Introduction

In political theory, a great debate revolves around the normative concepts of equality, fairness, justice, common good, general welfare, etc. These are called normative concepts because they generally prescribe ethical or moral standards. If these normative concepts have any meaning as organizing principles of social and political life, then we must understand what they are and how they influence social and political organization, distribution of material resources in the society and policy of the public authority. Justice is derived from the Latin word, jus (also written as ius) or justus meaning law or rights or justitia/justus meaning justness or reasonableness. Justness or reasonableness can be generally understood in terms of either administering public policy or administering law. For example, public policy, which is related to distribution of public employment, can invite principle of just distribution. Secondly, justness or reasonableness can also apply in administering prevalent laws. As such, justice can be treated as a principle or a mechanism or a process that is concerned with fair or just administration of either the prevalent laws or redistribution of societal resources. In this way, justice is related to two different aspects. First, it is concerned with administration of the prevalent laws based on principles of legal equality. Principle of legal equality includes equality before the law, equal protection of law, natural justice, due process or procedure established by law, etc. Second, justice is concerned with the distribution or redistribution of resources such as public employment and offices, economic and other material resources and other opportunities. While the first involves some sort of legal and procedural aspect, the second implies moral and ethical position.

Two important concepts that are linked with the concept of justice are, legal correctness and ethical or moral correctness. Justice, for example, may evoke two opposite reactions: (i) justice means legally correct conduct or public policy; (ii) justice means morally or ethically correct conduct or public policy. In other words, one may argue that justice means what is just according to law and contrarily somebody else may argue that justice means law must be according to what is just. The first notion requires impartiality in conduct while dealing with people in terms of law, legislation and public policy. It also requires that procedurally correct actions should be ensured while executing a law. For example, if a public policy requires that all who are below poverty line would be given reservation in employment in government jobs, it would not be just if those who satisfy this criteria are excluded and those who are above poverty line get the job. This would be possible if impartiality and procedural correctness is not maintained in administering the policy or the act or the law. This is within the realm of impartiality and correctness of conduct. On the other hand, the very fact that only people below poverty line are provided with reservation means there is already an ethical or moral criterion that has gone into determining the justness of this category. Someone may say, why only people below poverty line, why not those who, though above poverty line, are socially and historically suppressed or excluded. The criterion that goes into determining the very scope of those who should be given reservation, for example, falls in the realm of justness. This is based on ethical or moral criterion, which decides how law should be.

Following from this, justice can be described in two ways: procedural justice and substantive justice. Procedural justice is justice as per procedure laid down and this involves impartiality and fair play in conduct or administration of laws and public policy. Substantive justice is justice as per its outcomes and this involves ethical and moral criterion of deciding what is just. Procedural justice ‘relates to how the rules are made and applied’ and substantive justice means ‘whether rules are just or unjust’.¹

In the first case, we are concerned with the procedure of making and application of the law, in the second the very content of law is judged from the standpoint of being just or unjust.

The term ‘equity’ normally describes procedural fairness or correct actions or impartiality in treatments. This is related to fairness in the process of administration or execution of a public policy or law. Equity is justice according to law, though influenced by principle of fair play. Justice, on the other hand, requires a substantive, and morally and ethically correct principle for treatment. Reasonableness, fairness and moral correctness should decide the content of law, not vice versa. Law should not determine what is morally or ethically good or bad. Some may argue that what is legal is not always moral or ethical and vice versa. They may cite an example, to prove that what is legal or permitted by the sanction of the State may not be moral also. For example, drinking or prostitution may be legally permitted and could be a source of revenue for the State, but arguably that does not mean they are also morally or ethically correct. On the other hand, some may also argue that law reflects crystallized and consensus-based or agreed upon principle of what is common good or general welfare and there is no need to apply external criteria of judging its justness or reasonableness. Notwithstanding debates on these aspects, it is generally agreed that we should differentiate between procedural and substantive justice. However, we should note that procedural justice is generally argued within the legal and negative liberal perspective, while forceful argument for substantive justice is put forward within the positive liberal, welfare and social democratic perspectives.

Procedural justice emerges when established legal procedure is followed in treating somebody. In this sense, justice becomes a procedural matter and justice appears to have emerged if the application of just procedure is done. For example, justice will suffer if there is denial of pretrial release or bail in cases where substantial risk is not there of absconding; absence of fair trial, which means decisions have been influenced by external considerations; denial of natural justice, which requires that everyone should get a chance to represent in the court of law or denial of legal aid to the needy. The Indian Constitution, under Article 21, provides that, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Procedure established by law ‘has been judicially construed as meaning a procedure which is reasonable, fair and just.’² It excludes any arbitrary action on the part of the authority to deprive some one of his/her life and liberty. In the US, due process of law becomes the basis for procedural justice, which requires the process to be reasonable and fair.

Justice has been used in universal or absolute as well relative or contextual meanings. In universal or absolute meaning, justice is treated as virtue or righteousness of which Moses spoke on Mount Sinai as the Ten Commandments, of which Jesus spoke in the Sermon on the Mount, of which Muhammad preached in the Koran, of which Krishna spoke in the Gita, of which Ashoka spoke as Dhamma or Plato meant in his The Republic by justice. Justice is treated as immutable, infallible, universal virtue or truth that must be realized and followed. In a relative sense, justice is treated in terms of social requirements and organizing principle. Justice must be as per social needs. For example, the concept of justice as approved by liberal perspective and that too by the utilitarian school or egalitarian—welfare perspective or libertarian perspective or Marxian or anarchist perspectives will all be different. However, by relative, we do not mean that justice in relative sense is less a normative value. In fact, in all perspectives justice remains a normative concept in the sense that it is a desirable value. Justice, in a way, presents a variety of interpretations such as:

• Justice as virtue, righteousness and absolute truth: Ten Commandments of Moses, Dhamma of Ashoka, etc. Justice in this sense is derived from religious or supernatural sanction. However, its contents are based on the sanctity of human relationships and community life. It is interesting to note that most of the canons of justice derived in such a way are comparably present in all religions. For example, do not harm or hurt your neighbour either materially or emotionally, do not lie and bear false witness, help the needy, do not appropriate other’s belongings, etc. Religious and supernatural sanction is invoked to provide validity and relevance to these canons of justice. In a very abstract sense, justice as virtue or righteousness could be universal and absolute. However, in a multi-religious society, it may become a basis of internal conflict if followed as criteria of political organization. This is primarily because these canons can be interpreted differently by different religious affiliations.
• Justice as normative, ethical and moral conception of organizing social and political relations: Plato’s conception of justice as following one’s virtue (philosophical, courageous and acquisitive nature of individual) or Aristotle’s conception of distributive justice as treating equal as equal and unequal as unequal or what Roman Emperor Justinian meant ‘giving each man his due’. Here, justice is not derived from a religious or supernatural sanction but from the very relationship that human beings bear in community or social life. Justice is what each deserves as a member of the community based on one’s entitlement. The entitlement is decided on personal ability or capacity. The personal ability or capacity, in turn, is assessed in terms of contribution one makes to social welfare or community well-being or participation in the political life of the community. This assessment is not in terms of mere social needs but a desirable ideal community such as Plato’s Republic or Aristotle’s Polity.
• Justice as social requirement: Bentham’s utilitarian tenets, utility or happiness. Justice is derived from the principle of Utility where greatest happiness of the greatest number is taken as the criteria for judging how legal, material, moral and social resources are to be distributed. Utilitarian perspective requires that both morality and law should produce the same result, i.e., happiness. Bentham gives importance to law and suggests that law is always meant to produce Utility. In this, there is no dichotomy, which we encounter in terms of law as per justice and morality versus justice as per law. Happiness is the overriding social requirement and justice consists in subscribing to this requirement.
• Justice as distributive principle: This refers to the principle of distribution of rights, social, material, welfare and political resources amongst the members of a society. Justice for Barker presents a synthesis of values, liberty, equality and fraternity or cooperation. Rawls’s distribution principle is where only that inequality is permitted which leaves everyone better off is a basis of welfare justice. However, Nozick presents a libertarian view of justice and seeks distribution as per entitlement. Social Justice or substantive justice seeks redistribution of material resources and public opportunities in such a way that it results in equality of outcomes. Justice as distributive principle involves just principle in distribution of initial conditions as well as end products. In the Marxian perspective, justice relates to social ownership of means of production and economic equality.
• Justice as what law requires: This means justice consists in following the procedure laid down by law in deciding a particular case. For example, the Indian Constitution bars double jeopardy and requires that no one should be punished twice for the same crime or unlawful/illegal activity. Justice means, a person not being punished twice for the same crime of activity, which is unlawful or illegal. It is justice as per what Indian Constitution says, procedure established by law (fair procedure) or what the US follows, due process of law (a process which is reasonable and fair).³
• Justice as relative concept: Justice means different things to different people. There cannot be a universal criteria of deciding moral or ethical or cultural principle, which could be uniformly applied to judge what is just or unjust. Variety in interpretation of justice emerges due to different conceptions of what is moral, ethical and desirable as different religious and moral frameworks have different meanings. It also varies due to different foci such as on individuals, groups, class, caste or gender. Further, cultural and ethical pluralism impart varying emphasis on cultural and ethical goals, individuals and groups or society should follow. Cultural pluralism recognizes diverse social norms, practices and customs in different socio-cultural groups. Ethical pluralism gives recognition to diversity of ethical goals or ends and moral values pursued by individuals and groups. Due to these variations in emphasis on moral and cultural goals, distinguishing just from unjust becomes a judgmental issue. Justice as such becomes a relative concept⁴ whereby it means different things to different people. Related to this is the problem of deciding what should be the content of law. If we argue that law should be based on moral and ethical contents, it becomes problematic due to the variety of interpretations of what is morally or ethically desirable. Additionally, even if it were granted that law is based on certain moral principles and ethically approved values of a given society, its impartial execution must be ensured despite different background of the judges?

Let us take three issues, which have a bearing on how a court of law interprets them. In Indian polity, issues related to nationalization and private property, reservation in public offices and Uniform Civil Code, have been matters of intense political and legal debate. In the late 1960s and early 1970s, nationalization of various sectors of the economy including banking, insurance, manufacturing, etc. also implied issue of fundamental rights to private property. It was felt that political initiatives of nationalization might not get favourable support in terms of legal interpretation by the courts and in the name of private property as a fundamental right nationalization cases may not be upheld. Secondly, the court has generally applied various criteria to interpret political initiatives for providing reservations in public employment and offices. It has been pronounced that reservation should be subject to certain conditions, such as administrative efficiency, exclusion of the creamy layer, overall ceiling of 50 per cent of jobs, seats or public offices, etc. Thirdly, court has drawn attention towards need for a Uniform Civil Code in India irrespective of personal religious and cultural rights granted by the Constitution. In all the three issues, aspects relating to social, religious and political background of the judges may be important. There is a need for the judges to interpret issues based on certain ethical and moral or social and national commitments. Interpretation of court of law should not and cannot be based on justice as a relative concept.

This means justice could be related to, what Heywood says, ‘commonly held values in society.’ Heywood refers to Patrick Devlin’s book, The Enforcement of Morals (1968) in which Devlin differentiates between consensus laws and non-consensus laws.⁵ The first means laws, which conform to generally accepted standards of fairness or justice, and the second means those laws, which are regarded as unacceptable or unjust. In the Indian context, for example, there is consensus on provision of reservation in public employment and public offices for the members of the Scheduled Castes and Scheduled Tribes. However, the same level of consensus is not visible on the provision of reservation in public employment and public offices for the members of those who have been designated as the ‘Other Backward Classes’. As a result, we have witnessed protests against such initiatives by certain sections of society. However, one can argue that it would always be the case that some or the other sections of society would oppose a given particular law and if we subscribe to the designation of non-consensus law, then most of laws would fall in this category.

This raises a pertinent question relating to relevance of law as a mechanism of social justice or social engineering. Law may be used to enforce a conception of justice that is being opposed by a small but dominant section of the society because it is perceived to be inimical to their interests. It is true that all laws cannot be consensus laws, if they are to be an instrument of social change and social justice. The State, as a welfare state or a social reformer state, would be required to evolve consensus or general acceptance about certain distributive principles. In India, e.g., policy of reservation in public employment and public offices for the Scheduled Castes and Scheduled Tribes, for Other Backward Classes, for women, and even for minorities has been a matter of debate and discussions. Particularly, in the case of reservation for the Other Backward Classes in public employment and women in case of public offices in local bodies, the matter has been controversial and has met with varying degree of opposition. Further, talk of reservation for a religious minority has met with outright rejection. Thus, we find a varying degree of acceptance for a similar mechanism, i.e., reservation, for different sections of society. This can be related to a relative concept of justice that needs to be applied differently to different groups in society.