Justice, Democracy and State in India

Reflections on Structure, Dynamics and Ambivalence

Amarnath Mohanty

• Publisher: Routledge India
• Year: 2020
• ISBN:
  9781000083804
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores how the liberal conception of justice with all its ideological underpinnings is reflected in the framing and working of the Constitution of India, in the adoption of broader socio-economic objectives, in the functioning of judicial and state institutions, and in the formulation and implementation of development strategy. It analyses the dynamics of the relationship between justice, democracy and the state.

The book studies the liberal conception of social justice and its sufficiency, and interrogates its performance and adequacy within the structural parameters and cultural conditions of postcolonial India. It provides an analytical exposition of how the borrowed and inadequate conception of liberal justice and democracy inherited from colonial past, and the espousal of the derivative developmental pattern based on modernist and constructivist paradigm, have together failed to achieve the modest target of justice enshrined in the Constitution.

Interlinking justice, democracy and state, the book examines their operational dynamics in an integrated framework which has relevance for other Third World countries also because of socio-economic and cultural commonalites.

1
Liberal Conception of Justice: Structure and Limits

Justice, irrefutably, is one of the foundational and constitutive concepts of modern political philosophy. The extensive and ubiquitous connotations and applicability of the concept of justice appears to transcend contextuality and its own cognitive provisionality. Common usages and projections continue to treat justice in spite of all its ambivalences and limitations, as denoting some of the greatest human requirement. Human longing for justice is explained as the active process of preventing or remedying what would arouse the sense of injustice, real or imagined (Cahn 1949: 347), in a society in the context of a prevailing system of human relationships. In addition, man’s perennial search for ‘what is good and what ought to be’, and a ‘just order’ gives rise to the concern for justice (Perelman 1963: 67). It is inescapably a moral or ethical concept and involves an element of desirability or goodness in social life through alleviating some of the real and concrete forms of injustice of a society (Knight 1961). The conception of justice presumes the existence or possibility of conflicts between claims of individuals and the possibility of resolution of those conflicts (‘circumstances of justice’), and is called upon to harmonize the antinomies. It is therefore deemed an ethical judgment that involves arbitration among the competing claims of social entities. It is only in the realm of ideas, according to Gourvich, that a synthesis and perfect harmony between personal and transpersonal values is possible, but in actual world, they are in intense conflict. It is precisely this hiatus between the harmony of the moral ideal and the disharmony in reality, which gives rise to the problem of justice and its relevance.

Defining a term denotes making stipulations about its meaning and reference within a given context and according to a given criteria. Since both contexts and criteria proliferate across time and space, any concept is able to absorb a large number of connotations throughout its usage in various contexts for different purposes. The persistent attempts at a more clear-cut definition have reproduced the initial perplexity. Thus, ambiguity is partially the progeny of an unintended and cumulated consequence of the quest for clarification and the attempt at arriving at definitions. Second, the ambiguity of a concept is also the outcome of its position within the theoretical discourse. When a large number of concepts are defined in terms of a given concept (or a given concept is defined by large number of concepts), numerous inferential and metaphorical connections between definiens emerge and make the concept more central and complex. The frequent employment of a concept makes it foundational and constitutive of that discourse, and vice versa. Moreover, since justice is a multivariate or multi-value doctrine, it is structurally an unstable and sensitive ideal. Conflict of value among its core constitutive principles makes justice an unsettled doctrine and a much-contested domain.

In this chapter, the primary focus is on the conceptual exploration of justice and the delineation of the structure and limits of liberal justice — specifically, liberal notions of social justice. The chapter is divided in four parts. The first section is about the conception of justice in general and social justice in particular; in the second part, emphasis is on the elaboration of the liberal conception of social justice and its inadequacies. However, the treatment of liberal theories and thinkers in this section is very selective, purposive and precise. I deal with the liberal notion of affirmative discrimination and its limitation in the third section and the last part contains certain critical remarks on liberal social justice.

Conception of Justice

The conception of justice is based on the fundamental principle succinctly expressed by the Roman jurists as suum cuique tribuens, ‘giving to each their due’. The due is basically determined in terms of ‘right’, ‘desert’ and ‘need’; the calculation of dues depends typically upon the application of a principle not of equality but of equivalence i.e., on the Aristotelian doctrine of proportionality. The discrimination of morally relevant differences between human beings and of the treatment appropriate to them is the very essence of justice. It is axiomatic in matters of justice that the failure to make valid distinctions between people will result in injustice just as surely as will the making of invalid or arbitrary ones. The fundamental concern of justice is precisely this determination of valid moral distinctions — between the deserving and the undeserving, the responsible and the non-responsible, the guilty and the innocent, those with rightful claims of possession and those without and so on. In other words, equality is no more fundamental than inequality or difference or discrimination. Equal treatment is only just if the treatment is equally deserved and this can never be assumed as an a priori principle.

Justice is essentially a complex, comprehensive and composite or ‘multi-value principle’, i.e., constitutively knotted with some other substantive values or goods and an intensely ‘valued ideal’. It is structurally entrenched with certain core substantive values like liberty, equality, rights, autonomy, fairness, impartiality and other associated values. Due to its cardinality, the semantic component and characteristic significance of justice is determined by inferential connections to other concepts; especially when the constitutive ties between justice and its foundational values are structural, they stand in a recursive or dialectical relationship with each other. Justice as a valued ideal possesses both intrinsic and instrumental significance. Once justice is considered as a built-in constituent of public ethics and is defined in terms of public value, it is deemed not merely as an instrumental value but rather a ‘value-in-itself’. Instead of a largely instrumental argument for justice, one should seek to ground the practice of justice in something more internal to the conception of social good.¹ In the continuum of defining justice as a mere instrumental value to an all-inclusive one, one needs to find a space in-between for a reasonable delineation of justice carrying both the dimensions.

The conception of justice sets axiomatic principles of coordination and harmony between the conflicting interests of subjective beings. The principles of justice manifest themselves in relation to persons but not between objects of any kind (Vecchio 1982: 2). Justice is essentially defined by shared culture, meanings and practices. However, it originates, is maintained and changed by history (Walzer 1983a; Taylor 1985). It is primarily a social concept which has its origin in man’s life in society and has meaning and relevance only in the context of a society. Justice being essentially a quality of behaviour of one man to another, all justice is social justice and the adjective is otiose (Baldwin 1966:1). In other words, it is essentially an intrinsic part of public ethics and is defined in terms of ‘public values’. Taylor suggests that justice in principle presupposes ‘men in society or some kind of collaborative arrangement’ and is related to the ‘conception of human good and in particular to different notions of men’s dependence on society to realize the good’. Thus, ‘the original predicament of justice between independent human beings’, ‘not bound together by any society or collaborative arrangement’ (i.e., in state of nature) is not distributive justice. Taylor asserts that ‘it is not just that the normative structure is untouchable, but also that it is menwithin-the-normative-structure between whom justice must be done’. For Taylor, both the framework and the criteria of distributive justice are derived in part from the ‘nature of society’ and ‘the constitutive understandings shaped in its membership’ and that of ‘the goods sought in common’ (Taylor 1985: 289–91, 294–96, 301–02). Thus, distributive justice remains socially and historically relative.

In addition, justice is also classified as formal and substantive. When the rules or principles are applied impartially and consistently as a scheme of general rules irrespective of differences, we call it formal justice. Formal justice is adherence to principles or as Perelman has said, obedience to system (Perelman 1963: 41). Treating unequal cases equally is definitely not a guarantee of substantive justice as it is arbitrary and it conceals and excludes structural inequalities and significant injustices. For an adequate conception of social justice, both the formal and the substantive aspects of justice should go together: a scheme of general rules or obedience to a system and equal rights and liberties of all must harmonize with the fair share in the benefits and burdens of ‘social cooperation’. In other words, justice has to take cognizance of differences. A balance has to be forged between the privileging of the substantive aspects of justice. However, the basic formative values of justice do not always cohabit peacefully and there are deep contestations among its constitutive values. As the conflicts among its foundational values are endemic, it necessitates fresh interpretations, contextual judgments and attempts at reconciliations and negotiation. But there is no general or universal a priori rule of lexical ordering and of fixing these disputes forever and no pre-existent classificatory order which enables us to determine a specific sequence of values. Whether a particular value is to override or to be reconciled with another cannot be ascertained antecedently because each specific case presents itself differently and requires different resolutions. Thus, justice as a ‘composite-value doctrine’ has substantial contextual undertones. It is not merely to state that justice will have to presuppose and procure a different contour and structure in a different context but also to say that justice is not merely a motorized principle or a formulaic doctrine, rather it heavily relies on contextual judgment which requires a different kind of moral reasoning.

Furthermore, the conception of justice entails a complicated process of theorization. First, each of its constitutive values is conceptualized individually in a specific context and second, all these conceptualizations are knitted together with justice into a single coherent schematic and ordered framework commiserating to its contextual reasoning. Simultaneous with these complex conceptualizations, there exists wide divergences in conceptions of justice by thinkers in different contexts.

Public reason, an essential component of justice, has both historical and hermeneutic components. A historical approach informs about the community’s multiple institutions, shared understandings, practices and its structure of values; the hermeneutic approach to ethics intimates specific ordering or ‘fit’ between these, i.e., an account of what is good about those practices and institutions. ‘Their status as good is recognized within the organization of that community’s ethical life itself’ and the validity of these goods cannot be deduced from any ‘independently valid rules and principles’ (Sreenivasan 1998: 144–45). The hermeneutic dimension of public reason entails a particular fit between the public discourse of a community and the goods that suggest that community’s concrete conception of a good life. In other words, public reason is carried out taking into account the discourses, institutions, practices and the understanding that constitute those concrete conceptions. Walzer argues that if the boundaries of the political and the cultural/historical community do not coincide — if there are disputes or dissonances about the legitimacy of the institutions, practices and understandings of a community’s concrete conceptions of ‘good’ — then distributive decisions will have to be worked out politically. Precisely how this will be worked out will depend ‘upon the understandings shared among the citizens about the value of cultural diversity, autonomy and so on …’ (Walzer cited in Ivison 2002: 97). However, all these depend on the relations of power that exist between the state and various groups, as well as within different groups themselves.

Justice as an ideal makes qualitative distinctions of worth, differentiates among goods, systematizes them into a coherent unity and renders an overall perspective to the whole. By combining several substantive and procedural values, justice presents a specific pattern of structuring and offers a perspective or framework to enunciate the process of valuing things. By this process, justice acquires a specific contextual character or nature. Second, as an ideal, it sets patterns or standards of conduct for people and these standards administer our self-appraisal. Justice is a ‘valued good’, and since it structures and contrives several substantive ‘goods’ into a coherent unity and bestows an overall meaning and perspective to the totality, it becomes a ‘higher good’.

Justice is essentially a ‘public good’ because ‘the principles of justice are to apply to social arrangements understood to be public’ (Rawls 1972: 56). It is innately a vital constructural component of public ethics and is interpreted in terms of ‘public values’ since the conception of justice is primarily based on a ‘shared conception’ and ‘public understanding as to what is just and unjust’ (ibid.). For an idea or principle to be a value or to acquire worth, it has to be attached to the people or community, for the reason that no idea or principle in itself can be an object of value. We feel the necessity of justice and also treasure it for its relation with our community and life-world. Justice needs practical reason and imagination, reflection of ‘circumstances of politics’ and historical pressure, deliberation on limited generosity and civic virtues in the context of ‘bounded rationality’ (Simon 1983: 17–23) and commitment to its core values.

Justice as a dynamic concept is to be understood in terms of the changing contours of social relations and of interpreting it in relation to ethics. It is acknowledged that adequate reasons for human agency must be provided, first as they actually are and later as moralists would have preferred them to be. If human beings are social and historical creatures both by nature and by moral destiny, human value in order to become relevant and constructive cannot be specified solely in case of contingencies or of possibilities of abstract individual consciousness. A conception of justice which, however, entails a variety of moral considerations, cannot be deduced entirely from self-evident premises or principles; instead, its justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view within a society (Rawls 1972: 21). A prior identification of a just state of affairs is essential for the assessment of a conception of social justice, and in the absence of such an agreement of what is just and unjust such an assessment is impossible (Rawls 1972: 6, 19, 53; Miller 1976: 18) A just state of affairs involves the following conditions: first, it involves moral sentient beings,² and paradigmatically it requires those who are both sentient and rational having a conception of their good and capable of a sense of justice (Rawls 1972: 19, 505; Miller 1976: 18; Rawls 1993). Second, it is a state of affairs in which at least one of the moral sentient beings is enjoying a benefit or suffering a burden; if no one is affected in either of these ways, questions of justice cannot arise (Miller 1976: 18). Third, it is a state of affairs which has resulted from the actions of rational and sentient beings or is at least capable of being changed by such actions (ibid.). Moreover, judgments of social justice need the examination of relationships within a coherent framework in which these beings stand in relation to one another.

The conception of social justice is highly problematic and contestable.³ For Boalding, social justice constitutes ‘an essential part of the great complex of social change, for which something may have to be sacrificed for a greater good’ (Boalding 1962: 92). Social justice is comprised of a set of principles that define the appropriate distribution of benefits and burdens among persons through assigning of rights and duties to the basic institutions of society (Rawls 1972: 4–7, 9–11, 24, 54, 64; Miller 1976: 18–19).⁴

The idea of social justice mediates between the ‘substance’ of justice — the constitutive values of justice and the ‘criteria’ of justice — the concrete rules and norms applying to each member of a social cluster or the basic structure. Though the conception of justice is taken for granted, the prevailing norms or rules are not always taken into consideration. For Heller, ‘historic models’ serve better the purpose of revalidation by defending the existing norms and rules as just whereas ‘patterned models’ serve better the purpose of invalidation by challenging the existing norms and rules as unjust (Heller 1987: 154). Since the days of Aristotle, who coined the term ‘distributive justice’, its substance as well as the criteria have been subjects of serious controversy. Hume is undoubtedly the major exponent who raised the question of distributive justice and ‘the circumstances of justice’ in the present form and to reiterate the importance of the concept of equal distribution and social justice.⁵ Since then, the problem of distributive justice has been haunting theorists and particularly the contemporary liberal theorists are plagued by this intriguing issue.⁶

There are several ways (based on different matters and criteria) to work out the distributive principles within the liberal framework.⁷ The goods to be distributed may consist of either valued individual states or external resources or ‘primary goods’ at the disposal of society. Moreover, the principle may specify a ‘complete’ distribution of all resources available or a ‘partial’ distribution, leaving certain resources to be allocated on another basis (Miller 1976: 19–20).

The problem of social justice has become the central axis of contemporary Anglo–American liberal political philosophy ever since the publication of John Rawls’s A Theory of Justice (1972).⁸ The problem of social justice in general revolves around two major contentions, i.e., what should be the ‘basic unit of analysis’ of a theory of justice and how to make the problem of balancing first principles more tractable within a more general method of justification. Different metrics are proposed by Dworkin, Ackerman and others for estimating individual claims to ‘overall equality’ because the ‘principle of redress’ focuses on restoring individuals to a situation of equality (that calls for metric equality).⁹ Nevertheless, theorists like Sandel and Walzer remark that Rawls and his imitators have been too pushy in their efforts to formulate a systematic explanation of justice (Miller 1976; Sandel 1982; Walzer 1983a and 1983b).

The problem of appropriate precision has been a fundamental concern of Rawls’s long phi...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Abbreviations
• Acknowledgements
• Introduction
• 1. Liberal Conception of Justice: Structure and Limits
• 2. The Constitution of India, Dominant Political Discourse and Conception of Social Justice
• 3. Supreme Court of India: Its Governing Ideology and Views on Social Justice
• 4. Discourse of Democracy and its Role in Promoting Social Justice
• 5. State in India: Structure and Role
• Conclusion
• Bibliography
• About the Author
• Index