This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).
Nozick’s Theory of Justice
Robert Nozick an American political philosopher was born in Brooklyn, New York in 1938. He died of stomach cancer in the year 2002. He introduced in his first book Anarchy, State, and Utopia (1974) “the entitlement theory of justice” and stated that every human being shall possess what they are entitled to. Nozick said that every human being is born with a fundamental individual right. No one should seize the right of entitlement from the other by wrongful act or misconduct. Some people gain benefits illegally by stealing, seizing, forgery, subterfuge, abuse, defraud, etc. As Nozick rightly pointed out the concept of just distribution through legitimate means. The most important demand for the rule of law is that those who work the hardest have more rather than equal distribution. Entitlement theory lays down three principles:
- Justice in acquisition: A person who acquires a holding justly is entitled to that holding.
- Justice in transfer: If someone transfers you something then you can possess but such transfer must be legally valid.
- Principle of rectification of injustice: If someone’s right is infringed through coercion, fraud, robbery, looting, mugging, enslavement, theft, etc then they can file a claim against the beneficiaries.
Rawls’s Theory of Justice
Jhon Rawls an American political philosopher was born in Baltimore, Maryland in the year 1921 and died in 2002. He wrote his book Political Liberalism (1993), The Law of Peoples (1999), and Justice ad Fairness (2001). Although the concept has been already discussed by other philosophers the original book of Justice as Fairness was reissued in 2005. He introduced various principles and stated that the people must decide the principle of justice from behind a “veil of ignorance”. Veil of ignorance is a method of determining the morality of issues in which the decision-makers are completely clueless and they decide the law with a new conception. Rawls suggested the literal interpretation of a veil of ignorance should not be considered. The purpose of this theory was to promote fairness, equality, justice, morality, a good conscience, and social status. Rawls two principle of justice includes:
- The principle of greatest equal liberty.
- Principle of justice.
People living in society frame the laws and the individuals are instructed to follow the same this concept is also known as the social contract theory. Law framed by one single authority can exercise his/her position of power among a large number of people that’s why it is necessary to split the authority rather than vesting the power to one single individual. Earlier the power was given to men to take decisions and they were not aware of the problems faced by the woman resulted in biased judgment which leads to coercion, threat, deception, fraud, etc. Decision-makers do not give decisions based on gender bias, rich or poor, wealth, skin color, caste, class, race, creed, or religion. He further stated that to resolve the property-related disputes a judiciary is necessary and police force or military is responsible for protecting the rights of individuals. According to Jhon Rawls, all people in a fair society must possess:
- Right to freedom.
- Powers and opportunities.
- Every individual must have sufficient money to fulfill their needs and demands.
Fuller’s Theory of Justice
Lon Luvois Fuller was a most popular American legal philosopher born on June 15, 1902, and died on April 8, 1978. He published his book named Morality of Law, 1964. Natural law is the law that transformed old law into a cosmopolitan system. Fuller stated that there is no connection between law and morality. He debated with prominent British legal philosopher H.L.A. Hart that there is not a complete separation but a close connection between morality and law. He further argued that there are two kinds of morality:
- External morality of law
- Internal morality of law
i) To put law or degree into action.
ii) Retroactive legislation.
iii) Be general.
iv) Unclear legislation.
v) Not be inconsistent.
vi) Not require the impossible.
vii) Be congruent or consistent with official action.
viii) Be reasonably stable.
These laws incorporate moral standards of fairness, respect, and predictability that together constitute the rule of law. To have an adequate legal system one must keep in mind these principles in a system of governance otherwise the system will lack behind.
Ram Lakhan V. State on 5th December 2006 137(2007) DLT 173
In this case, a beggar was found begging and he was arrested in a Certified Institution for 1 year (later reduced to 6 months) under Section 5(5) of Bombay Prevention of Begging Act, 1957. Hon’ble High Court looked after various circumstances:
- A person begs when he is unemployed.
- He may be an alcoholic or drug addict.
- He might be involved in some sort of gang or something.
- He may be helpless, starving, poor, or in desperate need of food.
It was concluded that a person found begging need not and ought not to be detained in a Certified Institution because his act of solicitation was not voluntary but under duress. The beggars beg to survive and the authority must look that nobody should beg.
Nozick was not in favor of Rawls’s theory and stated that his theory resulted in inequality in human development. Rawls’s theory focused on interference with individual liberties against laws promoting public order and safety. Nozick principles focused on basic fundamental rights of an individual (right to freedom, right to equality, right to speech, right to property, right to constitutional remedies, right against exploitation, right to freedom of religion, culture, and educational rights, etc). But he falsely pointed out the concept of dealing with the freedom of one single individual rather than all the individuals living in the society or the community at large. Rawl looked into the welfare of the community without discriminating against any individual.
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