Concept of Justice, Utilitarianism and Other Modern Approaches

(C) Notion of Justice and other Modern Approaches

According to Kelson the longing for justice is men's eternal longing for happiness. It is happiness that man can not find alone, as an isolated individual and hence seeks in society. Justice is social happiness guaranteed by social order.18

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 epch tht knows the inevitability of change over stability whatever its theories of justice, late modernity is doomed to dynamic as opposed to static justice.19

(C) (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.20 One of the most interesting modern attempts to defend principles of justice are found in John Rawls: A Theory of Justice21 , as now reformulated in political liberalism. John Rawls sets out two basic moral principles of justice which a constitutional democracy should satisfy:

1- the maximization of liberty are essential for the protection of liberty itself;

2- 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

3- 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 ways22 :

First, utilitarians 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.

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.23

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.24

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.25

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.26

(C) (ii) - Robert Nozick’s Concept of Justice

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, 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.27 Nozick develops an entitlement theory of justice, whereby economic goods arise in society already encumbered with rightful claims to their ownership.28 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.”29

(C) (iii) - 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 convictin 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.30 Utilitarianism, Dworkin argues assigns critical weight to external preferences: it is accordingly not equalitarian since it will not respect the right of every one to be treated with equal concern and respect.31

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.

(C) (iv) - Views of Communitarian Jurists and Displacement of Debate

over the respective priority of the Right and the Good

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 can not sacrifice individual rights in the name of the general good, but also that principles of justice can not be derived from a particular conception of the good lite."32 This is a cardinal principle of liberalism, according to which there can not be a sole conception of eudemonia, i.e., of happiness.

The communitarians argue that one can not 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.33 Communitarian therefore assert 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."34

(C) (v) - Karl Marx Notions of Justice

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.35

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.