CHAPTER 1- INTRODUCTION AND RESEARCH

METHODOLOGY

A. Introduction:

Justice is the first virtue of social Institutions, as truth is of systems of thought1.

-John Rawls

The modern society has grown in various ways e.g. socially, economically,
philosophically and legally as well. Men have always lived in groups or in a
community which shared common properties and resources. In each society conflicts
of interest are inevitable in each era; to solve this conflict the thinkers of every time
are driven to find various solutions depending upon various considerations.

The legal system of modern days has been very well developed and enriched after the
contribution of various noble jurists. The main concern of law, all social theories
concerning social structure and the rules governing the mutual relation of peoples, is
to establish Justice. The central idea of all legal system is Justice.

The Justice has been defined by various Jurists in different ways. The broader
meaning of Justice denotes the attainment of just and philosophical discussion of that
which is just. The concept of justice differed based on different fields and because of
different considerations. The concept of justice may differ from community to
community, religion to religion, one legal system to another legal system, history of
one nation, customs of land, present prevailing condition. These are various factors
which may change the concept of justice of one person from another person because
justice is related to mutual relationship of persons living in a particular society and
which is based on values and traditions of that society.

Though there is uncertainty with regard to the definition of justice. The easiest and
broadest definition of justice is differentiation between just act of an individual and
unjust act of an individual. Some may call it a functional definition. But universal
comprehensive meaning of justice is hardly be defined. We can also say that justice
means the fulfillment of the legitimate expectation of the Individual under the existing
laws and to assure him the benefits promised therein. Justice attempts to reconcile the
1
A theory of Justice by John Rowls

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individual rights and the social goods. The word ‘jus’ which means joining of fitting;
justice tries to adjoin the human beings in close network without any conflict and
competing claims. Some regards Justice synonymous to morality and in actual
dispensation of justice one or more area of morality can be involved. Some regards
that the meaning of Justice can best be ascertained by referring to its rival counterpart
‘Injustice’.

Justice cannot be defined by words, it is a notion or belief, in other words, we may say
that it is human feeling when his interest is harmed and violated, these interests may
be moral, legal or other. The notion of Justice is inherent in human being. Even if one
snatches a chocolate from a child, he may start weeping or crying because he had the
feeling of justified. His interest is harmed, when u gave him another chocolate he
feels justified. However, this is a basic instinct of justice in human. In modern days,
when we talk about justice; it is meant by institutional justice, in which an institution
is created by sovereign to decide the conflicting claims of individuals and state
sometimes. This type of justice may be called as legal justice but how that institution
disposes off the claims of individual depends upon the conception of justice of that
particular Institution.

Plato stated that justice is what was right both in conduct of individual and state 2. On
the other hand, Aristotle states that justice was what was fair and equitable.

Law and justice are co-related to each other neither one of both can exist without
other in modern legal philosophy. Heinrich Romman has defined the law and justice
as law is to promote justice. Law is based on reason and not mere will men must do
that is fair and law must promote justice.

Every one of us knows that society is not static so does the law. The conception of
law changes according to the society. Therefore, whenever law changes then the
notion of justice changes by itself. In this context Kohler rightly observed that the
concept of justice cannot be taken on eternal and irreversible dictums. He stated that
law and justice vary with the time and place.

B. Research Methodology

2
Republic of Justice By Pluto

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1. Title:
“Theories of Justice: and its impact on Justice Delivery
System.”.

2. Research Problem:

1. What is meaning of justice?

2. What are the theories of justice?

3. How theories of justice helps the justice delivery systems ?

4. What are

3. Rationale:
Law reforms commissions are formed for the legal research by the government, to
know what should be the changes in the existing law. The law commission after
doing research suggested the recommendations, then the government made changes in
the existing law on the basis of such recommendations, to meet the purpose of law
and the welfare of society. In this research work we will know, how the legal research
done by the law commissions is important for legal reforms.

4. Objectives:
This project topic explores the meaning of justice and what are the different kinds of
theories of justice. This work also discussed the view of different jurists on theories
of justice, and in the last the impact of these theories of justice on the justice delivery
system is observed’
• To understand the concept of justice.
• To study the different kinds of justice.
• To know the meaning of the term justice
• To study the impact of these theories on justice delivery system.

6. CONCEPTS:
7. Research Design:

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I. Nature & Type of Research

Present research work focuses on the study of theories of justice and its impact on
justice delivery system. The whole proposal has been divided into various chapters.
The assignment thus provides a clear picture of the understanding of theories of
justice and its impact.

Keeping in view the nature of problem analytical method has been adopted. In
accordance with this method it will be more of non-empirical research. An attempt
has been made to study the relevant text books, published articles, internet data etc.

II. Sources & Method of Data Collection

The present source of data is through primary as well as secondary source wherein
primary sources include and secondary sources comprise of the data collected
from the Library with the help of Books, Articles, Journals and Websites.

8. Chapterisation

Chapter 1 – This chapter deals with the introduction of the topic and research
Methodology.

Chapter 2- This chapter discussed the theories of justice and its kind

Chapter 3- Other Modern Approaches discussed in this chapter

Chapter 4-This chapter talks about Views of Communitarian Jurist

Chapter 5- In this chapter Impact of Theories in justice delivery.

Chapter6- Conclusion of the study of Theories Of Justice and its Impact

9. Limitation of The Study

This research project is limited to the concept of theories of justice and views of
different jurist and its impact on justice delivery system. The research is restricted to
the study of books, statutes, articles.

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10. Time Schedule

The time limit for the proposed research work and bringing it towards success is
approximately one month.

CHAPTER 2- THEORIES AND KINDS OF JUSTICE

Now, we all know that the Justice cannot be defined comprehensively. Hence, the
jurists have propounded various conception of justice, depending upon their
consideration and relevant philosophical and legal theories.

The justice may also have different kinds depending upon the field or social relation
in which it operates. The people in a given society have many kinds of relation among
themselves such as social relations, political, religious and economic relations.

People are supposed to act in a fair manner and respect the interests of others, when a
person violates or causes injustice in such relation the theories and conception of
justice with respect to the concern category of justice came into play.

According to Kelsen3 there cannot be a formal science of justice since even if a theory
of justice were logically constructed, it would be based on emotive premises. It is not
possible to identify in a scientific way the supreme values that a just order of social
life should attempt to provide. It therefore, appears that the concept of justice is not
amenable to rational determination. Consequently, notwithstanding the value and
importance of the concept of justice today, one of the central conflicts in legal moral
and political philosophy is between those who espouse rights-based theories and those
utilitarians in particular who put forward goal-based theories. A requirement is rights
based when generated by a concern for some individual interest and goal based when
propagated by the desire to further something taken to be of interests to the
community as a whole.

Now, we will consider the proposition of Justice by various thinkers.

2.1 Utilitarianism theory of justice

3
Kelsen's Pure Theory of Law, 1957, p.385

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Utilitarianism as an ethical political and legal theory is essentially a product of the
English mind. It is essentially associated with Jermy Bentham and John Stuart Mill.
The theory believes that man is social by nature and is always motivated in life
chiefly by the desire to obtain happiness and avoid pain and that the happiness of each
individual involves relations with other individuals which necessitates state regulation
of mutual relations of men by legislation. Utilitarian philosophy is thus closely
associated with practical ethics and practical politics. The object of legislation of the
state is to promote and secure the greatest happiness of the greatest number. The
criterion of right and wrong of good and bad which the state should apply is found in
happiness and not in divine revelation, dictates of conscience or in the abstract
principles of reason. It insisted that all political institutions and public offices must be
judged by their fruits and not by their ideality, i.e., by their actual effects on the
happiness of the people and not by their conformity to the theories of natural rights or
absolute justice. Thus, this theory is based on the psychological doctrine of hedonism
which proceeds on the assumption that man is a sentient being, a creature of feeling
and sensibility. The principle of utility or the greatest happiness of the greatest
number is the measuring rod by which utilitarian measure and evaluate the public
policies and legislative enactments of governments. The state is a necessity for the
promotion of the greatest happiness of the greatest number and it is a means, not an
end in itself.

Thus, Bentham does not recognize individual's human rights and therefore the idea of
justice is merely a subordinate aspect of utility. 4His principle of justice is an implicit
part of utility as incorporated in a legislation. It, therefore, seems that his theory of
justice is justice according to law as laid down in a legislation. He was not prepared to
recognize a general or specific human right to justice because he had no respect for
natural rights. In his "Anarchical Fallacies", Bentham critically examined the French
Declaration of the Rights of man and dubbed them as simple nonsense rhetorical
nonsense, "nonsense upon stilts".5 Every just government, Bentham accordingly
would have said, had he been writing the American Declaration of Independence,
deprives its authority not from the consent of the governed but from the utility of its
4
H.L.A. Hart. Essays on Bentham, Jurisprudence and Political Theory, Clarandon Press, Oxford,
1982, p. 51

5
Anarchical Fallacies, Vol. II, pt. VIII

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acts in promoting the happiness of its subjects. The happiness of the body politic
consists in promoting security, substance, abundance and equality and these are the
objects which legislator should keep in view while enacting a particular piece of
legislation.

John Stuart Mill agreed generally with Bentham's doctrine but he slightly modified it
and included qualitative pleasure along with quantitative one. He also insisted that the
utilitarian doctrine of happiness was altruistic rather than egoistic, since its ideal was
the happiness of all concerned. Within the utilitarians, one of the chief issues of legal
philosophy to which Mill suggested an approach different from that of Bentham was
the significance that should be attributed to the concept of justice. Bentham had
spoken of justice in a deprecatory fashion and had subordinated it completely to the
dictates of utility. At one place he observed:

"Sometimes in order the better to conceal the cheat (from their own eyes doubtless as
well as from others) they set up a phantom of their own, which they call 'Justice':
whose dictates are to modify (which being explained means to oppose) the dictates of
benevolence. But justice in the only sense in which it has a meaning, is an imaginary
personage feigned for the convenience of discourse, whose dictates are the dictates of
utility applied to certain particular cases."6

Whereas Mill, although taking the position that the standard of justice should be
grounded on utility, believed that the origin of the sense of justice must be sought in
two sentiments other than utility namely, the impulse of self defense and feeling of
sympathy.7 Differently expressed the feeling of justice is the urge to retaliate for a
wrong, placed on a generalized basis. This feeling rebels against an injury, not solely
for personal reasons, but also because it hurts other members of society with whom
we sympathize and identify ourselves. The sense of justice, Mill pointed out,
encompasses all those moral requirements, which are most essential for the well-being
of mankind and which human beings therefore regard as sacred and obligatory.

Apart from the above differences, Bentham's notion of subordination of justice to

utility is further evident by the fact that he was opposed to wide judicial discretion to
be given to judges to interpret the laws. He counsels that judicial interpretation should

6
Jermey Bentham. Morals and Legislation, pp. 125-126
7
John S. Mill. Utilitarianism (edi.O. Piest), New York, 1957, p.63

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have no other role than strict interpretation, not an activist interpretation which gets
"rid of the intention clearly and plainly expressed" and substitutes judicial intention
for the legislative one.8

Bentham has characterized an activist judge as a charlatan who nourishes the

spectators by making sweet and bitter run from the same cup.9While making a
scathing attack of judicial activism, Bentham observed:

"The serpent, it is said can pass his whole body whenever he can introduce his head.
As respects legal tyranny, it is this subtle head of which we must take care, least
presently we see it followed by all the tortious fields of abuse.10

Prof. Upendra Baxi is of the opinion that Benthamite condemnation, of a Judge as

usurper, who substitutes his will for that of the legislator as a conscious over taker
who produces and reproduces arbitrariness is clearly addressed to a context where the
legislator has, in fact followed Bentham's Counsel of producing clear laws. It is only
in such contexts that judicial activism, rightly thus stands condemned.11

Bentham's condemnation of Judges is not confined to mere usurpation of powers but

he also condemned the delay and denial of justice on the part of Judges. He addressed
them scomfully as "Judges and Co."12 and even advocated the abolition of House of
Lords and Monarchy.13

It is, therefore, submitted that although Bentham does not formulate anywhere in the
"Theory" a fully-fledged justification of judicial review, Prof. Baxi opines that it is
embedded in the notion of reciprocal dependence of three powers. "The principle of
utility asks us to guard against all forms of usurpation of political (legislative) power.

Thus, while recapitulating our discussion on Bentham's notion of justice, it is

submitted that there is no elaborate and systematic theory of justice given by
Bentham. His theory of justice is grounded in the happiness of individual and not that
8
J. Bentham. Theory of Legislation, p. 94
9
Ibid
10
Ibid
11
U. Baxi. Bentham's Theory of Legislation, Tripathi, 1986, p. xxiv
12
Lawrance C. Wanless. Gettel, History of Thought, London, 1950, p. 313

13
Sukhbir Singh, History of Political Thought, Rastogi Publications, 1999, p.22

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of society, which he never recognized. However, notwithstanding its incomplete and
insufficient notion of justice it is submitted that the utilitarian concept of justice is a
landmark in the evolution of the theory of justice. Its value lies in starting a rational
inquiry with logical and analytical approach to the realization of truth and reality. It
also gives objective and scientific approach to the concept of justice, which throws
and opens the avenues for reform development and progress even by socialization of
its shortcomings, errors and failures.

The great merit of utilitarian approach to justice is that it dissociates justice from
theology, mysticism, imagination and speculation which leads to illusions unreal
apprehensions and frustrations.

CHAPTER- 3

OTHER MODERN APPROACHES

According to Kelsen the longing for justice is men's eternal longing for happiness. It
is happiness that man cannot find alone, as an isolated individual and hence seeks in
society. Justice is social happiness guaranteed by social order.14

The idea of attaining the just society is deeply problematic in modernity. In

Nietzschean terms a settled conception of justice is difficult for the modern because
the modern knows too much as a result finds pluralism and perspectivism in short,
pragmatism towards truth. We are an historical epchtht knows the inevitability of
change over stability whatever its theories of justice, late modernity is doomed to
dynamic as opposed to static justice.19

3.1 John Rawls Theories of Justice and Utilitarianism

One of the earliest thinking about justice is found in Aristotle. It was he who
distinguished "Corrective Justice" and "Distributive Justice". However, the most
contemporary writing about justice is about absolute justice, about the appropriate
distribution of goods, which may be distributed according to needs or desert or moral
virtue.15 One of the most interesting modern attempts to defend principles of justice

14
Kelsen's, Pure Theory of Law, 1957, p.2
15
Lloyds, Introduction to Jurisprudence (7th Edi.), M.D.A. Freeman, Sweet & Maxwell, 2001, p. 523

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 are found in John Rawls: A Theory of Justice, as now reformulated in political
liberalism. John Rawls sets out two basic moral principles of justice which a
constitutional democracy should satisfy:

(i) the maximization of liberty is essential for the protection of liberty itself;
(ii) equality for all, both in the basic liberties of social life and also in
distribution of all other forms of social goods, subject only to the exception that
inequalities may be permitted if they produce the greatest possible benefit for those
least well off in a given scheme of inequality (the difference principle); and
(iii) fair equality of opportunity and the elimination of all inequalities of
opportunity based on birth or wealth. Rawls theory differs from utilitarianism in three
significant ways:

First, utilitarian can accept inequalities, social arrangements in which some benefits at
the expense of others provided the benefits (or pleasures) exceed the costs (or pains)
so that the outcome is the maximization of overall welfare level (the greatest
happiness of the greatest number), secondly, while utilitarians defend liberty and
political rights, they have no objection to limiting liberty or restricting political rights,
provided doing so would promote greater well being. Rawls first principle (the equal
maximization liberty principle) means that there are some rights freedom of speech &
association the right to vote and stand for public office liberty of conscience &
freedom of thought, freedom of the person and the right to hold personal property,
freedom from arbitrary arrest, which every system must respect. These are rights that
may not be sacrificed to increase the aggregate welfare level.

Thirdly, Rawls conception of benefits is different from utilitarianism which is

concerned with welfare. Rawls by contrast defines benefits in terms of "primary
goods": liberty and opportunity, income and wealth and the bases of self respect.
These need not be considered desirable in themselves but they give persons the
opportunities rationally to further their own autonomy.

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The above discussion has revealed that Rawls seems to lay down a contractarian
theory of justice in which participation in the understanding of justice as fairness
makes a type of government called constitutional democracy. The model which Rawls
proposes as satisfying has two principles of justice. It is a constitutional democracy in
which the government regulates a free economy in a certain way. More fully, if law
and government act effectively to keep market competitive, resources fully employed,
property and wealth widely distributed overtime and to maintain the appropriate
social minimum, then if there is equality of opportunity, underwritten by education for
all the resulting distribution will be just.16

The idea of distributive justice in Rawls theory in simple terms requires that the courts
should take a liberal view of the premises of law and so interpret them as to distribute
benefits to the largest number of people so that the harsh effects of the technicalities
of law are contained within the narrowest limits.17

Thus, Rawls believes that a fully satisfying existential life requires justice. But an
obvious problem arises: how are we to require whether the arrangements of any
particular social ordering are just or unjust? Rawls intellectual predecessors are Kant
(who provides among other things the idea of the primacy of the right over the good
and the regulatory idea of the social contract) and John Stuart Mill (who provides the
spirit of tolerance). Rawls thus chooses the right over the good – Kant wins over the
Bentham.

In nutshell, Rawls is trying to balance the need for growth in wealth, with respect for
the least well off in the society. Whilst the general aim of utilitarian justice is to
maximize social wealth. Rawls holds his basic principles of justice based also upon a
deontological respect for autonomy as checks upon such maximization.

3.2 Robert Nozick’s Concept of Justice (Libertarian view)

As opposed to utilitarian thinkers, libertarian thinker like Nozick share, a profound

distaste for all theories which promote any idea of a social group which legitimates
centralized social administration. The political jurisprudence of Robert Nozick,
16
Rawls: Distributive Justice in peterlaslett & W.G. Runciman (ed.) Philosophy, Politics & Society III
Series, Oxford, 1967 p. 71
17
Benzamin Cardozo: The nature of Judicial Process, Yale Univ. press, pp. 149-52

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characterized by is book ‘Anarchy, State and Utopia (1974)’ is the best known of the
libertarian theories of justice. Nozick’s writings develop a theory of justice which
reinforces a radical free market approach and fits a so-called minimal or night
watchman state. It is no surprise that he concludes: “The minimal state is the most
extensive state than can be justified. Any state more extensive violates peoples
rights.18 Nozick develops an entitlement theory of justice, whereby economic goods
arise in society already encumbered with rightful claims to their ownership. The
minimal state is limited in its legitimation of force to the protection of certain basic
rights: it is the night watchman state of classical liberalism. Under utilitarianism, or
the later theory of Rawls, we could have redistribution policies but no redistribution is
legitimate in the minimal state.

In this context, Prof. Hart has rightly observed that “with the arrival of right based
theories from thinkers like Robert Nozick and R. Dworkin, it may be that the epoch
which Bentham opened is now closing: certainly, among American political and legal
philosophers. Utilitarianism is on the detensive, if not on the run, in the face of
theories of justice which in many ways resemble the doctrine of unalienable rights of
man, and there are important conceptual connections between law and morality
obscured by the positivistic tradition.”19

3.3 Ronald Dworkin’s Notion of Justice

For both Rawls and Nozick, there is clear relationship between justice and
rights, but it is Ronald Dworkin who can be said most clearly to ground justice in
rights. To Dworkin rights are “trumps”. They are grounded in a principle of equal
concern and respect, so for a Judge to make a mistake about a legal right is “a matter
of injustice.” Further, the whole institution of rights rests on the conviction that “the
invasion of relatively important right is a grave injustice. Dworkin sees rights as
safeguards inserted into political and legal morality to prevent the conception of the
equalitarian character of welfarist calculations by the introduction of external
preferences.20 Utilitarianism, Dworkin argues assigns critical weight to external

18
Robert Nozick, Anarchy State & Utopia, 1974, p. 149
19
H.L.A. Hart. Essays on Bentham, Jurisprudence and Political Theory ,Clarondan Press, Oxford,
1982, p.53
20
R. Dworkin. Taking Rights Seriously, 1978, p.28

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preferences: it is accordingly not equalitarian since it will not respect the right of
every one to be treated with equal concern and respect.21

In view of above right and goal based dichotomy pertaining to the notion of justice, it
is submitted that if the weakness of utilitarian theories lies in their readiness to
sacrifice individual rights on the altar of maximizing happiness that of right based
moral theories are also experiencing great difficulties in producing arguments for the
existence of rights.

CHAPTER- 4

VIEWS OF COMMUNITARIAN JURIST

Communitarian Jurists like Michael Sandel has observed: "For liberals of the Kantian
type such as Rawls, the priority of the right over the good means not only that one
cannot sacrifice individual rights in the name of the general good, but also that
principles of justice cannot be derived from a particular conception of the good life." 22
This is a cardinal principle of liberalism, according to which there cannot be a sole
conception of eudemonia, i.e., of happiness.

The communitarians argue that one cannot define the right prior to the good, since it
is only through our participation in a community which defines the good that we can
have a sense of what the right is and attain a living conception of justice, outside
community there is no god and no right. Communitarian therefore asserts it is only
within a specific community, defining itself by the good that it postulates that an
individual with his rights can exist. It appears necessary for liberals to specify that the
search for justice is partly a question of actively working for and intellectually
defending particular images of political community.

They (i.e., communitarians) rightfully assert that "Justice is not a philosophical

conception but it is an existential goal."

4.1 Karl Marx Notions of Justice

21
Quoted by Lloyds, Introduction to Jurisprudence, p. 543
22
Michael Sandel, Liberalism and the limits of Justice as quoted at supra 3 p. 413

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Among the goal-based theories of Justice, there are some commonalities between
Bentham and Karl Marx. First, their tasks as social thinkers were to clear men's minds
as to the true character of human society and secondly, that human society and its
legal structure which had worked so much human misery had been protected from
criticism by myths, mysteries and illusions, not all of them intentionally generated,
yet all of them profitable to interested parties.

However, while Bentham was a liberal and individualistic whereas Marx was a
revolutionary communist. Marx's view of justice emerges most clearly in capital and
the critique of the Gotha programme.

Both Bentham and Marx are opposed to the natural law conceptions of "Rights",
however Marx differed from Bentham in the realm of distributive justice and opined
that from each according to his ability to each according to his needs." On the notion
of human rights Marx wrote of the so-called rights of man as simply the rights of a
member of a civil society, that is of egoistic man and separated from other man and
from the community. Whereas Bentham's principles of justice are grounded in utility
and in the greatest happiness of the greatest number ushered by parliamentary
legislations. Marx talks of withering away of state as the promise of Marxism is that
we may attain a state of being beyond justice, beyond any rational ideal.

CHAPTER 5

IMPACT OF THEORIES

5.1 Punitive theory23

Theories of punishment can be divided into two general philosophies: utilitarian and
retributive. The utilitarian theory of punishment seeks to punish offenders to
discourage, or "deter," future wrongdoing. The retributive theory seeks to punish
offenders because they deserve to be punished. Under the utilitarian philosophy, laws
should be used to maximize the happiness of society. Because crime and punishment
are inconsistent with happiness, they should be kept to a minimum. Utilitarians
understand that a crime-free society does not exist, but they endeavor to inflict only as
much punishment as is required to prevent future crimes.

23
https://law.jrank.org/pages/9576/Punishment-THEORIES-PUNISHMENT.html

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The utilitarian theory is "consequentialist" in nature. It recognizes that punishment has
consequences for both the offender and society and holds that the total good produced
by the punishment should exceed the total evil. In other words, punishment should not
be unlimited. One illustration of consequentialism in punishment is the release of a
prison inmate suffering from a debilitating illness. If the prisoner's death is imminent,
society is not served by his continued confinement because he is no longer capable of
committing crimes.

Under the utilitarian philosophy, laws that specify punishment for criminal conduct
should be designed to deter future criminal conduct. Deterrence operates on a specific
and a general level. General deterrence means that the punishment should prevent
other people from committing criminal acts. The punishment serves as an example to
the rest of society, and it puts others on notice that criminal behaviour will be
punished.

Specific deterrence means that the punishment should prevent the same person from
committing crimes. Specific deterrence works in two ways. First, an offender may be
put in jail or prison to physically prevent her from committing another crime for a
specified period. Second, this incapacitation is designed to be so unpleasant that it
will discourage the offender from repeating her criminal behaviour.

Rehabilitation is another utilitarian rationale for punishment. The goal of

rehabilitation is to prevent future crime by giving offenders the ability to succeed
within the confines of the law. Rehabilitative measures for criminal offenders usually
include treatment for afflictions such as mental illness, chemical dependency, and
chronic violent behaviour. Rehabilitation also includes the use of educational
programs that give offenders the knowledge and skills needed to compete in the job
market. The counterpart to the utilitarian theory of punishment is the retributive
theory. Under this theory, offenders are punished for criminal behaviour because they
deserve punishment. Criminal behaviour upsets the peaceful balance of society, and
punishment helps to restore the balance.

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The retributive theory focuses on the crime itself as the reason for imposing
punishment. Where the utilitarian theory looks forward by basing punishment on
social benefits, the retributive theory looks backward at the transgression as the basis
for punishment.

According to the retributivist, human beings have free will and are capable of making
rational decisions. An offender who is insane or otherwise incompetent should not be
punished. However, a person who makes a conscious choice to upset the balance of
society should be punished.

There are different moral bases for retribution. To many retributivists, punishment is
justified as a form of vengeance: wrongdoers should be forced to suffer because they
have forced others to suffer. This ancient principle was expressed succinctly in the
Old Testament of the Judeo-Christian Bible: "When a man causes a disfigurement in
his neighbour … it shall be done to him, fracture for fracture, eye for eye, tooth for
tooth…."

To other theorists, retribution against a wrongdoer is justified to protect the legitimate

rights of both society and the offender. Society shows its respect for the free will of
the wrongdoer through punishment. Punishment shows respect for the wrongdoer
because it allows an offender to pay the debt to society and then return to society,
theoretically free of guilt and stigma.

A third major rationale for punishment is denunciation. Under the denunciation

theory, punishment should be an expression of societal condemnation. The
denunciation theory is a hybrid of utalitarism and retribution. It is utilitarian because
the prospect of being publicly denounced serves as a deterrent. Denunciation is
likewise retributive because it promotes the idea that offenders deserve to be
punished.

A sentence may, however, combine utilitarian ideals with retribution. For example, a
defendant sentenced to prison for several years is sent there to quench the public's
thirst for vengeance. At the same time, educational programs inside the prison reflect
the utilitarian goal of rehabilitation.

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Our legal system shows its adherence to utilitarian ideals in the creation of systems
such as pretrial diversion programs, probation, and parole. These systems seek to limit
punishment to the extent necessary to protect society. The utilitarian philosophy is
also reflected in the assignment of different punishments for different crimes and in
the notion that the amount of punishment a convicted criminal receives should be in
proportion to the harm caused by the crime. For example, murder calls for
imprisonment or even the death penalty. A simple assault and battery with no serious
injuries is usually punished with a short jail sentence or probation and a fine.

Judges generally have the discretion to fashion punishment according to the needs of
both society and the defendant. This is an expression of utilitarian tenets. However,
judicial discretion in sentencing is limited. In some cases, statutes require judges to
impose mandatory minimum prison sentences as punishment, and these laws stand as
a monument to the retributive theory.

5.2 Retributive Theory

As Kant argues in a famous passage:

“Judicial punishment can never be used merely as a means to promote some other
good for the criminal himself or civil society, but instead it must in all cases be
imposed on him only on the ground that he has committed a crime; for a human being
can never be manipulated merely as a means to the purposes of someone else... He
must first of all be found to be deserving of punishment before any consideration is
given of the utility of this punishment for himself or his fellow citizens.”

Kant also argues that punishment is not only a necessary condition, but also a
sufficient condition. Punishment in itself is an end. Retribution can also be said to be
the' ordinary' reason, in the sense that man thinks that it is quite natural and that a bad
person should be punished and a good person should be rewarded.

Retributivist theory emphasizes the need of proportionality of the punishment to the

desert. Instead of restitution where the wrongdoers repay the society what he gained
from the crime, but such a punishment is flawed. A person who has stolen a sum of
money should not only give back the money but should also suffer to the extent he

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made the victim suffer.24 Even if the relative seriousness of crimes cannot be judged
in all cases, the overall severity can be judged. Also, such proportional punishment
gives a sort of protection against severe and disproportional punishments for crimes. 25
In the opinion of HLA Hart, punishment should not be for sake of denunciation alone
but a deserved punishment does serve as a denunciation. According to him, we do not
live in society in order to condemn though we may condemn in order to live. 26 Morris
contended that each person discovers the particular meaning of the evil underlying
crimes and the degree of severity by punishing wrongdoers. Hampton argued that
punishment is somehow reflective of the suffering suffered by the victim of the crime,
and the wrongdoer must therefore recognize the immorality of the conduct by
administering punishment.

The Supreme Court in the Dhananjoy Chatterjee27 case held that appropriate

punishment is the manner in which the courts respond to society’s cry for justice and
that justice demands imposition of punishment befitting the crime to reflect public
abhorrence.

5.3 Reformative Theory

According to this theory, the object of punishment should be the reform of the
criminal, through the method of individualization. It is based on the humanistic
principle that even if an offender commits a crime, he does not cease to be a human
being.

This is the latest and most humane of all theories is based on the principle of
providing individual treatment to legal offenders. Without looking at offenders as
inhuman this hypothesis sets forward the evolving nature of modern society where it
is currently looking at the fact that no such stable explanation has been put forward by
all other hypotheses that would deter more crimes from happening. Although it may
be true that there has been a greater onset of crimes today than before, it may also be

24
Murray N. Rothbard, “Punishment and Proportionality,” in Assessing the Criminal: Restitution,
Retribution, and the Legal Process, R. Barnett and J. Hagel, eds. (Cambridge, Mass.: Ballinger
Publishing, 1977), pp. 259–70.
25
Tom Elis, ‘Principles of Retribution’ (Debates in criminal justice 2010)
<http://debatesincriminaljustice.com/wimbas/RetributionCh5/page_02.htm> accessed 15
Nov 2013
26
 HLA Hart, Punishment and Responsibility (1st, Clarendon Press, Oxford 1968) 5
27
Dhananjoy Chatterjee v State of West Bengal 1994 SCR (1) 37

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argued that many of the criminals are also being reformed and leading a law-abiding
whole life.

The advocates of this theory contended that a revolutionary change can be brought  in 
their characters through a sympathetic, tactful, and loving treatment of offenders. Thr-
ough good words and gentle suggestions, even the cruelly hardened inmates can be ch
anged and turned into good human. According to the view of Salmond, if criminals
are to be sent to prison to be transformed into good citizens by physical, intellectual
and moral training, prisons must be turned into comfortable dwelling places. There
are many incorrigible offenders who are beyond the reach of reformative influences
and with whom crime is not a bad habit but an instinct and they must be left to their
fate in despair. But people criticize; the primary and essential end of criminal justice
is deterrence and not reformation.

Punishment is not levied as a means for the good of others, according to the
proponents of the Reformative Theory. Alternatively, the perpetrator is being
disciplined for learning and reforming himself. Thus, the criminal's crime is an object,
not a means as in the concept of Deterrent. This view is widely accepted nowadays.
Despite his reformation, retribution is imposed on a criminal. This argument does not
warrant the death penalty. Only to teach and reform the perpetrator himself is
punishment imposed. In a criminal, punishment does not always change. On the other
hand, often good treatment produces a better outcome than punishment. It may be
more conducive to change

5.3.1 Laws supports the Reformative Theory:

In 1960, the Indian government passed the Children Act 1960 which extends to the
territories of the Union.  This Act was amended in 1978. This amendment broadened
the aim of the Children Act, 1960. The Probation of Offenders Act, 1958 has been
passed with a similar object in view. About the Act, the Supreme Court observed
in Rattan Lal v. State of Punjab 28 that the Act is a milestone in the progress of the
modern liberal trend of reform in the field of penology.

Section 27 of the Criminal Procedure Code, 1973 provides that any offence not
punishable with death or imprisonment for life committed by any person who, at the

28
1965 AIR 444, 1964 SCR (7) 676

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date when he appears or is brought before the court, is under the age of 16 years, may
be tried by the court of a Chief Judicial Magistrate or by any court especially
empowered under the Children Act,196 or any other law for the time being in force
providing for the treatment, training and rehabilitation of youthful offenders.

Section 360 of the Code of Criminal Procedure, 1973 empowers the court to order the
release on probation of good conduct or after admonition.

CHAPTER 6

Conclusion

The above discussion of various approaches about the notion of justice has
clearly revealed that we face an irresoluble pluralism of ideologies. If the structure of
legalism embodies one dominant set of ideologies it will appear unjust from another
perspective.

Kelson has rightly concluded that there cannot be a formal science of justice, since
even if a theory of justice were logically constructed it would be based on emotive
premises. It is not possible to identify in a scientific way the supreme values that a
just order of social life should attempt to promote one person may regard the
advancement of individual autonomy as the foremost aim of legal ordering another
person may argue that law-makers should promote the goal of equality. Yet another
may claim that security is the overriding interest and he is willing to sacrifice equality
and freedom for the fullest resolution of this value. Therefore, it has rightly been
concluded that the concept of justice is not amenable to rational determination.

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BIBLIOGRAPHY:

Books

1. Allen C.K.. Aspect of Justice (Universal Law Publishing Co.)

2. Lerner Melvin I. & Susan Clayton, Justice and Self-Interest (Cambridge

3. HART H. L. A., The Concept of Law, (Clarendon Law Series, Third Edition)

4. Mahajan V.D., Jurisprudence & Legal Theory, (Eastern Book Company, Fifth
Edition)

5. Dhayani Prof. S. N., Jurisprudence & Indian Legal Theory, (Central Law Agency

6. Dr.Myneni S. R., Jurisprudence (Legal Theory), (Asia Law House, Second Edition)

Web Source

https://plato.stanford.edu/entries/justice/

https://ethicalrealism.wordpress.com › 2011/04/26 › three-theories-of-justice

https://1000wordphilosophy.com/2018/07/27/john-rawls-a-theory-of-justice/

https://www.oxfordlawtrove.com/view/10.1093/he/9780198723868.001.0001/he-
9780198723868-chapter-9

https://www.legalbites.in/concept-of-justice/

https://www.taylorfrancis.com/books/e/9781315795997/chapters/10.4324/978131579
5997-20

Articles:

John Rawls’ ‘A Theory of Justice , Author:  Ben Davies

https://1000wordphilosophy.com/2018/07/27/john-rawls-a-theory-of-justice/

Theories of justice
ByScott Veitch, Emilios Christodoulidis, Marco Goldoni

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