The Interrelationship, Read through the Theories of Justice

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.