What Justice Is

In one line

Justice is the standard by which we judge whether a legal arrangement is any good, and the whole difficulty is that people who agree it matters disagree about what it requires.

In the wording a student can write in an exam: justice is the virtue of giving to each what is due. The classical formula, from the Roman jurists, is suum cuique tribuere, to give to each his own. The formula is agreed and empty: it tells us that justice consists in a correct allocation and not what allocation is correct. The theories of justice are competing answers to that second question, and they divide along three lines: what is being allocated, by what criterion, and by whom.

The three questions any theory must answer

1. What is allocated? Punishment and reward; property and income; office and opportunity; liberty; recognition and status. A theory adequate for punishment may be useless for income.

2. By what criterion? Desert, need, merit, entitlement, equality, contribution, status, or the general welfare. Most disputes about justice are disputes about which criterion governs which good.

3. Who decides, and by what procedure? A just outcome reached by an unjust process is contested, and so is an unjust outcome reached by a fair one. This is the distinction between substantive and procedural justice.

The classical divisions

These names recur through the whole module and are worth fixing here.

Distributive justice. The allocation of benefits and burdens among the members of a society: income, offices, honours, opportunities. Aristotle's account, in which distribution is according to merit or worth, and equals are treated equally and unequals unequally in proportion to their difference.

Corrective justice. The restoration of a balance disturbed by a wrong. It is the justice of the law of contract, tort and crime: the court does not ask what each party deserves in general, only what is required to repair what was done.

Commutative justice. Justice in exchange: that what is given and what is received should correspond. It underlies the doctrine of consideration and the law against unconscionable bargains.

Procedural justice. Justice in the manner of deciding: notice, a hearing, an unbiased decider, reasons. In Indian law this is the rule of natural justice, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, made it a constitutional requirement.

Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the public interest", and the Government declined to furnish the statement of reasons that section 10(5) provides for, saying it was withholding them in the interest of the general public.

Held. Articles 14, 19 and 21 form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three. The procedure established by law in Article 21 must be right, just and fair, and not arbitrary, fanciful or oppressive; a procedure that is arbitrary is no procedure at all. Audi alteram partem applies to the impounding of a passport, though a post-decisional hearing may suffice in urgency.