The idea of justice is one of the central points of debates and discussions in jurisprudence. Many political thinkers, as well as distinguished jurists, have attempted to define and explain the concept, resulting in several different theories of justice. A careful analysis of the various theories that have come up over time indicates that the meaning and idea of justice is dependent upon the ideology that is prevalent during the time of formulation of the theory. Thus, an ideological element is seen in almost all the theories of justice. ‘Liberal theories of justice’ refers to the theories of justice formulated by thinkers and jurists who subscribed to the political ideology of liberalism.
The liberals regard justice not just as a value, like all the other values, but the highest form of value which prevails over all the others. Unlike utilitarianism, liberalism holds that individual justice should prevail over the collective good. Let us discuss some of the ideas of justice proposed by notable liberal jurists to understand the evolution of liberal theories of justice.
John Locke is popularly known as the ‘Father of liberalism’. Locke’s political philosophy was founded on the social control theory. He believed in the principles of natural law and the importance of property and ownership. His ideas essentially revolved around the right to life, liberty, and property which, he believed, were natural rights. Social justice, according to him, referred to the protection of life and economic rights of an individual by the state. A society can be said to be fair and just only if it protects the economic interests of the people. His idea of justice stemmed from the common belief of classical liberals that private property is the source of liberty and that it also ensures the effective protection of such liberty.
The Lockean idea of justice is quite traditional and orthodox. He has restricted the concept of justice to mere civic liabilities. Moreover, he has restricted the role of government to simple protection of natural rights. Even within the framework of natural rights, he has accorded an undue amount of importance to Economic Rights. Furthermore, his focus and emphasis are more upon corporeal aspects of possession and ownership. All of these factors render Lock’s theory of justice irrelevant in the 21st Century.
Adam Smith is a noted Scottish economist well-known for his works ‘The Wealth of Nations’ and ‘The theory of moral sentiments’. He is known to be a subscriber of classical liberalism. He strongly believed in the idea of private property as a source of liberty. He defined the concept of natural liberty as, “Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man.” Thus, he has imposed the sole restriction of conformity with ‘laws of justice’ on the exercise of natural liberty. Instead of defining justice, he has explained the meaning of injustice. According to Smith, an act is unjust if:-
- It is hurtful in nature
- It has been done intentionally
- It is acrimonious in the eyes of society
He strongly believed that an act should only be punished if it is disapproved and resented by society. He proposed that the punishment for such an act should be decided upon by taking into consideration the amount of resentment that it receives in society.
At a time when almost all theories of justice go on highlighting justice as a superior social virtue, Smith’s idea of justice is quite refreshing. The sole factor which makes Smith’s idea stand out from the rest is his proposition that only acts which are an object of social resentment should be considered unjust and should be punished. He believed that each and every society has its own indigenous method of ensuring justice which involves subjecting certain acts to such strong resentment that a man abstains himself from committing it due to the fear of social isolation. This is quite relevant, especially in the Indian context. However, Smith’s idea can be criticized on the ground that it is completely ignorant of the concepts of social stratification and hierarchy. Class oppression in a society is itself an unjust act which would never be subjected to social resentment.
John Rawls’s theory of justice comes at a time when the utilitarian ideas of justice were dominant in Europe and America. His work entitled, ‘A Theory of Justice’, has initiated several ‘modern liberals’ into developing the concept of justice according to principles of modern liberalism. His theory can be said to be one of the most interesting modern attempts to defend the principles of justice.
Attacking the utilitarian idea of justice, Rawls attempts to revive the social contract theory by defining justice as basic principles of governance decided and agreed upon by rational and free-thinking individuals. This has to be done in a hypothetical situation of complete equality which he termed as the ‘original position’. The original position constitutes individuals who are behind a ‘veil of ignorance’. This means that the individuals are completely unaware of their social, economic and political position; they do not have any goals to achieve or social groups to benefit and are completely unaware of their historical, social and economic background. Rawls proposed that individuals in the original position would agree to the following principles to ensure justice:
- Principle of Equal Liberty- The maximization of liberty is essential for the protection of liberty itself. Therefore, each and every individual should be entitled to basic liberties which are compatible with overall individual liberty.
- Difference Principle– Equality for all, both in the basic liberties of social life and also in distribution of all other forms of social goods, subject only to the exception that inequalities may be permitted if they produce the greatest possible benefit for those least well off in a given scheme of inequality (the difference principle); and
- Equal opportunity Principle- Fair equality of opportunity and the elimination of all inequalities of opportunity based on birth or wealth.
The difference principle has been criticized by several scholars and jurists. The main question that has been posed is with regards to the relative position of the least advantaged group being given importance over their overall position. It has been argued that the by discriminating against a particular group for the purposes of uplifting another group, the society is depriving itself of the benefits that it can reap by treating both the groups as equals. This particular criticism aptly highlights the defects in India’s reservation policy. Another point of criticism has been that this particular principle makes modern liberalism equivalent to utilitarianism since both of them support a certain level of inequality to benefit the least advantaged group. However, this particular point is being ignorant of the fact that utilitarianism speaks of ‘greater good’ whereas Rawls is concerned with the good of the ‘least well-off’, irrespective of whether they constitute the majority of the minority.
Michael Sandel’s Deontological Liberalism
Sandel’s concept of deontological liberalism can be essentially said to be a liberal theory of justice. It has been inspired by ideas of Immanuel Kant and has emerged as a critique of Rawls’s theory of justice. Sandel observes that society is composed of different people with different ideas and ideologies about what is good and what is bad. He states that a society can only be governed well by principles that are not based on any presumptions of what is good. Sandel argues that justice should be limited which would in turn limit liberalism itself. He further adds that by limits he does not mean to declare justice as a utopian concept, he means to impose certain conceptual limitations on it which are, he argues, present in the ideal itself. Sandel’s idea of justice is one of the most recent liberal theories of justice which is relevant to modern times. It remains to be seen how his theory plays out and whether, as Sandel himself has predicted, it would go on to be a popular doctrine in the coming times.
With several major political systems around the world adopting the ideology of liberalism, it becomes essential to understand the meaning of justice in the minds of the liberals. Justice has been and shall always be a through and through philosophical concept defined by emotions and ideologies. Every time a new ideology comes up, a new theory of justice emerges with it. A critical analysis of the liberal theories of justice reveals how the concept has been a central point around which the various branches of liberalism revolve, a point around which the ideology develops other ideas, values and principles. A common thread that runs through all the liberal theories of justice is the concept of the social contract. All the jurists, in some form, have adopted the social contract theory to explain their ideas of justice. The theory of justice proposed by John Rawls has given an entirely fresh outlook to ‘modern liberalism’ and provided a road map for liberal nations to build their policies on.
- Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian Edition).
- Michael J. Sandel, ‘Liberalism and the Limits of Justice’, Second Edition, Cambridge University Press.
- Andrew Heywood, ‘Political Theory: An Introduction’, Third Edition, Palgrave Macmillan.
 Korab-Karpowicz, W. Julian, A History of Political Philosophy: From Thucydides to Locke, Global Scholarly Publications, New York, 2010, p. 291
 Adam Smith, ‘The Wealth of Nations’, 1776.