CHAPTER-II DEFINITION. NATURE AND SCOPE OF SOCIAL JUSTICE DEFINITION

Transcription

1 -8 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. 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 It is identical with the empire of laws not of men.

2 -9- 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 are > normally made in a society

3 -10- 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'

4 -11- 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.

5 - 12- 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 nr 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, o 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.

6 - 13- It 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

7 -14- 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 11

8 -15- According 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.

9 - 16- 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,

10 - 17- 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.

11 - 18- 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 members outside the group as well.

12 -19- 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.

13 -20- 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.

14 -21 - CHAPTER-II REFERENCES 1. A theory of justice. J. Rawals. P3 2. Ibid 3. Justice and Modem Moral philosophy. P. Rheman.see p Ibid 5. P P Elements Of Social justice L.T.Hobhouse. p A theory of Justice. P.74 9 Constitutional Law of India.H.M.Seervai. Vol.II Quoted in p See p Ibid 12 Justice Krishna Iyer on Fundamental Rights and Directive principles pi Constitutional Law of India vol II p Quoted by V.R.Krishna Iyer in Justice at Cross Roads.pl See p Justice and Modem Moral philosophy.p.216-7