Unit 2. Theroies of Justice-Utilitarian, John Rawl, Amertiya Sen, Nozike

COURSE: LAW & JUSTICE IN A
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NATIONAL LAW UNIVERSITY
TOPIC: UTILITARIANISM (WEEK 3)
ODISHA
INSTRUCTORS: PROF. RAO
UTILITARIAN JUSTICE
INTRODUCTION
In this week, we will be focusing on a goal-based approach to justice or in other words
utilitarianism. Utilitarianism can be considered as one of the strongest approaches to
normative ethics. Utilitarianism revolves around the basic premise that an action can only be
morally correct if it achieves the maximum good for maximum people. This theory supports
consequentialism that is active can be considered as right or wrong depending on the
consequence it produces. The notion of utilitarianism is often considered as a form of egoism.
However, Utilitarianism is distinct from the concept of egoism as it emphasizes on action
which can achieve overall good which takes into consideration own good as well as goods of
others. The other important aspect of Utilitarianism is impartiality. In other words, the
happiness of everyone counts the same. The good of one person is not more than good for
everyone. In this chapter, we will focus on theories of Classical Utilitarian which are Jeremy
Bentham and John Stuart Mill. Both the scholars believed in hedonist theory that is
maximizing happiness and minimizing sufferings. In other words, their theories revolve
around the principle of “greatest amount of good for the greatest number”.
JEREMY BENTHAM’S UTILITARIANISM

Before we start discussing Bentham’s view on utilitarianism, let’s understand the concept of
utilitarianism from an illustration. Suppose there is a police officer named Mr. A that is after
a cold-blooded murderer named Mr. B. Mr. B is a serious offender and is responsible for the
death of hundreds of people in the city. The Police Commissioner after considering the
situation and threat posed by Mr. B to the city instructs Mr. A to either shoot Mr. B on the
site or catch him alive if possible. Mr. A is completely aware of the fact that Mr. B had been
caught many times on the previous occasions, however, he had escaped the prison every time.
Now the question arises, what should Mr.A do. Let’s suppose that Mr.A is a good person.
Regardless of what Mr. B does, there are some lines that good people don’t cross and for Mr.,
A killing someone falls outside that line. Mr. A will capture Mr. B. and put him behind the
bars. However, there is a chance that Mr. B will get out of prison and once he is free, he will
kill and terrorize the city once again.
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Now the question arises, once Mr. B is free and when he kills people, won’t that be a little bit
of Mr. A’s fault? Since Mr. A was in a position to kill Mr. B and save anyone from being a
victim of Mr. B ever again. This story ends on the question, whether Mr. A is morally pure as
he did not kill or is he morally impure because he did not do what needs to be done. Mr. A in
the above illustration represents the view of Immanuel Kant. As par Kant, there is a moral
code and everyone should stick to this moral code regardless of consequences. There are no
exceptions or excuses for this moral code and Mr. A tries as hard as possible to stick to his
moral code. However, there is another view of the same story and that is what if Mr. A
instead of on focusing on the intent behind his behavior has paid more attention to the
consequences? This other view represents the theory of Utilitarianism as par which one needs
to focus on the consequence of his action and the intention behind his behavior is irrelevant.
One of the major propounded of the school of Utilitarianism is Jeremy Bentham. Bentham
was influenced by the writing of the Hume’s on social utility as well as by the Hobbes's
understanding of human nature. According to Bentham, the human generation is ruled by two
sovereign masters that are pain and pleasure. A human being has an inherent tendency to seek
pleasure and avoid pain. Bentham also propounded the principle of the utility which defines
the standard of right action that should be taken by both individuals and human being.
According to Bentham, actions are approved when they have a tendency to promote
happiness and pleasure and they are disapproved when they have a tendency to cause pain or
unhappiness. Let’s understand this Bentham concept of Utilitarianism by an illustration.
Let’s suppose that you are writing a very important examination and you want good marks in
it. Now the question arises why you want good marks in the examination? You want good
marks so that you can pursue a degree of your choice or by getting good marks, you can get
the approval of your parents. Scoring good marks helps you in affirming your intelligence or
it can land you in a good job. However, still, the question remains unanswered that why do
you want good marks or a job of your choice? The answer is very simple because all of the
above mention things ultimately make you happy. The above illustration depicts the exact
view of the theory that was proposed by Bentham which is that the action must be measured
in terms of happiness they produce. Bentham also emphasizes on action which can achieve
overall happiness which takes into consideration own good as well as goods of
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others.Bentham also emphasizes that the theory of Utilitarianism is impartial. In other words,
the happiness of everyone counts the same. The good of one person is not more than good for
everyone.
The Bentham’s view on Utilitarianism simultaneously endorses and contrast “psychological

egoism” mentioned by Hobbes in his theory. According to Hobbes, “psychological egoism”
helps an individual to achieve its well-being. The psychological egoism is very similar to the
utility principle that an individual has a tendency to promote happiness and avoid suffering.
However, Bentham’s theory comes in conflict with Hobbes "psychological egoism" when it
states that an individual action should achieve overall maximum happiness which in a way
means that action by an individual which though promote overall well-being but is
incompatible with individual interest is permitted. However, this notion is not even a
possibility for psychological egoist. Let’s understand the above problem with an illustration.
Let’s suppose that I am throwing a birthday party to my friends. I am a great fan of south
Indian food. However, none of my friends like south Indian food. They all want to have
Chinese food. Now, what should I do? If I follow the opinion propounded by Hobbes,
psychological egoist than I should take my friends to a south Indian restaurant as it is my
birthday and having food of my choice ensure my well-being and happiness. But if I follow
the theory of Bentham that focuses on “greatest amount of good for the greatest number”,
then I should take my friends to a Chinese restaurant as it ensures greater happiness for a
greater number of people. Bentham tried to harmonize conflict between his theory and
psychological egoism. He stated that be promoting overall good, I am also promoting my
own good as both the goods are interlinked with each other. However, this was not a
satisfactory answer to the above conflict. As a result, Bentham later pulled back his full-
fledged commitment to psychological egoism, accepting that sometimes human does act with
a benevolence that means to take action while keeping in mind the overall good of humanity.
The other important principle of Bentham’s theory is hedonism. Bentham believed in a

straight forward hedonism. As per Bentham, one intrinsic good is happiness or pleasure and
the bad is the pain. Therefore whenever we have to take any moral or just action, we should
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measure the value of our action with respect to happiness and suffering as per the following
factors:-
1) Intensity: Intensity means the magnitude of happiness or pain that is likely to be caused
by our action
2) Duration: Duration means the specific period till which happiness or pain that is likely
to be caused by our action will last
3) Certainty: Certainty defines how likely the happiness or pain will be the outcome of
our action
4) Proximity: Proximity explains the closeness of sensation (pain or pleasure) with the
performance of our action.
5) Fecundity: Fecundity means that how likely the current pain or pleasure will lead to
further pleasure or pain
6) Purity: How much one sensation (happiness or pain) is mixed with the other sensation
(happiness or pain).
7) Extent: It indicates the number of people that are affected by our decision.
However, we should not consider these factor for all moral deliberations as then the whole
process will become time-consuming and less efficient. For other moral deliberation, we can
refer to our past experiences. For instance, we know the pain caused to a person by kicking is
always more than the joy experienced by the kicker.
SELF-ASSESSMENT QUESTIONS
1. What are the strength and weakness of Bentham’s Consequentialist Utilitarian theory?
2. Deliberate on the following statement, “Are all action good when they have good results”.
FURTHER READINGS
1. H.L.A. Hart. Essays on Bentham, Jurisprudence and Political Theory, 51(1982).

2. Jeremy Bentham. Morals and Legislation, 125-126(1781).
3. Hugo Adam Bedau, Anarchical Fallacies, Human Rights Quarterly (2000).
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BENTHAM’S UTILITARIAMISM AND HIS NOTION OF JUSTICE
According to Bentham, the principle of utility should be a rod to measures the legislative
policies and enactments of the government. Bentham believes that it is a duty of the state to
promote “greatest amount of good for the greatest number” and the principle of utility is a
mean to achieve this end and not an end in itself. Hence we can conclude that Bentham does
not recognize human rights of individual‟s and thus the whole notion of justice is a just
ancillary aspect of utility for him. Thus, for Bentham, justice is justice when it is served as
per the legal regulations laid down by the legislature. Bentham never considered the natural
right of human as a right and therefore he does not recognize that humans have a general or a
specific right to justice. The above-mentioned view can be derived from Bentham analysis of
“French Declaration of Human Rights”. In his work, “Anarchical Fallacies”, Bentham
analyzed “French Declaration of Human Rights” and called it rhetorical nonsense. According
to him, the pleasure of the body politics lies in maintaining abundance, security, and equality
and the parliaments should keep these objectives in mind while drafting any legislation.
Bentham‟s idea of justice been subordinate to the utility is further evident by his opinion that
the judges should not be given wide judicial discretion to interpret the law. In his opinion,
Judges should adopt a strict interpretation of the law and avoid activist interpretation of the
law. This is because if the judges adopt activist interpretation, it might substitute clear and
plain intention of legislation with the judicial intention. Bentham describes activist judges as
a charlatan who provides pleasure to its spectator by providing bitter and sweet run from the
same cup. Bentham in his „theory of legislation‟ observes
“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, lest presently we see
it followed by all the tortious fields of abuse”.
Let‟s understand the Bentham notion of justice through an illustration. Let‟s assume there is
legislation that no wheels shall be allowed in a park. Let‟s suppose a car enters a park. This is
a clear violation of the legislation and the judge will apply the legislation as it is. However, if
a wheelchair enters a park than the legislation in this context is not clear. However, Bentham
is of the opinion that in such instances, Judges should apply legislative intent instead of
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substituting it with judicial intent and therefore even taking a wheelchair to a park is
punishable.
Prof.UpendraBaxi opines that Bentham thinks of a judge as expropriators who interchanges

his intention and his will with legislative intent and will and produces and reproduces
arbitrariness. According to Bentham, the legislature produces clear laws and there can be no
arbitrariness in it as the law is made in order to achieve overall happiness for society.
Therefore, he condemns judicial activism. Bentham's criticism of judiciary is not limited to
the expropriation of the power by judges but he also criticizes the delay on the part of judges
as for him, the delay is the denial of the justices. Bentham is of the opinion that the House of
Lords should be abolished and he argued for the monarchy.
Bentham has nowhere in his theory given justification for the judicial review. However, as
per the opinion of Prof.UpendraBaxi, Bentham justification for judicial review lies in his
notion of interdependence of three organs. However, he criticizes usurpation of political
power. Hence while recapitulating Bentham notion of Utilitarian justice, it can be concluded
that no precise and elaborate notion of justice can be found in Bentham‟s theory. According
to Bentham, justice lies in the pleasure of an individual and not in the happiness of the society
which was never recognized by him.
Even with the insufficiency of the notion of justice propounded by Bentham which J S Mill
tried to strengthen as we will discuss it in the next video, the notion of the utilitarian justice
has a crucial place in the evolution of the theories of justice. The value of utilitarian justice is
grounded in commencing a rational inquiry and adopting a rational approach for the
realization of the truth. Bentham notion of justice provides us objective and scientific
approach to realize the true notion of justice, which opens the door for reformation. The great
advantage that can be derived from Bentham “utilitarian approach to justice” is that the
Bentham‟s theory detaches justice from speculation, mysticism, theology, and imagination
which only leads to frustration and illusion.
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1. Explain about the Bentham Utilitarian notion of justice in brief?

2. Explain in detail the reasons for Bentham‟s criticism of judicial activism?
FURTHER READINGS
1. U. Baxi. Bentham's Theory of Legislation, p.xxiv (Tripathi, 1986).

2. Wayne Morrison. Jurisprudence – From the Greeks to post modernism, (1995).
3. Sills, David L., “Utilitarianism", International Encyclopedia of the Social Sciences,
228, (1986).
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J.S. MILL’S UTILITRIANISM
There are two main criticisms that have been leveled against Bentham,
1. That he does not give adequate importance to human dignity and individual rights
2. And that he wrongly reduces everything of moral importance to a single scale of
pleasure and pain.
John Stuart Mill had been raised soaking into the principle of Utility as propagated by
Bentham; this gave him a deep and profound understanding of the theory. The utility was, for
all practical purposes, Mill's religion- his way of life. As the generation after Bentham, he
believed these criticisms leveled against utilitarianism could be answered. Hence Mill
devoted his life trying to defend Bentham's Utilitarianism to recast it in a more human and a
less calculative philosophical approach.
Mill‟s writings thus were an attempt to reconcile individual rights with the utilitarian
philosophy that he had inherited from his father, James Mill who had been a friend of
Bentham‟s. In his treatise, On Liberty, he defends individual liberties under the basic crux
that people should be free to do what they want to do provided they cause no harm to others.
A government may not interfere with such individual liberties in order to protect a person
from himself or to impose the majority's beliefs on how best to live. The only actions for
which a person is accountable to society are those that affect others. Each individual,
according to Mill would thus have inalienable absolute rights over himself, his body, and his
own mind.
Take the example of the Navtej Singh Johar case once again. If we apply Mill‟s principles,
then, people ought to be at complete liberty to choose who their sexual partners would be, for
that is not causing „harm‟ to the others in the society. On the other hand, Benthamites might
argue, since the majority of the people in the society are not comfortable with the idea of
homosexuality, it ought to be banned to achieve the greatest happiness of the greatest
number. It is admitted by Benthamites, that this would work to the great detriment of the
homosexual minority, but then the majority view is greater in number and very emotionally
passionate in their belief in the „unnatural‟ character of homosexuality. In this scenario,
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following Benthamite utilitarianism becomes very shaky on the question of liberty and self-
hood. There, in context, Mill‟s view on liberty seems to be a much better alternative.
But you might raise a question: are we not contradicting ourselves when we say Mill defends
utilitarianism and yet opposes Bentham on the question of individual rights versus the view
of the greatest number? Mill believes that his libertarianism is entirely resting upon the
principle of utilitarianism rather than being opposed to it. Mill says Utility is not utility unless
it is viewed in the largest sense, “grounded on the permanent interests of man as a
progressive being.” Utility hence doesn't mean serving the interests of the majority today, but
serving for the greatest happiness of the largest number of people in the long run. While
today the majority may be satisfied to silence the dissenter for the maximization of utility, but
tomorrow, it might lead to the detriment of the future of this majority making for them a
society worse off- ales happier society in the long run.
Take another example of sustainable development. While today, the majority of a country
might believe that they should exploit their natural resources to the fullest for achieving
greater economic prowess, even if such exploitation is indiscriminately depleting their stock
against a minority of dissenters like environmental activists and indigenous forest people, but
in the very near future, when such indiscriminate resource use would lead to depletion of the
natural resources, the same majority would suffer.
Forcing a person to live by societal standards is wrong, says Mill primarily because one never
knows the amount of good a dissenter can create for the same society in the future. An
individual, who only conforms to societal norms, is like an imitating ape, putting none of his
intellectual faculties to use, and thus his potential to create anything that would maximize the
good of the society is much lesser, than that of someone who actively dissents, putting his
intellect to use.
The Second criticism of Bentham is that he has reduced all human values and facilities to a
single scale of pleasure and pain. Bentham recognizes no hierarchy or qualitative distinction
among pleasures. Thus push-pin (a child‟s game) and poetry, Bhimsen Joshi and Honey
Singh all, as long as they bring pleasure is as good as the other.
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This staunch refusal to draw distinctions between pleasures is based on Bentham‟s belief that
all values can be compared on a single scale.
Mill, unlike Bentham, to save utilitarianism from this criticism believes there can be a
distinction between higher and lower pleasures. For example, your pleasure from painting a
canvas should be distinguished from the pleasure derived through vandalism on the walls of
historical monuments. But this distinction too is not based on any obscure idea of morality
but on the idea of utilitarian happiness itself. Mill says, as long as the acts from which a
person is deriving pleasure tends to promote only happiness, and not sorrow in any other,
they are higher pleasures than the second category of actions, and these are the actions that
are to be taken for the overall happiness (greatest happiness for greatest number) of all. He
sticks to the utilitarian idea that pleasure and pain are all that matters in the theoretical
foundation of human life, only he broadens the approach of such by extending it by time.
However, how are we to decide which are higher pleasures? Mill says the sole evidence to
the higher desirable quality of an act is that people actually want to do that more than the
other acts. Here comes the criticism against Mill, what if a number of people prefer lower
pleasure to higher ones? What if a number of people prefer masala movies like Singham to
Oscar winners like „Lion‟? Of course, Mill ensures that the lesser number of people who
prefer „Lion‟ over Singham is not silenced, but once the preference of the minority is
classified as a lower pleasure, then it automatically accords them lesser qualitative
significance than the majority of the society making Mill a little self-contradictory.
Mill finds a way out of this trap of self-contradiction. He concedes that occasionally, humans
may postpone some activities (like watching studying „Law and Justice‟ to certain other
activities (Like Netflix-and-Chilling). But this would not be enough to adjudge the value of a
„higher‟ happiness and „lower‟ happiness. Ultimately, Mill believes, we all know what would
have a greater happiness producing effect on humanity over time and space. Thus Mill brings
to Utilitarianism a humane face that one hand bestows immense liberty to the individual in a
society, and on the other hand, helps redefine utilitarianism as not „greatest happiness for
greatest number NOW‟ but „Greatest happiness for the greatest number in the long run‟.
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REFERENCES
1. John Stuart Mill, Utilitarianism (1863).

2. Bruce Baum, J.S. Mill's conception of economic freedom, History of Political
Thought, 494–530, (1999).
3. Bruce Baum, Rereading Power and Freedom in J.S. Mill, (2000).
4. JesperRyberg, Higher and Lower Pleasures: Doubts on Justification, Ethical Theory
and Moral Practice, 415-29, (2002).
1. What are the two criticisms leveled against Bentham?

2. What according to Mill best suits the „greatest good of the greatest number‟ in terms
of unsustainable environmental practices?
3. How does Mill view absolute individual liberty in connection with utilitarianism?
Explain.
THINKING EXERCISE
Do this survey in your college/university/friend circle/colleague circle- Identify 20 films. Five of them
should be highly critically acclaimed, five of them should be highly popular one-time watch films,
five classics and the rest five can be any film you want. See how they rate these films in comparison
with the others. Ask them which of these films they have watched the most number of times at a go,
which ones they have watched the most number of times within a year, and which ones they have
watched the greatest number of times over the years.
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NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS’ DISTRIBUTIVE
ODISHA JUSTICE (WEEK 4)
INSTRUCTOR(S): DR. SREELEKHA
JOHN RAWLS’ DISTRIBUTIVE JUSTICE
KEY CONCEPTS:
a. The Original Position
b. Justice as fairness
c. Veil of Ignorance
d. The Principles of Justice
INTRODUCTION
The work of John Rawls, an influential US philosopher, bridges the differences in thoughts
between the modern liberals and the social democrats. His classic book titled A Theory of
Justice (1972) has contributed immensely to the discourse of justice. The answer to a
fundamental question, i.e., how a society can ensure justice to its citizens was attempted in
the book by John Rawls. According to him, there is a need for a principle in order to establish
justice. In addition, he proposed the establishment of institutions that can address the
problems of social inequality. Some of the other questions that were highlighted in the book
are what does the initial state of social equality look like?" and "what are the principles to
operate social equality"? The book has described the contours of a well-ordered society and
delineated the goals to establish and maintain a well-ordered society.
A set of a social contract (tacit agreements) forms the basis of society. These agreements are
basically the agreed-upon principles which according to Rawls must be independent of one's
position in society. Rawls believed that individuals are rational beings, having self-interest
maximization motives and roughly has similar needs. According to Rawls, two principles
guide individuals' moral interactions. Rawls subsequently proposed a theory termed as
"Justice as Fairness". The theory sets out two main principles: (1) Principle of liberty and (2)
principle of equality. According to the principle of liberty, everyone has the right to claim
basic liberties and rights. On the other hand, the principle of equality is based on the idea of
"distributive justice". Distributive justice describes the fairness in the distribution of the
resources and privileges in society.
The core component of the above two principles was Rawls’ original position’, i.e., the
thought experiment.
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According to Rawls, in the

thought experiment, the
principles of justice are decided
from behind the ‘Veil of
Ignorance’. Rawls claimed that
‘Veil’is important for the society.
It conceals all the factors that are responsible for settingthe society apart, for example, things
such as status, wealth and talent. The concealmenthelps in taking decisions without any bias
or predisposed favours. Rawls believed that principles of liberty, equality and justice would
help in achieving a consensual social contract. So, how does Rawls’ ‘original position’ play
out on a smaller scale?
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ORIGINAL POSITION AND VEIL OF IGNORANCE

Imagine a case in which a hospital caught fire in an
accident. As a consequence, a large number of patients were
evacuated and transferred to a nearby hospital. Ideally, the
managers of the hospital are expected to arrange substitute
facilities for adequate care and treatment. Unfortunately, the
records of all the patients were destroyed in the fire. There is absolutely no information
regarding the details of the patients, their financial background, and the criticality of their
ailments. The bigger question is how the hospital staffs handle the situation? They need to
prepare from an ‘original position' under the ‘veil of ignorance' and designing a new space for
the patients they must guess their needs. In addition, hospitals would put effort to ensure that
risky patients receive immediate care because of the greater threat of death. So hospitals work
in a risk-averse manner to prevent death and cure their patients. The concept of ‘original
position' may thus help the hospital to ensure that risky patients get the attention and thus,
justice and equality prevail.
For Rawls, this is a best possible just outcome, compared to the situation where the doctors
had taken the decisions based on the ability of the patients to pay or which patients have the
most powerful connections in this miniature society. Fundamentally, in this original position,
no one knows what specific role we all take up in society, how wealth could be distributed or
who we all are in society.
According to Rawls, this veil conceals factors that set society apart, so that decision can be
made without bias or predisposed advantages due to factors such as wealth and status. When
a group takes away the knowledge of disposition, assuming the original position is the best
way to make the principles fair.
According to Rawls, the ‘original position’ helps in achieving consensual social contract
through the principles of justice, equality and liberty. Rawls in his work focused more on
ways to create a just and fair society. He came up with two principles of justice (as discussed
above) with the original position and in the veil of ignorance.
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NATIONAL LAW UNIVERSITY TOPIC: JOHN RAWLS‟ DISTRIBUTIVE
TWO PRINCIPLES OF JUSTICE

 First Principle: All citizens should be provided equal basic liberties such as freedom
of speech and religion.
 Second Principle:This principle of justice elaborates that social and economic
distribution should be aimed at providing the greatest benefit to the least advantaged
and endowments are open to all under the condition of equal opportunity.
In the following section we will discuss the two principles in detail.
FIRST PRINCIPLE: THE PRINCIPLE OF EQUAL LIBERTY

This principle protects the rights of the individuals from invasion. In addition, it provides
equal rights for all citizens. This provides equal liberties, such as freedom of speech, religion,
and the pursuit of happiness for all citizens. This principle preserves the Kantian commitment
“no one wants to be treated as a mere means”.
PART 1: The Difference Principle

The difference principle rectifies the unequal distribution of resources and talent without
constraining the talented. It considers the distribution of natural talents as a common asset.
Individuals who are better off would gain only when their activities improve the worse off.
This is important as the worse off individual would make everyone worse off. Rawls
emphasized that the basic structure of the society need to be arranged in such a manner that
the endowments and talent work for the betterment of the worse off individual. In business,
this reduces the chances of price-fixing and monopolistic trade practices and guarantees
efficient use of talents, resources, and competitive markets. In other words, it helps in the
preservation of the Utilitarian belief.
PART 2: Principle of Fair Equality of Opportunity

As citizens, individuals pursue their ends and expect to be treated with respect. For example,
if we turn out to be a member of the minority community (be it ethnic or religious) we are not
to be oppressed, even if it gives happiness to the majority. This is in accordance with the
„principle of equal basic liberties‟ for the citizens, including the right to the liberty of
conscience and freedom of thought.
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These principles combine two themes: treating people as free and equal (Work of Kant) and
treating people equal (Utilitarianism).
THERE ARE RIVAL THEORIES OF DISTRIBUTIVE JUSTICE

a) The Feudal or caste system: This system has a fixed hierarchy which is based on the
birth.
b) Libertarian system: This system believes in free market with fair equality of
opportunity.
c) Meritocratic system: It believes in free market with fair equality of opportunity.
d) Egalitarian system: it is based on the „different principle‟ proposed by Rawls.
According to Rawls from the moral point of view, the first three theories are based on the
factors that are arbitrary. For example, an accident of birth (caste system), or social and
economic advantage (libertarian system), or natural talents and abilities (meritocratic system)
are arbitrary. Only the fourth theory (the difference principle) avoids the distribution of
income based on these contingencies.
OBJECTIONS TO RAWLS’ DIFFERENCE PRINCIPLE

 Incentives: One objection to Rawls is that if the talented are benefited from their talent
only when it helpsthe least well off, what will happen if the talented decidesnot to work
or work less?
 Effort: Rawls rejected the meritocratic theory on justice. According to him individual‟s
natural talent cannot be attributed to their own actions and doing. The objections to the
above stand come from the argument that individuals put effort and hard work to
cultivate their talent. Do the talented deserve reward for their hard work and effort?
1. Rawls theory of justice talks about __________________aspect of society.(functional /

structural)
2. Rawls second principle of equality based on idea of
________________________(distributive justice/ liberties)
3. Rawls original position is decided from behind the _________________( ascribed status/ veil
of ignorance)
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ACTIVITY
Debate the Indian Constitution and the provisions about the caste system? Whether the constitution it
really justifies the rights of the lower castes?
ASSIGNMENT
Write and discuss about Reservation system in India in the context of Rawls different principle.
REFERENCES
1. Rawls, J. (1971)A Theory of Justice, Cambridge MA: Harvard University Press.

2. Sandel, M. (2011)Justice: What’s the Right Thing to Do?,Penguin Publisher.
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INSTRUCTOR(S): PROF. RAO
RAWLS’ CONCEPT OF REFLECTIVE EQUILIBRIUM AND LEGAL

ASPECTS
Rawls‟s idea of social justice is one essentially rooted in the idea of the social contract. “The
guiding idea”, as written by Rawls “is that the principles of justice for the basic structure of
the society are the object of the original agreement. They are the principles that free and
rational persons concerned to further their own interests would accept in an initial position of
equality as defining the fundamental terms of their association.”1 Thus, Rawls further
contends that these set principles would govern all further agreements and specify the kinds
of social cooperation that can be entered into and the forms of government that can be
established. This proposition, Rawls believed, is the essence of Justice is fairness.2 Rawls
argues that one must first distinguish between people‟s genuine judgements about justice and
their subjective, self-centred views. When we do so, it becomes plain that the position that
would be adopted by a neutral outsider concerning what is just is likely to be fairer than the
assessments made by the parties who have vested interests in the outcome.
Once those objective criteria of fairness have been arrived at, then one is to measure that
against their own judgments, and the inescapable distinction between the two judgements
ought to be corrected by modifying the individual‟s judgment in such a way that it comes
closer to the objective standards of fairness of the hypothetical outsider. This is basically the
concept of Reflective Equilibrium.
Much of Rawls's book is about a detailed comparison of rival theories of justice, and
especially his critic on utilitarianism. He uses these concepts to argue in support of his two
principles of justice is largely resting on the „reflective equilibrium method'. The implications
of two principles and of rival theories in this methodological approach are contrasted with
reference to our own inherent considered judgments about specific issues (for example
slavery is wrong). Now if the implications of the general theory of justice contradict these
considered judgments, then there can be two alternatives, a) to reformulate the general theory
or b) to reformulate the considered judgment, and after each modification or rejection test
1
F Michelman , READING RAWLS (Norman Daniels Daniels ed., 1989).
2
Raymond Wacks, UNDERSTANDING JURISPRUDENCE (Oxford University Press, 2012) 222.
GLOBALIZING WORLD
them against each other. During such shuttling of back-and-forth what emerges is „Reflective
equilibrium' or coherence between the general theory of justice ( in the above-mentioned case
the two principles) and the individual's moral choice making or considered judgments. The
core value this is the Rawlsian treatise of justice is that there must be coherence between
one's theory of what is justice, and one's a particular view about the justice of specific
arrangements.
NATIONAL LEGAL SERVICES AUTHORITY V UNION OF INDIA3
In this landmark case concerning the legal recognition of gender of the transgender people,
and if non-conformity to clearly identifying oneself as male or female was in contradiction to
the Constitution of India, in the absence of previous law regarding the civil and political
rights of the transgender people, the court had held noting that the diverse transgender
community has faced great disadvantage and prejudice in India since the 18th Century, and
stating an individual's gender identity to be an integral part of their personal identity, and a
basic aspect of dignity, freedom and self-determination , declared that the transgender people
have the right to be treated as a „third gender‟ and also in other cases determine their own
self-identified gender, while also addressing the issues of the several socio-economic
discrimination faced by the people of this gender in terms of health services, access to
education and employment, and general access opportunities to public places.
Justice K.S Radhakrishnan, speaking on behalf of the court noted in paragraph 127 of the
judgment, talking of the justice of treating equals equally, remarked saying while Aristotle
had been the first to opine that the ends of justice can only be met when equals are treated
equally and unequal unequally and the most important assumption that has been made is that
all humans have equal value and thus ought to be treated equally by equal laws as expressed
in the Rawlsian idea of „reflective equilibrium'.
This comparative approach of comparing individual moral ethics to the societal standards
constantly to find a coherent meeting point between the two- forms the cornerstone of the
idea of „justice as fairness‟. In Rawls proposes a number of model institutions. He also
emphasizes certain „considered judgments‟, which he believes most individuals in most
3
(2014) 5 SCC 438.
GLOBALIZING WORLD
societies may accept and conform to. Rawls tried to formulate a set of principles which may
be universally applicable in a democratic society. Combining this notion with the theory of
distributive justice propounded by Amartya Sen brought the court in the given case to its
jurisprudential basis for not only recognizing the identities of the Transgender people but also
to do justice in trying to address their extreme vulnerability in the Indian Society.
NAVTEJ SINGH JOHAR V UNION OF INDIA4
In this most welcome judgment decriminalizing homosexuality in India, two of the

concurring judges – Justice RohintonNariman and Justice D. Y. Chandrachud referred to the
Rawlsian treatise on Justice.
Justice Nariman, talking about the recent developments in the Indian law that necessitated the
approach of the Supreme Court in decriminalizing consensual sex between homosexual
couples, referred to the case of Common Cause v Union of India5. In that case, dealing with
euthanasia, the Chief Justice of India, Justice Dipak Misra had said in paragraphs 167 and
168 of the said judgment- that Rawlsian Political liberalism focuses on the liberal concept of
choice making and thus in such context self-determination is understood as exercised through
the process of choosing.6 This respect for an individual human being and in particular how
such a person is to live their own lives is a question to be decided by the said persons'
individual autonomies and their right to self-determination.
Justice Chandrachud in his concurring judgment also refers to Rawls, in order to explain how
sexual choices are inherently an attribute of autonomy. The Rawlsian concept of the original
position, as we already learned, serves as a model to illustrate the concept of choice making
behind the „veil of ignorance‟, where mutually disinterested parties unaware of their own
social position make decisions on allotment of goods. In this situation, the decision reached
by the people in the original position would focus on a category of goods which an individual
would desire irrespective of his own individual understanding of what a „good' is or his own
social status. These neutral goods, which Rawls terms as the „primary social goods‟
encompass a bundle of rights, liberties, duties, opportunities, and the constituents of self-
4
AIR 2018 SC 4321.
5
(2018) 5 SCC 1.
6
John Rawls, POLITICAL LIBERALISM (Columbia University Press, New York) 32-33.
GLOBALIZING WORLD
respect. This kind of conception of self-respect establishes it as a primary human value

desired by all strata of humanity for themselves and for others. “In furtherance of the
Rawlsian notion of self-respect as a primary good, individuals must not be denied the
freedom to form relationships based on sexual intimacy,” writes Justice Chandrachud in
paragraph 67 of his concurring opinion in the Navtej Singh Johar judgment.
Thus Rawl's idea of autonomy and self-determination is expressed primarily through the
individual actions of choice making, again helped found not only the jurisprudential basis for
the Common Cause case, but the whole expanding realm of the right to privacy jurisprudence
and hence also a part of the jurisprudence that helped decriminalize consensual homosexual
intercourse in India according to justice Nariman, while to Justice Chandrachud, the theory
becomes an integral instrument to establish the idea of self-respect as not only the foundation
of autonomy but as a primary human value founded on an individual's ability to exercise their
native capacities in a competent manner.
REFERENCES
1. Catherine Audard, DEFENDING DEMOCRATIC EQUALITY: THE ARGUMENT FROM THE
ORIGINAL POSITION, IN JOHN RAWLS, (McGill-Queen‟s University Press, 2007).

2. F Michelman, READING RAWLS (Norman Daniels Daniels ed., 1989).
3. Raymond Wacks, UNDERSTANDING JURISPRUDENCE (Oxford University Press, 2012).
4. John Rawls, POLITICAL LIBERALISM (Columbia University Press, New York).
5. John Rawls, THE THEORY OF JUSTICE (1971)
1. Explain the Rawlsian idea of Justice as fairness.

2. How do Justice Nariman and Justice Chandrachud relate to John Rawls‟s Theory of
Justice in the case of Navtej Singh Johar v Union of India? Is this approach similar or
different from the approach taken by Justice Radhakrishnan in the NALSA case?
GLOBALIZING WORLD
THINKING EXERCISE
Try and conceptualize a society where everybody is truly under a veil of ignorance. Is such a society
truly egalitarian? Think and write about the pros and cons of living in such a society.
Jurisprudence: from the Greeks to post-modemism
PARTFOUR
THE RADICAL FREE-MARKET PHILOSOPHY OF
ROBERT NOZICK
NOZICK AS AN EXAMPLE OF PHILOSOPHICAL

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LIBERTARIANISM
While Rawls's theory may justify social redistribution (it amounts to a defence of the
modem liberal-democratic welfare state), for another group ofliberals - whom we can
call1ibertarians - big government is incompatible with liberty. Libertarians share a
profound distaste for an theories which promote any idea of a social good which
legitimates centralised social administration - even if this is the rather individualist
conception of classical utilitarianism - and the aim is to aholish an governmental
interference with the lives and 'rights' of the citizen. Libertarianism largely founds itself
upon a reading ofthe classical social contract theoristJohn Locke, who is seen as holding
a central thesis that in astate of nature mankind is possessed of inviolable individual
rights and has supreme right to take possession of any goods which others do not own.
Once seized of these goods, they become their property. The role of govemment is to
protect those rights - particularly the rights to life and property - and social
administration is only legitimated insofar as it reinforces and protects those rights and is
never legitimated in overriding them. Society is conceived only as the space wherein
individuals pursue their own projects, free from interference and respecting the rights of
others. The politicaljurisprudence ofRobert Nozick, characterised by his book Anarchy
State and Utopia (1974), is the best known 01 the libertarian theories ofjustice. 20 Nozick
begins from the dual premise that an persons are naturally individuals possessed of
right,21 and that all govemments, and all social organisations, need justification:
the fundamental questton of political philosophy, one that precedes questions about how
the state should be organised, IS whether there should be any state at all. Why not have
anarchy? (1974: 4)
To begin with this basic premise sounds strange to the European reader, but in the
American context it represents an understandable, if extreme, beginning. While
European writin~ are unable to look back to the existence of any actual history of their
20 HIS essay has been described as 'extolling the virtues of 18th-century individualism and 19th-century
laissez-faire caplta1ism' 0 Paul, ed, Reading Nozick 1981: 1), an 'original, remarkable and strikmgly
mtelligent' piece of wnting (ibid: 28), whtle Lloyd and Freeman called it one of the most 'provocative
essays in poJitica1 philosophy to have appeared in a long time' (6th edn, 1995: 367). More soberly it
was regarded as 'hlghly theoretical in character, with the virtues of formal elegance as opposed to
concrete realism' (paul, ed, 1981: 35).
21 'Indivtduals have nghts, and there are things no person or group may do to them (without violating
therr rights)' (1974: ix). Nozick olfers no sociological or other explanation ofhow the emphasis upon
individualism or rights has come about, instead his basis is merely to appeal to our intwtions about
treating people as 'ends in themselves' and 'treating us with respect by respecting our nghts' (ibid: 334).
398
Liberalism and the idea of the just society in !ate modemity
own which resembles the Lockean narrative, the founding and development of the
United States is often interpreted as the living embodiment ofthe Lockean narrative. 22
Nozick's writings develop a theory ofjustice which reinforces a radical free-market
approach and fits a so-called minimal or nightwatchman state. It is no surprise that he
concludes:
The minImal state is the most extensive state that can be justificd. Any state more
extensIve violatcs people's rights (1974: 149).
WHAT IS NOZICK'S IDEA OF THE MINIMAL STATE,

AND WHY DOES HE CLAIM THIS IS THE ONLY
STATE THAT CAN BE JUSTIFIED?
Nozick defines his reference to the minimal state as 'the nightwatchman state of classical
liberal theory, limited to the functions of protecting all its citizens against violence, theft,
fraud and the enforcement of contracts and so on' (ibid: 26-7). How does he exp!ain this
as the only level of social organisation defensible?
Anarchy, State and Utopia is subdivided into three parts. Its structure is loaded in
favour of minimalism. Part One purports to confront the anarchist who denies the
legitimacy of any form of state, asserting that any state is 'intrinsically immoral' (ibid: 51).
In response to this 'challenge', Nozick undertakes a thought experiment in which he
traces the detailed evolution of the minimal state in which neither its emergence, nor its
continued existence, infringes rights. Part Two examines the notion of the minimal
state, and specifies that a more extensive state will vio!ate rights and thus be ul1iustified.
Nozick develops an 'entitlement theory of justice', whereby economic goods arise in
society already encumbered with rightful claims to their ownership, which in turn
discredits 'pattemed' forms of distribution (ibid: 155-164). In Part Three Nozick
presents his utopia, which enables hirn to argue that the minimal state is worth
defending.
The opening chapter ofPart One is entitled Why State cif Nature Theory, and outlines
a thought experiment which begins by imagining life without astate. Nozick does not,
however, present us with a horrible state of nature such as Hobbes has done, since
clearly ifhe were to make the state of nature as bad as Hobbes envisaged, then we would
be likely to accept any state as providing a solution to the problem. Conversely, Nozick
argues that we should imagine a benign state of nature; his father figure is Locke not
Hobbes. However, in this situation, the question may arise whether we really need to
22 As Stephen Newman (1984: 16) puts It in a book apdy entided Liberalism at Wits' End: fhe Libertarian
Revolt against tl,e Modem State: 'the United States is the premier Lockean polity. Its founding was
vlrtually an actmg out ofthe prinClples ofLocke's Second Treatise ofGovemment, and for almost 100
years the nation seemed a near-perfect model of what Locke meant by clvil society. Govemment was
instltuted to protect hfe and property. Authonty was purposefully limited and made subject to
multIple remaints in order to safeguard the Iiberty of the people. Fortunate material circumstances,
notably an abundant supply of free land, allowed equal opportunity and virtual autonomy for (almost)
all (not, of course, for blacks, IndIans, or women). Free-market capitalism, nurtured by the state,
served the interests of neh and poor allke by opening the avenue of success to ambition and talent.' At
least that is the political narrative cherished by modem libertanans.
399
]urisprudence: from the Greeks to post-modemism
invent astate? We would need very good reasons to justifY it. Nozick constructs a
theoretical argument with several steps.
Step one: Individuals are placed in astate of nature, but - as with Locke's narrative -
these individuals are possessed of rights. Nozick argues that there are two ways of
thinking about rights. In one conception we accept that rights will conilict, or that we
need to balance rights with other social goals. Ultimately, Nozick suggests, this leads
into a utilitarianism conceming rights; we begin to wonder about either sacrificing or
reducing rights or altematively maximising the protection of rights. As Nozick puts it:
' ... suppose some conditions about minimising the total (weighted) amount of
violations of rights are built in the desired end state to be achieved. We would then have
something like a 'utilitarianism' of rights: violations of rights (to be minirnised) merely
would replace the total happiness as the relevant end state in the utilitarian structure.'
Even ifwe are aiming at a minimum rights violation we would still in certam conditions
be willing to sacrifice an individual for the common good. In the second conception of
rights, a 'moral side constraints' view of rights prevails (ibid: 28-35). We are never to
violate these rights. 23 For Nozick, it is never permissible to override the interest of the
individual for the sake of the others in society. 24 In the thought experiment individuals
possess these rights in astate of nature, but we are asked to imagine there was natural
anarchy. This leads us to step two.
Step two: These individuals with rights form voluntary associations to defend their
rights. These associations - 'mutual protection agencies' - are totally voluntary. Those
who join receive protection and the others do not. As yet no state has been formed;
there is no body that has legitimation for use of force over the whole area. Originally,
therefore, the association has only those rights granted to it by other individuals. It is
simply a collection of indiviciuals in association.
Step three: The voluntary associations sort thernselves out territorially. A 'dominant
protection association' develops in each area. This is an inevitable consequence of the
economics of protection and results in a logical requirement for protection services such
as the courts and police, etc, to function within a certain territory.
Step four: In step three there are still some independents who have not Joined any of
the associations, thus the independents have the same rights to protect thernselves as the
23 'Side constraints upon action reflect the underlying Kantian princlple that mdividuals are ends and not
merely means ... Side constraints express the mviolabliity of other persons.' (1974: 30) Again the
foundatlon of this, Nozick claims, IS our perception of our lives: 'The moral side constraints upon
what we may do, I clalnl, reflect the fact of our separate eXlstences. They reflect the fact that no moral
balancing act can take place among us; there is no moral outwelghmg of one of our hves by other so as
to lead to a grcater overall social good. There is no justified sacrifice of some of us for others' (ibid: 33).
24 It has often been said that one of the possible problem.~ with Rawls's veil of ignorance is that of
gambhng. (An indIvidual may prefer to gamble on being one of those who have benefited rather than
one of the losing few.) Rawls does not seem able to handle the fact that albelt, perhaps, to gamble is
irrational, it is also part of the human condltion. Perhaps in the example of the patient in room 306 (cf
Chapter 6 of thls text) we would choose the utilitanan solution, gamblmg that we would be far more
hkely to be among the five, not the one. Oruy a theory of the absoluteness of nghts, such as that of
NOZICk, would be guaranteed to save the patient m room 306, even though the others cowd save the
five others.
400
Liberalism and the idea of the just society in late modemity
associations. Step Four consists of these independents joining or becoming incorporated;

we thereby arrive at a minimal state, a body capable of exercising a monopoly in the use
of force within a particular territory and extend protection to all its citizens (ibid: 113).
The minimal state is limited in its legitimation of force to the protection of certain basic
rights: it is the nightwatchman state of classic liberalism. Under utilitarianism, or the later
theory of Rawls, we could have redistribution policies; but no redistribution is
legitimate in the minimal state. All that is paid for would be a basic protection service.
There is no welfure state etc in Nozick's theory. Some may call this classical capitalism.
Nozick further claims the development of the minimal state is spontaneous, unplanned
and unintended. It is portrayed as the result of natural history: 'an invisible band process
and by morally pennissible means, without anyone's rights being violated' (ibid: 119).
How do we move from step three to four? It looks impossible 25 because the most
basic assumption is that individual rights are so strong that they raise the question of
what if anything astate could do; particularly if it never violates rights. Surely step four
involves the violation of the rights of some members? Paying for protection must
involve some redistribution of resources. 26 The step also seems to involve some
violation of rights of the independents, since now there is an authority which has power
over them to which they have not agreed. The crucial rights lost are those of self-help
and to interpret and be the final arbiter of when one's rights are violated (the right to
take the law into one's own hands and decide when justice is done). The state now
becomes the final arbiter of when violence is to be used. The state alone sanctions the
legitimate use offorce. 27
,
25 Many critics have simply feit It to be a 'hypothetical narrative ... a bizarre departure from any common
sen~e account' (Bemard Williams, quoted in Paul, 1981: 5).
26 How can we judge? What criteria are possible? Nozick otTers none. Robert Holmes tums Nozick's
own arguments against hirn argumg that since no independent cnterion is otTered to assess the
enforcement procedures of the donunant protective associations the 'usurpation of all the powers of
adjudIcanon and enforcement cannot be justified' (In Paul, 1981: 6).
27 It is for thls reason that at first glance the move from protection associations to a minimal state appears
too large. Hypothetically, since t:Ius is a thought experiment, Nozick nught have solved the problem
SJIllply by saying that everybody would join the minimum state, but as this is an unlikely course he
needed a more realistic narrative for his theory to gain credIbility. Nozick proposes two problems for
his own scheme: specifically, (I) it looks as though the members of the associations allow limited
redistribution to the mdependents, and (iJ) why do the independents Join at all? Nozick replies it only
looks like redistnbut!on. For example If A owes B money and B steals goods !rom A's horne this could
be compensation rather than stealing. It could look like either; we have to look at the reasons, not Just
the appearance. Nozlck argues that It is a matter of compensanon. The nununal state mcorporates the
mdependents but owes them something because they have lost their self-help right. It owes them
protection services and compensation. So we can get to step four. Nozlck thinks that people can
actively and voluntanly consent to anything provided that thcre is no violation of the rights of others.
So we can consent to giving up nghts. One could sell oneself into slavery; so we can consent to astate.
But the compensation argument is not Slmple consent, and we must ask 'what is tur compensation?'
He discusses compensation in various ways, one of which is by ditTerence curves, but Nozlck thinks
we can use this argument to get to a minimal ~tate. Again the critics are not convmced: Robert Paul
WoltT(in Paul, 1981: 7) argues a rational calculation ofthe hann sutTered in violating the rights is not
possible owing to the 'f}U1dity and lack of structure' of the stare of nature.
401
]urisprudence: from the Greeks to post-modemism
ARGUMENTS BASED ON FAIR ACQUISITION

In Part Two Nozick uses another set of arguments - which he tenns an Entitlement
Theory tifjustice - to conclude that only the minimum state is justified. These are a set of
arguments aimed specifically against redistribution of wealth. The entitlement theory
prornotes the idea that an individual has an intrinsic right to whatever he holds,
provided that the way in which he came to hold each part of his property was justified.
There are three ways in which a person is entitled to hold his possessions justly: justice in
acquisition - this means that the property when acquired was not the property of
someone else (eg a natural resource); justice in tranger - this is where the property is
transferred to the present holder by valid means. These includes gift, sale, inheritance-
the only stipulation being that there has been no mud or theft involved. When there has
been a failure to observe one of the above methods of entitlement by the present holder
of the property, then the i~ustice should be rectified, and A should restore the property
to B. This is termed justice in rectification.
Thus Nozick's argument is quasi-historical: 'A distribution is just if it arises from a
priorjust distribution by legitimate means' (ibid: 151). Nozick then launches into aseries
of arguments which attack rival proposals, such as those underlying distribution
structures which are informed by arguments from the theories of utilitarianism (such as
the maximisation of social welfare), or those which stress the desirability of equality.
Nozick argues that underlying conceptions of (re)distributive justice are sets of principles
which conflict with the primacy ofliberty, and an absolute respect for rights.
A famous illustration Nozick provides is the Wilt Chamberlain argument. Nozick asks
us to imagine a stable set of distributions we consider just. We are to call this distribution
Dl. Perhaps everyone has an equal share, perhaps people have a share in accordance
with a particular distribution curve; the specifics do not matter, what matters is that we
do not object to that particular distribution pattern. Imagine in that society there is a
brilliant 7'1" basketball player, Wilt Chamberlain, extremely sought after by basketball
teams, having tremendous draw power with the fans; people love to see him play and
they are willing to pay more when he plays. Let us suppose his contract says for every
horne game, 25 cents from the price of each ticket goes directly to Wilt, or that during
the season at horne matches, each spectator drops 25 cents into a separate box with
Chambt'rlain's name on it. They are all excited about seeing him play and consider they
get value for 'noney. Nozick asks us to suppose that in one year a million people pay to
see him play; Wilt receives $250,000 more than other team players and naturally this
sum is very much larger than the average income in the society. Is Wilt entitled to this
income? At the end of the year we have a new distribution D2" with Wilt having much
more resources than anyone else. Is this distribution unjust? If so, why? By way of an
:lnswer, Nozick asks us to consider how Dl became D2. It was clearly achieved by
people exercising their rights under D1. The individuals exercised their liberty and gave
money to purchase what they wished; they freely chose to transfer a portion of their
money to Wilt in order to enjoy watching him exercise his skills. Nozick does not claim
that D2 is better than Dl, merely that D2 is asjust as D1. D2 is simply a position which
a..';ses as a result of individuals exercising the rights they possessed under Dl, without
402
Liberalism and the idea of the just society in late modernity
harming anyone else. Therefore 02 is as 'just' as 01; but, ifso, the accepted pattern of
distribution which characterises 01 is broken. The operation of liberty has upset the
settled pattern.
Nozick suggests that this will be the fate of all systems which are structured in terms
of policies and patterns; such conceptions of justice are doomed to be unworkable.
Instead we are asked to agree to a dynarnic system which places primacy on rights which
are not to be violated. For Nozick the fundamental principle of this 'historical
entitlement theory' ofjustice is that 'whatever arises from ajust situation by just steps is
itselfjust' (1974: 151).
But what of coercion? Even the rightful exercise of rights by people can actually lead
to very coercive outcomes and situations. Moreover, the Wilt Chamberlain argument is
a very particular argument; in fact the market does not always work this way. Today the
market is an all-embracing environment and in the main people experience the market
in a different way to Nozick's arguments; they cannot simply take it or leave it when
offered work, and there is a reliance upon certain goods. The market can be coercive,
rather than freedom maximising.
Nozick (1974: 262-265) provides another example of what he considers freedom
maximising to be. In this example he responds specifically to the idea of the coercive
market, and the Marxist style argument that people are forced to work in order to
survive. Nozick begins by agreeing that: 'other people's actions place limits on one's
available opportunity'; but he goes on ' ... whether this makes one's resulting action
non-voluntary depends on whether these others had a right to act as they did ... ' He
proposes a sort of desert island example: there are 26 women (A-Z) and 26 men (Al-
Zl) each wanting to be married. In this relatively simple society there is no disagreement
as to the comparative attractiveness of each to each other. The order of attractiveness
goes from A-Z in decreasing preferential order. A and Al voluntarily choose to get
married, each preferring the other to any other partner. Now although B would have
preferred to marry Al, and Bl would prefer to marry A, the actions of A and Al have
destroyed this option. Since Band Bl also wish to marry, they therefore choose each
other as representing the most preferable option out of what is left. Now although the
options of Band BI have been reduced, their rights have not been interfered with
through the exercise by A and Al of their liberty; thus Band Bl have not been coerced
into their choice. Of course options become more and more limited down the line, but,
Nozick says, even when one goes through X and Y, and accepts that by the time one
comes to Z and Zl and they are left with only each other or nothing, coercion is not
involved. Both Z and Z 1 admit that if they want to be married they must marry the least
attractive person of the opposite group. The question is fundamental: have they been
coerced if they marry each other rather than nobody?
Nozick claims that similar considerations apply to market exchanges between
workers and the owners of capital. If one said that the employees were graded A-Z and
the employers AI-Z1 can we consider the combination Z-Z1 as voluntary? Are there
any legitimate grounds for Z or Zl to complain? Perhaps Z is faced with the choice of
working for Z 1 or starving; and since the choice is a result of the actions of all the others
403
]urisprudence: from the Greeks to post-modenUsm
which do not provide Z with any other option - does Z therefore choose to work
voluntarily? For Nozick 'Z does choose voluntarily if the other individuals A-Y each
acted voluntarily and within their rights'.
Both the marriage example and the entitlement of property fall, for Nozick, under
the adage 'flom each as they choose to each as they are chosen'; it is not something that
redistribution policy should interfere with.
Whether, however, in the employment example, people voluntarily and freely
choose, is surely a more complicated question; the marriage example is not an exactly
analogous situation. Some might argue that people have a social right to a job although,
perhaps, not a distinct social right to marry. Does that make the situation ofZ coercive?
CONTRADICTORY PROBLEMS WITH THE

PRINCIPLE OF RECTIFICATION
In Nozick's scheme the claim to just distribution depends on individuals having strong
rights to ownership of their property, but how can we be sure of the historical validity of
their claims? Nozick acknowledges that the issue of past injustices raises severe problems.
If past mjustice has shaped present holding in various ways, some identifiable and some
not, what now, if anything, is to be done to rectity these injustices? How, if at all, do
thing; change if the beneficiaries and those made worse off are not the direct parties in
the act of inJustice, but, for example, their descendants? How far back must one go in
wiping clean the historical slate of injustices?
Having raised the issue Nozick can only conclude 'I do not know of a thorough or
theoretically sophisticated treatment of such issues'. lronically, as Bemard Williams point<
out, Nozick's theory may offer a substantial challenge to contemporary capitalism since
Nozick's derivation theory does not imply that contemporary property holding; arejust;
on the contrary (though it is a matter of removable fact), it is 99"10 probable that almost al1
of thern are not. (Mr NOZ1Ck rnay think that rnuch of Arnerica rightfully belong; to the
Indians) (In Paul, 1981: 27).
How can entitlement therefore be guaranteed historically? Given the infinite possibilities
for injustices to have occurred historically, and the theoretical and practical impossibility
of identifying and rectifying them, any attempt to put Nozick's theory into practice to
justify present holdings as safe from interference is either historically arbitrary or self-
contradictory.28
28 This conclusion follows from the honesty of Nozick's position. Nozick relies upon the Lockean
principle of rightful imtial acquisition, namely, that one must not make others worse off when
acqulling a piece of unwanted matenal or natural resources, and cla1Illing ownership. Kymlicka (1990)
summanses Nozick as proposing a staged theory of property acquisition:
1 people own themselves;
2 the world is largely unowned;
3 you can acquire absolute property rights ova a dispropomonate share of the world, ifyou do not
worsen the condltion of others;
4 It is relatively easy to acquire absolute rights ova a disproportionate share of the world; therefore
5 once private property has been appropriated, a free market in capital and labour is morally
required....
404
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: ROBERT NOZICK’S
ODISHA LIBERTARIANISM (WEEK 5)
TAXATION AS FORCED LABOUR

Taxation is like taking the earnings, i.e., the fruits of the labour of an individual.In other
words whenthe state demands its right to take part of the earnings of an individual,it is
morally similar to the right of the stateto proclaim a part of the labour of the individual. Thus
the individual works part for self where s/he is allowed to keep her/his earnings and at the
same time s/he works partly for the State, without being paid. This makes taxation actually a
moral equivalent of forced labour.Forced
labour is taking away of one’s leisure,
time, and effortswithout having the full
rights on the earnings. So for Nozick and
otherlibertarian’s taxation isthievery.
When the state has the right to claim the
fruits of one’s labour,it implies that the
state really has an entitlement to her/his
labour itself which is against the very essence of liberty.The tax collected from the well-to-do
individual, when distributed among the downtrodden, makes all those people (not worthy of)
entitled to the fruits of labour of the more worthy. Libertarian finds fault with such concept of
redistribution.
TAXATION AS SLAVERY
According to Nozick, forced labour is slavery. If an individual doesn’t have the sole right to
his/her own labour then the inference is the state is a part-owner of the individual. In other
words, it means the individual is a slave as he/she doesn’t own him/herself. This reasoning
puts forward the principle underlining the libertarian case for rights. It is the idea that
individuals own themselves, i.e., the idea of self-possession. The fundamental idea is that
each individual is the owner
ofhis/herthoughts;hence, the
utilitarianism goes wrong.Individuals
are the owners of their own-self, thus it
is wrong to tax the rich for the betterment of the poor. We can ask the rich for charity but if
people being asked for tax it is like forcing them to labour.
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: ROBERT NOZICK’S
ODISHA LIBERTARIANISM (WEEK 5)
OBJECTION TO LIBERTARIANISM
a. The taxation by consent of government is not coerced.
b. The poor need the money more than the rich.
c. The successful individual owes a debt to the society
d. Wealth earned by an individual is partly because of his/herluck so it isn’t deserved.
1. Robert Nozick is a _________________________ theorist. (Utilitarian/Libertarian)

2. As per Nozick taking of earnings in the form of taxation is _____________labour. (bonded
labour/ forced labour )
ACTIVITY
Collect the data about India’s two richest persons and discuss about their taxation to find out whether
Nozick’s view on taxation is justified or not.
ASSIGNMENT
1. Write a short note India’s new tax system that is GST in the context of Nozick’s Libertarian
view?
2. Discuss why the libertarians argue against taxing the rich for the betterment of the poor?
REFERENCES
1. Sandel, M. (2011).Justice: What’s the Right Thing to Do? Penguin Publisher.

GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: AMARTYA SEN’S IDEA OF JUSTICE
ODISHA (WEEK 6)
AMARTYA SEN’S IDEA OF JUSTICE
KEY CONCEPTS:
a. The Concept of Niti and Nyaya
b. Consequentialist arguments from Mahabharata (Conversation between Krishna and
Arjuna)
INTRODUCTION
Amartya Sen, while providing a critique of Rawls, opened a new path to look for alternative
notions of Justice outside the western context. Most theories of Justice overwhelmingly focus
on creating just institutions, with some derivative and subsidiary contribution from
behavioural features. For instance, Rawls’ hypothesis of “Justice as fairness” gives rise to a
distinctive set of principles of Justice that solely propose to establish just institutions (to
constitute the basic structure of the society), while calling for strict compliance of people’s
behaviour with the demand for ideal functioning of these institutions (Sen, 2009).
Sen's work, The Idea of Justice, could be seen as an intense dialogue between deontology and
consequentialism, where Sen makes his clear preference for the latter with an attempt to
bridge the former without giving up any important ingredients of the latter. He narrates an
engaging anecdote of three children (Ann, Bob, and Carla) at the beginning of his book.
These three kids quarrel over a flute. The basis of the claim for Ann was that she is the only
one who can play it; for Bob, he has no other toy to play with and for Carla, she made the
flute. Assuming all these claims to be true, Sen is of the view that one can cite an instantly
conceivable reason for giving the flute to any one of them.
Utilitarian’s would favour Ann and so will the Aristotelians, though for completely different
reasons. Whereas egalitarians would go with Bob, libertarians will see reason in Carla's
claims. These are all assumptions. We need to get the right answer. But at times there will be
a plurality of answers and one cannot be distinguished from the other as more right or less
right. The concept that there can be only one fixed typecast of the just society and that all
other those which do not conform to this stereotype are to be seen as falling off from this
concept does not appear reasonable in the face of pluralism that does certainly exist in the
modern world.
GLOBALIZING WORLD
ODISHA (WEEK 6)
ARRANGED -FOCUSED AND REALISED-FOCUSED UNDERSTANDING OF JUSTICE

In probing the idea of justice, it is important to distinguish between (1) arranged focused of
Justice and (2) realized-focused understanding of justice. Many of the contemporary theories
of Justice in political philosophy conceptualize Justice on basis of certain organizational
arrangements such as institutions, regulations, and some behavioural rules. All these
arrangements are indicative of the administration of justice. This is the arranged focused view
of Justice. In contrast, the realized focused view of Justice looks more into the assessment of
the actual world, and it emerges from the life of the people they are going to lead.
GLOBALIZING WORLD
ODISHA (WEEK 6)
NITI (PRINCIPLES OF JUSTICE) AND NYAYA (DELIVERING JUSTICE)

Indian philosophy clearly distinguishes institutional justice from actual realization of Justice:
Niti (principles of Justice) and Nyaya (delivering Justice). According to Sen, Indian
philosophy clearly distinguishes institutional Justice from actual realization of Justice: Niti
(principles of Justice) and Nyaya (delivering Justice on the ground). Niti stands for
organizational propriety and behavioural codes of conduct. On the contrary, Nyaya represents
actual social realization, transcending the bar of organizational rules and norms. Nyaya, the
realization of justice, is not judging the institutions and their rules rather than assessing the
society itself. As principles of justice (Niti) are not sufficient to ensure its realization, the
realization-focused view of Justice is likely to see the injustice around the world more
compared to the arrangement-focused view of justice. Identifying the injustice in society is
also one of the major roles of justice.
Giving Justice can be replaced by removing
injustice. Sen argues that identifying
injustice and removing it from the society
should be the first step to Justice.
GLOBALIZING WORLD
ODISHA (WEEK 6)
CONSEQUENTIALIST ARGUMENT FROM MAHABHARATA

a. Krishna stands for duty and Arjuna for responsibility in one’s duty.
b. Krishna stands for performing duty irrespective of consequences.
c. Arjuna’s arguments are realised-focused Justice, where the emphasis is on taking the
responsibility of one’s
action.
d. Nyaya based Justice with
realization-focused
understanding is the
prerequisite for any
contemporary.
The conception of Justice in

Bhagvad Gita has been discussed in various articles, and books on duty ethics.Bhagvad Gita
is the longest epic in world literature, having 100,000 lines in stanzas, narrative of the war
happened inKurukshetra, and the subsequent fate of the princes in both the kingdoms, the
Kauravas and the Pandavas. The conversation of Arjun and Lord Krishna in the battle field
of Kurukshetra is depicted in Bhagvad Gita. The intense debate between Arjuna and Krishna
is one of the centerpieces which have added value and essence to the epic, and over the
centuries it has not only attracted much religious and philosophical attention but also has
generated many deliberations especially in the moral and political front. In the conversation
between Krishna and Arjuna, Krishna stands for duty and Arjuna for responsibility in one's
duty. At war with his praja, Arjuna confronts the problem of whether war is the only solution.
At this juncture, he is burdened with righteousness and justice of war and the very question of
mass slaughter. Arjuna is reluctant to fight though he is aware of the ill consequences of
allowing the unjust Kauravas to rule. Krishna persuades Arjuna to see reason in performing
his duty irrespective of the consequence. Krishna's arguments are duty-based reasoning and
Arjuna's arguments are consequence-based as he is taking the responsibility of good
consequences. There arises this question of duty against justice which challenges with
morality, relationships and other ties one is confided with.
GLOBALIZING WORLD
ODISHA (WEEK 6)
The Bhagvad Gita also propounds the concepts of Niti and Nyaya. The notion of Niti
(ethical) principles as the guiding force behind one’s conduct) is the concept of Dharma
(Duty/ Righteousness/Religion) which combines the obligations and entitlements that links
individuals and encompasses the whole world. However, if Dharma is adhered to by one and
all, i.e. internalizing the concept upon which everything is based, then no transgression
wouldever have occurred to necessitate the use of any judge or judgment. Niti is similar to
duty ethics or guidelines. There is also another part of the Bhagvad Gita which is equally
important, i.e. the part of the conversation from the standpoint of Arjuna which argues that
Nyaya –the duty of an individual, in particular, can bring about the development of
humankind. To bring the principles of Justice into practice, the writing of the principles are
equally important as practicing the principles. If there is no performative function for Nyaya
it stands null and void. In fact, the sustenance of any modern society needs Karma along with
Dharma. Consistent with the above argument, Sen says that Niti becomes just when it is
being converted into action for humankind as a whole and not for a particular group.
As we discussed above Niti is about rules and Nyaya deliver justice on the ground. To show
the importance of Nyaya as practice-based justice, Sen provides an example of Gujarat Riots
in India in 2002. The government which was accused of killing Muslims came back to power
with an overwhelming majority, which was also democracy at work. This is the paradox of
democracy is being able to create as much injustice as it is able to create justice. In this
context, Sen explains that setting out the democratic institutions is Niti but how they practice
justice is Nyaya. A Sen’s conception of Nyaya: Although ―responsibility‖ is a word with
several divergent meanings, and perhaps the proper term for Sen's concern is really
responsiveness—namely, to injustice. For example, providing school facilities for children in
educationally backward societies would be an important Niti but ensuring that boys and girls
are actually educated is the perspective of Nyaya.
Equal right to homosexual is Niti but getting into American Army is Nyaya. Providing equal
rights to a lower caste (Dalits) in India is Niti but access to rights, resources, employment,
and security is Nyaya. Although Niti or law is always there at the place as a State policy, the
Nyaya or justice or we can say the on-ground implementation of Niti is what that is usually
found wanting. It is not the State which itself can ensure this Nyaya, but it is the society at
GLOBALIZING WORLD
ODISHA (WEEK 6)
large which can extend these benefits to the historically downtrodden by embracing these
Dalits wholeheartedly.
1. Amartya Sen’s focus is _______________________based justice.(Niti /Nyaya)

2. Nyaya based justice is about ______________________aspect of justice. (structural/functional)
3. In probing the idea of Justice, Sen talks about _________________________justice.(arranged
focused view of justice/realised focused understanding of justice)
ACTIVITY
Find out the chapters in Bhagvad Gita which has focused the discussion between Sri Krishna and
Arjuna on Dharma and Karma.
ASSIGNMENT
Write a short note on the gap between structural and functional aspect of justice in the context of
Sen’s Idea of Justice with some relevant examples.
REFERENCES
1. Sandel, M. (2011). Justice: What’s The Right Thing to Do? Penguin Publisher.
2. Sen, A. (2009). The Idea of Justice. Cambridge, Mass.: Belknap Press of Harvard
University Press.
GLOBALIZING WORLD
ODISHA (WEEK 6)
AMARTYA SEN’S CAPABILITY APPROACH
The Food Security Act provides about 75% of the rural poor, and 50% of the urban poor with
a legal right to 5 kgs of staple food-grains per person per month, including free meals and
maternity benefits for women and children of the age of 6 months to 14 years. When this Bill
was introduced, Sen lauded the bill saying it will go a long way in dealing with India's
chronic hunger and malnutrition problem. Based on Sen's capability approach, which
basically says every person should be made capable enough to do things he/she values. For an
example of the capability approach in this context, Sen uses an interesting example of the
difference between a ‘fasting' and a ‘starving' person. While the first person exercises his
choice in not eating food, the second person has no choice but not to eat. Hence capability
approach in terms of food would mean that everyone would have enough access to food to
make the choice between eating and not eating.
When Bhagwati criticized this heavily subsidized program for being a huge fiscal cost to the
government, Sen believed, it would have been the greatest dishonesty if the government
claimed that they cannot implement the 2013 Food Security Act because of fiscal problems.
Bhagwati said, like any subsidy program, this would leave the beneficiaries vulnerable to the
interference by middlemen. Instead, he suggested a system of direct cash transfers to the
beneficiaries which they might spend on food, providing greater empowerment to the poor by
allowing them to spend the money of the direct cash transfer as they want.
Sen retorted by pointing out that Direct Cash Transfers have two major problems: a) The cash
intended for food may be spent on buying other services like health and education, which are
also not publicly accessible to a large section of the Indian poor, and b) The cash transfers
would tend to benefit only the persons spending on behalf of the household, the male adults
of the family would thus be benefitted much more, at the cost of leaving the female children
to be the most vulnerable sections in the family, and the society at large. More importantly,
he says on the point of empowerment, rather than direct cash transfers, employment schemes
like MGNREGA would lead to much greater empowerment, by giving the rural poor a
greater capability to work in terms of choice (they can now choose to work under the
GLOBALIZING WORLD
ODISHA (WEEK 6)
MGNREGA scheme in the lean months of agriculture, when in a pre-MGNREGA scenario

they would have no option to work and earn this extra income).
The MGNREGA passed into law in 2005, and it guarantees for every rural household a right
to 100 days of rural-based employment at the prevailing minimum wage rate. In the context
of the MGNREGA, there was a debate between Prof. Bhagwati and Prof. Sen's approach to
the policy. Prof. Bhagwati dismisses the MGNREGA scheme as wastage and incompetent
governance because of the layers of corruption and poor implementation of the scheme.
Bhagwati believed that the poor would benefit much more from direct cash transfers, because
in case of such direct cash transfersthe recipients receive benefit directly instead of being at
the mercy of middlemen. It also helps reduce corruption. However, Amartya Sen disagrees.
He believes it is incorrect to say that direct cash transfers can replace the significance of
public services because it would suggest giving incentives to the beneficiaries to buy health
and education services from private providers. Conditional cash transfers according to Sen
might work in a country where all basic services exist in proper capacity to cater to the
demand for these services, which is however not the situation in India. Hence, cash transfers
would not be effective. For example, an employment program likes MGNREGA that is
supposed to provide employment for the rural poor at a time when limited farm work is
available may not achieve its intended purpose. Specifically, it serves as a ‘safety net’ for the
rural poor in terms of income security, but more than that it helps build a ‘sense of
empowerment' rather than a sense of being an object of charity or benefit, in sync with Sen's
Capability approach that speaks of human development in the term of socio-economic
capability-based empowerment. This basically means that while Bhagwati believes in the
distribution of benefits, Sen advocates a distribution of opportunities.
ESSENTIAL READINGS
1. Amartya Sen and Jean Dreze, AN UNCERTAIN GLORY: INDIA AND ITS
CONTRADICTIONS (2013).
2. JagdishBhagwati and Arvind Panagariya, WHY GROWTH MATTERS: HOW ECONOMIC
GROWTH IN INDIA REDUCED POVERTY AND THE LESSONS FOR OTHER DEVELOPING
COUNTRIES, (New York Public Affairs, 2014).
FURTHER READINGS
GLOBALIZING WORLD
ODISHA (WEEK 6)
1. Nita Rudra& Daniel C. Tirone, Trade, Politics, and the Poor: Is Sen Right and
Bhagwati Wrong? 52 (1)STUDIES IN COMPARATIVE INTERNATIONAL DEVELOPMENT 1–
22 (2016).
1. How does distribution of benefits and opportunities differ?

2. Can Cash Transfers be effective in an economy like India? If so why? If not, why?

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What are the key differences between Jeremy Bentham and John Stuart Mill's theories of utilitarianism?

What are the key differences between Jeremy Bentham and John Stuart Mill's theories of utilitarianism?

What are the key arguments made in the debate between Prof. Bhagwati and Prof. Sen regarding cash transfers vs employment schemes like MGNREGA?

What are the key arguments made in the debate between Prof. Bhagwati and Prof. Sen regarding cash transfers vs employment schemes like MGNREGA?

COURSE: LAW & JUSTICE IN A

JEREMY BENTHAM’S UTILITARIANISM

The Bentham’s view on Utilitarianism simultaneously endorses and contrast “psychological

The other important principle of Bentham’s theory is hedonism. Bentham believed in a

1. H.L.A. Hart. Essays on Bentham, Jurisprudence and Political Theory, 51(1982).

BENTHAM’S UTILITARIAMISM AND HIS NOTION OF JUSTICE

Prof.UpendraBaxi opines that Bentham thinks of a judge as expropriators who interchanges

1. Explain about the Bentham Utilitarian notion of justice in brief?

1. U. Baxi. Bentham's Theory of Legislation, p.xxiv (Tripathi, 1986).

J.S. MILL’S UTILITRIANISM

1. John Stuart Mill, Utilitarianism (1863).

1. What are the two criticisms leveled against Bentham?

JOHN RAWLS’ DISTRIBUTIVE JUSTICE

According to Rawls, in the

ORIGINAL POSITION AND VEIL OF IGNORANCE

TWO PRINCIPLES OF JUSTICE

In the following section we will discuss the two principles in detail.

FIRST PRINCIPLE: THE PRINCIPLE OF EQUAL LIBERTY

PART 1: The Difference Principle

PART 2: Principle of Fair Equality of Opportunity

THERE ARE RIVAL THEORIES OF DISTRIBUTIVE JUSTICE

OBJECTIONS TO RAWLS’ DIFFERENCE PRINCIPLE

1. Rawls theory of justice talks about __________________aspect of society.(functional /

1. Rawls, J. (1971)A Theory of Justice, Cambridge MA: Harvard University Press.

RAWLS’ CONCEPT OF REFLECTIVE EQUILIBRIUM AND LEGAL

NATIONAL LEGAL SERVICES AUTHORITY V UNION OF INDIA3

NAVTEJ SINGH JOHAR V UNION OF INDIA4

In this most welcome judgment decriminalizing homosexuality in India, two of the

respect. This kind of conception of self-respect establishes it as a primary human value

1. Catherine Audard, DEFENDING DEMOCRATIC EQUALITY: THE ARGUMENT FROM THE

ORIGINAL POSITION, IN JOHN RAWLS, (McGill-Queen‟s University Press, 2007).

1. Explain the Rawlsian idea of Justice as fairness.

NOZICK AS AN EXAMPLE OF PHILOSOPHICAL

WHAT IS NOZICK'S IDEA OF THE MINIMAL STATE,

associations. Step Four consists of these independents joining or becoming incorporated;

ARGUMENTS BASED ON FAIR ACQUISITION

CONTRADICTORY PROBLEMS WITH THE

TAXATION AS FORCED LABOUR

1. Robert Nozick is a _________________________ theorist. (Utilitarian/Libertarian)

1. Sandel, M. (2011).Justice: What’s the Right Thing to Do? Penguin Publisher.

AMARTYA SEN’S IDEA OF JUSTICE

ARRANGED -FOCUSED AND REALISED-FOCUSED UNDERSTANDING OF JUSTICE

NITI (PRINCIPLES OF JUSTICE) AND NYAYA (DELIVERING JUSTICE)

CONSEQUENTIALIST ARGUMENT FROM MAHABHARATA

The conception of Justice in

1. Amartya Sen’s focus is _______________________based justice.(Niti /Nyaya)

AMARTYA SEN’S CAPABILITY APPROACH

MGNREGA scheme in the lean months of agriculture, when in a pre-MGNREGA scenario

1. How does distribution of benefits and opportunities differ?

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