Chapter 8: Justice
In 1943, four years before independence, the price of rice in Bengal began to climb, and then it climbed faster. Landless labourers, fishermen and barbers went on earning what they had earned before, and those earnings bought less every week. Through that summer and autumn, people walked out of the villages towards Calcutta, the great port city of eastern India, looking for food.
The strange thing — the thing that would puzzle a ten-year-old at school in Santiniketan for the next forty years — was that there was food in Calcutta. Shops were open. Grain moved along the roads and the railways. Bengal’s harvest that year was not far below normal, and it was larger than in some earlier years in which nobody had starved. Estimates of the dead range from about one and a half million to three million, in a province where rice was being bought and sold every day.
The ten-year-old was Amartya Sen. He noticed something else. Nobody in his school went hungry, and nobody in his family. The famine did not fall on Bengal; it fell on particular people in Bengal, those whose wages, crops or crafts had lost their command over rice.
Decades later, Sen turned that observation into an argument about justice: a society should be judged not by what it holds, but by what its people are actually able to do and to be.
Diagram
Fig. 8.0-1 Caption: Grain kept moving through Bengal’s markets in 1943 while a day’s wage bought steadily less of it. Brief: Simple two-panel schematic line drawing, no data values and no figures. Left panel: an open grain market with full sacks, labelled ‘food in the market’. Right panel: two lines on a plain axis, one labelled ‘price of rice’ rising steeply, one labelled ‘what a day’s wage buys’ running flat, with the widening gap shaded and labelled ‘the gap that decides who eats’. Mark clearly as schematic, not to scale. No distressing imagery and no depiction of individual suffering.
8.1 What Justice Means
Almost every political argument you have ever heard ends up near this one word. A wage is called unfair, a punishment too harsh, a quota necessary, a trial rigged. In each case the speaker is making a claim about justice.
Justice is the standard by which we judge how benefits, burdens, rights and punishments are shared out among people. It asks whether a distribution, a rule or a decision has given each person what they ought to have.
That makes justice different from the other ideas you have already studied. Law tells you what the rules are. Liberty and equality tell you what a society should protect. Justice is the test we apply to all three, including to the law itself.
8.1.1 The Root Of The Word
The English word justice comes from the Latin jus, meaning law or right; the Latin for justice itself was justitia. The same root gives us judge, judiciary, jurist and jurisdiction.
From the very beginning, then, justice was tied to law. But the two are not the same thing. A law can be passed correctly and still be unjust, which is why people appeal to justice when they want a law changed.
Classical Indian thought marks a distinction that will matter later in this chapter. Niti refers to correct rules, proper conduct and well-designed institutions. Nyaya refers to justice as it is actually realised in the lives people manage to lead.
The difference is easy to state. Niti asks whether the arrangements are right; nyaya asks how things actually turned out for people under them. A society can score well on the first and badly on the second.
8.1.2 Giving Each Person Their Due
The oldest definition of justice in the Western tradition is short: justice is the settled will to give each person what is due to them. Roman jurists put it in almost exactly those words, and courts have echoed it ever since.
This definition has real strength. It covers rewards and punishments in a single idea, and it explains why treating people differently is sometimes perfectly fair. A prize for the best essay and a fine for dangerous driving are both attempts to give someone their due.
Its weakness is just as clear. The definition is a container, and it does not tell us what to put inside. Everything depends on how we decide what a person is due.
Three Rival Answers
Consider a single scholarship and three claimants. The first has the highest marks, the second has the lowest family income, and the third has neither but has an equal claim to be considered.
Award it on merit, and the scholarship goes to the highest scorer, because ability and effort have earned it. Award it on need, and it goes to the poorest candidate, because the same rupee does more for her. Award it by equal chance, through a lottery, and every applicant counts exactly the same.
All three answers can be argued for seriously, and each rests on a different view of what is due. Political disagreement about justice is very often a disagreement of precisely this kind.
Injustice And Misfortune
Not every hardship is an injustice. An earthquake is a misfortune, and nobody is to blame for the shaking of the ground.
A building that collapses in that earthquake because its safety rules were quietly ignored is a different matter. Here a human decision, taken by identifiable people, decided who would be hurt.
The line between the two is not always sharp, and drawing it is itself a political argument. But the general test is useful: an injustice is a harm that human arrangements caused, or could have prevented, and did not.
8.1.3 The Attributes Of A Just Order
If justice is the standard, what does a society that meets it look like? Political and legal thought has settled on a small number of features that keep reappearing, whatever the disagreement about criteria.
The first is fairness, which means treating people without bias, and judging them on grounds that are relevant to the matter in hand. Marks are relevant to a scholarship; a candidate’s caste, religion or gender is not.
The second is the equal moral worth of persons. A just order begins from the assumption that no one counts for more than anyone else simply by birth, and it therefore refuses to build hierarchy into its rules.
The third is impartiality, which means that whoever decides — a judge, an officer, a selection board — has no personal stake in the outcome. Impartiality is what makes similar cases come out in similar ways, and that consistency is what allows people to trust a decision they have lost.
The fourth is the rule of law: the principle that everyone, including the government and its officials, is bound by publicly known laws applied equally to all. Its opposite is arbitrary power, where the outcome depends on who you are and whom you know.
The fifth is accountability, the requirement that those who exercise power can be called on to answer for what they did. Courts, an independent press, audit bodies and elections are all mechanisms of accountability, and a just order needs more than one of them.
The sixth is proportionality, which requires that a response match the seriousness of what provoked it. A punishment far heavier than the offence is unjust, and so is one so light that it treats the harm as trivial.
None of these is sufficient on its own. A society can have impeccable procedures and grotesque inequalities, or generous welfare and no accountability at all. Justice is the demand that these features hold together.
8.1.4 The Domains In Which Justice Is Claimed
Justice is claimed in very different situations, and the same word is doing different work in each. Sorting these out is the last step before we can read the two theories the rest of this chapter examines.
The Constitution of India makes the point in its opening words. Before it creates a single institution, the Preamble — the introductory declaration that states the Constitution’s purposes — announces what the Republic is meant to secure for its citizens, and it names justice first.
The three adjectives mark out three spheres of life. Political justice concerns votes, offices and a voice in decisions; economic justice concerns income, land and work; social justice concerns the barriers of birth that keep people out of both.
Notice what the extract can and cannot tell you. It records what the framers publicly committed the Republic to, and the order in which they ranked their goals. It does not tell you what social or economic justice requires in any concrete case, and it certainly does not tell you how much of either India has achieved.
Philosophers sort the same territory a second way, not by sphere of life but by the kind of question being asked. Three questions recur, and Fig. 8.1-1 sets them side by side.
Diagram
Fig. 8.1-1 Caption: Justice asks three different questions, and a society can answer one of them well and another badly. Brief: Three-branch labelled schematic running down from a single box marked ‘Justice’. Branch one: ‘Distribution — who should get what, and why?’. Branch two: ‘Procedure — was the decision reached fairly?’. Branch three: ‘Correction — what is owed once a wrong has been done?’. Under each branch, one plain example in smaller type: a scholarship scheme; a trial; a sentence. No people depicted, no party or national symbols.
Distributive justice concerns the sharing out of benefits and burdens in a society — income, land, education, healthcare, taxes and public office. Its question is the one we met with the scholarship: who should get what, and on what ground?
Procedural justice concerns the fairness of the process by which a decision is reached, rather than the content of the decision itself. A hearing given to both sides, a decision-maker with no interest in the outcome, and reasons recorded in writing are all procedural demands.
Retributive justice concerns what a society owes in response to wrongdoing, and it is governed above all by proportionality. Its close relative, corrective justice, asks what the wrongdoer owes the person harmed, which is why courts award compensation as well as sentences.
Social justice concerns the removal of disadvantages that attach to people by birth rather than by choice. In India this is why the Constitution permits special provisions for Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes, and why such measures are argued about in terms of what is due.
Of these questions, it is the first that has dominated modern political theory. John Rawls and Amartya Sen, the two thinkers this chapter studies, are both answering a version of the distributive question, and both are asking what a just society owes to those with least.
8.2 John Rawls: Justice As Fairness
Section 8.1 left us with a problem. Justice means giving each person their due, but need, merit and equal shares all claim to say what is due, and each has serious defenders.
One way out is to stop arguing about the answers and look at the argument itself. If we cannot agree on which principles are correct, perhaps we can agree on what would count as a fair way of choosing them.
That is the move John Rawls made, and it changed the subject. His work is the starting point of almost every serious discussion of justice written since.
8.2.1 Rawls And The Question He Set Himself
Rawls published A Theory of Justice in 1971, after more than a decade of work. The book set out to answer one question: what principles of justice would free and equal people choose to govern their own society?
He was deliberately turning away from three older answers. Justice was not to rest on tradition, because tradition simply repeats the arrangements we inherited. It was not to rest on authority, because that only moves the question to who gave the authority. And it was not to rest on a calculation of total happiness, for reasons we take up in 8.2.6.
Rawls also narrowed what his principles were meant to govern. They apply to the basic structure of society, which means its political constitution and its main economic and social institutions taken together.
The basic structure matters because it works on people before they have done anything. The school you can reach, the property law you inherit under, the market your parents’ work is priced in — all of these shape your life prospects from the start.
8.2.2 The Original Position And The Veil Of Ignorance
To find fair principles, Rawls builds a fair situation of choice. He calls it the original position: an imagined meeting at which free, rational and equal people choose the principles that will govern their society.
The original position is not a historical event and Rawls never claims it was. It is a thought experiment, a device for working out what fairness would require if bargaining advantages were removed.
The removal is done by the veil of ignorance, a condition under which the people choosing do not know any particular fact about themselves. They do not know their wealth, class, caste, religion, sex, generation, natural talents, or even what they will come to value in life.
What they do know is general: how societies work, what economics and psychology teach, and that resources are scarce. They know everything except which life in that society will turn out to be theirs.
Diagram
Fig. 8.2-1 Caption: Behind the veil of ignorance, those choosing the rules do not know which life in the society will be their own. Brief: Schematic of a round table with six featureless seated figures, no faces and no marks of dress, community or gender. A face-down card lies before each figure. A stack of face-down cards at the centre is labelled ‘rich or poor’, ‘town or village’, ‘talented or not’, ‘religion’, ‘sex’, ‘generation’. A translucent grey band across the whole table is labelled ‘veil of ignorance’. No identifiable persons, communities, party or national symbols.
The point of the device is simple once seen. Anyone who knew they would be rich might vote for rules that favour the rich, and anyone who knew their religion would be in the majority might vote to privilege it.
Behind the veil that kind of calculation becomes impossible. You cannot rig the rules in favour of a position when you do not know whether the position will be yours.
So the people in the original position reason about every place in society at once. Rawls argues that they will be cautious, because they might land at the bottom, and that they will therefore refuse any rule they could not live under in the worst position it permits.
8.2.3 The Two Principles Of Justice
Rawls argues that people choosing in these conditions would agree unanimously on two principles. The first fixes the basic freedoms; the second governs social and economic inequality.
8.2.3.1 The Equal Liberty Principle
The equal liberty principle holds that each person is entitled to the most extensive set of basic liberties that is compatible with the same set for everybody else. Liberty is distributed equally, and it is distributed first.
The basic liberties Rawls lists are these: freedom of speech and expression; liberty of conscience and religious practice; political liberty, meaning the right to vote and to stand for public office; freedom of thought; the right to hold personal property; and freedom from arbitrary arrest and seizure.
Two things about the list are worth noticing. It is a list of specific freedoms rather than freedom in general, so a society can be checked against it item by item.
And the property it protects is personal property — a home, savings, possessions. Rawls does not include an unlimited right to own productive resources, which is why his theory is compatible with more than one kind of economic system.
8.2.3.2 Fair Equality Of Opportunity And The Difference Principle
The second principle has two parts, and both must be satisfied. It applies to the inequalities of income, wealth, office and authority that every large society produces.
The first part is fair equality of opportunity. Positions must not merely be formally open to all applicants; people with similar talent and similar willingness to use it must have similar chances of reaching them, whatever family they were born into.
Formal openness is not enough, and the difference is easy to see. A recruitment advertisement open to every citizen still favours those who could afford the coaching, the internet connection and the years without earning.
The second part is the difference principle. Social and economic inequalities are just only if they work to the greatest benefit of the least advantaged members of society.
Rawls does not demand that everyone hold the same amount. He allows a doctor to earn more than a clerk — but the justification is not that the doctor deserves it. The justification is that the arrangement, taken as a whole, leaves the worst-off group better placed than a flatter arrangement would.
To ask who is worst off, Rawls counts primary goods, the things any rational person is presumed to want whatever else they want. His list is rights and liberties, opportunities, income and wealth, and the social bases of self-respect.
8.2.4 The Priority Between The Principles
Rawls does not leave the two principles to be balanced case by case. He arranges them in a strict order, which he calls a lexical priority: the earlier requirement must be fully satisfied before the later one is considered at all.
The equal liberty principle comes first. Within the second principle, fair equality of opportunity comes before the difference principle. Fig. 8.2-2 sets out the order.
Diagram
Fig. 8.2-2 Caption: Rawls arranges his principles in a strict order, so that a lower step may never be met by sacrificing a higher one. Brief: Three steps of a staircase, read from the top down. Top step: ‘First principle — equal basic liberties for all’. Middle step: ‘Fair equality of opportunity’. Bottom step: ‘Difference principle — inequalities must benefit the least advantaged’. A downward arrow at the side labelled ‘satisfy in this order’. A crossed-out upward arrow labelled ‘no trading a higher step for a lower one’. Plain schematic, no people.
The consequence is severe and Rawls means it to be. A policy that raised national income by taking the vote away from some group, or by silencing a faith, is ruled out no matter how large the gain.
Basic liberties, in other words, are not for sale. They cannot be exchanged for economic benefits, for administrative convenience, or for the greater happiness of the majority.
8.2.5 Why Rawls Calls It Fairness
Rawls names his theory justice as fairness, and the name states his central claim. The principles are just because the situation in which they were chosen was fair.
The reasoning is familiar from an everyday rule. If one child cuts the cake and the other chooses first, the cut will be even — not because the cutter has become generous, but because the procedure has removed the advantage of cutting.
The original position and the veil of ignorance do the same work on a larger scale. Make the choice fair, and whatever is chosen inherits that fairness.
Rawls tests the result by a method he calls reflective equilibrium. We compare the principles with our considered judgements about particular cases, such as our conviction that slavery is unjust, and we adjust in both directions until principle and judgement agree.
He also asks whether such a society could last. A just society is stable, he argues, when citizens who hold very different religious and philosophical beliefs can nevertheless support the same political principles for their own reasons.
Rawls called this an overlapping consensus, and he developed the idea in Political Liberalism in 1993. It is his answer to the obvious worry about a diverse society: agreement on politics does not require agreement on everything else.
8.2.6 Rawls Against Utilitarianism
Rawls built his theory against a rival that had dominated English-language moral and political thought for a century and a half. Utilitarianism holds that the right law or institution is the one that produces the greatest total happiness or welfare.
Utilitarianism has genuine attractions. It counts everybody, it is impartial between persons, and it turns political argument into a question that evidence can help settle.
Rawls’s objection is that the method adds up satisfactions across different people as if society were a single person deciding for itself. Doing so, he argues, fails to take seriously the fact that persons are separate, with their own lives to lead.
The practical consequence is what worries him. If only the total matters, a large enough gain for the many can justify a severe loss for the few, and nothing in the theory rules that out in advance.
Behind the veil of ignorance, he argues, no one would accept such a principle. Not knowing whether you would be in the many or the few, you would not agree to a rule that permits your own sacrifice for someone else’s arithmetic.
Rawls’s theory has been criticised as much as it has been admired. Some argue that the original position is too abstract to guide a real government; others that the least advantaged cannot be identified precisely enough to apply the difference principle; others again that people cannot be imagined apart from the communities that formed them.
The most searching criticism, for our purposes, came from a thinker who accepted a great deal of what Rawls had done and still thought the whole approach began in the wrong place. That criticism is the subject of 8.3.
8.3 Amartya Sen: The Capability Approach
Rawls asks what a perfectly just society would look like, and answers with principles chosen behind a veil. Amartya Sen accepts much of what Rawls achieved and still thinks the question was the wrong one to start with.
Sen’s objection grows out of the puzzle described at the opening of this chapter. A society can hold plenty and still leave people unable to eat, and no list of ideal principles by itself tells you why.
His alternative changes both the measure and the method. It asks what people are actually able to do, and it compares real alternatives instead of describing a perfect one.
8.3.1 Sen And The Question He Set Himself
Sen came to political philosophy through economics, and specifically through the study of famine, poverty and inequality. That route shows in everything he argues.
Sen sets out his account of justice most fully in The Idea of Justice, published in 2009. The book begins from a complaint about how the subject had been conducted.
Theories of justice, he argues, had become preoccupied with designing perfect institutions, while the injustices people actually suffer went unexamined. Slavery, hunger, untouchability and the exclusion of women were not abolished because somebody first agreed on the ideal society.
So Sen reframes the question. Instead of asking what perfect justice would require, he asks how we can tell that one arrangement available to us is less unjust than another.
8.3.2 Capability And Real Freedom
The heart of Sen’s answer is a shift in what we measure. Justice, he argues, should be assessed not by the resources people hold but by their capability: what a person is actually able to do and to be.
Capability is a set of real options. The things in that set — being well nourished, being educated, moving about safely, taking part in the life of one’s community, appearing in public without shame — Sen calls functionings.
The distinction between having resources and having capability is the whole argument, and Fig. 8.3-1 sets out the steps between them.
Diagram
Fig. 8.3-1 Caption: The same resources become very different real freedoms once personal and social circumstances are counted in. Brief: Four labelled boxes running left to right, joined by arrows. Box one: ‘Resources — income, food, books’. Box two: ‘Conversion — health, disability, age, distance, social rules’. Box three: ‘Capability — what a person is actually able to do and be’. Box four: ‘Functionings — what a person actually does and is’. Beneath box two, three small labels: ‘a longer walk to the school’, ‘higher food needs during illness’, ‘restrictions on moving about’. Plain schematic, no people depicted and no community identified.
Consider two households with identical incomes. In one, the school is a short walk away and everyone is well; in the other, the nearest school is eleven kilometres off and a family member needs continuous medical care.
The rupees are the same and the lives are not. A person with a disability may need more income than others to achieve the same mobility, and a person who is ill may need more food to be equally nourished.
Rawls measures a person’s position by their share of primary goods. Sen’s reply is that primary goods are means, and that people differ enormously in their ability to convert means into the lives they have reason to value.
The same reasoning changes how poverty is understood. Sen treats poverty as capability deprivation — the condition of being denied the real freedoms needed for a minimally decent life — rather than simply as an income below a line.
That reframing has been consequential. Sen also showed, in work published in 1990, that unequal care within families left more than a hundred million women unaccounted for in the world’s population, a deprivation that no income figure records.
The idea has travelled beyond philosophy. The Human Development Index, published by the United Nations Development Programme since 1990, ranks countries by health, education and standard of living rather than by income alone. It was designed by the economist Mahbub ul Haq, working closely with Sen, and it is the capability approach turned into a measuring instrument.
8.3.3 Agency Rather Than Passive Welfare
For Sen, freedom matters twice over. It is valuable in itself, because a life one has chosen is different from a life one has been given, and it is valuable as a means, because free people can act to remove their own disadvantages.
This leads to his insistence on agency: a person’s capacity to act on the goals they themselves have reason to value. Sen opposes any account of justice that treats people as passive recipients of benefits handed down by others.
The difference is practical, not merely verbal. A scheme that delivers food to a village and a scheme that gives villagers the standing to demand it may deliver the same calories and produce very different citizens.
Sen’s work on women’s position makes the point sharply. He argues that women’s education, earnings and voice change outcomes for entire families — including the survival chances of children — in ways that welfare delivered to women as beneficiaries does not.
8.3.4 Plurality And Public Reasoning
Rawls expects the parties behind the veil to agree unanimously on one set of principles. Sen doubts that any such agreement is available, and doubts that we need it.
He argues for plurality: the recognition that several conceptions of justice can be reasonable at once, and that no formula ranks them all correctly. Sen illustrates this with three children quarrelling over a flute.
Anne claims it because she is the only one who can play it. Bob claims it because he is the poorest and has no other toy. Carla claims it because she made the flute with her own hands.
Each child appeals to a serious principle — using resources well, relieving deprivation, and rewarding the labour that produced the thing. There is no neutral formula that settles the quarrel, and a theory that pretends otherwise is hiding a choice.
What we can do, Sen argues, is reason in public. Public reasoning means open, informed discussion in which claims are stated, examined, and answered by people who may be affected differently.
Impartiality on this view is achieved not by a veil but by hearing views from far as well as near, including from outside one’s own society. Reasons that survive that scrutiny are the best test of justice we actually possess.
Sen’s most striking claim about public reasoning concerns hunger. No substantial famine, he argues, has ever occurred in a functioning democracy with regular elections, opposition parties and a free press.
The reason is not that democracies produce more food. It is that a government facing questions in the press and at the next election cannot afford to let hunger go unreported and unanswered.
8.3.5 Comparison Rather Than Perfection
Sen gives a name to the approach he is arguing against: transcendental institutionalism, the attempt to identify perfectly just institutional arrangements and to treat that as the main business of a theory of justice.
His criticism has two parts, and both are practical. The first is that agreement on the perfect arrangement may never arrive, since reasonable people disagree about what perfection requires.
The second is more damaging. Even if we agreed on the ideal, it would not tell us which of the imperfect options actually before us is the better one.
Knowing which is the highest mountain in the world does not help you decide which of two hills to climb this afternoon. Real political choices are always between available alternatives, never between an available one and an ideal.
Sen therefore proposes a realisation-focused comparison: judge arrangements by the lives people are actually able to lead under them, and ask which of the feasible options reduces injustice more.
This is where the pair of words introduced in 8.1.1 does its work. Niti looks at the correctness of rules and institutions; nyaya looks at how things actually turn out for people. Sen’s argument is that a theory of justice that stops at niti has stopped too soon.
It follows that justice is not a destination a society arrives at. It is a continuing task of identifying remediable injustices and removing them, one at a time, with the reasons argued in public.
8.4 Where Rawls And Sen Disagree
It would be easy to read the last two sections as a quarrel, with a student expected to pick a winner. That reading misses what is actually going on between them.
Sen begins from Rawls. He accepts that justice is a matter for reasoned argument rather than tradition or authority, and he accepts Rawls’s refusal to let a few be sacrificed for the comfort of the many.
He also accepts the central Rawlsian instinct that a society is to be judged by how it treats those with least. When The Idea of Justice appeared in 2009, Sen dedicated it to Rawls’s memory.
Four Points Of Difference
The first difference is about the question itself. Rawls asks what perfectly just institutions would be like; Sen asks which of the arrangements now available reduces injustice more.
The second is about the measure. Rawls ranks positions by primary goods, the means a person holds; Sen ranks them by capability, what a person can actually do with those means.
The third is about impartiality. Rawls secures it by removing knowledge, placing everyone behind a veil; Sen secures it by adding voices, subjecting claims to scrutiny from far as well as near.
The fourth is about the object of judgement. Rawls fixes attention on the design of the basic structure; Sen insists that the test is how lives actually turn out under whatever structure exists.
Table 8.1 sets these differences side by side.
Read the table with that last line in mind. Rawls does care about outcomes, or the difference principle would make no sense; Sen does care about institutions, or public reasoning would have nowhere to happen.
Why The Disagreement Matters
The choice between these approaches is not merely academic, because the two lead to different questions in public life.
Follow Rawls, and you ask whether a country’s constitution, its liberties and its economic institutions are arranged as free and equal people could have agreed to. Follow Sen, and you ask what people in that country can actually do — whether they can read, move, eat, work and be heard.
Neither question makes the other unnecessary. A government answerable only to the first may leave real deprivation untouched; a government answerable only to the second may improve conditions while eroding the liberties that let people demand more.
That is the honest position at the end of this chapter. You have two powerful accounts of what justice requires, each with its own strengths and its own unsolved difficulties, and the argument between them is still open.
8.5 Summary
What Justice Means
Justice is the standard by which we judge how benefits, burdens, rights and punishments are shared among people, and whether each person has been given what they ought to have.
The word comes from the Latin jus, meaning law or right, which is why justice and the courts share a vocabulary. Law and justice are still not the same: a law correctly passed can be unjust.
Classical Indian thought separates niti, the correctness of rules and institutions, from nyaya, justice as actually realised in people’s lives. A society can score well on the first and badly on the second.
The oldest definition — giving each person their due — is a container rather than an answer. Need, merit and equal shares all claim to say what is due, and political disagreement is usually a disagreement between them.
Not every hardship is an injustice. A harm becomes an injustice when human arrangements caused it, or could have prevented it and did not.
A just order is marked by fairness, the equal moral worth of persons, impartiality, the rule of law, accountability and proportionality. None of these is sufficient on its own.
Justice is claimed in distinct domains. Distributive justice asks who should get what; procedural justice asks whether the decision was reached fairly; retributive and corrective justice ask what is owed after a wrong; social justice asks about disadvantages attached to birth.
The Preamble to the Constitution of India names justice first among the Republic’s promises, and marks out three spheres of it: social, economic and political.
John Rawls: Justice As Fairness
Rawls argued in A Theory of Justice (1971) that principles of justice should rest neither on tradition, nor on authority, nor on a calculation of total happiness, but on fairness in the way the principles are chosen.
His principles govern the basic structure of society — its constitution and its main economic and social institutions — because these shape a person’s prospects before that person has done anything.
In the original position, free and equal people choose principles behind a veil of ignorance. They know general facts about how societies work, but nothing about their own class, caste, religion, sex or talents.
The device removes any ability to rig the rules in one’s own favour, and forces each chooser to consider every position in society, including the worst.
They would choose two principles. The equal liberty principle gives everyone the widest set of basic liberties compatible with the same for all. The second principle requires fair equality of opportunity, and permits inequalities only where they most benefit the least advantaged — the difference principle.
Rawls ranks who is worst off by primary goods: rights and liberties, opportunities, income and wealth, and the social bases of self-respect.
The principles hold in lexical priority. Liberty may not be traded for wealth, and fair equality of opportunity must be met before the difference principle is applied.
The theory is called justice as fairness because a fair procedure of choice is held to confer fairness on whatever is chosen. Rawls tests the result by reflective equilibrium, and expects a diverse society to be held together by an overlapping consensus.
He rejects utilitarianism for adding satisfactions across separate persons, which allows a large gain for the many to justify a severe loss for a few.
Amartya Sen: The Capability Approach
Sen accepts much of Rawls, but argues that the search for perfectly just institutions distracts attention from the injustices people actually suffer.
He shifts the measure from resources to capability: what a person is actually able to do and to be. The doings and beings themselves are functionings.
Equal resources do not produce equal freedom, because health, disability, distance, age and social rules decide how far means can be converted into a life.
Poverty is therefore best understood as capability deprivation rather than as income below a line. The Human Development Index, designed by Mahbub ul Haq with Sen’s close involvement and published since 1990, turns this idea into a measurement.
Sen insists on agency: people are to be enabled to act on goals they have reason to value, not treated as passive recipients of welfare.
He accepts plurality — several conceptions of justice can be reasonable at once — and holds that public reasoning, rather than a veil, is how impartiality is achieved in practice.
His best-known claim about public reasoning is that no substantial famine has occurred in a functioning democracy with regular elections, opposition parties and a free press.
Against what he calls transcendental institutionalism, Sen proposes realisation-focused comparison: judge the feasible alternatives by the lives people can lead under them, and remove remediable injustice one step at a time.
The two thinkers share more than they dispute. They differ over the starting question, the measure used, how impartiality is secured, and whether the object of judgement is the design of institutions or the lives lived under them.
The Arguments In One Place
The chapter’s central claim is that justice is a standard, not a slogan. A society is just when its arrangements can be defended by reasons offered to the people who bear their costs, and above all to those with least.
Rawls argues that those reasons are found by asking what free and equal people would choose if they did not know who they would turn out to be. His answer is equal liberty first, then genuinely open positions, then inequalities only where they lift the worst off.
Sen’s objection is that this describes an ideal we may never agree on, and that agreement would still not tell us which of the imperfect options before us is better. Justice, he argues, is judged by what people are actually able to do and be, and is settled by public reasoning about real alternatives.
The reply available to Rawls is that every comparison uses a standard, and that a theory which refuses to state its ideal is relying on one all the same. The argument has not been closed, and this chapter has not closed it for you.
8.6 Key Terms
- Accountability — the requirement that those who exercise power can be called on to answer for what they did.
- Agency — a person’s capacity to act on the goals they themselves have reason to value, rather than receiving benefits passively.
- Basic structure — a society’s political constitution together with its main economic and social institutions, which shape a person’s prospects from birth.
- Capability — what a person is actually able to do and to be, given their resources and their circumstances.
- Capability deprivation — the condition of being denied the real freedoms needed for a minimally decent life; Sen’s way of understanding poverty.
- Difference principle — Rawls’s rule that social and economic inequalities are just only if they work to the greatest benefit of the least advantaged.
- Distributive justice — justice concerned with how benefits and burdens, such as income, land, education and office, are shared out.
- Equal liberty principle — Rawls’s first principle: each person is entitled to the most extensive set of basic liberties compatible with the same for all.
- Fair equality of opportunity — the requirement that positions be genuinely open, so that similar talent and effort bring similar chances whatever a person’s birth.
- Fairness — treating people without bias and judging them on grounds relevant to the matter in hand.
- Functionings — the doings and beings a person actually achieves, such as being nourished, educated, mobile or able to take part in community life.
- Impartiality — deciding without personal stake or favouritism, so that similar cases are decided in similar ways.
- Justice — the standard by which we judge how benefits, burdens, rights and punishments are shared among people.
- Lexical priority — a strict ordering in which an earlier requirement must be fully satisfied before a later one is considered at all.
- Merit — the claim that a benefit should go to the person whose ability, effort or contribution has earned it.
- Niti — correct rules, proper conduct and well-designed institutions, considered as the standard of justice.
- Nyaya — justice as it is actually realised in the lives people manage to lead.
- Original position — Rawls’s imagined situation of choice in which free, rational and equal people select the principles of justice.
- Overlapping consensus — agreement on the same political principles by citizens who hold very different religious and philosophical beliefs.
- Plurality — the recognition that several conceptions of justice can be reasonable at once, with no formula ranking them all.
- Primary goods — the things any rational person is presumed to want: rights and liberties, opportunities, income and wealth, and the social bases of self-respect.
- Procedural justice — justice concerned with the fairness of the process by which a decision is reached.
- Proportionality — the requirement that a response, especially a punishment, match the seriousness of what provoked it.
- Public reasoning — open, informed discussion in which claims are stated, examined and answered by those they affect.
- Realisation-focused comparison — Sen’s method of ranking the feasible alternatives by the lives people can actually lead under them.
- Reflective equilibrium — the method of adjusting principles and considered judgements about particular cases until the two agree.
- Retributive justice — justice concerned with what a society owes in response to wrongdoing, governed above all by proportionality.
- Rule of law — the principle that everyone, including the government and its officials, is bound by publicly known laws applied equally.
- Social justice — justice concerned with removing disadvantages that attach to people by birth rather than by choice.
- Transcendental institutionalism — Sen’s name for the approach that seeks to identify perfectly just institutional arrangements.
- Utilitarianism — the view that the right law or institution is the one producing the greatest total happiness or welfare.
- Veil of ignorance — the condition under which those choosing principles know no particular fact about themselves, including class, caste, religion, sex or talents.
8.7 Points to Ponder
The veil of ignorance hides your caste, religion, sex and wealth. Does it also hide the experiences that taught you what injustice actually feels like — and would that make the choice fairer, or emptier?
Rawls places basic liberty ahead of economic gain and allows no trade between them. Can a person who is hungry make real use of the freedom to speak, and if not, does the ordering still hold?
Sen describes justice as the removal of remediable injustices, one at a time. Without an ideal to aim at, how would a society ever know how far it had come?
If two people with the same income can lead very different lives, should a government give equal amounts to everyone, or unequal amounts intended to produce equal capability?
Can a procedure be so fair that whatever comes out of it must be accepted as just? What would it take to show that a fairly reached decision was nevertheless wrong?
Is it possible to hold that a society is unjust while agreeing that every one of its laws was passed correctly and applied consistently?
8.8 Objective Questions
- The English word ‘justice’ derives from the Latin word:
- civitas
- jus
- ratio
- polis [1 mark]
- Behind the veil of ignorance, a person does NOT know:
- general facts about how economies work
- that resources in a society are scarce
- their own class, caste, sex and natural talents
- the findings of psychology about human behaviour [1 mark]
- According to the difference principle, an inequality of income is just only when it:
- rewards the most talented members of society
- arises from voluntary exchange in a market
- works to the greatest benefit of the least advantaged
- is approved by a majority of voters [1 mark]
- The capability approach measures justice by:
- national income per head
- the total happiness a society produces
- the design of a society’s basic institutions
- what people are actually able to do and be [1 mark]
- The requirement that both sides be heard before a decision is taken belongs chiefly to:
- distributive justice
- procedural justice
- retributive justice
- social justice [1 mark]
- Assertion (A): Rawls gives the equal liberty principle strict priority over his second principle. Reason (R): Basic liberties may be restricted whenever doing so raises national income.
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true. [1 mark]
- Assertion (A): Sen treats poverty as capability deprivation rather than as low income alone. Reason (R): People differ greatly in their ability to convert resources into the lives they value.
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true. [1 mark]
- Match the terms in Column A with their meanings in Column B: [1 mark]
| Column A | Column B |
|---|---|
| a. Original position | i. the doings and beings a person actually achieves |
| b. Primary goods | ii. rights and liberties, opportunities, income and the social bases of self-respect |
| c. Functionings | iii. an imagined situation in which free and equal people choose principles |
| d. Transcendental institutionalism | iv. the approach that seeks to identify perfectly just institutions |
Fill in the blank: The Preamble to the Constitution of India secures justice in three forms — social, economic and ______. [1 mark]
State whether the following statement is true or false: A decision reached by a fair procedure is necessarily a just decision. [1 mark]
8.9 Check Your Concepts
Define justice. [2 marks]
State any two attributes of a just order. [2 marks]
What is meant by capability deprivation? Give one example. [2 marks]
Differentiate between distributive justice and procedural justice. [3 marks]
Differentiate between niti and nyaya. [3 marks]
Explain briefly why the definition of justice as ‘giving each person their due’ does not settle political disagreement. [3 marks]
Explain fair equality of opportunity with an example, and show how it differs from merely formal openness. [4 marks]
Evaluate the claim that a hardship is an injustice only when human arrangements caused it or could have prevented it. [4 marks]
Describe the main features of Rawls’ theory of justice as fairness. Include the grounds on which he defends it and one criticism made of it. [6 marks]
Describe the main features of Sen’s capability approach to justice, with the reasons he gives for it and one limitation of the approach. [6 marks]
Compare the positions of Rawls and Sen on the question a theory of justice should ask and the measure it should use. [6 marks]
8.10 Source & Passage-Based Questions
- Study the described cartoon and answer the questions that follow. A cartoonist draws the start of a race. All the runners are lined up at the same white line, but the track ahead of each is different: one lane is smooth, one is broken, and one climbs a slope. A large banner above them reads: THE SAME RULES FOR EVERYONE.
- Which idea from this chapter is the cartoonist criticising? [1 mark]
- Explain, using the chapter’s terms, what the different lanes represent. [2 marks]
- State one thing this cartoon cannot show you about the argument it is joining. [1 mark]
- Read the situation and answer the questions that follow. A municipal corporation has funds for exactly one new health centre. One councillor argues that it should go to the neighbourhood with the largest population and the highest tax collection, since more people will use it. Another argues that it should go to a settlement on the edge of the city where the nearest doctor is fourteen kilometres away. A third proposes a lottery between the two, on the ground that every ward has an equal claim on public money.
- Identify the criterion of distribution each of the three councillors is appealing to. [3 marks]
- Which proposal would the difference principle support, and why? [2 marks]
- What would the corporation need to know before it could decide which choice reduces injustice more? [2 marks]
- Read the passage and answer the questions that follow. Two villages receive an identical development grant of the same amount per household. Five years later, school attendance and health outcomes have improved in one and hardly moved in the other. The second village lies far from the nearest secondary school, has no all-weather road, and its women are not free to travel alone to the market town.
- Which of Sen’s arguments does this passage illustrate? Explain it in your own words. [2 marks]
- Distinguish between capability and functionings using this example. [2 marks]
- Why would a comparison of the two grants alone be a poor measure of justice here? [2 marks]
- Read the situation and answer the questions that follow. In a country with regular elections and an independent press, newspapers report in July that crop failure has pushed food prices beyond the reach of daily-wage workers in three districts. Opposition members raise the matter in the legislature; a court asks the government to file a report; relief supplies reach the districts in August.
- Which claim of Sen’s about democracy and hunger does this sequence illustrate? [1 mark]
- Explain the role of public reasoning in the sequence described. [2 marks]
- State one reason why this sequence, by itself, does not prove that the country is just. [2 marks]