The notion of justice is a prerequisite of rule of law and foundation of democracy attuning the benchmark of humanity. But this most cherished concept is a common concern to all whether in western or in oriental philosophy and also leads to clashes and controversies. To a learner of law there is no sweeter word than justice and no bitter word than injustice. So, there can be no more urgent cry today than that of justice and no more frequent accusation than that of injustice.
Let’s try to relate the perception of justice with a courtroom drama film ‘…And Justice for All’ released in 1979. Here, the impression of justice to any reasonable persons implies ‘searching and finding of truth’.
The simple intention of justice is to see that the guilty people are proven guilty and the innocents are freed. However, it is the defense counselor’s duty to protect the rights of the individuals and it is the prosecution’s duty is to uphold and defend the laws of the state reflecting justice for all. In the film the main actor has been lamenting to say, “We have a problem here, you know, what it is? Both sides wanna win regardless the truth and regardless of justice, regardless of who is guilty or innocent implying ‘winning is everything’. We forget something that is absolutely essential for courtroom proceeding.
At once stage of opening statement of the defense counselor there took place a hot altercation between the trial judge and defense counselor. Trial judge told the defense counselor ‘you are out of order’. In reply, the defense counselor said, ‘you are out of order’, ‘the whole trial is out of order’. There are many films on justice depicting the theory and reality of the much sort after notion.
Nobel laureate economist Amarta Sen in a public speech on “Justice and India” at Kolkata in 2009 humorously uttered, “Justice for many is like trying to find a black cat in a dark room, however if you can throw some light, it is not dark anymore” He added that justice is about stopping severe injustice not about a utopian notion of justice.
To many others justice refers the proper functionality of law? Dry words of law refer justice as verdict involved in the determination and discovery of rights and the assignment of rewards and punishments reflecting the due process of law but justice within the spirit of law even means something more.
The word justice was once ‘justitia’ an old French word that descended from Latin to denote ‘justness or righteousness and equity’. A similar word from the same Latin root was ‘justus’ meaning ‘upright, and just’. Theologically ‘justice’ comprises ‘justness’ and ‘righteousness’ to be ensured in the world and in the hereafter. Latin proverb indicates that let justice be done though the heavens fall. The oft cited aphorism of Lord Hewart connotes, “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
In social sense, justice is a concept of moral rightness based on rationality, value, equity or fairness, natural law and state law, theology, and ethics. Questions of justice are questions about what people are due, but what that means in practice depends on context.
Thrasymachus, a sophist of Ancient Greece best known as a character in Plato`s Republic defines justice as whatever the strongest decide it is, and that the strong decide that whatever is in their best interest is just. Socrates dismisses this argument by proving that the strong rarely figure out what is in their best interest, and this can`t be just since justice is a good thing. The basis of justice, according to Socrates, is that you do what is socially most beneficial or what you do best. Unfortunately Socrates was the victim of injustice and was poisoned to death.
His last expression to the court following the order of sentence of death by the Athenians haunted him even before the execution. He emotionally uttered before the court that the hour of departure has arrived, and we go our ways--I to die and you to live, which is the better, only God knows. After devoting his entire existence to figuring out the meaning of life, even he didn`t know the answer and ultimately left it to nature.
Being a disciple of Socrates and as a naturalist Plato says that justice is not the right of the stronger but the effective harmony of the whole bringing unity, strength and happiness. He also said that a just man is happy and an unjust man is unhappy. Aristotle, disciple of Plato stands for expressing justice as a virtue of the soul distributing that which each person deserved.
By the term justice Karl Marx highlighted social justice accusing economic inequality as the monstrous injustice which must be replaced by an ideal of "social justice" -- a "classless" society created by the elimination of all differences in wealth and "power." In the words of Martin Luther King justice is opposite to injustice pointing injustice anywhere is a threat to justice everywhere.
Mahatma Gandhi terms justice as peace which will not come out of a clash of arms but out of unity and non violence. Nelson Mandela regards justice as a duty to uphold dignity of all mankind and also to cry out united against discrimination and unjustness as opposed to the basis of justice.
“Justice is fairness” based on ‘social contact theory’ of US dominant political philosopher John Rawls relying on his 1971 theory of “just society” founded on “liberty and equality”. In his famous book on ‘the Theory of Justice’ published in 1971, he has outlined details on justice. According to him justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion.
He openly acknowledges that the world’s poor have no place in his theory of justice. On the other hand, according to Nobel Laureate Indian economist, justice is a “social value” based on diverging ideals and philosophies as he thinks that ‘just society’ is a vague concept because a society may be “more or less just” in a comparative approach.
Sen claimed that ‘just society’ in Indian perspective is a far cry and waiting for justice until having a just society is farcical rather a “social choice theory of justice” is tenable in line with his noted book ‘the Idea of Justice’ published in 2009. He further points out the ‘social contract theory’ of justice that excludes, by definition, the poor or issues of global injustices only can perpetuate injustice.
Sen in his theory has also exemplified the divergent views of justice with the example of three children and a flute. Anne, Bob and Carla fight over a flute. Anne says the flute should be given to her because she is the only one who can play it; Bob says it should be handed to him as he is so poor and has no toys to play with. Carla says the flute is hers because she made it using her own labour.
Theorists of diverging schools of justice would have different views, Sen opines. The economic egalitarian who is committed to reducing social gaps might feel that Bob should get the flute because he is poor; the utilitarian hedonist will argue a bit but eventually settle for Anne because she will get the maximum pleasure as she can play the flute while the libertarian would say that Carla should get the flute because she has made it.
What really enables us to settle the dispute between the three children is the value we affix to the pursuit of human fulfillment, removal of poverty, and the entitlement to enjoy the products of one`s own labour. Who gets the flute depends on your philosophy of justice based on the common theories of justice such as retributive, distributive and restorative.
Justice is neither a destiny nor a destination rather it is a steady journey for the eternity, tranquility and bliss. It is the ray of hope, foundation of human rights, fabric of freedom, forgiveness and reconciliation to restore relationship between the creator and the created.
The Writer is a Senior Lecturer, Dept. of Law & Justice, Southeast University. E-mail: [email protected]
