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The Theories of Justice and its Correlation with Law


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1 Hidayatullah National Law University, Raipur (C.G), India
     

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Administration of justice is one of the most essential and primary functions of a State. Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethics. The terms most frequently used by lawyers in the praise or condemnation of law or its administration are the words 'just' and 'unjust' and very often they write as if the ideas of justice and morality were coextensive. To clear the confusion, there are various theories of Justice put forth by different jurists such as Aristotle, Dworkin, Rawls etc. This Article firstly deals with the pros and cons of the theories and concept of justice and also explains its relation with law. It is analytical and descriptive in nature and doctrinal in approach.

Keywords

Justice, State, Administration of Justice, Law, Theory
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  • H.L.A. HART, ‘The Concept of Law’, Oxford, The Clarendon Press, (1961), pp. 155-159.

  • JOHN RAWLS, ‘A Theory of Justice’, Universal Law Publishing Co. Pvt. Ltd., (2000), pp. 3-7.

  • KONOW, JAMES, ‘Which Is the Fairest One of All? A Positive Analysis of Justice Theories’, Journal of Economic Literature 41, Vol. 4, p. 1188, (2003).

  • . V.D. MAHAJAN, ‘Jurisprudence & Legal Theory’, Eastern Book Company, Lucknow, 5th Ed., (2010), pp. 115-118.

  • http://en.wikipedia.org/wiki/Justice, accessed on 4th September, 2011 at 3:45 P.M.

  • H.L.A. HART, ‘The Concept of Law’, Oxford University Press, 2nd Ed., (2010), pp. 157-167.

  • http://en.wikipedia.org/wiki/Justice, accessed on 4th September, 2011 at 3:45 P.M.

  • http://lilt.ilstu.edu/pefranc/3-ts%20of%20justice.htm, accessed on 7th September, 2011 at 6:34 P.M.

  • In Political Liberalism, “a fully adequate scheme of equal basic liberties” replaces “the most extensive total system” of A Theory of Justice (see p. 291)

  • Rawls does not espouse egalitarianism, rather qualified it.

  • See D. Lyons, ‘The Forms and Limits of Utilitarianism’ (1965) D. Miller, pp.30-40.

  • On the relationship between rights and autonomy, See D RICHARDS (1981) 92 Ethics 3.

  • JOHN RAWLS, ‘A Theory of Justice’, Universal Law Publishing Co. Pvt. Ltd., (2000), pp. 11-17.

  • Published in 1974, it is said to be the “locus classicus of contemporary libertarian argument on behalf of a minimal state” [B. Fried (1995) 24 Philosophy and Public Affairs 226].

  • Ante, 148.

  • Post, 661.

  • Op. Cit., n. 3, p. ix.

  • Ibid, pp. 149-182.

  • It seems obvious to 19th century critiques of abstract individualism and most 20th century social science. Its principle method is “state of nature” theory, drawing substantive political conclusions from how abstractly conceived “rational” individuals, removed from any specific social context, would behave in imagined situations. See S. LUKES, ‘State of Nature’ in Essays in Social Theory’, (1977), Chap. 11.

  • Op. Cit., n. 3, p. 51. On moral side constraints see Ibid, pp. 28-35.

  • Ibid, p. 119.

  • Ibid, p. 153.

  • “Whether a distribution is just depends upon how it came about” (Ibid)

  • He is particularly critical of B. WILLIAMS’ well known article ‘The Idea of Equality’, Ibid in (eds.) P. LASLETT and W.G. RUNCIMAN, ‘Philosophy, Politics and Society’, (1962), p. 110.

  • Op. Cit., n. 3, p. 317.

  • Ibid, p. 333.

  • Ibid, pp. 333-334.

  • And has provoked a wide range of critical comment, e.g. J. PAUL, ‘Reading Nozick’ (1981), J. WOLFF, ‘Robert Nozick’ (1991), T. CAMPBELL, ‘Justice’ (2nd ed., 2001), Chap. 3.

  • Per C. FRIED, (1983) 1 (1) Soc. Phil. and Policy 45, 49.

  • Rawls’s method (the “original position” and “veil of ignorance”), ante, 525, is different, but the principles which emerge may be subject to similar criticisms.

  • Ante, 112. See further K.M. MCLURE, ‘Judging Rights’ (1996).

  • Ante, 118. A modern parallel is A. GEWIRTH, ‘Reason and Morality’ (1977).

  • Which he called “nonsense upon stilts”. A contemporary critic is M.A. GLENDON, ‘Rights Talk’, (1991).

  • T.D. CAMPBELL, ‘The Left and Rights’, (1983), pp. 92-102.

  • See H.L.A. HART, in (ed.) A. Ryan, ‘The Idea of Freedom’ (1979).

  • See R. DWORKIN, ‘Taking Rights Seriously’ (1978).

  • R. WASSERSTROM, (1964) 61 J Philosophy 628, 629.

  • BUCHANAN, ‘What’s So Special About Rights?’, (1984) 2 (1) Social Policy and Philosophy 61.

  • Op. Cit., n. 25, p. ix.

  • Ibid, p. 130.

  • Ibid, p. 199.

  • Op. Cit., n. 25, p. 232.

  • This is discussed post, 545.

  • Op. Cit., n. 25, p. 235.

  • J. WALDRON, ‘Theories of Rights’, (1984), p. 17.

  • Op. Cit., n. 25, p. 234.

  • Ibid, p.275.

  • D. LYONS, ‘Utility and Rights” in Nomos (1982), vol. xxiv, p. 139.

  • R. HARE, ‘Moral Thinking’, (1981).

  • M.D.A. FREEMAN, ‘Lloyd’s Introduction to Jurisprudence’, London Sweet & Maxwell Ltd., 7th ed., (2001), pp. 534-547.

  • http://plato.stanford.edu/entries/aquinas-moral-political/#Jus, accessed on 17th September, 2011 at 3:17 P.M.

  • http://www.nd.edu/~afreddos/courses/453/justice.htm, accessed on 17th September, 2011 at 4:40 P.M.

  • http://blog.mises.org/2917/cicero-on-justice-law-and-liberty/, accessed on 16th September, 2011 at 5:23 P.M.

  • http://www.aristotelophile.com/Books/Articles/pdf_6.pdf, accessed on 15th September, 2011 at 6:34 P.M


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  • The Theories of Justice and its Correlation with Law

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Authors

Apoorva Neral
Hidayatullah National Law University, Raipur (C.G), India

Abstract


Administration of justice is one of the most essential and primary functions of a State. Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness, or equity, along with the punishment of the breach of said ethics. The terms most frequently used by lawyers in the praise or condemnation of law or its administration are the words 'just' and 'unjust' and very often they write as if the ideas of justice and morality were coextensive. To clear the confusion, there are various theories of Justice put forth by different jurists such as Aristotle, Dworkin, Rawls etc. This Article firstly deals with the pros and cons of the theories and concept of justice and also explains its relation with law. It is analytical and descriptive in nature and doctrinal in approach.

Keywords


Justice, State, Administration of Justice, Law, Theory

References