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CONTENT


NO QUESTION


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There is universal appeal to justice. All persons are aware of the need for justice, yet there is no
agreement on the nature of justice or what arrangements constitute a just ordering of the society.
Hart, in his view, has rightly said, Justice is shared as a concept, however, there are many
conceptions of justice.
Discuss.
Aristotles distributive justice and corrective justice
Salmonds natural justice and social justice
5 tasks of justice given by Dias


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One person says justice lies in redistribution of sources. But another person says justice is the
ensuring what a person has acquired by his efforts.
Who is correct and why?


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(a) Justice is the ultimate aim of law. Comment.
(b) Explain the concept of justice as explained by Rawls and Nozick.




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(a) Rawls had in mind what features a modern society should ideally possess. For this, he
presented the picture of a hypothetical society whose members want to formulate certain
principles of justice which determine the basic rights and obligations of people inhabiting such a
society.
Explain what principles of justice in Rawls view are essential for a society.

(b) Briefly explain the concept of justice in Islam and the Islamic concept of distributive justice.


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REFERENCES









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Question 1.

1. There is universal appeal to justice. All persons are aware of the need for justice, yet there is no
agreement on the nature of justice or what arrangements constitute a just ordering of the society.
Hart, in his view, has rightly said, Justice is shared as a concept, however, there are many
conceptions of justice.
Discuss:

a) Aristotles distributive justice and corrective justice

Aristotle (384 BCE 322 BCE) was a Greek philosopher born in Stagirus in 384 BCE. His father, Nicomachus
died when Aristotle was a child and he lived under a guardian's care. At the age of eighteen, he joined Platos
Academy in Athens and continued to stay until the age of thirty-seven, around 347 BCE. His writings cover many
subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government,
ethics, biology, and zoology. Aristotle's writings were the first to create a comprehensive system of Western
philosophy, encompassing ethics, aesthetics, logic, science, politics, and metaphysics. Shortly after Plato died
Aristotle left Athens. With the request of Philip of Macedonia he became a tutor for Alexander in 356-323 BCE.

Distributive Justice

Distributive justice concerns distribution of honours or of money or all of values that
it is possible to distribute among citizens.
b)
According to him, the job of distributive justice is of the state. It refers to the fair
distribution of resources, including benefits and burdens, and implies distribution
according to the needs of the people. It can, thus, be said that he was supportive to the
idea of classification of the people, but there could not be class within the class. It
means within a class all will be treated equally.

It is notable here that the idea of classification further developed with the development of
constitutional law. According to the equality clause of various constitutions, classification can be
made.

But it shall have the following imperatives: it must be made on intelligible differential; it must have
an object to be achieved; and the object must be achievable.

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For example, for the purpose of imposing indirect taxes, there can be classification of foreign goods
and locally manufactured goods. This has been done in many countries for imposing high rate of tax
on the foreign goods courts have determined that this classification is based on intelligible
differential, the object is to protect the locally manufactured goods and the object seems to be
achievable.

Corrective Justice

It is maintaining fair equilibrium in the distribution process. It means, if any discrepancy has taken
place in the distribution process, it can be rectified and will not be repeated again. The job of
corrective justice is to the courts. The root of distributive justice and classification for accomplishing
it are there in Aristotelian justice.

However, according to RWM Dias it suffers from some weaknesses. Among them is: Aristotle speaks
about honours or money or other things that fall to be divided among those who have a share in the
constitution. Such a formula is precise and will be considered presently. More important is the
criterion of equal and who decided equality. Equal distribution among equals means that according
to a given criterion of distribution, unequal cases are to be taken differently, which still leaves open
the question whether it is just to select that particular criterion.

b) Salmonds natural justice and social justice

Sir John William Salmond (3 December 1862 19 September 1924) was a legal scholar, public servant and judge in New
Zealand. He was an inaugural or founding father of Victoria Law School New Zealand.

Firstly, as Salmond said natural justice is justice in deed and in truth, while legal justice is justice
declared and recognised by law and enforced in law courts. He maintains that natural justice is the
ideal and the truth, of which legal justice is the more or less imperfect realisation and expression.
Therefore, we can always correct the legal justice so as to be in consonance with justice in deed and
truth.

Secondly, though social justice is a branch of justice it is much wider than the traditional concept of
justice. From the very dawn of civilization justice dominated the minds of the people as the true end
of law. Man is gifted with reason, and by nature social. He wants peace, security of person and
property, freedom of speech and expression and above all happiness. Political thinkers and
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philosophers all over the world have therefore been striving to evolve a legal order in which the
aforesaid aspirations of the people may be fulfilled. Such an 'order is conceived to be a just order
and justice consists in promoting the welfare of the people.

Justice lies mainly in the domain of morality. It being essentially social virtue, a question of justice
arises mainly in the context of a person's conduct in relation to others.

Salmond stressed on the point that to consider whether an action is just or unjust we have to take
into account its effect on the well-being of the mankind at large. It is right and just if it promotes
public welfare; wrong and unjust if it diminishes it. Thus, the focus of social justice is on the society
itself. Justice postulates a just society in accordance with the social consciousness of the people
which is largely a product of political and economic developments.

c) 5 tasks of justice given by Dias

Reginald Walter Michael "Mickey" Dias Bandaranaike (1921 2009) was a barrister, academic and author of leading works
on jurisprudence and the law of tort. He was the first Law Fellow of Magdalene College, Cambridge, Director of Studies and
Professor of Jurisprudence.

Five tasks of justice
(1) Just allocation of advantages and disadvantages
(2) Preventing the problem of power
(3) Preventing the control of liberty
(4) Just decision of dispute
(5) Adapting to change

Although he has not explained the stipulated five tasks, they are quite relevant form the point of
view of justice. These points are valid in all jurisdictions and for all times to come. They can be
explained as under: allocations of advantages and disadvantages have to be just e.g. based on
certain set of principles of distributive justice. Advantages mighty refer to right, power, liberty or
immunity; some of them or all of them may be available at a given time. Disadvantages mighty refer
to duty and liability.

Preventing the abuse of power is necessary for imparting distributive injustice. In the whole process,
therefore, power or authority has to be properly taken care of. This is because power makes a man
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corrupt and absolute power makes the man absolute corrupt. Once corruption gets inroads within
the system, it because difficulty to control it.

For an effective and meaningful control, we would need a powerful, composed, and honest top
authority. It might take time, but the ultimate result will be just and good. On the contrary, if the top
authority is also corrupt, the situation mighty become incorrigible as the corruption permeates fast
and it flows from top to bottom. Prevention of abuse of liberty is equally important. It is more so in a
democratic contrary.

The biggest evil in a democratic country is that people predominantly think that now it is peoples
rule and they can do whatever they want. It is more so in a country that gets democracy after a long
imperialism or dictatorship. Of course, democracy brings freedom, but abuse of freedom brings the
country in the mess of innumerable public protests in the form of strikes, which, in effect, impedes
the economic growth of the country.

In a country like India, it is only because of abuses of liberty that people are facing countless
communal riots. In Pakistan, because of this democracy comes and goes. What is important,
therefore, is to control liberty for the sake of greater interest of liberty itself. We already know that
during emergency, some rights get suspended and some more can be suspended by issuing
ordinance (for example the Emergency Ordinance).

Likewise, personal liberty can be controlled or restricted for the sake of ensuring public health,
public order, or public morality. In some countries, right to strike is illegal; in some other countries
there cannot be assembly or any kind of professions without permission granted by the appropriate
authority. Just decision of dispute is also of great importance for ensuring corrective justice, as
envisaged by Aristotle. For this, it is necessary that judicial authorities and quasi-judicial authorities
must be independent, and must be free from all kinds of bias. A corrupt judiciary cannot impart
justice.

Lastly, adapting to change is also a necessary requirement for ensuring justice. With the changed
circumstances, therefore, necessary change in the distributive system has to be made.
There cannot be one system applicable for all times to come. For example, for sake of imparting
distributive justice, classification is made. When the purpose of making the classification is
accomplished, the classification has to be abandoned or changed.
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Question2.

One person says justice lies in redistribution of sources. But another person says justice is the
ensuring what a person has acquired by his efforts.
Who is correct and why?

Redistribution of Sources
Redistribution refers to modifications of the holdings of particular persons, collective agents, or
groups (as defined in terms of non-resource holding characteristics), or changes in holdings by
groups (as defined by resource holdings). Sometimes those from and to whom resources are
redistributed are defined as individuals, other times as groups to which individuals are rigidly
assigned), and other times to groups that are defined by their. We can identify patterns in terms of
rigidly identifiable persons or groups.

Redistributive justice is exercised by Government through taxation or expropriation of property. It
includes taxation designed to move wealth from one group to another, "land reform" and other
means to promote "equality of result" over "equality of opportunity. Redistributive justice removes
wealth from some members of society under the governments jurisdiction through governmental
powers to the benefit of others that the government determines as in need or deserving.

Everyone according to his efforts

The yardstick of the evaluation here is the contribution of each person makes to the social economy.
The relation is thought of as an exchange of performances between person and community.
This principle is applied where the wage is assessed at piece rates. Time rates are a practical
adaptation based on an average amount of work done per hour. This expresses precisely the idea
that the relevant criterion determining the class that claims equal treatment is the amount of work
performed. All persons within this class; thus have a claim to the same pay.






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Question 3

(a) Justice is the ultimate aim of law. Comment.

Bentham defines law as an assemblage of signs, declarative of volition, conceived or adopted by the
sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or
class of persons who in the case of question are or are supposed to be subject to his power. One of
Austins definitions of law is general commands addressed to the community at large. It has been
said that justice is the ultimate aim of law; however there are difficulties in ascertaining certain
matters such as what constitutes justice and whether a given law is just or not. Justice has been
described as a quality which relates not to the content of a positive order, but to its application. That
is to say that justice is the conscientious application of the positive order. The statement justice is
the ultimate aim of law therefore is not entirely accurate.

(b) Explain the concept of justice as explained by Rawls and Nozick.
John Bordley Rawls(February 21, 1921 November 24, 2002) was an American philosopher and a leading figure in moral
and political philosophy. He held the James Bryant Conant University Professorship at Harvard University and the Fulbright
Fellowship at Christ Church, Oxford.
His magnum opus, A Theory of Justice (1971), was hailed at the time of its publication as "the most important work in
moral philosophy since the end of World War II," and is now regarded as "one of the primary texts in political philosophy."
His work in political philosophy, dubbed Rawlsianism, takes as its starting point the argument that "most reasonable
principles of justice are those everyone would accept and agree to from a fair position." Rawls employs a number of
thought experiments including the famous veil of ignorance. He is one of the major thinkers in the tradition of liberal
political philosophy.

Robert Nozick (November 16, 1938 January 23, 2002) was an American philosopher who was most prominent in the
1970s and 1980s. He was a professor at Harvard University. He is best known for his book Anarchy, State, and Utopia
(1974), a libertarian answer to John Rawls' A Theory of Justice (1971). His other work involved decision theory and
epistemology.


Rawls concept of justice is justice as fairness. According to Rawls, a long time ago, people gathered
underneath a tree. The people were in the veil of ignorance. They were in the state of abstraction
from all of their conditions and positions. This state is known as the state of original position. The
people then agreed for certain principles of justice to be followed by them and by the others as well.
The principles are:

i. Equal maximum liberty principle, and
ii. Difference principle.

Equal maximum liberty principle provides that each person is to have an equal right to the most
extensive total system of equal basic liberties compatible with a similar system of liberty for all.
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There shall be no discrimination in any manner or any ground. The difference principle on the other
hand, relates to the distribution of resources. It is commonly known as distributive justice.

Distributive justice demands the state to take from those who have more than they need to give to
the people who are in need. In proposing his theory, Rawls criticised the theory of utilitarianism. In
utilitarianism, the emphasis is on the welfare of the majority based on the concept the greatest
happiness of the greatest number of people whereas according to Rawls, the emphasis should have
been on fairness. When fairness or justice is achieved, then happiness will come automatically.

Nozicks concept of justice is known as the libertarian approach of justice. His primary concern is
with regard to property. According to Nozick, people in the society should have the freedom to gain,
retain and enjoy their property. Thus, he rejects all kinds of redistribution efforts whether it is legal
or administrative. Nozicks concept of justice is based on the belief that we must respect peoples
rights, particularly their right to property and their right to self-ownership. Each person is a separate
individual and we must respect their autonomy. To take property away from the people in order to
redistribute it even if it is for a greater good violates their right. For that reason, Nozick is against the
imposition of tax.

Nozicks libertarian approach of justice has been subject to criticism. This is due to the fact that
redistribution is at the core of justice. It serves as a tool to bridge the gap between the rich and the
poor. Furthermore, his concept of justice is against the policy of welfare state. Malaysia for example
provides a system to help support single mothers and indigent people. Thus it can be concluded that
his concept of justice cannot be practised in a modern state.










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Question 4.

(a) Rawls had in mind what features a modern society should ideally possess. For this, he presented
the picture of a hypothetical society whose members want to formulate certain principles of justice
which determine the basic rights and obligations of people inhabiting such a society.
Explain what principles of justice in Rawls view are essential for a society.

According to Rawls, a long time ago, people gathered underneath a tree. The people were in the
veil of ignorance. They were in the state of abstraction from all of their conditions and positions.
This state is known as the state of original position. The people then agreed for certain principles of
justice to be followed by them and by the others as well. The principles are:

i. Each person is to have an equal right to the most extensive total system of equal basic
liberties compatible with a similar system of liberty for all.
ii. Social and economic inequalities are to be arranged so that they are both:
(a) to the benefit of the least advantaged; and
(b) open to all under conditions of fair equality of opportunity.

The liberties mentioned in the first principle are the common rights and liberties available in
democracies in the world. These liberties are to be maximized. However, the principle can be
contravened when there is unequal liberty or if the liberty is less extensive than it should be. In fact,
Rawls says that liberty can be restricted for the sake of liberty. Limitations or restrictions on liberties
are justified because without such restrictions, there is danger to the liberty as a whole.

The second principle is divided into two parts. The first provides for the difference principle while
the second provides for the principle of fair equality of opportunity. The difference principle as
stated before is for distributive justice. Distributive justice is where the state takes from those who
have more than they need to give to the people who are in need. For the principle of fair equality of
opportunity, Rawls says that not only education to the highest stage but also all jobs should be open
to all. If places are not open on a fair basis to all, those kept out would be getting unjust treatment
as they would be deprived of certain privileges.

Rawls believes that such disparities should not exist.
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These two principles of justice are the solution for the problem of choice presented by the original
position. These are everyones best reply to the corresponding demands of others. The conditions in
the original position and their intuition about justice combined with the process of reasoning result
in equilibrium. Hence, Rawls says that these principles are those that are essential for the society.

(b) Briefly explain the concept of justice in Islam and the Islamic concept of distributive justice.

Justice is a central theme in the Quran, dictating the Islamic law and how this should be put into
practice. There are two ways in which justice operates: in a legal sense and in a divine sense.
Regarding justice in the legal sense, the Quran tells Muslims not only how to conduct themselves,
but also, regarding their relationship with other people. It states what the various punishments for
certain crimes should be along with the justification behind this reasoning.

Furthermore, the Quran brings across the idea that anyone who propagates the message of justice
and acts accordingly will be justly rewarded with their place in jannah. With regard to divine justice,
there has been a discourse between many commentators debating how justice will be fulfilled for
different people, although all agree that Allah shall not do any injustice.

The Islamic concept of "distributive justice" includes the following 3 elements:

1. Guarantee of fulfilment of the basic needs to all;
2. Equity but not equality in personal incomes; and
3. Elimination of extreme inequalities in personal income and wealth.

Islam has an in-built system of distributive justice. This system comes in the form of zakat and
sadaqah. For zakat, 2.5 %of the accumulative wealth due in one year will be paid as zakat. In crops
and agriculture, the payment of zakat will be based on 1/10 of the whole price. In Islam, zakat is an
ibadah. When we pay zakat, our property will be purified. Sadaqah or charity is also one of the
means provided for the execution of distributive justice.





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REFERENCES

Ansari, Abdul Haseeb.Law and Justice: A Comparative Appraisal, Journal of Islamic Law Review, vol.
2, 2006, pp. 111-140

Curzon, L. (1995). Jurisprudence. London: Cavendish.

Davies, H. & Holdcroft, D. (1991). Jurisprudence. London: Butterworths.

Freeman, M. & Lloyd Of Hampstead, D. (2008). Lloyd's Introduction to Jurisprudence. London: Sweet
& Maxwell/Thomson Reuters.

Ross, A. (1974). On Law and Justice. Berkeley: University of California Press

Simmonds, N. (1986). Central Issues in Jurisprudence. London: Sweet & Maxwell.

Zafer, M. (1994). Jurisprudence. Kuala Lumpur: International Law Book Services.