting of the Claim-Duty and Liberty-No-Claim pairs.

 Part II consisting of the Power-Liability and Immunity-Disability pairs.

This leads to the emergence of another set of relationships called Jural Opposites. Here, if one
element is present in one person, its Jural Opposite will be absent in the same person. The
following pairs of JOs emerge.

 Under Part I: Claim – No Claim; Liberty – Duty.

 Under Part II: Immunity – Liability; Power – Disability.

39
Jural Contradictories
Similarly, the division leads to the emergence of a third kind of relationship called Jural
Contradictories. If one element is present in one person, its Jural Contradictory will be absent
in another entity. The following pairs of Jural Contradictories emerge.

 Under Part I: Claim – Liberty; Duty – No Claim.

 Under Part II: Power – Immunity; Liability – Disability.

Permanent and Temporary Parts

The power-liability relationship is relatively more permanent than the claim-duty
relationship. Claim-duty under Part I is a derivative of power-liability in Part II. Claims can
arise only when there is a power. For example, the ICA, 1872 is an example of use of power
by the Parliament to enact a law to which all persons are liable. This law is then used by
individuals to give rise to claims and duties.

Criticism
Even without this analysis, the use of the word ‘right’ is understood by people in the correct
sense, in the correct context. It is not practical to expect people to use the specific expression
of ‘rights’ in every situation, since the relationships between different rights becomes very
complex. Thus, there is no need for this classification.

COMPONENTS OF RIGHTS
In a situation of sale of a car. A buyer says he has the right to get the car, after he has paid the
consideration. The various components of this right are as follows.

Inherence – The one who has the right. The inherence is in the buyer.
Incidence – Where the right falls. Incidence will be on the seller.
Content – Either action or forbearance. The content, here, is an action. The buyer demands
that the seller give him the car.
Object – It may be tangible or intangible. Here, it is the car.
Title – Origin of the right. It may arise from a statute or something else. The title comes from
the contract.

CLASSIFICATION OF RIGHTS
There exist various groupings of rights.
40
Perfect and Imperfect Rights
Perfect rights are recognised by the state and are enforceable. Imperfect rights are recognised
but are not enforceable. An example of the latter would be time barred debts. Here, a law
results in eclipsing of rights.

Vested and Contingent Rights

Vested rights are already perfect. Contingent rights are those which would become perfect in
the future, contingent to the happening of an act. For example, under Hindu law, if there is a
child in the womb of a lady who is a part of a joint Hindu family, then partition of the
property would take into consideration the child as a co-parcener as well. Thus, the right in
the child is contingent on his taking birth.

Positive and Negative Rights

Where the content of the right is an action, it is a positive right. Where the content requires
forbearance, it is said to be a negative right. An example of the latter would be rights under
copyright laws.

Rights in Rem and Rights in Personam

A right in rem is against the whole world. Generally, property rights are of this nature. Rights
in personam are rights against particular individuals. These generally arise from contracts.
These arise from ownership of the right.

Proprietary and Personal Rights

Proprietary rights are with respect to the property of a person. Personal rights are with respect
to the liberty, character, fame, etc. of a person.

Inheritable and Uninheritable Rights

Generally, proprietary rights are inheritable, while personal rights are not. Personal rights
come to an end with the life of the person. Proprietary rights, however, are transferable.

Rights in Re-Propria and Rights in Re-Alena

Rights in own property is right in re-propria. This includes various things like right to use,
right to dispose of and with some limitations, right to destroy as well. While any right in alien
property is a right in re-alena. An example of this would be easement. Easement is an
example of a positive right in re-alena. This allows one person to do something over someone
41
else’s property, like have a right of passage. A negative dimension would be to stop someone
from doing something with their property. An example would be a right to stop someone from
constructing something which would obstruct flow of air or light.

Principal and Assessory Rights

Principal rights are the right of ownership in property. Assessory rights are those which arise
because of ownership in the property. Ownership of land is a principal right. Right to recover
rent is an assessory right. Assessory rights are independently transferrable of the principal
right.

DWORKINIAN ANALYSIS OF RIGHTS – TAKING RIGHTS SERIOUSLY

Rights Understood in the Weak Sense
Usually, rights under any legal system are subject to some control by the state. The state
recognises the right but provides for restrictions under various circumstances. This is true for
all rights, including the right to life. Individuals are allowed to exercise their rights, as long
as, in the state’s view, they’re doing good things. On the other hand, if individuals do
something wrong, then the state sees this as an abuse of rights and interferes. Thus, the state
controls the rights of individuals, just like a parent controls the rights of its children.

This situation comes about because rights in our legal systems are subject to the greater
happiness of the society. The general state objective is welfare. This is true for all countries.
Hardly any purely liberal states exist, which would conform to Lockian or Nozickian
principles. Even those countries which appear to be liberal, like the US or France, can be
categorised as welfare capitalisms at best.

Thus, rights are required to be in consonance with the idea of general welfare, which is
protected by upholding a threshold level of morality in society. Despite recognising morality
to be subjective, it is felt that this critical level of morality must not be breached. The idea is
that as humans, we must distinguish ourselves from animals, and conform to some basic
types of behaviour. Conforming to this type of behaviour is considered to be necessary for the
survival of the society. Any act which breaches this threshold is considered to be wrong and
is sought to be restricted. Thus, certain acts, like lying, cheating, incest, etc. are prevented in
all societies. These are considered to be immoral acts. Rulers define this threshold, which is
in turn, is generally determined by the will of the people. The definition of public morality is

42
flexible. The legislature (by creating law) and the judiciary (by interpreting law) together
determine whether any act falls short of the threshold. In any particular case, the mindset of
the judges, their ideology (as a liberal or a conservative) would play a role in determining
where they place this threshold. Irrespective of ideology, however, some minimum threshold
would always be defined.

Thus, societies believe public morality to be a sufficient reason to curtail individual rights.
Public morality can take various forms. Maintaining peace and order, protecting foreign
relations, honouring international commitments, maintaining public health, maintaining
supplies of basic amenities etc. are all considered to be grounds for imposing permissible
restrictions on rights. In India, for example, freedom of speech can be restricted on many of
these grounds. Similarly, the right to freedom of trade can be restricted to the extent of
allowing state monopoly in certain industries, to protect utilitarian goals.

Dworkin says that if this is the understanding of rights subscribed to, then the state is not
taking rights seriously. This is an understanding of rights in the weak sense. Rights must be
understood in the strong sense.

The effect of establishing public morality is that the state makes legislations, and through
them curtails rights, by imposing the will of the majority. This majority might be large or
small. Thus, if the majority believes that certain kind of conduct is undesirable, then that
conduct is outlawed and the person engaging in such conduct is treated as a criminal. This
imposition of the will of the majority on everyone is justified by the state on the basis of the
idea of equality. The state argues, that each person has an equal say in determining the law
and the law is applicable on every individual irrespective of factors like gender, race, caste,
etc. Thus, if for example, a society consists of 95% heterosexuals and 5% homosexuals, then
any law prohibiting gay sex would be applicable to not just the 5% gay population, but also to
the 95% heterosexual crowd.

Dworkin, however, points out a fallacy in this equality justification. For example, in the
situation mentioned above, the question put to the people is – Should gay sex be legal? The
majority, believing homosexuality to be against public morality, votes for gay sex to be
banned. The minority votes for gay sex to be allowed. As a result, gay sex is made
punishable. It seems that there existed an equality in the voting process. However, this
apparent equality can be discarded by realising that the majority’s votes were counted twice,
43
while the minority’s votes were counted once. Each voter was exhibiting his preference. The
voters against gay sex exhibited both an internal preference (that they do not want to have
gay sex) and an external preference (that they do not want others to have gay sex either). The
voters for gay sex simply exhibited an internal preference (that they believe in allowing
individuals to have gay sex) but no external preference (that they want everyone to have gay
sex). Thus, in situations where the majority is allowed to impose an external preference on
the minority, a double counting takes place. This defeats the equality justification.

What, then, is wrong in this kind of voting? This method of voting is wrong because it treats
the minority as being less intelligent than the majority. Equality in such cases is only apparent
and masks the inherent inequalities in the system. This treatment is immoral. All individuals
must be treated as being equally intelligent. (Notice how this understanding of morality is the
same as the one used by Kramer and Simmonds.)

Rights Understood in the Strong Sense

Dworkin propounded this idea in the background of the movement for gay rights. His theory
can be used to justify gay rights, as well as many other controversial positions.

The general idea is that rights cannot be compromised in any situation whatsoever.
Individuals must not be restricted to doing only such things which are considered to be good
and in consonance with public morality. The right to do wrong things must also be justified.
Such an understanding would treat rights as trumps. They would act as trumps over the
multiplicity of grounds like maintenance of law and order, maintenance of public health etc.
which the state uses to restrict our rights. Dworkin clarifies that he is not advocating for
rights to do all kinds of things. Actions which harm others, for example, can be legitimately
banned. However, the grounds on which rights are restricted must be seriously lowered, so
that the threshold level of morality is set at a very low pedestal.

Thus, restrictions on rights are permissible even when we understand rights in the strong
sense. But there also exists one absolute right – a right which can never be curtailed – the
right to treatment as equals. The actions of legislators must show that no person is being
treated as an inferior, less intelligent human. This requires that rights not be subjected to the
general utilitarian calculation.

44
How can this be achieved in actual practice? Dworkin suggests a change in the language of
the question put to the people, while determining permissible conduct. For example, instead
of asking – Should gay sex be legal? – we must ask – Should every individual be free in
choosing their sexual partner? By asking such a question, the state makes everyone equally
vulnerable. In such a situation, every person would vote only for himself, and not for how he
wants others to behave. (Notice similarity to Rawls’ idea of the Original Position.)

Summary
Right Understood in the Weak Sense – Utilitarian Restrictions – Counting External
Preferences – Double Counting of Votes – Equal Treatment but Not Treatment as Equals –
Not Taking Rights Seriously – Absence of Equal Respect and Concern.

Right Understood in the Strong Sense – Rights as Trumps – Not Subject to Utilitarian
Restrictions – Counting Only Internal Preferences – Treatment as Equals – Rights Taken
Seriously – Right to Equal Respect and Concern – Anti-Utilitarian Rights.

Hart’s Criticism of Dworkin’s Theory

Dworkin’s approach takes away the state’s power to tell individuals what is right and what is
wrong. In the long run, can this lead to radical-liberalism, which can cause the state to
deteriorate into a state of anarchy? This common criticism is dealt with by Dworkin in the
following way.

No. The state would not degrade into a state of anarchy because of the manner in which rights
are given to people in this approach. It is important to note the difference between a moral
right and a legal right. Dworkin says every person has the moral right to be treated equally.
But the presence of this moral right does not automatically lead to the presence of any legal
rights. Dworkin does not envisage the presence of any legal rights where no interference is
taking place with the basic moral right. Only such freedoms are given the status of a legal
right, which are in jeopardy due to corrupting element of external preference. The legal right
arises only when the moral right is in jeopardy. If freedoms are being taken away without any
interference with the basic moral right, no claim to a legal right would arise (even if these
freedoms are being taken away on the basis of some utilitarian calculation). Therefore,
Dworkin does not advocate for any particular set of legal rights. Since excessive legal rights
would not be present, the state would not turn into radical-liberalism. Dworkin is not against

45
utilitarianism as a method of determining rights, but only the corrupting element of
utilitarianism.

This position leads to the development of the following criticisms of Dworkin’s theory.

1. Under his approach, no particular freedom is seen to possess any intrinsic value. No
general or residual right to liberty is recognised. No legal right is present unless that
right is in jeopardy. This is unrealistic. Society recognises some particular freedoms as
being intrinsically valuable, and thus worth being recognised as legal rights even
where they’re not in jeopardy.
2. External preferences may not always get imposed due to the corrupting factor of
utilitarianism. People don’t always feel the need to impose their preferences on others.
External preferences may get imposed due to general disinterest as well.
3. Even if there is a corrupting nature of external preferences, it may not always indicate
that one is being considered as less intelligent. It indicates that in a democracy
wherein all rights cannot be protected, we must prioritise. For example, in a vote
against homosexuality, the result may simply indicate that the people asking for the
right to gay sex are too few in number for that right to be accepted and not that this
minority is less intelligent.

WHY ARE RIGHTS IMPORTANT?

Three points of distinction between Dworkin’s and Nozick’s approach towards rights.

 What is the utilitarian defect?

 What is the moral right on the basis of which legal rights can be claimed?
 What legal rights must be recognised? Should a residual right be recognised?
Dworkin – Rights Must Recognise That We Are Similar
Defect of utilitarianism.

Rights are an insulation from prejudice. They provide a shield against the prejudice of other
persons who do not see life in the same manner. This conception of rights does not say any
particular right is valuable and must be protected. Defect of utilitarianism is that it allows
prejudices. State must recognise our similarity – all are capable of making intelligent choices.

These arguments are for legal rights.

46
The starting point here is that we have some moral right against the state. The argument for
any particular right, like right to property, would have intermediate arguments, but the final
argument would be based on the right to equality (Dworkin).

For example, the state might say that for persons to have the best life, they must not have the
right to property. This is the welfare argument. Dworkin would fall back upon the equality
argument. He says that people are equal in intelligence. We apply this intelligence to
determine various choices in life. Thus, the state must consider us as equally intelligent
beings. If the state does not do this, in any discussion on rights, then we need a legal right to
act as trumps over other considerations. This is the first anti-utilitarian approach. The moral
right to be treated equally does not lead to any residual moral right to liberty. Legal rights to
be introduced only when state does not treat us fairly. He does not ask for any particular legal
right, except the right to equality.

Nozick – Rights Must Recognise That We Are Different

Defect in utilitarianism.

Another way of looking at life is that utilitarianism allows a very fundamental moral fault.
Not just prejudices. It says that net happiness growth is a moral goal for society. But no single
entity feels this pleasure. Treating society like an individual is incorrect. In individual life,
some pleasures may be sacrificed to increase the long-term pleasure. When society does this,
however, some present pleasures of some individuals is sacrificed, to ensure greater pleasure
to other individuals. The entity changes.

Nozick says it is our moral right that our distinctiveness gets recognised by the state. this is
why rights are important. A set of legal rights is important to sustain this moral right. 5 legal
rights

 Right not to be killed or assaulted.

 Right to be free from all forms of coercion and limitation.
 Right to acquire property by creating, finding or by transfer.
 Right not to have my property taken or the use of it limited.
 Right to punish and exact compensation for the violation of my rights.

These arguments are for legal rights.

47
The starting point here is that we have some moral right against the state. thus, state in
making laws must protect the moral rights by ensuring some legal rights. The argument for
any particular right, like right to property, would have intermediate arguments, but the final
argument would be based on the distinctiveness premise (Nozick).

Nozick gives another anti-utilitarian approach. Pursuing the greatest happiness of society,
social justice, welfare, etc. is not a just moral goal. Since the society does not fell happiness.
Each person feels happiness individually. We must be recognised as distinct individuals. Each
person determines his own pursuit of happiness. The manifestation of this idea would be
recognition of certain legal rights which are almost absolute. These legal rights come directly
from the moral right to be treated distinctly over the state. in this approach, a definite set of
legal rights must always be there in the constitution. Irrespective of how the government is
behaving. There will always be a residual right to liberty. State may legitimately curtail in
some specific circumstances legal rights (maintenance of state, law and order, protection
from external aggression, etc.). but the rights not curtailed would always be our right. The
residual rights are also always a legal right.

Indian Constitution v. The American Constitution

Our constitution is based on Dworkin’s idea. Absolute right to equality. No right in
recognition of distinctiveness. America’s is based on Nozick’s. emphasis on individual’s
pursuit of happiness. Gun problem. The majority is suffering due to the right to carry
weapons. This right is an expression of individuality. The collective happiness, though
adversely affected cannot be a ground to curtail the individual happiness of letting people
make the choice for themselves. Therefore, US is legally a much more liberal society than
India. it is relatively easier for Indian Govt. to curtail individual rights.

HART’S ARGUMENT FOR NATURAL RIGHTS

Locke built a case for natural rights vested in individuals, existing in the state of nature, by
using the idea of God’s ownership of the life and liberty of a human. John Finnis provides
another conception of natural rights which justifies a staunchly conservative, catholic stance.
However, his theory has remained unclear. A third understanding of natural rights was given
by Hart. His theory is provided below.

48
When can the following circumstances come about. Relationships between not just state and
individual but between persons.

1. A has a right to stop B from smoking.

 It’s a deliberate surrender of freedom

 A gets temporary authority over B
 Only A can stop B and no one else

In cases of an agreement. This is deliberate surrender. Space and time specific. Also, person
specific. For example, stopping an employee from smoking at the workplace.

2. B has a right not to be stopped from A from smoking.

 It’s a deliberate surrender of freedom.

 A gets temporary authority over B.
 Only A can stop B but no one else.

Not an agreement. For example, a patient might tell the doctor, that he is struggling in
quitting, pleading him to stop him. B for some reason gives authority to another. This is not
place specific.

3. When A and B are the members of a group that cooperates and mutually benefits by
quitting smoking.

 All members have a right over all others.

 Mutual benefit makes it a moral right.
 Do we have an obligation to obey law?
 Utilitarianism and utilitarian rights.

Benefit must be to everyone, in contrast with earlier examples. Example – sports camp. This
is a justification for utilitarian rights in society. Seeing society as a mutually beneficial group.

4. Where there exists a special natural relationship.

 When A is the mother of B, for example.

49
Ina all these situations, right to stop is a special right. There exists, however, a residual
general right in B to smoke. The conflict here, is between the SR and the GR. The SR
prevails. But both arise from a natural right in everyone to be free. Exceptions may be
created. Here, these expressions come from agreement, etc. This natural right remains in the
state of nature. From here, we organise each other in a society and get subject to special
circumstances under laws. The starting point of the theory, however, is that we are free.
Wherever no special rights are present, people have a residuary right to be free.

50
 POSSESSION
The question of ownership of property becomes relevant in various situations. Some aspects
of possession linked with ownership are given below.

 Possession creates presumption of ownership.

 Possession, even if wrongful, creates a right. Dispossession can take place only
through recourse to procedure established by law.
 Possession creates ownership. In some circumstances, even where initial possession is
without ownership, possession over time may create ownership.
 Certain remedies are available only to possessors and not even to owners. An example
would be taking away some item, like jewellery, kept as collateral with a bank. Even
if the owner is the one taking this property away, he would be liable for theft.

As a result of this, and for various other reasons, it becomes relevant to understand the
concept of possession.

Historical Development of the Concept

Stage I: Corpus Possessionis + Animus Domini

Savigny: To establish possession, a person must establish two kinds of relations with a thing
– a physical (corpus possessionis) and a mental relationship (animus domini).

Corpus Possessionis is a relationship which allows the person to reproduce the thing at will. It
depicts effective control. Animus Domini is the intention of the person to hold the thing as
owner. Both these elements must be present to establish possession.

This definition suffered from certain problems. In cases of pledge, the pledger gives some
property to the pledgee. It is felt that the pledgee must be held to have possession. Under this
definition, however, the pledgee, though having effective control, does not intend to hold the
thing as owner. On the other hand, the pledger has the intention to hold that property as the
owner but has lost effective control. Thus, no person could be said to have possession of the
pledged property.

51
Stage II: Corpus Possessionis + Animus Possidendi
The mental element in the definition is modified. Animus possidendi is the intention to
exclude others from the property. In the pledge situation, the pledgee has corpus possessionis
and the intention to exclude others from the enjoyment of that property. Thus, he has both the
requisite elements according to this definition. The situation is similar in case of banks. Thus,
this definition solved the problems suffered by the previous definition.

However, this situation still did not solve certain problems. Like the case of possession of a
runaway slave. Or the case of say, a misplaced book. Here, the person still considers himself
as the owner of the property but cannot reproduce it at will, i.e., he has lost effective control.
Here, the requisite mental element is present, but effective control is lost. It is felt that the
owner must still be held to be in possession. But this definition does not accommodate this
position.

Stage III: (Corpus Possessionis + Animus Possidendi) + Animus

Possession must be divided into two parts based on time: Acquisition of Possession and
Continuation of Possession.

Acquisition of possession requires the two elements of corpus possessionis and animus
possidendi as provided in the second definition. But once acquisition of possession has taken
place, continuation of possession simply requires animus and no physical element.

Animus is described as an intelligent awareness. This intelligent awareness is the knowledge

that the property should be with you. Continuation of possession can be established even if
we simply have an intelligent awareness of the thing we possess. This is the threshold
requirement. This solves the problem of lost property.

However, there exist some loopholes in this definition as well. Imagine a situation in which a
small child has a bracelet. She is so young that she neither has a corpus possessionis nor
animus of any kind. Who would be said to have possession?

Stage IV: Actual and Constructive Possession

The idea of possession is further divided into two parts. Constructive possession and actual
possession. In the above example, the girl would be deemed to have actual possession and her

52
parents would be deemed to have constructive possession. In case of theft, say, both the girl
and her parents would have remedies in law.

This fourth definition of possession, too, does not deal with all problems. In a situation in
which a drug is smuggled into the baggage of a traveller without his knowledge, the person
neither has any control nor any animus. Similarly, an unconscious person would not have any
animus. In statutes like NDPS, COFEPOSA, etc. strict liability is imposed simply on physical
control over a thing without the presence of any animus.

No uniform definition of possession can account for all the problems.

Conclusion
There exists no theory on possession. Possession is a matter of policy. The legislature has
control over the definition of possession. It changes the definition from time to time and in
different situation according to requirements. In India, at present, for example, for some
substances (NDPS, COFEPOSA, etc.) possession is defined as having simple physical
presence.

Classification of Possession – Types of Possession

 Corporeal and Incorporeal

Corporeal possession is the possession of a tangible thing. Incorporeal possession is the
possession of intangible things, i.e., rights over tangible things.

 De Facto and De Jure

Actual possession and possession presumed by law.

 Actual and Constructive

Actual physical possession is distinguished from possession through some other person.
Constructive possession is further classified into three types.
o Exclusive for the Other
Principal-agent relationship, for example.
o Jointly for the Other
Partnerships, for example.
o Prior to the Other

53
 A parcel lying with an Amazon agent, for example. Property in the goods has
already passed.

 Adverse Possession
Uninterrupted and uncontested actual possession of a property (for statutorily specified
period) hostile to the rights and interests of the true owner creates ownership in the possessor.
Justified on two policies – No land should lie unused; A sleeping litigant has no right.

Usually, the limitation act eclipses a right. It does not extinguish it. The only exception to this
rule is the law of adverse possession. The limitation act provides the time period after which
adverse possession would lead to ownership of the property. This provision extinguishes the
right of the previous owner.

54
 OWNERSHIP
Definition of Ownership
Ownership is a right indefinite in user, unrestricted in disposition and unlimited in duration.
If, for example, the right to use a property is transferred for a specific purpose, the transferee
is a definite user. The owner is free to use the property in any manner whatsoever. Thus, he is
an indefinite user. Similarly, the owner is unrestricted in how he wants to dispose of the
property and is not limited in his ownership for a particular time period.

How One Becomes an Owner

 By capture
This is the most primitive way of acquiring property. Locke, for example, talks about how the
first person to capture some land, beginning cultivation, etc. becomes the owner of that land.
This till applies to property which can be acquired without infringing someone else’s right,
whether a person or the state. For example, generally, a fisherman capturing fish at sea is the
rightful owner. Other examples include mining minerals and ores at high seas, generating
solar power by capturing sunlight, etc.

 By creation
All materials which are created through some exertion, especially some intellectual
application, is property of that individual. The property could be tangible, intangible,
intellectual, etc. Intellectual property laws in particular, are an example of the protection
provided to property owned through creation.

The exception to this rule is a contract of employment. Here, the result of the exertion might
become the property of the employer and not the employee, who has actually created it. For
example, a journalist’s work in a media house and a teacher’s research in a school are
properties of the media house and the school respectively.

 By transfer
o Inter-vivos
Transfer between living persons.
o Testamentary
Transfer after the death of a person.

55
  By adverse possession
This is not a natural, traditional idea regarding ownership. This is a result of the policy of the
state. Justified on two policies – No land should lie unused; A sleeping litigant has no right.

What Does a Person Own?

Two school of thought.

A Thing – Corporeal Ownership

The individual owns the thing. This results in consequences like having rights, remedies, etc.
over than thing.

A Right Over a Thing – Incorporeal Ownership

When we say we own something, we talk about owning a bundle of rights associated with
that thing, rather than the thing itself. This approach of understanding ownership allows
transfer of some rights over the thing while allowing retention of the remaining rights.
Theoretically speaking, therefore, we do not own the thing, but a bundle of rights over the
thing.

If this is true, then what rights must remain in someone for him to be the real owner? The
answer is that all these rights being transferred do not accompany the right to reversion. If a
right comes to an end, where will the right revert. The person with whom the reversionary
right lies is the true owner. The core right of ownership is the reversionary right. If the
reversionary right is transferred to someone, then transfer of property would be said to have
taken place.

56
 PERSON
Historical Development of the Term
The term ‘person’ at first referred to the mask (the physical mask) worn by people portraying
different characters in old Graeco-Roman. Gradually, however, the term got attached to the
character itself, which was being portrayed. Finally, the term came to be associated with the
human beings who were portraying the character.

Theories of Personality

Purpose Theory
Only biological existence does not make an entity a person. Personality is a label attached to
entities for some legal purpose by the legal system. For example, for the purposes of taxation,
some entities may be termed as person.

Bracket Theory
There exists a bundle of rights and duties associated with various entities. What you obtain by
taking one bundle together is the person.

Fiction Theory
Person is not a biological term. It is a fiction – a creation of the law.

Hohfeldian Theory
In any transaction, a multitude of jural relationships emerge. To simplify this complex set of
jural relationships, law gives the term ‘person’ to various entities.

Concession Theory
The state is the ultimate existence. No entity has any claim over the state to be treated as a
person. The state gives a concession by recognising various entities as persons. Thus, the
source of legal power to recognise an entity as a person lies in the state. This is a communist
conception of personality.

Modern Definitions
Original Definition – An entity capable of having rights and duties is a person.

57
To ascertain who may be a ‘person’, an inquiry must be made to find out who may be given
rights and duties. This leaves scope for some ambiguity. Generally, only natural persons are
considered capable of having rights and duties. Further, not even all natural persons are
considered capable – lunatics, etc. may be excluded. Thus, this definition provides a
restrictive scope to the term ‘person’. Many entities which may gradually be considered to
have rights and duties would get excluded. Thus, this understanding has been rejected.

Present Definition – Any entity to which rights and duties are attached is a person.

Any entity to which the law attaches rights and duties is a person. This is a diametrically
opposite view of looking at the definition.

Applying the Definition to Some Particular Entities

By examining an entity, one can find whether it is accorded with rights and duties by the law,
and consequently, whether it is a person (within the Indian legal system).

Dead Humans
Ashray Adhikar Abhiyan v. Union of India: The SC held that even a dead homeless person
has some rights, like the right to a decent burial. S.297 of the IPC provides that causing
indignity to a human corpse is an offence. The idea is that without prior consent of the
individual (for example, where a person wishes that his body be donated for scientific
research after death), no mutilation is permissible. This provision recognises the right to
dignity of a dead person. In the Indian legal system, therefore, a dead human has a limited
personality.

Lower Animals
Prevention of Cruelty to Animals Act, 1960 regulates cruelty to animals. Cruelty is classified
into unnecessary and necessary cruelty.

Animals cannot be subjected to cruelty for entertainment or superstitious purposes. First time
offenders are fined Rs25. Repeat offenders (within a specified time period) may be fined
Rs.100 or alternatively, be imprisoned for 1 month.

Necessary cruelty is permissible. Destroying animals for consumption or asking them to be

destroyed for consumption is permissible. This exhibits a status at par with property.

58
Additionally, destruction for religious purpose is also allowed. Other acts like gassing street
dogs, etc. is also allowed.

An animal cannot sue any person within the Indian legal system.

In theory, the statute does attach some minimal rights to animals. But these are also very
weak. Thus, it is difficult to say that these lower animals are persons in the Indian legal
system.

Slaves
Slaves did not have any rights or duties. They were property. In many places, in fact,
destruction of the slave was also not an offence. Thus, they were not persons.

Unborn Child
Some laws in India recognise unborn children as legal persons.

For instance, the ToP Act under S.13 allows transfer of property to an unborn child. A child in
the womb is considered capable of receiving property.

Similarly, in Hindu property law, where co-parcening is taking place, property is divided
between co-parcenors and other members of the joint Hindu family. If partition takes place
while a child is in the womb, it is to be assumed that the child would be born and property
must be divided accordingly. If this is not done, the child, when born, can ask for the partition
to be set aside completely.

Pre-Natal and Pre-Conception Diagnostic Techniques Act. Pre-Natal diagnostic prevention

deals with the problem of sex determination and foeticide. Later, sperm segregation began to
be used. Pre-Conception diagnostic, therefore, was also banned. Thus, terminating children in
this manner is an offence. It is believed that the child has a right to live, irrespective of the
gender of the child. In fact, a child has a right to live even before conception. Thus, rights are
accorded to the unborn child.

An exception to this general rule – Muslim personal law does not allow gifts to unborn
children.

An overall appreciation thus, shows that an unborn child is accorded substantial amounts of
rights to be considered a person.
59
Guru Granth Sahib
According to the Sikh religion, the last Guru declared that there would be no human Guru
after him, and that the Holy Book must instead be treated as the perpetual Guru. Within the
religion, therefore, it is genuinely treated as a living person.

The law recognises this belief (Shiromani Gurudwara Prabandhak Committee v. Som Nath
Das). The Gurudwara is not the juristic person, but the Holy Book is. Not all Holy Books,
though. Only such GGSs are considered to be juristic persons which have been installed in a
Gurudwara in accordance with the procedure set out for the purpose.

What is the implication? A gift of property to the Gurudwara (GGS technically) would be a
gift to a juristic person. Once made, this property cannot simply be taken back.

Hindu Idol
Sri Adi Visweswara v. State of UP; Ram Janakiji Deities v. State of Bihar.

Once an Idol is properly ritualised into a temple (once Pran Prathistha is done), that Idol
becomes a juristic person and can hold property. The person is said to be a spiritual presence,
which is simply enclosed in the material idol. Thus, a Hindu Idol can change bodies. The
Idol, if broken, simply affects the material part. It does not die. It cannot be abducted either.
Hindu Idols are taxable entities. Hindu temples, however, are not juristic persons. The Shivet
manages the temple.

Order 32 CPC rw S.6 of the Limitation Act considers a Hindu Idol as being under a disability
perpetually, since it is considered to be a minor perpetually, and consequently cannot be
barred by any limitation period for any suit.

In Muslim Law, it would either be the Wakhf Board or the Mutawalli who would file cases
and all. But the mosque has no juristic personality.

Hindu Undivided Party

HUF is considered to be a person and is a taxable entity.

Rivers
The Paris Agreement envisages cooperation among countries to reduce the amount of carbon
emissions and cap temperature rise.
60
Md. Salim v. State of Uttarakhand: The Uttarakhand HC (taking the Paris Agreement into
consideration) said Ganga and Yamuna must be considered to be living entities. The SC has
stayed this judgement. As of now, rivers are not juristic persons.

Pure Business Entities (Companies, Partnerships and LLPs)

How does a company come into existence?

Not simply by agreement, but by incorporation. A partnership firm may exist without
registration, only on the basis of an agreement.

What are the requirements for incorporation?

Many procedural formalities exist. As far as requisite documents are concerned, a

Memorandum of Association (containing clauses which cannot be altered easily – name,
object, registered office, share capital, etc. – this serves as constructive notice to the public)
and an Article of Association (how the day to day business shall be carried out – internal
matters) are mandatory.

What types of companies exist?

Public and Private.

What is the limit on membership for companies?

Membership – 2-50 (private) and 7-unlimited (public). Partnership firm – 2-10 (nonbanking)
and 2-20 (banking). Company law provides these upper limits for partnerships as well. If the
upper limit is crossed, the partnership is an illegal association, unless registered as a
company.

Doctrine of ultra vires – doctrine of indoor management – doctrine of lifting of corporate veil
(Lucknow Development Authority v. MK Gupta) Latter applied only in serious cases of
fraud, tax evasion, abuse of power, etc. The corporate veil is not lifted routinely for civil or
criminal liability.

What is the nature of a company?

A company is a separate legal entity. Shareholders are not personally liable for the company.
The acts and properties of companies are completely separate from the acts and properties of
61
the shareholders. It can sue and be sued separately. However, a partnership firm is simply a
group of the partners. It is not a separate legal entity. Partners are personally liable to the
partnership firm. The acts and properties of the partnership are the acts and properties of the
partners. A person can sue the partnership firm to in effect sue the partners. The essence of a
partnership firm is mutual agency. Sharing of profits and losses is not the real test. A
company is a separate legal entity. It is separate and distinct from all members. There is no
mutual agency. A shareholder’s liability is limited to shareholding value. In partnership,
liabilities are personal.

Thus, conceptually, we can see that a company is much more a person than a partnership
firm.

In law, too a company is a person but not a citizen. S.3(42) of GCA: Person includes
company. S.2(f) Citizenship Act: A citizen does not include a company.

S.11 IPC: Person includes company. Similarly, S.38 NDPS; S.21 Transplantation of Human
Organs Act; S.66: Food and Safety Standard Act: Company is liable. Thus, a company is a
subject to general and special criminal laws as well.

However, this raises the following questions.

 How do we determine mens rea for a company?

 How doe we punish a company where the offence merits a mandatory jail term?

Lex non cogito as impossibilia: The law does not contemplate something that is impossible. It
can be assumed that the legislators intend to exclude any impossible proposition. Keeping
this maxim in mind, the SC in 2003 held that a company cannot be prosecuted for any
offence which involves a question of mens rea or a mandatory jail term (Assistant
Commissioner Assessment – II, Bangalore v. Veliappa Textiles). This position changed in
2005. Companies can now be prosecuted even for offences involving a question of mens rea
and where a mandatory jail is required. In such cases, the jail term is translated into a fine.
(Standard Chartered Bank v. Directorate of Enforcement).

Companies can have fundamental rights.

DCM v. Union of India.

62
Company has Corporate Social Responsibility

S.135 rw Schedule VII, Companies Act. This provision is similar to Article 51A. Thus, a
company is not considered simply as a profit-making machine, but an entity having certain
duties as well.

In the final appreciation, a company is not only a legal person, it has a near complete
personality within the Indian legal system, akin to any natural person. Partnership firms and
LLPs, on the other hand, have very limited personality, with the latter having a greater
character of personality than the former.

63