The article ‘Understanding Law and Justice: Different Theories’ by Snehil Sharma is a thorough study of the concept of law and justice along with understanding their juxtaposition. The article will also explore the various theories involved in this concept in order to garner a better understanding of the subject matter.
Introduction
The conceptual differences between ‘law’ and ‘justice’ are mostly misunderstood which creates anomalies in their meaning. While it is true that they are both similar in many ways, there continue to be certain distinguishing features between them. Therefore, it cannot be postulated that they are both ‘identical’ and the reason for the same shall be discussed at length in this article. So before delving into the intricacies of both concepts, it is important to first have clarity on the literal meanings behind ‘justice’ and ‘law’.
What is Justice?
The Latin word ‘jus’ which in the literal sense means ‘to bind’ led to the development of the term ‘justice’. Justice in its most literal sense postulates the principle that ‘people receive what they deserve’. The basic ideals behind justice are fairness, equality, and righteousness. For this reason, it can be said that justice as a concept is interdependent on ethics and morality. In order to serve justice, every country has laid down its own rules, regulations, and laws which are further implemented by the executive and adjudicated upon by the courts. So it can be said that courts have the ultimate onus of guaranteeing justice to the citizens of a country. The laws that are made with the perspective of serving ‘justice’ to the public at large, are generally structured upon notions of impartiality, equality, and honesty. Such a law is devoid of aspects such as differences in religion, beliefs, caste, and other grounds for discrimination. This is because justice dwells on the elimination of discriminatory practices and promotes equality among all.
The majority of the countries have personified justice to be a lady who is blindfolded and has a set of scales in her hand. She is called the ‘lady of justice’. The blindfold on her eyes is made to represent her impartiality and the fact that she will not be impacted by the views, opinions, or judgments of the world and will only practice what her scale indicates to her. She is, therefore, devoid of any stereotypical thinking or prejudices prevalent in society otherwise. In countries like the USA, the lady of justice is often also handed a sword which shows the court’s coercive power. This guarantees the court’s authority of punishing the lawbreakers.
Inter-relation b/w law and justice
In order to decode the interrelation between law and justice, it is important to highlight and understand both the similarities as well as the differences between the two concepts.
• Similarities between Law and Justice
If the motive or the objective behind law and justice is understood, it can be said that both of them require the presence of fairness, righteousness, and equality along with the elimination of discriminatory practices from society. This can be considered to be the most common similarity between the two subjects. Law aims to conduct human behaviour in society and justice wants that all rights of individuals must be fulfilled and catered to. There should not be any miscarriage of justice and this is what the law aims to achieve.
• Differences between Law and Justice
There are certain differences that make the two non-identical. For instance, laws are a set of rules that govern the actions of the citizens and justice merely regulates the exercise of the administration for providing fairness and equity to all citizens. While law defines the do’s and don’ts for society, justice is the aspiration of the judicial authorities which will guarantee greater satisfaction and righteousness in the country.
Different Theories
The following theories will help in understanding ‘justice’ with more clarity and depth:
i) Commutative and Distributive Justice
This distinction of justice was made by Thomas Aquinas. Commutative justice pertains to specific and precise exercises. They are generally applied where one person acts against the rights of another. For instance, if someone commits a theft, then their act is a violation of commutative justice. Distributive justice on the other hand refers to the ‘loose, vague and indeterminate’ justice where there does not exist any victim or criminal. Distributive justice strictly relates to the fulfillment of ‘positive liberties’. An example of this is a person dying due to a disease that is treatable otherwise. So here, there is a violation of distributive justice but no specific person can be held liable for infringing or causing the violation.
ii) Concept of Justice and Fairness
Here it is important to connote the meaning of justice in its broader sense as well as in its narrower sense. In the broader sense justice relates to the principles inherent in nature itself or principles stemming from god directly. This justice is understood to be higher in level than the understanding of justice as understood by society. So violation of any ‘universal rule of conduct is a violation of justice in the broader sense. In its narrow sense, justice can be understood to be ‘fairness’. This view makes justice more particular and specific to situations where it is demanded. The principles of justice and fairness, therefore, combine here and provide rules of ‘fair play’ for guaranteeing the resolution of issues of social justice.
iii) Capabilities Approach
This approach pertains to a human welfare approach where the actual freedom and capability of people to lead their lives is concentrated instead of the mere aspiration of being free and independent. This approach was given by Amartya Sen and Martha Nussbaum that were novel and different from the traditional approaches to economic welfare. The sole idea here is to focus on the tools that are used by people for living a life that is satisfactory to them.
iv) Restorative Justice
Restorative Justice helps in repairing harm by giving an opportunity to those who are harmed and those who are willing to take responsibility for causing that harm to sit and communicate for the purpose of resolving any dispute and addressing their needs in the aftermath of the crime thus caused. This theory of justice is based entirely on the principles of respect, compassion, and inclusivity. It also thereby provides an opportunity for repairing damaged relationships by healing and reintegration. Processes like conferences, dialogues, and circles are used in this method. This theory thereby focuses more on promoting safety and welfare through a more amicable approach.
v) Natural Justice
Natural justice is the legalese used in English law to refer to the prohibition of bias and the right to a fair trial. Although the phrase “natural justice” is frequently used as a general idea, the universal “obligation to act fairly” has largely taken its place and expanded upon it. When the welfare state was first established, the concept of natural justice was limited to judicial proceedings alone. As a result, it is now impossible for the law to specify the fair procedure that should be followed by each authority when resolving disputes or conducting quasi-judicial proceedings. As a result, courts have created a remedy by setting a standard that administrative officials must adhere to when using their authority and carrying out their duties. As law enforcers, administrative authorities are required to benefit the public, but this obligation cannot be met in the absence of competent oversight of the authority granted to them.
vi) Cognitive Justice
By allowing and enabling discourse between, frequently incommensurable, knowledge, cognitive justice supports the acknowledgment of alternative paradigms or alternative sciences and critiques the prevailing paradigm of modern science. By encouraging and enabling discourse between, frequently incommensurable, knowledge, cognitive justice encourages the acknowledgment of alternative paradigms or alternative sciences and critiques the prevailing paradigm of modern science.
These intellectual exchanges are thought to advance a more just, democratic, and sustainable world. The foundation of cognitive justice is the knowledge that there are many different types of knowledge and that this knowledge has the right to coexist in harmony free of any hegemonic framework of reliance. It was first used in 1997 by Indian researcher Shiv Visvanathan to challenge modern science’s unquestionable supremacy and suggest the search for alternative paradigms, particularly those drawn from indigenous forms of knowledge.
Conclusion
Law and justice are two concepts that are related but distinct. Justice and law are commonly considered synonymous, yet they actually pertain to two different concepts. In order to control how its residents live their lives and do their daily business, governments construct systems of laws, rules, principles, and norms. Laws are found in written codes and are upheld by the government and its departments, such as the police, judiciary, and security services. Justice, on the other hand, is a more ethereal idea based on fairness and equality of rights. All laws ought to be founded on the notion of justice, and they ought to be applied and enforced in a fair manner without regard to a person’s gender, age, race, colour, religion, or any other characteristic.
References
[1] Archita Sengupta, How is Law different from Justice?, Available Here
[2] James Oswald, Commutative and Distributive Justice, Available Here
[3] Michelle Maiese, Principles of Justice and Fairness, Available Here
[4] Restorative Justice, Available Here
[5] Laskit, Concept of Natural Justice, Available Here
Important Links
Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams
