The Interrelationship, Read through the Theories of Justice
Chapter Eighty-Five
Syllabus topic 5, "Relation between Law and Justice"
Pages 344 to 347 of 356
In one line
Each theory of justice implies a different account of what law is for, and the fastest way to see the difference is to give them all the same problem.
In the wording a student can write in an exam: the theories of justice examined in Module III each imply a position on the relation between law and justice. Utilitarianism makes justice a function of law's consequences, so that the two are related as means to end and there is no independent standard. The contractual tradition makes law legitimate only so far as it conforms to what free and equal persons would agree to. Kant makes law's authority depend on its treating each person as an end. Rawls makes the basic structure of society, including its legal system, the primary subject of justice. Dharma makes law answerable to a standard that upholds the order of which it is part. The critics deny, in different ways, that any of these describes what law actually does.
The theories applied to one problem
The problem. A State proposes to acquire the land of a farming community to build a port that will raise national income substantially. Compensation is offered at market value. The community loses its occupation and its settlement, and will be resettled elsewhere.
Utilitarian. Count the gains and the losses, weighted for intensity, duration, certainty and extent. If the aggregate favours the port, the acquisition is right and the community's loss is a cost already counted. Law's function is to bring the arrangement about efficiently. Justice adds nothing beyond the calculation, which is the equivalence conclusion.
Contractual, in Locke's form. Government is a trust for the protection of life, liberty and property. Taking property is within the trust only if it serves the purpose for which government exists and goes no further, so the acquisition must be necessary and the compensation full. Law's function is to keep the government within its trust.
Kantian. The community must not be used merely as a means to the national income of others. Market value is not obviously an equivalent for a livelihood and a settlement, and dignity admits of no equivalent. Law's function is to secure the standing of each person against being treated as an instrument.
Rawlsian. Ask whether the arrangement satisfies the two principles. Basic liberties are not directly engaged. Fair equality of opportunity may be. The difference principle asks whether the inequality produced works to the greatest benefit of the least advantaged, and the farming community may well be the least advantaged, in which case the port must benefit them and not merely the national aggregate. Law's function is to constitute a just basic structure.
Dharma. The ruler's duty is the protection of his subjects, and taxation and taking are to be proportionate, on the image of the bee taking honey without destroying the flower. Displacing a community without securing its subsistence is a departure from raja dharma. Law's function is to give effect to a standard it does not create.
The Interrelationship, Read through the Theories of Justice
Marxian. The law of acquisition is the instrument by which the propertied class transfers resources from those who work the land to those who own capital, and the language of public purpose is what makes the transfer look neutral. Law's function is what it is being used to do.
Sen's capability approach. The question is not the money but what the community can do and be afterwards. Compensation at market value that leaves people unable to farm, without credit, water or a market, has not preserved their capabilities. Law's function is to secure real freedoms rather than nominal entitlements.
What Indian law actually does
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, is the closest Indian analogue and it takes elements from several.
Facts. Pavement and slum dwellers in Bombay, nearly half the population of the city, challenged the decision of the State Government and the Municipal Corporation to evict them forcibly and deport them to their places of origin, and challenged section 314 of the Bombay Municipal Corporation Act 1888, which permits removal of encroachments without notice. Some had earlier undertaken in the High Court to vacate, and the Corporation pleaded estoppel.
Held. No estoppel can be claimed against the enforcement of a fundamental right. The right to life in Article 21 includes the right to livelihood, because no person can live without the means of living, and evicting a pavement dweller deprives him of that means. Section 314 was read as enabling rather than compelling removal without notice, so notice and a hearing were ordinarily required. On the facts the evictions were allowed to proceed, after the monsoon and with alternative sites for census-recorded dwellers.
Reading the decision through the theories. The recognition of livelihood as within the right to life is Kantian and capability-based: a person is not to be reduced below what a life requires. The insistence on notice and a hearing is contractual and procedural. The permission to evict, timed and with alternative sites, is utilitarian in structure, weighing the city's needs against the dwellers'. The refusal to allow estoppel is the independence position: a right is not lost by a party's own concession because it is not his to give away.
What that shows. Indian law does not adopt one theory. It uses the vocabulary of several, which is why an answer that argues for a single theory is weaker than one that shows the decision drawing on more than one.
The Interrelationship, Read through the Theories of Justice
The general relations, stated
On the equivalence family, including utilitarianism in its strict form, law and justice are identical or reducible: justice is what law provides, or what law's consequences justify.
On the dependency family, law is the instrument of justice: the standard is independent, and law is how it is made effective. Article 37 is this position.
On the independence family, including natural law, Kant and dharma, law is subject to justice: the standard measures law and may condemn it.
On the critical theories, the stated relation is a mask: whatever the theory says, law in practice serves the interests of those who control it.
The best answer to MU's question
1. State the three relations: equivalence, dependency, independence.
2. Show which theory implies which. Utilitarianism tends to equivalence; the contractual and Kantian traditions and dharma to independence; and the constitutional treatment of directive principles to dependency.
3. Apply them to one concrete problem, so that the differences are visible rather than asserted.
4. Say where Indian law stands: independence in a qualified form, since the standard is the Constitution's own scheme, with dependency operating for Part IV.
5. Cite decisions, because the rubric on every printed paper requires it: Kesavananda for the standard beyond enactment, Minerva Mills for the rejection of unlimited power, Olga Tellis for the theories in combination, and ADM Jabalpur for what happens when the standard is abandoned.
A worked example
A statute provides that a debt owed to a bank may be recovered by sale of the debtor's house without any order of a court.
Utilitarian. If speedy recovery lowers the cost of credit for everybody, the aggregate may favour it.
Contractual. The debtor agreed to the loan but not to the abolition of adjudication, and government is trusted with supplying an impartial judge, not with removing one.
Kantian. Selling a person's home without a hearing treats him as an obstacle to recovery rather than as a person with standing.
Rawlsian. Basic liberties include freedom from arbitrary seizure, and the first principle has priority over economic efficiency.
Dharma. The ruler's duty includes protection, and a procedure that permits a taking without a hearing offends the requirement to decide by a standard rather than by the creditor's will.
Indian law. Maneka Gandhi v. Union of India, AIR 1978 SC 597, requires a procedure that is right, just and fair; E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes an arbitrary measure void under Article 14; and the ouster of adjudication would face L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
The Interrelationship, Read through the Theories of Justice
Quick revision
- Each theory of justice implies a relation between law and justice; giving them one problem is the fastest way to show the difference.
- Utilitarianism tends to equivalence; contractual, Kantian and dharma views to independence; Part IV expresses dependency.
- Marxian and capability critiques ask what law is actually doing and what people are actually able to do.
- Olga Tellis draws on several at once: livelihood recognised, hearing required, eviction permitted and timed, estoppel refused.
- Indian law is independence in a qualified form, with dependency for Part IV.
- A complete answer states the three relations, maps the theories, applies them to one problem, locates Indian law and cites decisions.
Test yourself
1. Which theories tend to which relation? Utilitarianism tends to equivalence, since justice becomes a function of consequences and there is no standard independent of them. The contractual and Kantian traditions and dharma tend to independence, since each supplies a measure of law that law does not create. The constitutional treatment of the directive principles under Article 37 is dependency, since the standard is declared fundamental and made operative only through legislation.
2. Apply three theories to a single acquisition problem. Utilitarian: count gains and losses, and the acquisition is right if the aggregate favours it. Kantian: the community must not be used merely as a means to others' income, and market value is not obviously an equivalent for a livelihood, dignity admitting of no equivalent. Rawlsian: the difference principle asks whether the inequality works to the greatest benefit of the least advantaged, so the project must benefit the community displaced and not merely the national aggregate.
3. Read Olga Tellis through the theories. Recognising livelihood within Article 21 is Kantian and capability-based, since it fixes a level below which a person may not be reduced. Requiring notice and a hearing is contractual and procedural. Permitting the eviction after the monsoon with alternative sites is utilitarian in structure, weighing the city's needs against the dwellers'. Refusing estoppel against a fundamental right is the independence position, since the right is not the party's to surrender.
4. Give the structure of a complete answer to MU's question. State the three relations, equivalence, dependency and independence; map the theories of Module III onto them; apply them to a single concrete problem so the differences are visible; state where Indian law stands, which is independence in a qualified form with dependency operating for Part IV; and cite decisions, since every printed paper requires case law.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.