theories of justice - Law Jurisprudence , LLB

Theory of justice

1. Theories of justice

2. Some Theories of Justice
Comprehensive/
Principle Based
Contextual/
Casuistical
Utilitarianism Michael Walzer
John Rawls Communitarians
Robert Nozick

3. Types of Justice
•Procedural justice
–Level playing field
–Equality before the law
–Due process
•Distributive justice
–Equal opportunity
–Desert
–Outcome based versions (patterned principles)
–Historical theories
–Rights theories
•Compensatory justice
•Retributive justice
•Transitional justice

4. Rawls’s Social Contract
•Connects moral choice (consent) and rational
choice: the original position and the veil of
ignorance as a means of preventing the
principles of justice from being infected with
self-interest
•Hypothetical contract that identifies the most
basic principles of justice
•This contract approach could also (and has
been) used to justify utilitarianism.

5. Rawls on the Just State
•Justice as equity
•A just society is a society founded on just principles.
•A just society would be a just society
•Equity implies distributive justice
•There is an equitable distribution of primary social
goods.
opower,
oOpportunities
ofreedoms and privileges,
obasics of self-respect (e.g. equal political representation)

6. Rawls’s Principles of Justice
•Everyone should have the same right to the broadest
global system of equal fundamental freedoms
compatible with a similar system of freedoms for all.
•Social and economic inequalities must be organized in
such a way that:
a)they benefit the less favored as much as possible
(principle of difference) and
b)are allocated to posts and positions open to all under
conditions of fair equality chances
•Lexical order of principles (the priority of freedom)
•Utilitarianism, Rawls principles, egalitarianism
•Desert: defined by the principles of justice

7. Rawls on the Just State
•What is a Fair Society?
–Would a fair society would be one that any rational,
self-interested person would want to join?
–Not quite. They will be biased to their own talents.

8. Rawls on the Just State
•The veil of ignorance
–Suppose they choose from behind a veil of
ignorance where they don't know what their
talents are or where they stand in society.
–They would choose a fair society for everyone
because they would have to live with their choice
–So, a just society is one that any rational and self-
interested person behind the veil of ignorance
would like to join.

9. Rawls on the Just State
•Initial position
–How would we choose?
•We choose the basic social conditions that determine
our outlook for life.
•We can only choose once
–We would follow a principle of maximinchoice
•choose the setting where your worst outcome is better
than your worst outcome in any other setting
–We would not give up fundamental rights and
freedoms

10. Rawls on the Just State
•Initial position
–Rawls is a social contract theorist
–By forming a social contract, we decide on the
basic structure of the company.
–We do this as rational and interested voters,
behind the veil of ignorance.
–This prime position Rawls calls out The Original
Position

11. Critiques of Social Contract Theories
•Communitarianism: the authority of the State
does not depend on the consent of
individuals; individuals rather depend on the
state for their realization and their identity
(Aristotle, Hegel)
•Feminism: Since women are normally
expected to focus on private (family) matters,
they are excluded from full participation in the
social contract.

12. Minimal State (Entitlement) Theory:
Robert Nozick
•We have the right to use our property as we
see fit. The legitimate power of the state is
limited to preventing damage and protecting
property rights
•Imposing taxes for anything other than
protection (e.g. to enforce a pattern of wealth
redistribution) is unfair because it ignores how
goods are acquired fairly through trade, labor,
gifts, etc. .

13. Nozick’sEntitlement Theory
•Libertarian approach to justice
•Based on a Lockeanconception of property

14. 3 Principles
•Principle of transfer: whatever is acquired
with justice can be transferred freely.
•Principle of Fair Initial Acquisition: A
description of how people initially come to
own things that can be transferred according
to principle.
•Injustice rectification principle: how to deal
with shares if they have been acquired or
transferred unfairly.

15. Historical vs. End-Result Principles
•Historical principles: distributive principles
that depend on how a distribution is born.
•Current Time Interval Principles (Bottom Line
Principles): The fairness of a distribution is
determined by how things are distributed,
based on structural principles.
•The theory of rights results in an unstructured
distribution.

16. Ambition vs. Endowment
•Unlike Rawls's theory, Nozick'stheory is not
"endowment-sensitive" but "ambition-
sensitive"
•According to Nozick, only the minimalist state
is the only morally justified state
–Execution of contracts
–Protection against force and fraud

17. Intuitive argument for the entitlement
theory
•D1: Rule R1 provides a fair distribution of
goods.
•D2: State resulting from the movement of D1
according to the P principle (s).
•If D1 is a fair distribution and the exchange of
goods that results in D2 is not forced, then D2
is fair.

18. AmartyaSen: “Development as
Freedom”
•What should be distributed are:
1)Elementary functions: "do" and "Beings" having
access to adequate food and shelter that can be
personal freedom, income and wealth.
2)Complex functions: "acts" and "beings" as have
self-respect and be able to participate in political
communities that depend on factors
independent of resource ownership.

19. Martha Nussbaum: “Capabilities
Approach”
•Central human functional capabilities that ought to be
distributed:
1.Life
2.Bodily health
3.Bodily integrity
4.Senses, imagination, and thought
5.Emotions
6.Practical reason
7.Affiliation toward other species and as the basis for self-
respect and dignity
8.Other species
9.Play
10.Control over your political and material environment

20. Sen’sand Nussbaum’s
Capabilities Approaches
•For Sen, a person who cannot perform basic
and complex functions cannot lead a decent
human life; for Nussbaum, a person who lacks
skills cannot lead a decent life.
•Political and economic institutions should
facilitate and / or provide opportunities for
people to exercise functions (Sen) or
capacities (Nussbaum).

21. Scope, Shape, and Currency
of Capabilities Approaches
•Scope: These approaches cover at least all
people.
•Form: Capability approaches are based on
hybrids of equality and sufficiency.
•Money: Capacity-based approaches distribute
opportunities to exercise what is
fundamentally human (core functions or
capacities).