By Reena
In this book, there is discussion on various themes of rights, freedom, injustice, judiciary and institutions–all of which are very crucial for concept of justice. Author provides answer to many questions like why individual cooperate, why institutions are important, how people own rights and how idea of justice has evolved through society. Author is judge, so he tried to make more realistic study that could connect to social and political reality but still some gap is left as how these social and political factors would impact achievement of justice. Author has not written the book at abstract or metaphysical level rather tried to base it on reality though his judicial experience. Although not much time has passed since the book was published in 2012, so it is very relatable in today’s time. Therefore, the book review is aimed at analyzing what is the idea of justice and how it was prevailing over that time and how it has evolved over time.
Justice is one of the crucial subjects in the history of jurisprudence. Different thinkers perceived it differently and tried a build a theory on it. The book “Justice and Judiciary” is written by Georghios M. Pikis who was a Cypriot Judge. He was also a member of International Criminal Court and President of Supreme Court of Cyprus. He tried to explain what justice is and how institution of judiciary is essential. Though, he had not tried to come up with his own theory rather tried to explain what justice is and how it has evolved. He explains this by making reference to various thinkers. The book lay down emphasis on analysis of concept of justice and its application in every domain of life. Various aspects have been explored by the book which includes nature of justice, relation between law and justice, role of institutions in judicial process. Human rights, the rule of law, democracy are offspring of justice. The leading argument is that justice is universal and it is relevant for every part of the world, deviation of its norm would bring injustice which is not good for society.
The book is providing comprehensive overview of various concepts surrounding justice and understanding of these concepts is crucial for law student as it forms basis for to know the nuances of legal system. It also analyses the concepts along with modern day interpretation and what challenges are faced in implementation of judicial system. These topics are relevant for law student to develop a grasp over the legal jurisprudence as they prepare to enter into legal profession and confront the issues in real life.
Although not much time has passed since the book was published in 2012, so it is very relatable in today’s time. Therefore, the book review is aimed at analyzing what is the idea of justice and how it was prevailing over that time and how it has evolved over time. The book starts with prevalent theories about origin of justice, what are its sources, how justice is related to injustice. Later on he discusses on importance of institutions as well as about independence of judiciary.
Origin and Idea of Justice
Author starts by stating that world is not static and everything is in motion and continues to flow therefore the idea of justice is also not static which means it is evolutionary. He also agrees that justice binds people together irrespective of their individual concerns.
There is possibility that he may be influenced by J.S. Mill’s theory of justice who tried to establish that justice is a sentiment and that idea of sentiment is evolutionary because it incorporates self defense and sympathy in it.[1] But author in his book did not mention that he is building around Mill’s theory. He is just observing thorough his experiences of what he came across in his judicial journey.
Author tries to define principles of justice in terms of what is right and what is wrong. He follows the classification as just or unjust to define what justice is? He argues that rights are premised on norms of justice which got exercised in a just democratic society. Again it could be analyzed that author is trying to define justice in a similar manner like Mill does. Mill gave definition of justice by telling what is unjust. Basically he follows opposite argumentation approach. He uses six examples of deprivation of legal and moral right, discrimination, getting something not deserving etc and tells why these are unjust. He follows opposite argumentation method because it is not just about readability rather it is also about common consensus about what is unjust. So, better way to define ‘just’ is to take real world examples. It is also a particular method of defining by following elimination method.
Author says that inherent nature of human action plays a key role in defining justice and he also talks about incidence of Armenian Genocide where an American felt bad for Jewish death, when he was questioned for sadness, he replied that he is a human being. This has resemblance with Mill’s idea of right, how right create obligation, violation of which led to punishment and through enforcement of right- justice get done. For Mill, justice is sentiment and sentiment is historically evolved idea. People are sentimental about punishment because humans are evolved from animals and self defence was essential for animals so it is for humans. The urge of self defence justifies punishment that justifies rights. Earlier sympathy was limited to in-groups but over time evolution happened and these in-groups become larger. Overtime the sympathy was also evolved from family to whole humanity and human started feeling sympathic towards whole society. J.S. Mill uses Immanuel Kant’s argument of evolution to explain how feeling of sympathy gets evolved from being sympathic towards his own family to become sympathic towards whole humanity.
Individual, Rights and Society
Author says that individual need not be selfish and egocentric for enhancing the idea of justice otherwise selfishness would create passion to serve one’s self. He also talks about enlightenment era which is commonly known for identification and protection of rights of man as well as institutional means of protecting individual’s rights. It finds resemblance with Rawlsian idea. John Rawls[2] tried to bring Kantian theory which is based on idea ‘individual’ because individual here are ‘rational’, they posses inalienable right, dignity and they are independent. Kant argued that rational individuals are building block of the society. Rawls’ point is that individual need to be ‘rational’ and ‘reasonable’ to exercise their rights and powers. He says that reasonableness is not denying self rather it is accepting what others want along with self desire. It is a kind of recognition that I am not only one to decide; rather all has equal right to make proposal for cooperation means I should also recognize other individual as equal. For him, individual person need to be reciprocal to equally accept the ends of each other. He says that individuals are aimed at end oriented things that’s why they need to be rational and reasonable to achieve those ends. If individual remain altruistic, and then he/she may not be reciprocal because they would only help others to achieve their end. There are scholars like Susan Okin who offers critique to Rawls by adding that rationality does not account for feelings.[3] She says that subject is not only about rational and reasonable but emotions also play a major role. She says for justice one has to look for rationality + reasonability + some range of emotions. Her point is that for creation of just institution, emotions are must because emotions plays role in agreement between people and agreement allow them to address issue of justice.
Author argued that organized religion played key role to lay down what is just and proper which further accompanied by acceptance of what remain unquestioned by mass. John Rawls also talks about acceptance of principles of justice which are generated by overlapping consensus of various comprehensive doctrines. He says that individuals in original position were not aware about their identity and status so there was best opportunity to for them to cooperate and create a fair and reasonable system for all. Individual used to have their religious, political moral belief in form of comprehensive doctrine and they agree on something which is common to all beliefs which led to formation of overlapping consensus and this consensus granted more stability to society. From here, principles of justice emerged which lay down the basis of basic structure o the society and when a society get created on this basic structure, it will be a just society and when society itself is just everything based and done by such society will be just.
With respect to justice and law- author says law confers rights and subsequently imposes obligation. He says aim of law is to formalize justice as a living institution to which obedience is owed. The purpose of identification and regulation of rights is protection of individual. He says that human rights are important to uphold human existence and they incorporate salient norms of justice but there cannot be absolute rights. Absolute rights activate the passion of individual self that’s why we need institutions to regulate these rights. But only certain exceptions are allowed to these rights and last no longer than the necessity warrants. Some of the western countries have incorporated these rights in their domestic laws. This again resembled with Mill’s idea as he also explained how law and justice are dependent on each other and have historical evolution. He uses historicization of sentiment and how people are sentimental about punishment which is used to fulfill obligation that gets created by right.
Author says that if every individual start exercising their free will then co-operation would not be possible and cooperation is crucial for co-existence of society. Yes, individuals have right to exercise their free will but some restrictions are also required so that interest of others not get compromised. Such restrictions should not be extreme otherwise it would curtail individual’s freedom. He says law punishes for violation of rights otherwise it would undermine the status of individual as autonomous social unit. He is trying to say that individual are autonomous ends and they cannot be used as means to other’s ends. Author says that right is something which befits human nature as whole that is indivisible. The concept of right is a complex process, it is about safeguarding human. It does not mean that it will merely protect the realm of individuals but also ensure discharging of corresponding duties to fellow beings without harming them. He says that freedom is one of the tenets of justice. Exercising one’s freedom must not intrude into corresponding rights of others. He says that right of a being imposes duty to respect parallel rights of fellow being. From these rights duty to protect environment also flows. This again is very close to Nozick’s idea side constraints and individual cannot be used as means to fulfill other’s ends.[4] His starting and ending point is freedom by which he means individual’s autonomy. He argues that freedom is also a standard to look at question of justice. Freedom causes justice which is called entitlement theory and it is based on material holding. His theory is based on materialistic conception of justice. He says individual has right to hold or transfer his property or material holding in any many they want and state should not decide that. That’s why he argued that there should be minimum constraints on freedom of individual from state side. He stated that side constraints are better because it allow people to explore other options. By exploring other option more goals would be realized and the aim of society is to maximize those goals. According to him, once freedom is given, justice could be ensured that way.
Author says that rights are required for co-existence of society likewise preservation of natural environment is also essential for a cooperative society. Author says justice cannot be confined to human rights. It extends to all dealings in our lives. Everything deserves protection so does the environment. He says that sympathy towards others is incident of just conduct while self-interest is agent of injustice. Sharing, mutual assistance is the key realization of human conduct. This has resemblance with Amartya Sen’s idea that there are two considerations of justice for non-humans i.e. instrumental and intrinsic value.[5] He says we have both intrinsic and instrumental argument for justice to non-human; they are not competing rather working together. Sen says that consideration of justice for non-human will always be decided by asymmetric power between human and non-human. As human we are more powerful, so we have obligation to act in reasonable manner and as we know non-human does not have capability because they cannot exercise their choices so it is our duty to act reasonably.
Role of Institution
Author says there mere notion of rights and restraints will not be able to encompass the notion of justice because question would always remain who determine the restrains. Society can do so but every time it may not be able to maintain equilibrium of justice. With time societies have been evolved and become more complex and plural so there would be difference in opinion of what should be the restraints and how much of restraints are enough. According to author, federal form of government is best suited to bring such equilibrium because such government would be based on separation of power and rule of law and it would intervene as and when required. Other reason is that such government is appointed by people. Author’s viewpoint of institution based justice can be contrasted with Amartya Sen’s idea of justice. Sen’s point is that both Rawls and Nozick are institutionalists. Their idea of justice is institutional justices so for both of them justice is by product of creating a just institution. But Sen says that this is not enough. His point is that idea of justice is based on plural grounds. He says you cannot have unitary justification for justice unlike Mill, Rawls does by giving idea of institution or basic structure. That’s why he builds upon pre-existing idea of ‘Niti’ and ‘Nyaya’ where ‘Niti’ is about rules, regulations and institutions and ‘Nyay’a is about how people actually lives in society and social arrangements. He says justice will be done by combining these two concepts together.
Author talks about the establishment of domestic and international institutions like League of Nation after World War I to ensure world peace, he also talks about the drawback of conferring veto power in decision of Council to permanent members –which diminishes the idea of justice and peace. It seems that author is influenced by Rawls’ idea of institution. Rawls talks about why existence of institutions is necessary for justice. He argued that these institutions are created by just society which is based upon basic structure and once basic structure is fair everything would be fair because everything gets regulated by basic structure. Institutions are necessary for enforcing the principles of justice and regulation of society. On the other hand Nozick is against the idea of centralized authority to regulate individuals. He is giving idea which is very close to procedural justice so, when the procedure is just, the end would also be just.
Author talks about why law is nucleus of basic structure because it set down the rules through which conduct of human beings are governed. The excess of power inevitably lead to injustice that’s why law is required for serving the purpose for which institutions are bestowed with powers. He says that Justice is the mother of peace and how he defines peace – he says that peace is harmonious co-existence which is free from any kind of injustice that downgrade individual. He further argues that peace can only be claimed when individual have access to right and they act as autonomous ends by participating in societal and governmental affairs. Equality is the basic attribute of the peace; peace will be meaningful only when it gets infused with the fundamentals of justice. Author states that institution plays role in justice, for institution he basically means judiciary, he says that judiciary is entrusted with the enforcement of law; it is ultimate authority to certify what is just and unjust. By doing so it ensures that justice is served because fundamentals of justice are incorporated in tenets of law. Democracy was adopted as form of government that better serves the purpose of justice over other form of government. It is form of government that better fits just rule. Author says the supremacy of law can be identified by serving of justice because basic tenets of law incorporate the fundamentals of justice.
Institution of judiciary is established to critically analyze functions of their institution that are crucial for co-existence of society. But the role of judiciary only confined to review the legality of the action whether it is performed within the limit of the law or not. Within the judiciary there is a judicial officer called judge who ministers justice, he kind of personifies the idea of justice. Author says that assurance of fair trial is fundamental right embedded in constitution which confers duty on state to protect these rights so that society could exists- it is also mill idea of right for existence of society. Author somewhat relates to Rawls’ idea of institution where institution has foundational basis on basic structure which evolved from principles of justice agreed by individuals. These institutions further ensure fair distribution of primary goods to create a just society. Author is also trying to show how these institutions are important to ensure justice in today’s world.
Contrary to author, Nozick says state intervention is not good idea and only minimalistic intervention could be good for protecting society from force, fraud etc. He says too much intervention would lead to injustice.[6] But author has not made any such claim rather he is more in favor of more state’s institution which would help to bring equilibrium in the society. Author also made a claim that federal form of government would best suited to achieve justice. Such claim can give impression that state without federalism would not be just or less just. This cannot be established without empirical data.
Author's viewpoint of Justice
According to author, justice is ever evolving concept and it aim to balance individual interests along with societal interests. It does so by exercising restraints on individual freedom and rights. Restrictions are only exercised when they seem necessary for societal interests. As society is plural, notions of justice cannot be enforced by individual because then everyone will try to enforce their idea and conflict would arise. So better way, is the creation of institutions and the same are regulated by written constitution. It could be superficially derived that author is leaning towards instrumentalist approach of justice which states that institutions are necessary for enforcement of principles of justice.
There could be scenarios where actions of these institutions may be oppressive, judiciary may not deliver correct judgement, powers may be abused etc. For such violations, checks and balances are given in the constitution itself, these should be exercised for better enforcement. But sometimes the institutions may also not able to secure justice. So, according to author perfect justice cannot be achieved. In the end he says that there is no such thing like perfect justice, as scope of error always remains.
Conclusion
Although the book has been written few years ago, it has much similarity with aspects of theories of Mill, Rawls, Nozick etc. There is discussion on various themes of rights, freedom, injustice, judiciary and institutions–all of which are very crucial for concept of justice. Author provides answer to many questions like why individual cooperate, why institutions are important, how people own rights and how idea of justice has evolved through society. But he fails to answer at what point state intervention is required and how will state know the status of those who are at margins because there would lie huge scope of violation and state cannot interact with each and every individual.
Author is judge, so he tried to make more realistic study that could connect to social and political reality but still some gap is left as how these social and political factors would impact achievement of justice. Author has not written the book at abstract or metaphysical level rather tried to base it on reality though his judicial experience.
It is interesting to note that even in the modern day some ideas and conceptions are still relevant even though they are written years ago and bears similarity with them. Author agrees as concluding remark that even idea of justice has evolved and institutions are set up even then perfect justice is unachievable which is somewhat similar to idea of Amartya Sen who also says perfect justice cannot be achieved rather efforts can be made to set up a society which is ‘more just’.
The author of this article is Reena, a fourth-year BALLB student at National Law University, Delhi.
[1] Id 3
[2] John Rawls, Political Liberalism (1993) CUP
[3] Susan Okin, Reason and Feeling in Thinking about Justice, Ethics, Vol. 99, No. 2 (1989) pp- 229-249
[4] Robert Nozick, ‘Anarchy, State and Utopia (1974) Basic Books
[5] Amartya Sen, ‘the Idea of Justice’ Belknap, 2009
[6] John Stuart Mill, ‘On Connection between Justice and Utility’ (1863)
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
Commentaires