PAN MOHAMAD FAIZ

THEORIES OF JUSTICE: An Introduction

Theories of Justice seek to find what society seeks to do in relation to individuals and groups of men whose conduct it governs. Philosophers sought to make society better or possibly worse when they champion the cause of some dominant groups) by attempting to identify these criteria to guide us as to how rewards and freedoms shall be distributed in a society.

In the perception of most of academic mainstream of the West there is an essential conflict between equality and freedom. The problem of social justice, then, is to evolve the criteria of balancing the claims of equality and freedom. There are equalitarians who either prefer equality to freedom or give representation to both equality and freedom. Some give very low priority to equality.

Equality requires identification of similarities either reference to equality alone or to principles extraneous to equality. Equality, either independently, or in association with principles extraneous to equality, is one of the referents of justice. Parelman, attempted to find some common core in equality to ascertain, similarities without reference to considerations extraneous to equality.[1]

Similarities have been identified on the basis of human worth. But it is difficult to operationalise the concept of worth of man in conflicting opinions on political absolutism and distribution of rewards.[2]

Rawsl dissatisfied with the existing theories of Justice and being aware of weakness of equality as such, projected justice as fairness. Apart from equality fairness includes Liberty and rewards for services contributing to common advantage. There are two basic principles in his theory:
All participants in an institution have a right to maximum of liberty compatible with like liberty of all.

Inequalities are just only if they are for every one’s advantage. These are fair principles because they have been adopted in original position, a hypothetical state. The distribution must be guaranteed on the basic of average utility. In operation Rawls’s theory would mean that liberties shall be available to each but socioeconomic inequalities shall persist. In his theory welfare becomes a matter of right.[3] (Rawls’s theory of Justice will be explained further in details.)

F.A. Hayek and Robert Nozick give priority to liberty at the cost of complete or near complete exclusion of family. Hayek tottaly rejects the idea of purposeful and scientific social development. Economy, law, politics and morality are by products of spontaneous and even irrational human activity and abolition of welfare and monopoly institutions. Robert Nozick also believes in the efficiency of the market economy. His theory is known as theory of entitlement. Possession of things is just if title to them to be required legitimately in free market protected by law. This theory according to Nozick is non-patterned and historical.[4]

In spite of branding of social justice by Marx as a bourgeois concept in his entire theory there runs an undercurrent of the problems of social justice. For the Marxist there is not essential conflict between equality and freedom. For Christopher Caudwell equality and freedoms are complementary. Freedom is no to be conceptualized as absence of restraints but as appreciation of necessity and as a means to develop personality.[5] Marxist have two important principles of justice, namely from each different stage of socialist development. Justice is neither autonomous nor a ready made formulae. These formulae do not have any intrinsic meaning but must be understood in terms of scientific socialism.[6]

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End Notes:

[1] See Julius Stone, Human Law and Human Justice (1965), pp. 352-339.

[2] William K. Frenkana, ‘The Concent of Social Justice’ in R. Brandt (ed), Social Justice, 1962.

[3] John Rawls, A Theory of Justice (1976), pp. 11-22.

[4] F.A. Hayek, Roadro Serfdom (1974); Robert Nozick, Anarchy, State and Utopia (1974). For a summary of the position of libertarians, see J. Stone, “Justice not Equality” in Kameka (ed), Human Rights, 1978.

[5] Christopher Caudwell, The Concept of Freedom (1977), pp. 51-75.

[6] See Wiselow Lang, “Marxism, Liberalism and Justice” in Kamenka (ed), Human Rights, 1978. Also see V.K. Dixit, “Freedom and Equality” in N.R.M. Menon (ed), Social Justice and Social Process in India (1988), p. 56.

Main Source: Reading Materials Faculty of Law, Delhi Univ.

A. CONCEPTION

1. Notion and Reasons

Reception means transplantation of one type of law onto another. The basic condition of reception is that one law should penetrate another law on a wider legal area. There are several main reasons for the reception of law, namely:

1. The basic reason for reception may be the “exhaustion” of the adaptional energies of the existing law. Example: In this situation the law has to be reformed either in the original way as after French Revolution or by way of reception, such as the reception of Roman Law in Europe, in some areas of Islam, mainly in Turkey, in some African countries after their independent.
2. Another rather widespread reason for reception is the political and economic conquest. Example: The reception of English law was so many parts of the world.
3. Reception is also somewhat influenced by the jurist if the recipient country and by their training methods. Example: The “Laussanne Group” of the Turkish or the connection of Romanian Jurists with the French at the time of the 1864 codification.
4. Some ‘technical factors’ may also play a role here. Example: The endeavours in the United States to receive French law failed because of difficulties in translation.

2. Non-Organic and Organic Reception

The form of receptions is imposed or voluntary reception. However, it is decision from the aspect of legal development, to distinguish between non-organics and organic reception.

a. Non-Organic

• This reception cannot be spontaneous and hardly can it be judicial. It needs a par of excellence legislative act. Mostly it is imposed, but not in each or every cases. Example: The Belgian reception of the French Code Civil was imposed and is still organic. While David’s code civil accepted by imperial Ethiopia was voluntary and is still non-organic.

b. Organic

• This reception, for present use, is an adaptional reception. The society responds to requirements raised by changed circumstances with reception in a voluntary way or under force. Therefore, the received law becomes a law of its own by transforming what existed and thus getting itself modified. Example: The formation of German and French bourgeois laws greatly helped by Roman law.

Distinguish between non-organic and organic reception, therefore concerns with the relationship of the receiving society and the received law rather than the relationship of other parts of the legal system and the received law, thought is not an indifferent matter either.

3. Selective Reception

An imposed law will not in all aspects be in accordance with the will of the ruling class of the colonizer. This fact often involves a so-called selectivity of reception. Example: The selectivity was realized in a peculiar way in Indonesian where only those Dutch laws were valid which had been enacted by private company (Section 95).

After reception, the received law will begins to love its own life. In the course of this process, the received law will either more or less modify or will fall to assert itself depends on certain things. They are:

1. The legal area concerned;
2. Its adaptability;
3. Whether reception is organic and the size of the gap between the social, economic, cultural ad institutional development of the law of the ‘donor’ country and that of the recipient country.
4. The policy that is pursued by the recipient country.

B. SAVIGNY THESIS

1. Volkgeist

According to Savigny, law was not something which can be made or altered arbitrarily by lawmaker. The nature of any particular system of law was a reflection of the spirit of the people (volkgeist). All law is the manifestation of this common consciousness. He wrote:

“Law gross with the growth, and strengthen with the strength of the people, and finally dies away as the nation loses its nationality”.

Savigny protested against the Reception of Roman law in Germany and codification of Roman law had been received into Germany so long ago. Therefore, its legal soul had become a mixture of Roman and local laws.

Against this, Savigny sets his thesis that a people’s law cannot be made by drafting committee, but must grow from people’s experience and character, expressing among them a ‘common feeling of inner necessity’.

In his great work, “The History of Roman Law in the Middle Ages”, he analyzes the Roman development documents to its root. And in his another great work, “The system of Modern Roman Law”, he analyzes Roman and local laws.

For Savigny, nevertheless, the true nature of law is best seen in customary law. He said:

“All law is originally formed in the manner in which in ordinary but not quote correct language, customary law is said to have been formed”.

2. Criticism

Savigny’s view that volkgeist is the source of all law is not totally true. Sometimes, an alien legal system is successfully transplanted in another, for instance:

• German Civil Code has been adopted in Japan, the Swiss code in Turkey, and French Code in Egypt without any apparent violence to popular susceptibilities.
• The reception of English law in so many parts of the world is also evidence is supra national adaptability and reliance.

A inconsistency in Savigny’s work that he was the protagonist at the Volkgeist doctrine, but at the same time he worked for the acceptance of a purified Roman Law as the law of Germany.

C. RECEPTION OF COMMON LAW IN INDIA

Indian legal system has received common law of England. The reception of English law in India is evidence of supra national adaptability and resilience. The general reception of English common law in India did not include English common family law. This means the successful of alien systems into India affected the indigenous family laws least of all.

1. Impact

No judicial system in any country is wholly immune from and unaffected by outside influence, nor can such outside influence be always looked upon as a bare. The reception of common law in India, however, gas given some influences into the existed law. The Gandhian expressed that it has replaced the quick, cheap and efficient “panchayat justice with expensive and slow courts which promote endless dishonestly and degrade public morality.

Furthermore, around eighty percents of Indians who lives in village wouldn’t understand the complexities of amendments (legal education literary) and Indian Legal System (ILS) became a subordinate almost a vassal legal system.

2. Search for Alternatives

Some Indian people argue that the present system of administration of justice does not accord with the pattern of Indian life and condition. In answer this criticism, Law Commission of India observes that the system which has prevail in India for nearly two centuries thought British in its origin has grown and developed in Indian condition and it is now firmly rooted in the Indian soil.

It would be disastrous and entirely destructive of Indian future growth to think of radical change at this stage of the development of India. The true remedy lies in removing the defects that exists in the present system and making it subserve in a greater degree for the present and the future.

To a limited extent, however, it is possible to utilize some of the simple features of judicial administration that obtained in the post. They refer to the popular courts or as they are turned today, The Nyanya Panchayats.

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REFERENCES:

1. Eorsy, Gy., Comparative (Private) Law (1979), pp. 562-568.
2. Stone, Julius, Social Dimensions of Law and Justice (1966), pp. 86-118.
3. David Rand Brierly E.C., Major Legals System in the World Today (1985), 3rd ed., pp. 485-515.
4. Derret J.D.M., “Justice, Equity and Good Conscience” in Anderson, editor, Changing Law in Developing Societies, pp. 11-53.
5. Glanter, M., “The Aborted Restoration of Indigenous Law in India” in Comparative Studies in Society and Histroy (1972), pp. 53-67.
6. Baxi, Upendra, The Crisis of the Indian Legal System (1982), pp. 41-47.
7. Law Commission of Indian, 14th Report (1985) Vol. 1, pp. 24-34; and 77th Report (1978), pp. 7-10.
8. etc.