Download -8 CHAPTER-II DEFINITION. NATURE AND SCOPE OF SOCIAL

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CHAPTER-II
DEFINITION. NATURE AND SCOPE OF SOCIAL JUSTICE
DEFINITION
Plato was the first philosopher who attempted to answer the question : what
is justice? Though he did not answer the question he arrived at conclusions:
that justice is not the virtue of the strongest; it is not acquiring illegal wealth
etc. He did not put a positive content into the concept of justice. Plato gave
a moral dimension to the concept that it is a virtue to be worth pursued than
to be abandoned as man is basically a moral being.
This is in direct
agreement with Kant that it is impossible to think of anything at all in the
world, or indeed even beyond it, that it could be considered good without
limitation except a good will. Rawls says that “Justice is the first virtue of
Social Institutions as truth is of systems of thought” 1
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Justice is not a concrete idea or an object in nature. It is an abstract
concept. It is an order in society. Since it involves public interest it is the
common right.
Justice excludes all partiality or private interest
identical with the empire of laws not of men.
It is
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The concept of ‘social justice’ connotes that it is justice pertains to
society. Does it not belong to the State? We talk of ‘a just society’ but not
of a ‘just state’ because state is a political creation which glorifies power.
The glorification may be by suppressing individual or community.
Glorification may be just or unjust, indifferent to moral principles. From
this point of view the State is an amoral entity. State is coterminous with
society in every respect except in principles of governing and institutes of
administration. A stable and strong state is one with carries the society with
it. Justice is an abstract concept. It does not mean that it is empty. The
moral fabric of society is seen in the child fed by mother, old age people are
respected and taken care of, weak and the poor are empowered to compete,
landed property relations are stable and available to all who are capable of
possessing. Social justice is a question beyond the question of natural
justice. The question of social justice reflects the structure of society in
which individuals are subjugated in a distinct way.
The society is designed in such a way so that there will be no
awareness among the members that they are subjugated. There is no overt
force which constrains people’s freedom. “Though the behaviour is not
necessarily done with the intention of forcing people, the question of justice
is the same as the question of whether it would be just to behave that way
intentionally”2 Reiman points out “........the need to pose the question of
social justice also tends to be unseen..... an answer to that question is
implicitly presupposed by the judgments of criminal justice that
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normally made in a society”
are
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As people live together overtime, their forms of interaction come to
have regular patterns such that they can be said to share a social system
comes to have a rigidity that we call a structure. The system then confronts
each individual with the social equivalent of roots or channels into which he
must fit his normally rational self-interested behaviour. As Rawls notes,
social system is “ a pattern of human action”4. It is a system in which
people are allotted various amounts of authority, freedom, wealth, burdens
or punishments. This allotting is done socially, that is, by their fellows
behaving in regular ways: obeying or enforcing (authority), protecting or
refraining from interfering with (freedom) protecting or refraining from
taking (wealth), shouldering burdens, imposing punishments.
A social system is a peculiar thing. If all the members of a society
have knowledge of behaviours by which
they together constitute the
society’s structure, together they could change the system as they found fit.
But for each individual the system is barely changeable at all. He or she has
little choice but to fit him or her actions into channels of allowable action
created by the pattern of behaviour of their fellows.
Social structure has three dimensions: Political, legal and economic.
We can think of these as separate systems or substructures. But “ in reality
they are like the three dimensions of space, thoroughly interwoven” 5 The
political system is that by which the separate individuals comprising a
society are organized so that they can act as a single body. In it, words are'
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uttered that come to be treated as decisions for the group as a whole.
Members view these decisions as authoritative.
The legal system is the pattern by which rules, including decisions
made through the political system, get enforced for the group as a whole.
Through it, some specifically designated people are allowed to decide what
rules bind the group and what constitutes an infraction of those rules.
Where there are infractions of rules there will be use of physical force to
prevent infractions of rules.
The economic system is the pattern by which the resources controlled
by the group are deployed and distributed. It is a pattern of behaviour in
which particular people are allowed by the rest to decide what will happen to
or with particular things in the world with the help of the legal system.
The judgment of social justice is complex. It requires the combination
and balancing of many considerations. A social structure is a system of
collectively coerced co-operation. To say it is just, it means that people
have more power and resources for promoting their interests in the positions
sustained by social structure. Other wise, it is unjust.
A just society presupposes liberty and equality of citizens. Liberty
sanctions rights. Evolution or development of liberty and equality marks the
development of the state and the emancipation of the individual, but not
necessarily the existence of or the development of a social justice society.
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Because social justice deals not with single acts of action but with patterns
of action. These patterns of action may tend to be routine as a result are
invisible.” This action with which the social justice is concerned are the
products of actual intentionalitv. meaning that they have not only been
caused by people but have been intentionally caused6
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“Men differ as individuals but not by classes” . Social justice is a
class behaviour. This is what Rawls says social justice deals with basic
structure of society. What is the basic structure? In the words of Rawls” The
basic structure is a public systems of rules defining a scheme of activities
that leads men to act together so as to produce a greater sum of benefits and
assign to each certain recognised claims to a share in the proceeds. What a
person does depends upon what the public rules say he will be entitled to,
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and what person is entitled to depends on what he does”
Social justice, of late, is synonymous with the ‘welfare state’ The
phrase ‘welfare state’ was associated with the comprehensive and
interrelated measures of ‘cradle to the grave’. The concept of welfare state
was first adopted in 1948 by Great Britan on the basis of the report on
Social Insurance and Allied Services(1942) by Sir William(later Lord)
Beveridge.
- 13It means that:
1. a system in which the
Government undertakes the chief
responsibility for providing for the social & economic security of
its population, usually through unemployement, insurance, old age
pensions and other social security measures.
2. A social system characterized by such policies.9
What is the agency that is required for bringing about social and
economic changes which would enable a welfare state to be created?. It is
legislative and executive power controlled by constitutional limitations
including fundamental rights. England constitution is not written. But it
has not entrenched The Bill of Rights. Indian constitution is written. It
detailed every aspect of state and individual’s function and responsibilities.
It is a flexible constitution to meet the needs of time. Social and economic
systems of the country needed change. They were answered by way of
amendments to the Constitution. Almost all amendments to initiate social
justice principles were questioned in the courts of law.
Judges are the philosophers and the legal
luminaries who have
understood society in the right perspective and interpreted law in the
direction of social change. We shall see some of the expressions of judges
about social justice.
Justice Bhagwati described ‘social justice’ as a very vague and
indeterminate expression. In the words of Holmes.J ‘an inarticulate major
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premise’ 10.
Justice Hegde in his Rao lectures on directive Principles
says’ we hear so much today of ‘social justice’. I am not sure that those
who use the term glibly know very clearly what they mean by it.
Some,
‘mean distribution or re-distribution’ of wealth some interpret as ‘ equality
of opportunity’
Justice Hegde elaborates that the term ‘equality of
opportunity’ is a mis-leading term since opportunities can never be equal
among human beings who have unequal capacities to grasp it. Therefore,
he suggest that every efforts should be made at least to mitigate
the
asperities of natural human inequality.1 ‘
Justice Krishna Iyer views society as a brother hood and places ‘
fraternity ‘ at the top of social values.’ without fraternity liberty and
equality are no better than coats of paints” ... There can be no justice and
no just social order unless the oppressed masses acquire the status of social
equality.12
Justice Gajendragadkar says, the goal of a welfare state can be
achieved only through the instrumentality of ‘ social justice’.
Thus it
presupposes removing of all inequalities and affording equal opportunities
and ‘ economic activities’ to all citizens.
Thus
social justice for
Gajendragadkar is the harmonious synthesis of both “social justice’ and
economic justice’
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-15According to V.R.Krishna Iyer “ social justice is a generous concept
which assures every member of the society a fair deal . Any remedial
injury, injustice inadequancy or disability suffered by a member for which
he is not directly responsible falls with in the liberal connotation of social
justice” 13
Social justice society presupposes liberty, equality, and fraternity
among individuals of society. In such a7 society there is distribution of
wealth. It
is not mere distribution of physical resources but there is
translation of labour into money or wages. The labour shall not end in
fruitless service. The social system is not based on theology nor based on
dogma but on co-operation, understanding and social necessity. It
presupposes moral constitutionalism in which those who administer
Constitution adhere to the basic tenents of the Constitution.
If these presuppositions are guaranteed in such a society , social
justice is not an end but the very basis of society. Therefore, social justice
can be defined as a system or a pattern of life in which basic liberties of
the individual are guaranteed, labour
translated into wages, the
disadvantaged section of society is taken care of and there is a system of
rules and regulations to govern the individual in which no one is more than
equal before the law.
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NATURE AND SCOPE
Social justice is a normative concept as well as a positive concept. It is
normative because it lay down norms not necessarily be ideal. Violation of
norm is corrected by prescribing remedial measures. This presupposes
power to correct injustice
or violation of law. Pascal says, “ Justice
without power is inefficient; power without justice is tyranny. Justice
without power is opposed, because there are always wicked men . Power
without justice is soon questioned. Justice and power must therefore , be
brought together, so that whatever is just may be powerful and whatever is
powerful may be just.”14
Social justice is a positive concept also. Because , it prescribes
certain remedies to those who are differentiated , discriminated on the basis
of caste, colour, race, sex etc. thereby the disadvantaged section of society
would enter the main stream of social life.
.Social Justice and Natural Justice
To understand social justice in right perspective it is essential to
distinguish it from natural justice, criminal justice and legal justice.
Natural justice acts are single acts. For instance, murder or theft, They
affect the rights of individual, individually. Where as the actions of social
justice are patterns of action. For instance distribution of wealth or a legal
system. Where as the actions concerned with natural justice being single
acts, are caused by some individual but those concerned with social justice,
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being patterns of action are caused by all, though not necessarily equally.
Actions pertaining to natural justice are visible acts and prohibitable . But
actions of social justice tend to be routine and invisible.
Further, actions concerned with natural justice being single and visible,
those who cause them generally know in advance of doing them and that
causing them are thus responsible. The patterns of action that concern
social justice, in contrast, tend to be invisible and those who cause them
may not know that they do so unless it is brought to their attention. Reiman
say that “... the actions with which natural justice is concerned are the
product of actual intentionality. meaning that they have not only been
caused by people but have been intentionally caused;.... the actions of
concern to social justice are potentially intentional, meaning that people
cause them but not necessarily intentionally... Until they are made aware
that they do cause them and could alter them”16. Once they come to know
this, potential intentionality becomes actual with knowledge whole
societies can come to be as responsible for their actions as individuals can
be for theirs. While the principles of natural justice spell out obligations
owned by all human beings to one another, principles of social justice spell
out obligations owned only between members of the same society. Thus,
the requirements of social justice are narrower in their scope than those of
natural justice.
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Social Justice and criminal Justice:
Criminal justice is the punishment meted out to the persons who
commits offence. Criminal justice is perceptible. Crime in a civil society
is against the individual in the form of stealing the property or offending
the individual physically.
In other words, a crime is committed when
natural justice or natural rights are affected.
Criminal justice system
presupposes courts legal institutions and the institution of police. Barr the
cases of terrorism where object of crime is to terrorise a group, race or state
as a whole, crime is mainly between individuals. Criminal justice system
involves recognition of crime and administration of punishment. In
civilized societies, the administration of punishment is proportionate to the
crime committed.
Social justice is conceptual. Some practices or pattern of practices in
society may be criminal yet not punishable because they are not recognized
as crimes either by the state or by the society. For instance practice of untouchability in Indian Society, before the enactment of the prevention of
untouchability Act. Even after the Act the punishment of the guilty is rare
because of legal technicalities.
If social justice or injustice is to group
of people, criminal justice is to members of the group and
outside the group as well.
members
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Social Justice and Legal Justice;
Legal justice is the administration of law. Administration of justice is
an art which finds expression through the laws. Human behaviour occurs
in terms of the relations of men. The legal device converts the relations
into rights and makes them jural and justiciable.
Law defines and
determines the rights and relations of men. It is through laws that the
harmony of the individual and society the province of reason becomes
manifested area of conduct.
Where the legal administration is strong the questions of social justice
are answered. But legal justice has to identify the area of social justice
problems. The social justice problem areas are food, clothing, dwelling,
education, right to work and leisure, freedom from exploitation etc. where
the legal justice system addresses these problem to that extent that society
would be a just society.
Social justice discussion broadly based on two lines - Deontological
and Teleological . Deontological theories emphasizes the priority of right
over general good.
Thinkers
who belongs to this category are Kant,
Rawls, F.A. Hayek.
Teleological theories emphasise the general good of
man over rights of man. These are utilitarian.
Utilitarian thinking of
general welfare of the community as a whole took a beating in the dictator
ships of Hitler, Mussolini and Communist Russia before Gorbachev .
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Deontological thinkers are democratic theorists. Though democracy assures
rights and liberties to the individuals there is exploitation, rather pattern of
exploitation of human beings. The pattern is seen in various ways. There
are irrigation projects to improve the fate of land owners , agriculture
labourers but all farmers in the area are not assured of water and as there is
exploitation of agriculture labourers.
There is right to education, yet
knowledge is not imported uniformly.
There are institutions which are built to perpetuate exploitation like
caste, untouchability and labour.
The exploitation of women and sex
discrimination continues. Ameliorating the living conditions of the havenots, less-favoured sections of society, protection of minorities involves the
discussion of the principles of social justice. How, the idea evolved over
this ages? How social justice/injustice inbuilt in society and such societies
are protected by the State will be discussed in subsequent chapters.
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CHAPTER-II
REFERENCES_______________________________________
1. A theory of justice. J. Rawals. P3
2. Ibid
3. Justice and Modem Moral philosophy. P. Rheman .see p.213
4. Ibid
5. P.216
6. P.215
7. Elements Of Social justice L.T.Hobhouse. p. 17
8. A theory of Justice. P.74
9 Constitutional Law of India .H.M.Seervai. Vol.II Quoted in
p.1931.
10. See p.1932
11. Ibid
12 Justice Krishna Iyer on Fundamental Rights and Directive
principles pi829
13. Constitutional Law of India vol II p.1960
14.3Quoted by V.R.Krishna Iyer in Justice at Cross Roads.pl 7.
15. See p 1964-65
16. Justice and Modem Moral philosophy.P.216-7
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