Lesson 5 Justice – Procedural and Substantive Important Notes

 Lesson 5 Justice – Procedural and Substantive

 

The concept of justice has been in the central role in political theory and behavior since ancient times, but it has undergone a fundamental change by the modern era. The relation of justice is associated with religion, morality, freedom, equality, rights, law, politics and economics etc. Generally, 'Justice' establishes harmony between individuals and in the principles of equality, freedom and co-operation.

 

Meaning and Concept of Justice

Defining justice is not easy like other concepts of politics theory because different philosophies of justice have been presented by different philosophers in different periods and social situations. Apart from this, the concept of justice has also changed with the change of time and circumstances.

Justice is a flexible concept that can be adapted to any notion of public welfare. In a general sense, justice means duty-devotion or virtue. Justice is an essential part of any progressive civilization. As a dynamic civilization, the rights of the members of society have to be respected, the virtues have to be rewarded and the needs of the members have to be fulfilled. When society fails in the context of such actions, then critical situations arise.

Justice is an essential component for any civilized society, because if there is no justice system, then there will be a lot of chaos, insecurity in the state and the conditions of its ‘Might is Right’. If we do not count justice as a virtue, then only two principles of justice remain, both of which are inherently distributional. These principles in justice are based on the distribution of the best elements of life.

The elements that are given priority by humans in the modern world are: Equality of income, security, respect and opportunity. According to the concept of justice, all the above elements focus on a single point, i.e. justice.

The principle of justice is concerned with the allocation of property, honor and opportunity in this world, not from the other worldly. This theory discusses the rules of this allocation, the rationality of various approaches related to it and its relative merits and demerits. Therefore, different ideologies are included in it.

The concept of justice is a difficult task to understand, as it is a complex concept. The meaning of justice is not limited only to law and legal processes, but in the modern era, the notion of justice has become very widespread and its representation has started to be expressed in various forms. Where the traditional approach to justice was concerned with the character of the person, the modern approach is concerned with social justice.

 

Development of the Concept of Justice

We have discussed above that defining justice is a difficult task. Despite this, prominent political thinkers and philosophers in various periods have continuously tried to give a definite definition to the word justice. Greek philosophers have considered the concept of justice to be related to social order.

Plato's Theory of Justice

The principle of justice has an important place in Plato's philosophy. The main focus of Plato's book 'The Republic' is the search for justice and to determine its location. The subtitle of Plato's work is 'Concerning Justice'. This shows how much importance Plato places on the principle of justice in his philosophy.

According to Plato, justice is a part of the proper state of the human soul and the nature of human nature. In the context of Plato's personal justice, it is believed that there are three main elements of the human soul - wisdom, courage and temperance. The harmony between the three qualities of a person's soul is justice.

Thus, we can say that Plato's theory of justice is related to morality rather than legal principles. According to Plato, justice means that human beings should follow all their duties with honesty, which is necessary for the purposes of society. According to the merit of individuals, the duties and religions that society and the state prescribe for them, it is justice to follow them, justice is self-righteousness.

Aristotle's Principle of Justice

Aristotle divides justice into two parts: first is general justice and second is particular justice.

A. General Justice: According to Aristotle, general justice refers to social morality. Aristotle has used the term Righteousness for general justice. By general justice, he refers to all acts of goodness done to the neighbor. Aristotle considers all acts of goodness, all virtues as general justice.

B. Particular Justice: Particular justice motivates man to behave fairly and equitably with other human beings. He takes this justice in the sense of proportional equality. This means that the person who should get what they want comes in this category. He has again divided the Particular justice into two parts.

1. Rectificatory Justice- The main objective of Rectificatory justice is to regulate and regulate the reciprocal relations of citizens. It corrects the defects arising in the interpersonal relations of various members of the state. Rectificatory justice is also of two types:

· Voluntary - It does one person to another by various treaties and agreements. The court corrects these violations.

· Involuntary- When a citizen tries to harm or cause harm to another, the state hears the victim and punishes the guilty. Aristotle's Rectificatory justice re-establishes the harmony of the state, which deteriorates due to the wrong conduct of citizens.

2. Distributive justice- The distribution of the honor and wealth that gives every citizen his due place in the political community. This distribution is related to the distribution of posts, honors and awards to the citizens of the state.

Apart from this, Aristotle also indicated the existence of a universal law or natural law, which is beyond the law of any country or any era and its relation to the entire human race. This concept developed under the jurisprudence of Rome through the Stoic philosophy of ancient Greece. Subsequently in the medieval period, the Catholic Church accepted God as the source of natural law.

Justice in the Modern Era

 

In the modern era, David Hume (1711–1776) strongly criticized the principle of natural rights and tried to replace them with the theory of utilitarianism. Then Jeremy Bentham (1748– 1832), the pioneer of utilitarianism, expanded David Hume's ideological tradition by declaring that the principle of 'greatest happiness of the greatest number' is the principle of justice and injustice, fair and unfair is the criterion. John Stuart Mill (1806–1873), considering justice to be a major component of social utility, argued that, since human beings aspire to protect themselves, they accept moral rules that others may experience the same protection.

Dimensions of Justice

Legal Justice

Legal justice is concerned with the principles and procedures laid down by the law of a state. Such a system is called justice. In other words, legal justice relates to earlier decisions made or passed by laws, customs and human frameworks. Two facts are important in the legal context of justice: First, the creation of fair law and second, the availability of justice, according to law. Fair lawmaking means that laws made by the Legislature should be fair and logical. Let the law be equal and fair for all individuals.

This difference of fares is justifiable. Therefore, which law is fair or which law is not justified, it depends on the beliefs and moral outlook of a particular community. In other words, if a law is acceptable in one society, the law can also be rejected in the context of the social background of another society.

Another important aspect of legal justice is the availability of justice according to law. This idea is based on the principle of 'rule of law'. In society, it is only justice to treat individuals as equal before law and to use them lawfully.

Political Justice

Political justice means every person getting a stake in the state without any discrimination. In this context, the presence of adult suffrage, elected government, and civil rights are among the prerequisites for the establishment of political justice. The political dimension of justice relates to the actual policies through which political processes provide the ideals of justice.

Social Justice

Social justice refers to a concept that seeks to prevent discrimination on the basis of birth, caste, religion, gender so that the national resources and wealth can be distributed equally. All courts are inclined to change their judicial approach from time to time to suit public needs. Our Supreme Court has taken a very conservative view in property disputes.

Economic Justice

Economic justice means the end of economic exploitation, the proper distribution of material resources of the country and the use of it in the interests of more and more people. Liberal ideology emphasizes on the political and social aspects of justice, the same Marxists and socialists believe that economic justice cannot be imagined without abolishing the basis of rich and poor in society and class division of society.

 

Procedural Justice and Substantive Justice

What should be the nature of justice in social life? In this context, differences are found in the proponents of procedural justice and substantive justice under contemporary thinking. Procedural justice is basically formal or legal justice. Contemporary liberal thinkers believe in this method of justice.

Necessary adjustments should be made in its process to achieve this goal. Thus, procedural justice means formal or legal justice, and substantial justice means socio-economic justice. In procedural justice, where the emphasis is on competence, not on requirement, the same substantive justice emphasizes equality of opportunity while trying to meet the basic economic needs of the individual.

Among the thinkers of procedural justice are Herbert Spencer (1820–1903), F.A. Hayek (1899–1992), Milton Friedman (1912–2006), and Robert Nozick (1938–2002). Besides, John Rawls (1921–2002) presented a detailed theory in the context of justice by combining procedural justice with the theory of social justice.

Procedural justice theory opposes any form of discrimination between human beings in society on the basis of caste, religion, colour, gender, region, language and culture etc. This principle accepts the equal dignity and equal importance of all human beings in society. From this point of view, it seems to be a progressive idea, but considering this important market economy and capitalist economy, it believes that in by making equal rules for all, all members of society can adjust their mutual relations in a lawful manner.

Therefore, the government should take responsibility only for those functions which the market economy does not handle. The government's job is not to control the market economy, but it should not have anything to do with public welfare, social security and market regulation.

Robert Nozick in his book 'Anarchy, State and Utopia' (1974) explains his theory of justice. Nozick considers property rights to be the foremost human rights, arguing that the main function of the state is to protect property. According to him, the state does not have the right to acquire and redistribute the property of its citizens because they were originally its servants. Any property in society can be acquired only by 'production' and 'voluntary transfer'.

Critics of procedural justice are of the view that the biggest mistake of this judicial system is that they have presented the concept of justice in the context of individualism, not in terms of human social beings. The position of different individuals in society is abnormal. Therefore, in an asymmetric society, the procedural form of justice proves inconsistent.

Unlike procedural justice, the idea of substantial justice or social justice is closely associated with Marxism and Socialism. He imagines a communist society in which the entire society has control over the means of production. Therefore, they support equal conditions for all, rather than equality of opportunity. They believe that open competition in economic life leads to such inequalities that the poor class is forced to act on the conditions set by the rich class. Even in political, social and cultural life, the poor have to face inferiority status.

Global Justice

From the beginning of the modern era to the entire period of the 21st century, political thinkers who were interested in the concept of justice mainly considered only national issues and problems within the nation. That is, how the state should treat its citizens and what and how the citizens should interact. Justice among individuals between mutual sovereign states or across borders was a secondary subject, which he had left to theorists of international relations.

Also, will global politics and economic institutions like the United Nations, World Bank, International Monetary Fund, World Trade Organization, International Non-Governmental Organization, Multinational Corporations and International Courts be the best in achieving the ideal of global justice. Till now issues like freedom, equality, justice and rights were within the jurisdiction of nation-states within a certain land boundary. But the notion of globalization presents an open challenge to these traditional assumptions.

How possible is the project of global justice internationally? This approach mainly consists of five approaches: Such as Nationalism, Realism, Particularism, Cosmopolitanism and the Social of States Tradition.

First: In nationalism, this feeling has been contained since the beginning, what would be the difference in moral duties inside and outside the nation, for example, only the residents of a particular state get the welfare benefits of that state, similarly helping the unhappy citizens of the state is the moral duty of the state. But the issue of distributive justice is only in the context of the residents within the country.

Second: Realists like Morgenthau, Kenneth waltz are of the opinion that there is no such notion as global justice. The states are the main actor in the present age, who always protects his interests. There is no obligation to help the poor, unless doing so helps to further a state’s strategic aims.

Third: According to the Particularism, any kind of moral standards arise from mixed traditions. Because we all know that every society has its own norms and the residents living inside it are obliged to it. Communitarians believe that the slackening of state boundaries increases the pressure on unemployment, education, health, transport, housing. As a result, reactions such as separatism, fundamentalism and blocking of public welfare are becoming serious problems.

Forth: According to the Cosmopolitanism, morality is a universal truth. All people come under the concept of comprehensive justice on the basis of being a human being, not only because they are mutually related.

Fifth: In the Social of States Tradition, states go as a distinct individual entity who mutually agrees on their common interests and moral rules. Rawls, in his work ‘The Law of Peoples’ (1999) extended the notion of global justice to his first book, A Theory of Justice. Under this, he said that such an arrangement will be chosen by the representatives of different countries, in which no one will know who they are representing. In other words, decisions will be made on the basis of ignorance.

Rawls believes that all individuals of world fraternity join the notion of justice by being human beings with each other, not by having the same race, religion or class. The main goal of Rawls's justice was to formulate a principle that could equally apply to the decent and non-decent (non-liberal and non-western). According to Rawls, liberals should respect people who may not give full political equality to their citizens, but must take their advice on certain policies and guarantee them rights like freedom, property and life. It is necessary to protect human rights by decent societies.

There are considerable misconceptions among people in this context whether global justice is a boon or a bane. Amartya Sen is of the opinion that one must think about its need while paying attention to its good and evils. In place of fair justice and more fair distribution of opportunities under global justice, a revised global system should be attempted. Amartya Sen discusses global redistribution justice by changing the contemporary ideology of globalization.

The Human Development Report (1999) of the UNDP presents ideas in the context of achieving global justice. For example, there should be a global code of conduct for international corporations so that the laws related to environment and labor can be followed. New laws should be introduced for the World Trade Organization, including antimonopoly power so that they prevent multinational corporations from exercising their control over industries. Global central banks help poor countries in lending and regulate the financial market. Many NGOs are trying to improve the global economy, but this can only be possible if these institutions leave the dictatorial attitude and work at the democratic level.

Thus, it can be said that in the process of globalization, justice has been pushed out of the boundaries of nation-states to the boundaries of the international arena. The way in which the nation-states provide justice to their citizens, they should be encouraged, it is easy to be happy but the question of how to achieve global justice is very difficult. The main reason for this may also be that global justice requires social, economic and political reforms.

Like civil rights, their major issues are also global, such as human rights abuse, environmental degradation and AIDS etc. In fact, global justice is our common responsibility. In such a situation, if the nation-state renounces its sovereignty, there will surely be a possibility of allocation of goods.

On the basis of the above discussion, we can say that there has been a lack of an acceptable definition of uniformity and universality of justice. Justice has been defined in different ways in different social systems in different time periods. In this chapter, we have understood the various dimensions of justice. Simultaneously we read about John Rawls's theory of justice. Then we understood the critical views of various scholars on Rawls's theory of justice. We have also learned about global justice in this chapter that in this era of globalization, the concept of justice has been found to expand internationally by widening the boundary of the nation-state, in which the process of globalization is playing an important role.

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