Justice: Meaning, Kinds and Theories

Picture three children and one flute. One says it should go to her because she alone can play it. The second says it should go to him because he has no toys at all. The third says it is his because he made it with his own hands. Each claim is a claim of justice, and each rests on a different principle: the fulfilment the flute will bring, need and entitlement to the fruits of one's labour. Amartya Sen uses this very parable in The Idea of Justice to show why no single formula settles every question. This note works through the meaning of justice, its kinds, and the great theories from Plato to Sen, and ends with the Indian Constitution's commitment to justice.

Figure: Rawls's original position: behind the veil of ignorance, free and equal parties choose two principles of justice, equal basic liberties first, then fair equality of opportunity and the difference principle

1. Meaning of Justice

The word comes from the Latin justitia, related to jus (right, law). Justice is at once a personal virtue, the settled disposition to deal fairly with others, and a virtue of institutions, the standard by which laws, courts and social arrangements are judged. Rawls opened his book with the sentence that 'justice is the first virtue of social institutions, as truth is of systems of thought'. Justice is also the declared end of law: the administration of justice is the reason courts exist (Note 26), and a law that departs too far from justice loses its claim on our allegiance. Gustav Radbruch gave this idea its sharpest form in his formula of 1946: where the conflict between a statute and justice reaches so intolerable a degree, the statute must yield to justice as 'false law'; and where a statute does not even attempt justice, it lacks the nature of law altogether. The relation between law and justice is compared in Note 51.

2. Plato and Aristotle

For Plato, in the Republic, justice is a kind of harmony. The ideal city has three classes (rulers or guardians, auxiliaries or soldiers, and producers), and it is just when each does its own work and does not interfere with the work of the others. The just soul mirrors the city: reason rules, spirit supports it, and appetite obeys. Justice is therefore less about rules than about the right order of a whole.

Aristotle, in Book V of the Nicomachean Ethics, gave the analysis that lawyers still use. He first distinguished general (universal or legal) justice, which is lawfulness, complete virtue in relation to others, from particular justice, which is fairness or equality in the sharing of goods. Particular justice has two forms. Distributive justice governs the division of honours, wealth and other divisible goods among members of a community. It follows geometrical proportion: shares are allotted according to merit or desert (axia), so that equals receive equal shares and unequals unequal shares. Aristotle noted that people dispute what counts as merit: democrats say free birth, oligarchs wealth, aristocrats virtue. Corrective (rectificatory) justice governs private transactions, both voluntary (such as sale or loan) and involuntary (such as theft or assault). It follows arithmetical proportion: the parties are treated as equals whatever their worth, and the judge restores the balance by taking from the wrongdoer the gain and restoring the loss.

Aristotle added equity (epieikeia). Law must speak in general terms, and in some cases a general rule gives a wrong result. Equity is a correction of law where it is defective owing to its universality: the judge decides as the lawgiver would have decided had he been present. Equity is not opposed to justice; it is a higher form of legal justice. This is the root of the later English Court of Chancery and of the Indian idea of justice, equity and good conscience.

Note the common error: the formula 'to each according to his needs' is not Aristotle's. It is Karl Marx's, from the Critique of the Gotha Programme (1875): 'From each according to his ability, to each according to his needs', describing the higher phase of communist society (Note 16).

3. The Kinds of Justice

4. The Utilitarian View and Kelsen's Scepticism

For Bentham, the test of every law is utility: the greatest happiness of the greatest number. Justice has no independent standing; it is a name for arrangements that maximise happiness. John Stuart Mill, in Utilitarianism (1861), gave justice more weight. He explained it as the name for certain classes of moral rules that concern the essentials of human well-being more nearly than any other rules, and which therefore carry especially strong obligations, but he still grounded them in utility. The standard objection, pressed by Rawls, is that utilitarianism does not take seriously the distinction between persons: it can justify sacrificing a minority if the total happiness increases.

Hans Kelsen took the sceptical line. In the Pure Theory of Law and his essay 'What is Justice?' (published in a collection of that name in 1957), he argued that justice is an irrational ideal: every theory of justice rests on ultimate value judgments that cannot be proved by reason or science. He concluded that he could not say what absolute justice is. His own relative justice, he said, was the justice of freedom, peace, democracy and tolerance. This is why the Pure Theory keeps justice out of the science of law (Note 12).

5. John Rawls: Justice as Fairness

John Rawls, in A Theory of Justice (1971), revived the social contract to answer utilitarianism. The principles of justice are those that free and equal persons would choose in a fair initial situation, the original position. There the parties choose from behind a veil of ignorance: they do not know their class, wealth, natural talents, race, sex, or even their own conception of the good life. Since no one can tailor principles to his own advantage, the principles chosen are fair; hence justice as fairness. Rawls argued that, facing such uncertainty about stakes as grave as one's whole life prospects, rational parties would follow the maximin rule: choose the arrangement whose worst possible outcome is the best among the alternatives. The parties are concerned with primary goods, things any rational person wants whatever else he wants: rights and liberties, opportunities, income and wealth, and the social bases of self-respect.

The difference principle does not demand equality of income. It allows inequalities, for example higher pay for doctors, only if they improve the position of the worst off, say by drawing talent into medicine that serves everyone. It does not favour the majority or maximise the average; that is exactly what distinguishes it from utilitarianism. Rawls later refined his theory in Political Liberalism (1993).

6. Robert Nozick: The Entitlement Theory

Robert Nozick, Rawls's Harvard colleague, answered him in Anarchy, State, and Utopia (1974). Nozick distinguished historical principles of justice, which ask how a distribution came about, from patterned and end-state principles, which ask whether it matches some formula (to each according to need, merit or the difference principle). His entitlement theory is historical and has three parts: justice in acquisition (how unowned things may be appropriated, subject to a Lockean proviso), justice in transfer (voluntary exchange and gift), and rectification of past injustice. Whatever arises from a just situation by just steps is itself just.

His famous Wilt Chamberlain example shows the point. Start with any distribution you think just (call it D1). The basketball star Wilt Chamberlain signs a contract under which each spectator drops 25 cents into a box for him. A million people freely pay, and Chamberlain ends up far richer than anyone else (D2). Since everyone was entitled to their share under D1, and each transfer was voluntary, how can D2 be unjust? Nozick's lesson: liberty upsets patterns, and maintaining any pattern requires continual interference with free choices. He concluded that only a minimal State, the night-watchman State limited to protection against force, theft and fraud and the enforcement of contracts, is justified. Redistributive taxation of earnings, he argued, is on a par with forced labour.

7. Amartya Sen: The Idea of Justice

Amartya Sen, in The Idea of Justice (2009), criticised the dominant tradition from Hobbes to Rawls as transcendental institutionalism: it seeks to identify perfectly just institutions, when what we need is a way to compare real states of affairs and remove manifest injustice. We do not need to know what the ideal painting is to judge that one painting is better than another. Sen draws on two Sanskrit terms. Niti refers to organisational propriety and correct rules and institutions; nyaya refers to realised justice, the lives people are actually able to live. He warns against matsyanyaya, 'justice in the world of fish', where the big fish freely devours the small; preventing it is a central demand of nyaya.

Sen's capability approach, developed also by Martha Nussbaum, measures justice and well-being not by income or resources alone but by capabilities: the real freedoms people have to do and be what they have reason to value, such as being well nourished, educated, healthy and able to take part in community life. A disabled person may need more resources to reach the same capability as others. Nussbaum drew up a list of central human capabilities that every just constitution should secure at a threshold level.

8. Justice in the Indian Constitution and Courts

The Preamble resolves to secure to all citizens justice, social, economic and political. Article 38 directs the State to strive to promote the welfare of the people by securing a social order in which justice, social, economic and political, shall inform all the institutions of national life, and (since 1978) to minimise inequalities in income, status, facilities and opportunities. Article 39A, inserted in 1976, directs the State to secure that the legal system promotes justice on the basis of equal opportunity and to provide free legal aid so that no citizen is denied justice by reason of economic or other disabilities. The Legal Services Authorities Act, 1987 gives this effect.

Procedural justice

Substantive equality and distributive justice

Access to justice

9. Evaluation

No single theory captures justice. Aristotle gives the grammar (distributive and corrective justice, equity); Rawls gives the most rigorous defence of fairness to the worst off; Nozick reminds us that liberty and legitimate expectations matter; Sen brings the debate down to real lives and comparative improvement; Kelsen warns that value choices cannot be proved like facts. The Indian Constitution is eclectic: it protects liberty first (fundamental rights), pursues distributive justice (Directive Principles, reservation), and increasingly measures justice by real access and capability.

10. Frequently Asked Questions

Q. What is the difference between distributive and corrective justice?
A. In Aristotle's analysis, distributive justice shares honours and goods in a community by geometrical proportion according to merit. Corrective justice deals with private transactions and wrongs by arithmetical equality, treating the parties as equals and restoring what was wrongly gained and lost.

Q. What is the difference principle?
A. Rawls's rule that social and economic inequalities are just only if they work to the greatest benefit of the least advantaged members of society. It ranks after equal basic liberty and fair equality of opportunity.

Q. How does Nozick answer Rawls?
A. Nozick argues that justice is historical: a distribution is just if it arose from just acquisition and voluntary transfer. Any pattern, including Rawls's, can be maintained only by interfering with liberty, as the Wilt Chamberlain example shows, so only a minimal State is justified.

Q. What do niti and nyaya mean in Sen's theory?
A. Niti refers to organisational propriety and correct rules and institutions; nyaya refers to realised justice, the lives people actually lead. Sen argues that justice should focus on nyaya and on removing manifest injustice rather than on designing perfect institutions.

See also: Note 26 (administration of justice), Note 27 (punishment), Note 48 (liberty and equality), Note 51 (law versus justice).