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Published : September 09, 2015 | Author : Lydia Kerketta
Category : Law - lawyers & legal Profession | Total Views : 10382 | Rating :

Lydia Kerketta
Ms. Lydia has completed B.Sc.(H)Chem, B.Ed., LL.B.(Law Centre 1) and LL.M. (Faculty of Law) from Delhi University. She has done extensive research on Armed Forces (Special Powers) Act, 1958 during her course work in LL.M. She is also NET-JRF qualified in Law. Currently, she is pursuing M.Phil./ Ph.D in International Legal Studies from Jawaharlal Nehru University.

Theory of Justice by John Rawls:
its criticism by Martha C. Nussbaum and Amartya Sen

John Rawls' A Theory of Justice – an introduction
The Theory of Justice as propounded by John Rawls in his book ‘A Theory of Justice’ (1971) presented a conception of justice which generalised as to what is justice and tied to carry it to higher level of abstraction rather than in defining in concrete form.

According to John Rawls, there are some principles of justice which are running as an undercurrent in the building of a society which is well organised and working in a particular fashion. These are such principles which would be adopted by ‘free and rational’ persons to further their own interest in an initial position of equality. This is ‘the equality’ which is fundamental to their association. And it is this principle which regulates their further agreements. By agreements here, he meant the laws which will be passed at later stages will be working on this very principle. So this is what he regarded as ‘justice as fairness’.

He explains as to how by logical ordering of principles of justice, it is possible to answer questions like how should society be structured, how should basic rights and duties be assigned to individuals, and how should social and economic advantages be distributed to all members of society. He was primarily inclined towards defining the principles of justice which would regulate an ideal society. He completely ignored the idea of how justice may be restored in an unjust society.

The Concept of ‘Original Position’:
John Rawls explains that they are principles of justice which actually establishes the basis of an ideal society. According to him, the principles of justice are best derived from a hypothetical contract carried out in ‘original position’ of equality behind the veil of ignorance. These principles are those principles which are chosen by every individual if every individual were in a so called ‘original position’ of equality with respect to the rights and duties and where all the individuals who were acting rationally in a mutually disinterested manner. This 'original position' is a hypothetical situation in which every individual is acting behind a 'veil of ignorance' as to his or her own social position, class status, individual assets, and personal aptitudes or abilities. Therefore, according to Rawls’ all individuals acting in their ‘original position’ are free from all biases of both of which he is conscious of and of which he is not conscious of.

No one knows his place in society, his class position or his social status, nor does anyone knows his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like.

Rawls explains that in ‘justice as fairness’ the original position of equality corresponds to a state of nature. It is a pure hypothetical situation which leads to a certain conception of justice. Some of the essential characteristics of a people who are involved in finding out the principles of justice in their original position are:
1. They are not aware of their place in society, his class position or social status.
2. They do not know their fortune in the distribution of natural assets and abilities.
3. They are also unaware of their natural assets and abilities and their intelligence, strengths and their likes.
4. They also do not know their conception of the goods or their special psychological propensities.

So there exist a ‘veil of ignorance’ behind which every like, dislike, advantage, interest, strength, weakness, abilities, social status are hidden.

The principles of justice are chosen behind the veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of the natural chance or the contingency of the social circumstances.

This situation ensures that there is no one advantaged or disadvantaged. All are similarly situated and no one is in a position to design principles to favour his/her own particular situation. Therefore, the principles of justice are chosen in such circumstances where the people involved are rational as well as so unaware of their own self that they are not in a position to accept such principles which will favour them.

It can be explained by a simple example. Suppose there is a society in which people either belong to an advantaged group or a disadvantaged group. Now those people are involved in finding out the principles of justice are unaware completely to which group they belong to or what are their preferences i.e. they are in their so-called original position. Now, in these circumstances of status quo whatever principles they select will be called as ‘justice as fairness’ by John Rawls.

The original position is the appropriate initial status quo which insures that the fundamental agreements reached in it are fair.

Therefore, it may be concluded that justice is reached when the original position is status quo. It conveys the idea that the principles of justice are agreed to in an initial situation that is fair.

But the question lies as to what to do after choosing the principles of justice. According to Rawls, the people of the society make a Constitution in which these principles of justice are incorporated and then legislatures should be made to enact laws which are in conformity of the principles initially agreed upon.

Then, having chosen a conception of justice, we can suppose that they are to choose a constitution and a legislature to enact laws, and so on, all in accordance with the principles of justice initially agreed upon.

Thus we are to imagine that those who engage in social cooperation choose together, in one joint act, the principles which are to assign basic rights and duties and to determine the division of social benefits. Men are to decide in advance how they are to regulate their claims against one another and what is to be the foundation charter of their society.

One most lively example of the above two abstracts of the book ‘A Theory of Justice’ can be traced out in the Indian history while framing the Indian Constitution, where the Constitution framers jointly acted to define certain principles of justice (like equality), various rights and duties of the members of the society (e.g. fundamental rights and duties) and tried to determine the division of social benefits (Art. 15(3)). They decided in advance of how they will regulate each of their claims. These principles are also reflected in the legislatures enacted thereafter.

So a group of people decides rationally that what is to count among them as just and unjust. The choice which they make in this hypothetical situation determines the principles of justice.

THE CONCEPT OF ‘JUSTICE AS FAIRNESS’: a more focussed approach
Rawls discusses the applicability of utilitarianism and of social contract theory to the theory of justice, and he argues that social contract theory provides support for equality of basic rights for all individuals. While utilitarianism may try to justify infringements upon the rights of some individuals if these infringements produce a greater happiness for a larger number of other individuals, the theory of justice as fairness (which is a social contract theory) denies that infringements upon the basic rights of individuals can ever be morally justified. The theory of justice as fairness argues for equal rights for all individuals, and denies that injustice toward any particular group of individuals is justifiable unless this injustice is necessary to prevent an even greater injustice.

In the theory of justice as fairness, the principle of equal rights for all citizens has priority over the goal of producing the greatest amount of happiness for the largest number of individuals, but in utilitarian theory the goal of producing the greatest amount of happiness for the largest number of individuals has priority over the principle of equal rights for all citizens.

Rawls argues that the term 'justice as fairness' does not imply that justice and fairness are identical, but that the principles of justice are agreed to only under fair conditions by individuals who are in a situation of equality. 'Justice as fairness' also implies that the principles of justice apply equally to all individuals. These principles must be decided upon in such a way as to benefit all individuals, and must not be merely designed to favour the interests of a particular group of individuals over another group of individuals.

According to Rawls, the two principles of justice which would be agreed to by rational and mutually disinterested individuals in the ‘original position’ of equality are that:
First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

The basic liberties of citizens are:
Ø The political liberty to vote and run for office,
Ø Freedom of speech and assembly,
Ø Liberty of conscience, freedom of personal property.
Ø Freedom from arbitrary arrest.

However, because various basic liberties may conflict, it may be necessary to trade them off against each other for the sake of obtaining the largest possible system of rights. There is thus some uncertainty as to exactly what is mandated by the principle, and it is possible that a plurality of sets of liberties satisfy its requirements.

Second: Social and economic inequalities are to be arranged so that:

(a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle).

(b) offices and positions must be open to everyone under conditions of fair equality of opportunity.
Thus, for justice to be attained the principle of fair equality of opportunity must be satisfied before the difference principle is satisfied.

Rawls explained ‘equal distribution of incoming wealth’ as a justice principle. But at the same time it was realized that we can do much better even for those who are unlucky. As it is not necessary that all people may be lucky to have been rich, healthy and wealthy, so a better approach of difference principle was introduced by Rawls. Rawls explains that the logical priority of the first principle of justice over the second principle implies that violations of basic rights cannot be justified by arguing that such violations may produce economic or social advantages.

Rawls also explains that judgments about the principles of justice in the 'original position' of equality among individuals are most likely to be reasonable and impartial if they are made in conditions of 'reflective equilibrium' and are not distorted by temporary or changing circumstances.

Rawls argues that the principle of efficiency may be applied to the method by which basic rights and duties are assigned and to the method by which social or economic inequalities are structured. The method by which rights and duties are assigned may be described as efficient if there is no possible rearrangement which could be performed to make this assignment of rights and duties more advantageous to any particular individual without simultaneously making it less advantageous to another individual. Similarly, the method by which social or economic inequalities are structured may be described as efficient if there is no possible restructuring which could be performed to make this structuring more advantageous to any particular individual without simultaneously making it less advantageous to another individual.

According to Rawls, the principle of efficiency and the difference principle are mutually compatible and are principles of justice for social institutions. Principles of justice for individuals include fairness, benevolence, and generosity, the duty to keep promises, the duty to offer mutual aid, the duty to show mutual respect, the duty not to cause unnecessary suffering, the duty not to harm or injure others, and the duty to uphold justice.

Rawls argues that a major defect of utilitarianism is that the principle of utility may require that individuals who are disadvantaged in relation to others in their ability to attain primary social goods (e.g. rights, opportunities, income, and wealth) may have to suffer even greater disadvantages if this redistribution of rights and opportunities produces greater happiness for a larger number of individuals. Moreover, individuals who already have advantages over others in their ability to attain primary social goods may gain even greater advantages if this redistribution of rights and opportunities produces greater happiness for a larger number of individuals.

According to Rawls, the principles of justice (including the principle of greatest equal liberty, the principle of fair equality of opportunity, and the difference principle) may be fulfilled by a constitutional democracy. However, a frequently-seen defect of constitutional democracy is that it may allow a greater disparity in the distribution of wealth and property than is compatible with equality of economic, social, and political opportunity for all individuals. Another frequently-seen defect of constitutional democracy is that it may allow political power to accumulate in the hands of a particular group or party who may use the institutions of government to gain greater advantage. Rawls concludes that in order to correct these defects, it is necessary for political equality of opportunity (i.e. equal rights of participation in the political process) to be constitutionally guaranteed.

Some Recent Examples Where We Can See The Glimpse Of These Principles:

Rawls kept liberty in the most prioritized position. Liberty, according to him, is the first principle of justice. As he says:

Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.

Nowadays, people have started keeping liberty at the top most position. Recently, it has been allowed even ‘transgender’ to contest in the beauty pageant. It is purely a sign of ‘liberty’ where people have chosen liberty at the cost of other traits.

Rawls never said that there should not be any inequality among the members of the society rather he accepted the social and economic inequalities are acceptable only if they qualify the following two tests:

(a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle).

(b) offices and positions must be open to everyone under conditions of fair equality of opportunity.

One very recent example is women reservation bill. Here women are being given preference over men because women in India have been considered to be the lesser advantaged members on the society but then at the same time men are not completely ousted from the race.

One the same lines if we check out Art 17 of the Indian Constitution, we will find the same principle running. Untouchability is a social evil and it has not been promoted because it is no way benefiting the least advantaged members of the society.

Similarly, the recent declaration by Government regarding RTE (Right to Education) where it is allowed a reservation of 25% to poor children, even in private school is another example where it is promoted to benefit the least advantaged members of the society.

Role of The Theory of Justice By Rawls In India

The Indian Constitution was framed much before the coming of the book ‘The Theory of Justice’ but it seems as if there is some co-relation between the two. In fact, the very two principles of justice as preferred by Rawls seem to completely fit in the Indian Constitution. It may be that Rawls got influenced by the Indian Constitution but the way in which various Fundamental Rights have been interpreted by the Supreme Court of India in the latter stages seems to reflect the ideas of Rawls. Interpretation of Art 14, 15, 16 and 21 shows the influence of Rawlsian approach.

The first principle of justice as propounded by Rawls has its influence on the interpretation of Art. 14 in the case of Re Special Courts Bill, wherein Chandrachur, J. Observed:

“The underlining principle of the guarantee of Art.14 that all persons similarly circumstanced should be treated alike both in privileges conferred and liabilities imposed.”

Art.14 does not mean that all laws must be general in character or that same law should apply to all persons or that every law must have universal application, for all persons are not by nature, attainment and circumstances, in the same positions. The State can treat different persons differently if circumstances justify such treatment. In fact, identical treatment in unequal circumstances would amount to inequality. The legislature must possess power to group persons, objects and transactions with a view to attain specific aims. So, a reasonable classification is not permitted but necessary if society is to progress.

Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of person arbitrarily selected. And no reasonable distinction can be found justifying the inclusion of one or exclusion of other from such privilege. While Art.14 forbids class legislation, it permits reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends as was held in State of A.P. v. N.R.Reddy.

In E.P.Royappa v. State of Tamil Nadu, the Supreme Court challenged the traditional concept of equality which was based on reasonable classification and has laid down a new concept of equality. Bhagwati, J., delivering the judgment on behalf of himself, Chandachur and Krishna Iyer, JJ. Propounded the new concept of equality in the following words,

“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ with traditional and doctrinaire limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belong to the rule of law in a republic while the other, to the whim and caprice of an absolute Monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and therefore violative of Art.14.”

The word ‘personal liberty’ under Article 21 if interpreted widely is capable of including the rights mentioned in Article 19. But in Gopalan Case, the Supreme Court took a very literal view and interpreted these words very narrowly. The Court took the view that since the word ‘liberty’ is qualified by the word ‘personal’ which is narrower concept and it does not include all that is implied in the term ‘liberty’. It means nothing more than the liberty of the physical body-freedom from arrest and detention from false imprisonment or wrongful confinement. In Gopalan case, ‘personal liberty’ was said to mean only liberty relating to, or concerning the person or body of the individual and in this sense it was antithesis or physical restraint or coercion. It was further limited to freedom from punitive and preventive detention.

This restrictive interpretation of the expression ‘personal liberty’ in Gopalan Case has not been followed by the Supreme Court in its later decisions. In Kharak Singh’s case, it was held that ‘personal liberty’ was not only limited to only limited to bodily restraint or confinement to prison only, but was used as a compendious term including within itself all the varieties of rights which go to make up the personal liberty of a man other than those dealt with in Article 19(1). In other words, while Article 19(1) deals with particular species and attributes of that freedom. Finally in Maneka Gandhi v. Union of India, the Supreme Court has not only overruled Gopalan’s case but has widened the scope of the words ‘personal liberty’ considerably. Bhagwati, J observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty to man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”

The correct way of interpreting the provisions conferring fundamental rights, the court observed:

The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process of judicial construction. The Court lays down great stress on the procedural safeguards. The procedure must satisfy the requirement of natural justice, i.e., it must be just, fair and reasonable.

Equal Opportunity Of Employment In Offices Under Article 16(4):

The scope and extent of Article 16(4) has been examined thoroughly by the Supreme Court in the historic case of Indira Sawhney v. Union of India, popularly known as the Mandal Case.

The facts of the case were as follows. On January 1, 1979 the Government headed by the Prime Minister Sri Morarji Desai appointed the 2nd Backward Class Commission under Article 340 of the constitution under the chairmanship of Shri B.P. Mandal to investigate the socially and educationally backward classes within the territory of India and recommend steps to be taken for their advancement including desirability for making provisions for reservation of seats for them in Government jobs. The commission submitted its report in December 1980. It had identified as many as 3743 castes as socially and educationally backward classes and recommended for reservation of 27% Government jobs for them.

The second principle of justice as recommended by John Rawls is clearly reflected in the Mandal case where social and economic inequalities are to be arranged so that:

(a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle).

(b) offices and positions must be open to everyone under conditions of fair equality of opportunity.

Reservations in the jobs and educational institutions clearly show a reflection of Rawlsian approach. It is a true fact that all persons do not have same social and economic background. Some may have been least advantaged members of the society. In the Mandal case the reservations tends to give benefit to the least advantaged members of the society.

Another important pointed which is to be noted is that the offices and positions should be open to everyone under conditions of “fair equality of opportunity.” Therefore, offices and positions must to open to all only when there is fair equality among those who are competing. Not all members are equally placed by nature. Some are fortunate enough to be born in highly educated background. So the question arises as to whether it is fair to treat them equally and evaluate them with the same stick, of course, not. People who are not equally placed should not be treated in the same manner. Lastly it can be concluded that the Theory of Justice as propounded by John Rawls has shown the mirror of as what exactly is the concept of justice. Though it is difficult to define justice in clear terms but Rawls has more or less has been successful in defining justice.

Martha C. Nussbaum, Fronteirs Of Justice: Disabilities, Nationality, Species Membership, Chapter 2

Martha Nussbaum addresses some of the issues related to the correlation between theories of justice and the disabled people residing in that society. As we know that whether children or adults, even if mentally impaired are the citizens of that country in which they take birth and therefore that country should fulfil their needs for care, respect, education, activity and friendship.

Martha seems to be dissatisfied by the theory of justice as many of the features does not seem to be fit properly on the people with impairment. In fact, these theories have not dealt with the applicability of the theory on people with impairment.

Problems In The Theory Of John Rawls:

Ø INCLUDING ONLY ‘fully cooperating members of the society over a complete life’:

The fiction lays in that the social contract theories which imagine that contracting agents who design the basic structure of society are “free, equal and independent” and the citizens whose interests they represent are fully cooperating members of the society over a complete life. In fact, they are rational beings. Therefore, it is clear that people with severe disabilities and mental impairment cannot be a part of such social contract. It therefore implies that people with severe disabilities are handled only after the basic institutions of the society are designed. And hence, people with disabilities are not those for whom the society’s institutions are structured.

Martha argues that there is failure to deal adequately with the needs of the people with impairments because of the there is a serious flaw in the modern theories. Human justice requires that citizenship of these disabled beings should be recognised and hence it requires the fulfilment of their basic needs which may be different from a ‘normal being’.

The disability recognizes two basic issues:

1. Fair treatment to people with impairment. Many of them need a different kind of environment to lead productive life.

2. The burden on people who provide for care – the recognition of their work.

These issues cannot be ignored only on the ground that it is caused only to a small number of people. Disabilities come in various forms. It is not only children and adults who need extensive care for lifelong but there may be young adults who are difficult to handle as they are more defensive and angry at times. Disabilities can be temporary as well and there may be dependency on others – after surgery or severe injury, period of depression, mental stress. We must recognise the problem of respecting and including people with impairment and also need to provide adequate care to them. It should be remembered that the stake of many people’s life, respect health depends on the choice we make. The needs of these people should be met in such a way that the dignity of the recipient (people with impairment) is also protected.

Also, large amount of care and work done for the people with impairment, usually by their family members and without pay, is not at all recognised by the society. It is assumed that this work will be done by the women only ‘out of love’. They are not asked to do this but it is assumed that that this is their job. This in turn affects the productivity of women in the economic scenario and put larger burden upon the women.

Problem With Social Contract:

Rawl’s version adds a representation of moral impartiality in the form of a veil of ignorance, behind which all information about the parties is hidden. Another important part is that the members of the society are aware that their abilities lie within the ‘normal range’. Citizens of a just society are assumed to be equal always but they are never assumed as equal in their impairments, or that the parties to the social contract are all needy and dependent with strong impairments. Therefore, what is assumed by John Rawls is that the members of the well-ordered society are fully cooperating over a complete life.

Now the logic that in a just society with contract, peoples will get together and contract some basic principles only in circumstances in which they can expect mutual benefit from which all people gain. Now the people with impairment will not be included as per this theory because such people may not only be extraordinarily expensive and dependent but also may not contribute in the society and may be considered to be less productive. Now if people are making cooperating arrangements for mutual advantage, then they will want to cooperate with only those from whom they expect to contribute and gain and not those who are not only less productive but also cause great expenses and hence causing the depression in the society’s well-being.

Issues of Inclusion of Family:

From the earlier times, the contract theory seems to operate in public realms only. The concept of family has not been included in the social contract theories. There has always been distinction between private life and public life. In the private realm people do services to the impaired out of natural love and affection and not out of any contract among them or due to any mutual respect or due to any concept of equality.

But as of now even families are considered to be a political institution that has been shaped in the mental ways. By this Martha tried to address the issue on her own and tried to convince that we incorporate people with impairments in a family which is also a political institution.

But it has to be realized that families and their behaviours have been moulded over the years. Had it been due to some contract theory due to which we are providing care to the impaired one’s, then it would have been probable that even men would also have been more dedicated in doing work and providing care to these.

Therefore, it is difficult to carry the notion that families are working for the disabled in their family due to some contract theory but they are doing out of love and affection to this member of the family.

No Participation of Disabled: Principles already chosen

In defining the conception of people in his kind of society, Rawls has completely ignored the people in extreme forms of need and dependency that human beings may experience, both physical and mental, and both permanent and temporary. Martha argues that it is not an oversight but a well planned design as Rawls do recognises that problems will be posed by the inclusion of people with impairments but he argues that these problems will be solved at the later stages and not in the beginning while the basic principles are being chosen.

This postponement makes a large difference in his theory of justice. As according to Rawls, the members of his society who are defined as ‘fully cooperating’ have no place for the unusual social arrangements that is required to be made to include people with impairments. Therefore, the unusual needs of the citizens with impairments associated disabilities- needs for special educational treatment, redesigning of public spaces- do not seem to be included in the first initial stages when these principles are chosen. In a way his theory completely excludes people with disabilities, and their needs will be considered only after society’s basic structure has already been designed.

Rawls draw a distinction between as to who is a ‘fully cooperating over a complete life’ and whose not. In fact, he draws a line above which a range of ‘fully cooperating over a complete life’ is there and below which not ‘fully cooperating over a complete life’ range is there. Those who are above the line their needs will be fulfilled before those who are below that line. But it can be argued that much impairment will not yield functional disabilities if the social context can be sufficiently altered according to their needs. Rawls approach is somewhere blurred. It seems as if he is excluding not only people with mental and physical impairments but also people who are temporarily impaired.

The Problem With ‘Original Position’:

If a closer look is taken, it is arbitrary that Rawls parties in the original position deny the knowledge to themselves of their castes, culture, position, etc. but allow themselves knowledge that their physical abilities fall within the ‘normal range’.

It was also argues by Martha that citizens who are deaf, blind, wheel-chair users may be highly productive member in the usual economic sense, performing a varieties of jobs if the society adjusts to the background conditions needed by them.

Martha further argues that the relative lack of productivity by the impaired members is not ‘natural’; it is somewhere the result of discrimination done in the social arrangements. People with disabilities can do their work properly only if the arrangements around them are conditioned for them also.

For e.g. pregnant women should be given leaves as it is very much natural as only women can get pregnant. Similarly, a deaf person should be given the e-mail facility as compared to phone as only they need them. It will be biologically discriminatory as to providing with women with leaves and not providing a deaf with e-mail facility.

Why Rawls did not include such people?

Problem of primary good:
If Rawls would have included people with impairments in the category of productive well beings and fully cooperating over a complete life, then who would have been the subject of least well off category? When it comes to the distributions of interest, there has to be some people in least well off category, who will be dealt according to the second principle of Rawls.

Also the distribution of interests which Rawls regards, are considered to be in terms of wealth and income only. So Rawls proposition can be concluded that people with more income and wealth are better off than the people with lesser wealth and income.

He rejected the view that there can be a situation where two persons have same wealth and income, but one may be less well off than the other.

Rawls took a singular and a straightforward forward approach that primary goods can be weighed only in the terms of income and wealth. This approach, as considered by Martha, was very narrow. Rawls did not consider the ‘self-respect’ as one of the primary goods to index the social positions. His linear approach has completely neglected ‘self-respect’ though the liberty and opportunities are taken care.

There may be situation that people may have wealth and income but are less well off due to their positions in terms of self-respect in social scenario. E.g. the sexual acts of gays and lesbians could be criminalised. These may be well off in terms of wealth and income but not well off in terms of self-respect.

Problem of lowering of the economic:
The parties in the original position are aware of the general facts of the world around them and that some impairment are very common, like backaches and some are not very common, like blindness. The idea that ‘normal’ are included in the definition of the people is just on the basis of statistical frequency and it is these facts which determine the making of public spaces in a society. There we may say that public spaces are created keeping in view of the impairments of ’normal’ people. But then why are the needs of more disabled one’s are taken care of? The answer lies in the fact that these people are impaired in an unusual manner.

It has to be observed that even people with ‘normal’ impairment need prosthesis (like buses, cars) to be productive. We never expect ‘normal’ to do their work without prosthesis then why so we expect people with impairments to be productive without their prosthesis (Braille, wheelchairs). The real issue is that there is rarity in the ‘non-normal’ people and therefore their needs are not taken care of as it will incur huge economic loss to the society even more that what these ‘non-normal’ people can produce after being ‘productive’.

Here we have a choice:
1. To be fully cooperating at this very stage.
2. To be non- cooperating but show extensive charity at the later stage.

Rawls talks about choosing the 2nd option where people are cooperating for the mutual advantage that is associated with his account of ‘normal’ social cooperation.

People with mental impairments:

The issue of inclusion of people with mental impairments has posed the greatest danger to the theory of justice as explained by Rawls. Whatever problems have been discussed with ‘physically’ impaired people lies with ‘mentally’ impaired people as well in addition to some more problems. It is difficult to accept people with mental impairment will ever show the features of being mutually advantageous to the society. They are always thought to be only ‘taking’ and posing economic loss to the society. There is no scene of wealth and income in their cases.

But suppose a child who is ‘mentally impaired’ needs special education and special teachers for his improvements. These needs are catered by his family who is also a part of society. The child has incurred huge economic loss to his family and there seems to be no chance of having ‘primary goods’, in Rawls sense, of income and wealth from his side. So the whole theory of Rawls cannot be applied on this kind of child and his cannot be included as a part of his society.

Martha shows her disagreement from this kind of ‘primary goods’. According to her it is not justified in not including the positive results which the child shows while undergoing the treatment. She considers it to be a huge drawback in not including this happiness as a ‘primary goods’. The child showing positive results is definitely advantageous to the society. Hence, he can very well be accommodated in the Rawls structure.

Martha has argued that in a social contract doctrine it is not obvious that this equality will be adequately modelled. It is bad that people with mental impairments are altogether completely excluded from framing the principles of justice, though many of them may be capable in being the active members of the society. More important to notice is the fact that the group of people for whom the principles are chosen is the same group of people who choose the principles. The whole idea is to choose a way in which ‘we’ will live together in political society and take care of our dependents. But this makes the dependents not full part of ‘we’ and the ‘our’. They are taken into account just because of the fact that by chance some member of the ‘we family’ happen to care about their interests, and not because that are equal in their rights.

Martha has successfully criticised many of the important concepts of justice as fairness approach as given by Rawls. In fact, Martha has highlighted successfully that Rawls has deliberately not taken the disabled into account as he was aware that inclusion of these may destruct his simple and uncomplicated theory. To male his theory simple and straight Rawls has completely ignored the abilities in disabled as well as he also ignored Justice to the disabled.

Martha brought into limelight that concept of justice is not so simple. It is rather a complicated concept. Rawls has not included people with disabilities in his theory but the reality is that a society is not constructed of same kind of people rather it is made up of different kinds of people and that why the concept of justice is necessary. It seems strange that a theory which is about justice is completely denying justice to one group which is capable in many areas.

AMARTYA SEN: The Idea of Justice, Chapter 2 – Rawls and Beyond

Sen‘s rejection of the focus on primary goods lays on the ground that different people, even when receiving the same set of liberties or rights, can end up with very different situation, because of the very different abilities they have in converting this rights and liberties in something valuable for them.

“The primary goods approach seems to take little note of the diversity of human beings................ If people were basically very similar, then an index of primary goods might be quite a good way of judging advantage. But in fact, people seem to have very different needs varying with health, longevity, climatic conditions, location, work conditions, temperament, and even body size (affecting food and clothing requirement)......Rawls take primary goods as the embodiment of advantage, rather than taking advantage to be a relationship between persons and goods”. (Sen,1979).

Sen gave this example:

Take three kids and a flute. Anne says the flute should be given to her because she is the only one who knows how to play it. Bob says the flute should be handed to him as he is so poor he has no toys to play with. Carla says the flute is hers because it is the fruit of her own labour. How do we decide between these three legitimate claims?

There are no institutional arrangements that can help us resolve this dispute in a universally accepted just manner. Conceptions of what constitutes a "just society", argues the Nobel Prize-winning economist and philosopher Amartya Sen in this majestic book, will not help us decide who should have the flute. A one-dimensional notion of reason is not much help either, for it does not provide us with a feasible method of arriving at a choice.

What really enables us to resolve the dispute between the three children is the value we attach to the pursuit of human fulfilment, removal of poverty, and the entitlement to enjoy the products of one's own labour.

Thus justice is not a monolithic ideal but a pluralistic notion with many dimensions. A "just society" is produced through perfectly just state institutions and social arrangements and the right behaviour of the citizens.

Therefore, due to this plurality there exist chances that may not agree on the same unique principles. If this happens then it hits the very root of his theory of justice as fairness as due to this plurality members may not agree upon the same principles.

Primary Goods:

Rawls has included in his list goods things such as liberties rights opportunities wealth income but he has not included claims based on merits. This is one of the major drawbacks of his theory as the people are more meritorious are not given the benefits of the interest because they belong to the well-off category of the society which in itself seems to be an inequality.

The question of incentives:

Rawls in his second principles said that inequalities which benefit the least advantaged members of the society should be allowed but as on the other hand, if in the original position inequalities based on the demands of incentives are wrong and unjust, then should the principle to adopted in the original position eliminate the need for incentives? On the basis of Rawls post – contract situation, each person will behave in conformity with the principles chosen emanating from the original position, then why should we not expect, in that duty-oriented world, spontaneous compliance by every one of their duties without any need for incentives.

Priority to liberty is very extreme:

It has been argued by both Sen and Herbert Hart that the total priority of liberty is too extreme. It was argued that why not hunger, starvation, medical neglect are regarded as less important than personal liberty.

Distribution of opportunities:

Rawls believe that the opportunities people have is through the means they possess and he failed to take into account the wide variations they have in being able to convert primary goods into good living. For example, a disabled person can do far less than the person having the same wealth and income.

There is therefore, a strong need for moving from the focusing on primary goods to actual assessment of capabilities. Therefore, Sen is in favour of capability approach.

The Inescapable Relevance of Actual Behaviour

The focus of Rawls theory remained on ‘just institutions’ rather on ‘just society’. Sen gave a distinction between niti – centred approach and a nyaya – based approach. Nyaya – based approach would tend to ground the assessment of combinations of social institution and public behaviour patterns on the social consequences and realizations they yield. According to Sen the understanding of justice as nyaya cannot be seen in isolation. It cannot neglect the actual social realizations that may be expected to emerge from any choice of institutions.

Now even if we accept that the choice of these basic institution can be done in isolation and through a unanimous agreement, still there is al large question as to how these chosen principles would work in a society in which every one’s behaviour may or may not comply completely with the chosen principles.

Amartya Sen has also highlighted that Rawls has ignored the heterogeneous nature of society. He focussed on the point that Rawls has not taken into account that since people are different, therefore, it is compulsory that people will reach to the same two principles as propounded by Rawls. Also, Sen highlighted that the capabilities approach as well which was also completely ignored by Rawls. Sen has rightly pointed out that people who are capable of converting the interest into much better form should be given preference over others.

The Theory of Justice as propounded by John Rawls has played a significant role in defining the principles of justice which was almost impossible to define. The two principles of justice given by Rawls can be proved to be very successful in lightening the effect of nature which makes some people more lucky and capable than others. Rawlsian theory though has been criticised by many other thinkers, who have given some very strong objections but the impact of Theory as given by Rawls cannot be minimised.

In fact, no one can deny the fact the Theory of Justice by Rawls has been very successful in simplifying the concept of justice. Rawls has taken the support of a hypothetical situation which is almost impossible to come across with, but still Rawls has successfully given a wide outline within which Justice can be traced out.

Also, it is not impossible to work on this theory and negate those concepts which are not applicable in today’s context. Even Rawls in his next books, ‘POLITICAL LIBERALISM’ and ‘JUSTICE AS FAIRNESS – a revisit’ has tried to answer many criticism of his theory. Rawls theory has given its great contribution towards bringing in the true meaning and importance of liberty in the limelight.

It is after this theory that people have understood that it is not sufficient to distribute the incoming wealth equally to attain justice but at the same time we should keep all other facets to include other people in the theory should always be open.

Ø The Theory of Justice – John Rawls
Second Indian Reprint 2005, CHAPTER 1: JUSTICE AS FAIRNESS, -
The Main Idea of the Theory of Justice

Ø The Idea of Justice – Amartya Sen
Chapter 2 – Rawls and Beyond

Ø Martha C. Nussbaum, Frontiers of Justice:
Disabilities, Nationality, Species Membership, Chapter 2

Ø Lectures by Michael Sandels:
Available on you-tube

Ø Legislature:
# The Constitution of India
# John Rawls in his book ‘Theory of Justice’
# 1978 (AIR 1979 SC 478)
# (2001) 17 SCC 708
# AIR 1974 SC 555
# AIR 1966 SC 816
# AIR 1963 SC 1295
# AIR 1978 SC 597
# AIR 1993 SC 477
# Amartya Sen in his book ‘Idea of justice’

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