Primary Focus- What should be law based on? Principles
Earlier we studied ‘what is law‘. Now the focus will be on “what ought to be the law” and the various concepts of law
2. Law ought to be Just.
Justice will be the major concern this semester.
MICHAEL SANDEL- “Different Approaches to Justice”
1. Argument of saving more people by changing the track is a utilitarian argument.
2. Maximum benefits to maximum numbers.
Distributive Justice pertains to distribution of benefits and burdens in society
Corrective Justice refers to remedying the violation of rights once benefits and burden and benefits have been distributed and demarcated in society.
1. 10/- bottle being sold in 500/-
2. Protests because preying on people’s miseries considered bad in society.
3. Arguments in terms of Vice and Virtue. When sold in 10, then also many are excluded from buying who cannot afford. But exorbitant exploitation during misery/calamity seems outrageous and morally repugnant.
4. After the tornado comes the vulture kind of thing. Its greed manifested in its worst from.
5. Making profit in normal situation is not considered as bad as satisfying one’s greed during calamity out of people’s suffering.
6. No of people affected also matters. When sold in 10/- are affected compared to majority being excluded when the bottle sold in 500/-
Problem of Vice and virtue argument-
1. Judgemental and subjectivity.
2. From whose perspective vice or virtue?
3. Imposing one conception of virtue leads to curtailment of people’s freedom.
4. So, Virtue based idea of Justice affects Freedom.
Freedom of Trade-
1. Increases economic well being
2. Efficient use of resources
3. Produce goods
4. Caters to peoples needs and luxuries
5. Touchstone of Economic Welfare-EFFICIENCY
6. To enable to this to happen, laws are enacted to recognize private property
Justice and Freedom (whose Freedom?)
State (to deal with neo-colonialism)
Freedom of smaller nations from vanishing whose existence is threatened by global carbon emissions.
Justice in terms of-
5. Happiness cannot be the touchstone of well-being because even in their hardest circumstances people learn to cope-up and are sometimes seen happy. (Slums)
Bentham identified utility in terms of pleasure and pain.
Said that humankind is placed under two sovereigns–
Idea based on pleasure and pain is know as Hedonism.
As per Bentham, to determine pleasure and pain before any policy making, one has to make a list of each individual’s pain and pleasure. That the way to define justice and to determine the right thing to do is to ask what will maximize welfare, or the collective happiness of society as a whole. A second approach connects justice to freedom.
Each member of the community counts and no one should be left.
Community-Aggregate of individuals living in a society
Example-Construction of Dam
1. Irrigation x N (no. of people benefiting)
2. Flood Control x N (no. of people benefiting)
3. Employment x N (no. of people benefiting)
4. Infrastructure development x N (no. of people benefiting)
5. Tourism x N (no. of people benefiting)
6. Economic Growth x N (no. of people benefiting)
1. Displacement x N (no. of people benefiting)
2. Destruction of Biodiversity x N (no. of people benefiting)
3. Livelihood x N (no. of people benefiting)
Problems with the Utilitarian Principle-
1. Pleasure and Pain are difficult to quantify
2. Reducing everything to monetary value is a big problem.
3. Bentham said one also has to take into account intensity, duration, remoteness and fecundity of pleasure and pain. This makes calculation even more difficult.
5. Problem of commensurablity.
6. It’s difficult to compare and measure different kinds of pleasure. For example-pleasure of watching birds and swinging in a park.
7. Does not take into account Individual Rights.
8. It majoritarian in character.
9. Rights matter as long as they are pleasurable to a large group
10. Rights only in terms of interests and benefits.
Colonel Example-Either handover the colonel or face massacre of the whole city.
Terrorist example-Legality of torturing a terrorist to get information about the place he has planted the bomb with the intention of saving thousands from dying due to the bomb blast.
Rights only in terms of Utility and only a means to an end and not an end in itself.
All of this makes Utilitarianism a majoritarian principle which does not take into account minority.
JOHN STUART MILL
Problem he identified- extent of social control on individual liberty
1. Article 19 and 21- protects individual liberty from State
2. Mill talks about liberty not only from rulers but also from the society.
3. Earlier people talked about liberty as liberty of subjects/people from the ruler/state.
4. The entire conversation of liberty was placing limitations on the power of rulers.
5. Now rulers are elected by people. So the concern of liberty is liberty of minority from the tyranny of the majority.
6. Utilitarianism is a majoritarian principle.
7. Mill is talking about individual liberty secured against majoritarianism.
8. The arena of liberty is not just political but also social.
9. Threat to liberty in democracy is from majoritarianism.
10. Mill is a proponent of individual liberty.
Does he recognize individual liberty as a trump? What is the goal of Mill?
No. He is a utilitarian. The only difference is that he does not recognize utility only in terms of pleasure and pain.
In his words– “It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being.”
Individual liberty is a means to an end.
The end goal is ‘Long term development and progress of mankind.’ Individual liberty has an instrumental value in achieving that.
Context in which he is taking of Individual liberty-
Custom ridden society of UK and Europe in 19th century which is controlled by collective mediocrity.
Problem with blind adherence to customs
1. Lack of originality and spontaneity.
2. When people blindly follow anything like a dumb ridden cattle, there faculty of rationality becomes fossilized and redundant. This is hindrance to continual progress of Humankind.
First, Limitation with past experiences (ancestors viewpoint could be narrow) The traditions and customs of other people are, to a certain extent, evidence of what their experience has taught them; presumptive evidence, and as such, have a claim to his deference: but, in the first place, their experience may be too narrow; or they may not have interpreted it rightly.
Unsuitability in current circumstances
Secondly, their interpretation of experience may be correct, but unsuitable to him. Customs are made for customary circumstances and customary characters; and his circumstances or his character may be uncustomary.
Does not lead to development and expansion of human faculty of reasoning.
Thirdly, though the customs be both good as customs, and suitable to him, yet to conform to custom, merely as custom, does not educate or develop in him any of the qualities which are the distinctive endowment of a human being. The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice.
In his words–Customs are made for customary circumstances and customary characters; and his circumstances or his character may be uncustomary.
Conditions he attaches to Individual Liberty
Mills idea of Individual Liberty is only for civilized nations. He does not recognize universal liberty.
Individual Liberty is not for-
1. Younger ones
2. Immature people
4. Backward States.
He even justifies despotism as long as its end goal is improvement in the conditions of the governed. In his words- “Even despotism does not produce its worst effects, so long as individuality exists under it; and whatever crushes individuality is despotism, by whatever name it may be called, and whether it professes to be enforcing the will of God or the injunctions of men.”
Individual Liberty to be curtailed only when it affect the interest of the other. Interest here connotes expressly or implicitly recognized rights.
Two kinds of Harms-
1. Self-regarding Harm-
2. Other regarding harm-
If a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance.
No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law.
But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.
If a Marxist privately writes against capitalism, no problem, but if gives an instigating speech in front of angry workers, its a problem.
Lot of things depend on circumstances.
Liberty as utility– PERMANENT PROGRESS OF HUMANKIND
For Bentham, it was majority of individual’s pleasure and pain.
Mill does not support baser/lowly pleasure but support higher pleasure that involves exercise of higher faculties of mankind.
Meaning of Progress as per MILL
Development of human faculties originally and spontaneity.
Human Dignity will motivate people to go for higher pleasure though temporarily they may go for and enjoy lower/baser pleasure.
Pleasure which human being prefer as a rational beings over other pleasure.
JS MILL SUMMARY
1. Aim is permanent progress of mankind
2. Individuality as it assists in development of human faculties.
Originality and spontaneity.
3. Human Dignity– will motivate people to look for higher pleasure in place of baser/lowly pleasure.
4. Liberty- Not only from despotic ruler but also from tyrannical majority. Mills Liberty only for civilized races not for barbarians and backward states. He even justifies despotism for such backward states as long as aim is their development and achievement.
5. Harm Principle
An Individual’s liberty should not be curtailed as long as it doesn’t affect the interest of others. Interest here is akin to expressly or implicitly recognized legal right.
6. Social Right
Doctrine of social right prescribes that each individual has a vested interest in other’s way of life measured by their own standard of right and wrong and if other’s don’t behave according to that standard then ones social right is violated.
This is judged by one’s own standard however subjective it might be.
Everyone has his/her own standard of right and wrong. So recognizing social right will lead to absolute curtailment of liberty. Tantamount to no right to freedom. Category of its violation is endless.
Alcohol shop example-
Drunk person example-
7.Rule Utilitarian and Fact Utilitarian
7.1. Rule Utilitarian-They look at classes of Act
7.2. Fact Utilitarian-They look at actual act as whether one should do an act or not.
Anwar Ali Sarkar and Kathi Raning Rawat example.
Mill is not libertarian, he is liberal.
He wants regulations rather than complete prohibition
Decency-In private it does not affect but in public it can corrupt those minds susceptible to get corrupt.
When he talks about harm, he means injury.
Slavery-You cannot use your liberty to curtail your liberty. It is no freedom which allows alienation of that freedom.
Selling Organs-No because-
But according to Kant, no because-
1. Against Dignity
2. We do not own ourselves
3. We cannot use it as a means/instrument.
1. There is no freedom as there are certain ends defined by biological and social needs which people keep striving for.
2. People are free only in terms of determining the means to fulfill those ends.
3. One is not autonomous.
4. If you drop a ball from above, it will fall to the ground because it has no will of its own.
5. We are different because we have a will of our own to determine the means or the best means to reach the end result. And this is what makes us different from the animals.
6. Utilitarians were not judging the morality of an act. An Act is moral if it leads to pleasure.
7. Is making people happy same as making people moral/good/virtuous?
8. Basic difference between Utilitarians and Kant
Talking duties not in terms of positive obligations but negative obligation.
Only when we give ourselves the end, we are autonomous. Choosing the means is not freedom but choosing the ends is.
Something is moral when done as a duty and not because of some inclination/motivations.
Something is moral when it is done for the sake of itself and not because of some consequences.
Freedom lies in acting autonomously not heteronormatively.
Heteronormativity is doing something for the sake of something else.
But to act autonomously according to Kant is doing something for the sake of itself as a duty and not because of something else or a consequence.
Propriety if an act is not determined by its consequences.
To use human beings as means is against categorical imperative.
What is the supreme Principle of Morality?
Kant explains big idea such as Morality, Freedom and Reason through a series of contrasts or dualism-
Morality– Duty v Inclinations. Only the motive of duty can confer moral worth on an action.
Freedom– Autonomy v Heteronomy. Free only when act according to the law I give to myself.
Reason– Categorical v Hypothetical imperative.
The utilitarians viewed human beings as capable of reason, but only instrumental reason. Reason’s work, for the utilitarians, is not to determine what ends are worth pursuing. Its job is to figure out how to maximize utility by satisfying the desires we happen to have. Kant rejects this subordinate role for reason. For him, reason is not just the slave of the passions. If that were all reason amounted to, Kant says, we’d be better off with instinct. Kant’s idea of reason—of practical reason, the kind involved in morality—is not instrumental reason but pure practical reason, which legislates a priori, regardless of all empirical ends.
Categorical v Hypothetical Imperatives
Hypothetical imperatives use instrumental reason: If you want X, then do Y. If you want a good business reputation, then treat your customers honestly.
Categorical Imperative is unconditional. If the action is represented as good in itself, and therefore as necessary for a will which of itself accords with reason, then the imperative is categorical. Similarly, a categorical duty or categorical right is one that applies regardless of the circumstances. For Kant, a categorical imperative commands, well, categorically without reference to or dependence on any further purpose.
Maxims/principles of Categorical Imperative-
Maxim 1- Act according a principle which you can universalize, which you want to become a universal law to be followed by everyone. “Act only on that maxim whereby you can at the same time will that it should become a universal law.”
False Promise example. The false promise maker was using the Banker as a means to fulfill his needs. He is privileging his interests over others. Only when u treat everyone’s interests equally, that a rule can be universal.
Universalisation is an important aspect of Kant’s idea of Right.
Maxim 2– Treat persons as ends. “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”
Example of Suicide and Murder. If I commit murder, I take someone’s life for the sake of some interest of my own-robbing a bank, or consolidating my political power, or giving vent to my anger. I use the victim as a means, and fail to respect his or her humanity as an end. This is why murder violates the categorical imperative.
For Kant, suicide violates the categorical imperative in the same way. If I end my life to escape a painful condition, I use myself as a means for the relief of my own suffering. But as Kant reminds us, a person is not a thing, “not something to be used merely as a means.” I have no more right to dispose of humanity in my own person than in someone else. For Kant, suicide is wrong for the same reason that murder is wrong. Both treat persons as things, and fail to respect humanity as an end in itself.
For Kant, justice requires us to uphold the human rights of all persons, regardless of where they live or how well we know them, simply because they are human beings, capable of reason, and therefore worthy of respect.
1. Ailing mother and her child’s accident example.
2. Sex outside marriage and prostitution.
3. Lying to a murderer.
4. Bill Clinton example.
Kant and Justice
Kant rejects utilitarianism in favor of a theory of justice based on a social contract.
First, Kant rejects utilitarianism, not only as a basis for personal morality but also as a basis for law.
As he sees it, a just constitution aims at harmonizing each individual’s freedom with that of everyone else. It has nothing to do with maximizing utility, which “must on no account interfere” with the determination of basic rights.
Since people have different views on the empirical end of happiness and what it consists of,” utility can’t be the basis of justice and rights. Why not? Because resting rights on utility would require the society to affirm or endorse one conception of happiness over others. To base the constitution on one particular conception of happiness (such as that of the majority) would impose on some the values of others; it would fail to respect the right of each person to pursue his or her own ends.
ISAIAH BERLIN- ESSAYS ON LIBERTY/FREEDOM
Politics has always been intertwined with philosophy.
Ideas are so powerful that they can destroy civilizations.
The importance of political ideas in practice and theory.
The question of Obedience and Coercion.
Why should I obey anyone else?
Why should I not live as I like?
If I disobey, should I be coerced? By whom? To what degree? In the name of what and for the sake of what?
Coercing someone means depriving him of his Freedom or Liberty.
Freedom in two senses-
1. Negative Sense
What is the area within which the subject should be left to without interference by other persons?
2. Positive Sense
What or who is the source of control that can determine someone to do or be this rather than that?
The notion of NEGATIVE FREEDOM
Being free in this sense means not being interfered its by others. The wider the area of non-interference, the wider the freedom.
Derives from the wish of individual not to be prevented by others from doing what he wish.
Coercion implies deliberate interference by other human beings within the area in which I could otherwise act.
English Philosophers believed it could not be unlimited because-
Human purposes and activities do not automatically harmonies with each other
They put high value on other goals such as Justice, Happiness, Security, EQUALITY, etc.
So they were prepared to curtail freedom in the interest of other values.
Libertarians such as Locke and Mill in England, and Kant and Tocqueville in France, that there ought to exist a certain minimum area of personal freedom which must on no account be violated for if it is overstepped, the individual will find himself in an area too narrow for even that minimum development of his natural faculties which alone make it possible to pursue and to conceive the various ends which men hold good or right or sacred. It follows that a frontier must be drawn between the area of private life and that of public authority. Where it is to be drawn is a matter of argument, indeed of haggling.
The freedom that men seek differs according to their social or economic conditions, but that the minority who possess it have gained it by exploiting.
Liberty is not the only goal of men, I can, like the Russian critic Belinsky, say that if others are to be deprived of it- if my brothers are to remain in poverty, squalor, and chains then I do not want it for myself, I reject it with both hands and infinitely prefer to share their fate.
Yet it remains true that the freedom of some at times must be curtailed to secure the freedom of others. Upon what principle should this be done?
We must preserve a minimum area of personal freedom if we are not to ‘degrade or deny our nature’. We cannot remain absolutely free and must give up some of our liberty to preserve the rest. But total self-surrender is self-defeating. What then must the minimum be? That which a man cannot give up without offending against the essence of his human nature. What is this essence? What are the standards which it entails? This has been, and perhaps always will be, a matter of infinite debate.
Role of State
Mill in his famous essay declares that, unless men are left to live as they wish in the path which merely concerns themselves, civilization cannot advance; the truth will not, for lack of a free market in ideas, come to light; there will be no scope of spontaneity, originality, genius, for mental energy for moral courage. Society will be crushed by the weight of collective mediocrity.
Pagan self-assertion is as worthy as Christian self denial. All the errors which a man is likely to commit against the advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem is good.
Freedom not necessarily connected with democracy or self-government.
Liberty in this sense is not concerned with the area of control, nor with its source. Just as a democracy may, in fact deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedom.
The notion of POSITIVE FREEDOM
The notion of positive freedom derives from the wish of individual to be his own master.
I am my own master; I am slave to no man but may I not (as Platonists or Hegelian tend to say) be a slave to nature? Or to my own ‘unbridled’ passions? Are these not so many species of the identical genus ‘slave’-some political or legal, others moral or spiritual?
Have not men had the experience of liberating themselves from spiritual slavery, or slavery to nature and do they not in the course of it become aware, on the one hand, of a self which dominates, and, on the other, of something in them which is brought to heel?
Presently the two selves may be represented as divided by an even larger gap: the real self may be conceived as something wider than the individual (as the term is normally understood), as a social ‘whole’ of which the individual is an element or aspect: a tribe, a race, a church) a state, the great society of the living and the dead and the yet unborn:
This entity is then identified as being the ‘true’ self which, by imposing its collective, or ‘organic’, single will upon its recalcitrant ‘members”‘, achieves its own, and therefore their, ‘higher’ freedom.
It is possible, and at times justifiable, to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt.
This paradox has been often exposed.
It is one thing to say that I know what is good for X, while he himself does not, and even to ignore his wishes for its and his sake and a very different one to say that he has chosen it, not indeed consciously, not as he seems in everyday life, but in his role as a rational self which his empirical self may not know-the ‘real’ self which discerns the good, and cannot help choosing it once it is revealed.
Enough manipulation with the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made it only too clear that the issue is not merely academic.
III. THE RETREAT TO THE INNER CITADEL
I am the possessor of reason and will; I conceive ends and I desire to pursue them; but if I am prevented from attaining them I no longer feel master of the situation. I may be prevented to achieve my ends by the laws of nature, or by accidents, or the activities of men, or the effect, often undesigned, of human institutions.
These forces may be too much for me. What am I to do to avoid being crushed by them?
I must liberate myself from desires that I know I cannot realize.
The tyrant threatens me with the destruction of my property, with imprisonment, with the exile or death of those I love. But if I no longer feel attached to property, no longer care whether or not I am in prison, if I have killed within myself my natural affections, then he cannot bend me to his will.
It is as if I had performed a strategic retreat into an inner citadel my reason, my soul, my noumenal self which, do what they may, neither external blind force, nor human malice, can touch. I have withdrawn into myself; there, and there alone, I am secure.
I eliminate the obstacles in my path by abandoning the path; I retreat into my own sect, my own planned economy, my own deliberately insulated territory, where no voices from outside need be listened to, and no external forces can have effect. This is a form of the search for security; but it has also been called the search for personal or national freedom or independence.
All forms of tampering with human beings, getting at them, shaping them against their will to your own pattern, all thought control and conditioning,’ is, therefore, a denial of that in men which makes them men and their values ultimate.
In a world where a man seeking happiness or justice or freedom (in whatever sense) can do little, because he finds too many avenues of action blocked to him, the temptation to withdraw into himself may become irresistible.
The Doctrine that maintains that that I cannot have I must teach myself not to desire; that a desire eliminated or successfully resisted, is as good as a desire satisfied, is a sublime, but, it seems to me, unmistakable, form of the doctrine of sour grapes: What I cannot be sure of I cannot truly want.
Ascetic self-denial may be a source of integrity or serenity and spiritual strength, but it is difficult to see how it can be called an enlargement of liberty. If I save myself from an adversary by retreating indoors and locking every entrance and exit, I may remain freer than if I had been captured by him, but am I freer than if I had defeated or captured him? The logical culmination of the process of destroying everything through which I can possibly be wounded is suicide. While I exist in the natural world, I can never be wholly secure. Total liberation in this sense (as Schopenhauer correctly perceived) is conferred only by death.
Those who are wedded to the negative concept of freedom may perhaps be forgiven if they think that self-abnegation is not the only method of overcoming obstacles; that it is also possible to do so by removing them.
It is an irony of history that this truth is repudiated by some of those who practice it most forcibly, men who, even while they conquer power and freedom of action, reject the negative concept of it in favour of its positive counterpart.
We are told that the only way of attaining true freedom is by the use of critical reason, the understanding of what is necessary and what is contingent.
Enlightened Rationalism-What you know that of which you understand the necessity-the rational necessity-you cannot, while remaining rational, want to be otherwise.
Knowledge liberates as Epicurus taught long ago, by automatically eliminating irrational fears and desires.
Social life could not be understood by an analogy drawn from mathematics or physics. One must also understand history, that is, the peculiar laws of continuous growth, whether by dialectics, conflict or otherwise, that govern individuals and groups, in their interplay with each other and with nature.
Hegel believed that his contemporaries (and indeed all his predecessors) misunderstood the nature of institutions because they did not understand the laws- the rationally intelligible laws, since they spring from the operation of reason-that create and alter institutions and transform human character and human action.
I am free if, and only if, I plan my life in accordance with my own will; plans entail rules; a rule does not oppress me or enslave me if I impose it on myself consciously, or accept it freely, having understood it, whether it was invented by me or by others, provided that it is rational, that is to say, conforms to the necessities of things.
This is the metaphysical heart of rationalism. The notion of liberty contained in it is not the ‘negative’ conception of a field (ideally) without obstacles, a vacuum in which nothing obstructs me, but the notion of self-direction or self-control. I can do what I will with my own. I am a rational being; whatever I can demonstrate to myself as being necessary, as incapable of being otherwise in a rational society-that is, in a society directed by rational minds, towards goals such as a rational being would have~I cannot, being rational, wish to sweep out of my way.
Without attempting to trace the historical evolution of this idea, I should like to comment on some of its vicissitudes.
TEMPLE OF SARASTRO
Those who believed in freedom as rational self-direction were bound, sooner or later, to consider how this was to be applied not merely to a man’s inner life, but to his relations with other members of his society.
A rational (or free) state would be a state governed by such laws as all rational men would freely accept; that is to say, such laws as they would them- selves have enacted had they been asked what, as rational beings, they demanded; hence the frontiers would be such as all rational men would consider to be the right frontiers for rational beings. But who, in fact, was to determine what these frontiers were?
In existing societies justice and equality are ideals which still call for some measure of coercion, because the premature lifting of social controls might lead to the oppression of the weaker and the stupider by the stronger or abler or more energetic and unscrupulous. But it is only irrationality on the part of men (according to this doctrine) that leads them to wish to oppress or exploit or humiliate one another. Rational men will respect the principle of reason in each other, and lack all desire to fight or dominate one another.
But they all assume that in a society of perfectly rational beings the lust for domination over men will be absent or ineffective.
Freedom is self-mastery, the elimination of obstacles to my will, whatever these obstacles may be But how am I to treat recalcitrant human beings? I must if I can, impose my will on them too, ‘mould’ them to my pattern cast parts for them in my play. But will this not mean that I alone am free, while they are slaves?
If I grasp both what these ends and natures are, and how they all relate to one another, I can, at least in principle, if I have the knowledge and the strength, satisfy them all, so long as the nature and the purposes in question are rational. Rationality is knowing things and people for what they are. I must not use stones to make violins, nor try to make born violin players play flutes. If the universe is governed by reason, then there will be no need for coercion; a correctly planned life for all will coincide with full – freedom-the freedom of rational self-direction-for all.
Spinoza tells us that ‘children, although they are coerced, are not slaves because ‘they obey orders given in their own interests’, and that ‘The subject of true commonwealth is no slave, because the common interests must include his own.’ Similarly, Locke says ‘Where there is no law there is no freedom’, because rational laws are directions to a man’s “proper interests or ‘general good’; and adds that since such laws are what ‘hedges us from bogs and precipices’ they ‘ill deserve the name of confinement’, and speaks of desires to escape from such laws as being irrational1 forms of’ licence’, as ‘brutish and so on.
The common assumption of these thinkers (and of many a schoolman before them and Jacobin and Communist after them) is that the rational ends of our ‘true’ natures must coincide, or be made to coincide} how- ever violently our poor, ignorant) desire-ridden~ passionate, empirical selves may cry out against this process. Freedom is not freedom to do what is irrational, or stupid, or wrong. To force empirical selves into the right pattern is no tyranny, but liberation.
In due course, the thinkers who bent their energies to the solution of the problem on these lines came to be faced with the question of how in practice men were to be made rational in this way. Clearly they must be educated. For the uneducated are irrational, heteronomous, and need to be coerced if only to make life tolerable for the rational if they are to live in the same society and not be compelled to withdraw to a desert or some Olympia, height.
Even Mill is prepared to say that I may forcibly prevent a man from crossing a bridge if there is not time to warn him that it is about to collapse, for I know or am justified in assuming, that he cannot wish to fall into the water.
Fichte, said: No one has…rights against reason.’ ‘Man is afraid of subordinating his subjectivity to the laws of reason. He prefers tradition or arbitrariness.’
Napoleon, or Carlyle, or romantic authoritarians may Worship other ·values, and see in their establishment by force the only path to ‘true’ freedom.
There can, in principle, be only one correct way of life; the wise lead it spontaneously, that is why they are called wise. The unwise must be dragged towards it by all the social means in the power of the wise; for why should demonstrable error be suffered to survive and breed? The immature and untutored must be made to say to themselves: ‘Only the truth liberates, and the only way in which I can learn the truth is by doing blindly today, what you, who know it, order me, or coerce me, to do, in the certain knowledge that only thus will I arrive at your clear vision, and be free like you.
In this way the rationalist argument, with its assumption of the single true solution, has led by steps which, if not logically valid, are historically and psychologically intelligible, from an ethical doctrine of individual responsibility and individual self-perfection to an authoritarian state obedient to the directives of an elite of Platonic guardians.
It is true that Kant insisted following Rousseau, that a capacity for rational self-direction belonged to all men. That there could no experts in moral matters since morality was a matter not of specialised knowledge (as utilitarians and philosophers had maintained) but of the correct use of a universal human faculty, and consequently that what made men free was not acting in certain self-improving way which they could be coerced to do but knowing why they ought to do so, which nobody could do far, or on behalf of anyone else. But even ,Kant, when he came to deal with political issues) conceded that no law, provided that it was such that I should, if I were asked, approve it as a rational being, could possibly deprive me of any portion of my rational freedom. With this the door was opened wide to the rule of experts. I cannot consult all men about all enactments all the time.
If this leads to despotism, albeit by the best or the wises to Sarastro’s temple in the Magic Flute-but still despotism, which turns out to be identical with freedom, can it be that there is something amiss in the premisses of the argument? That the basic assumptions are themselves somewhere at fault? Let me state them once more:
First, that all men have one true purpose, and one only, that of rational self-direction;
Second, that the ends of all rational beings must of necessity fit into a single universal, harmonious pattern, which some men may be able to discern more clearly than others;
Third, that all conflict, and consequently all tragedy, is due solely to the clash of reason with the irrational or the insufficiently rational-the immature and undeveloped elements in life-whether individual or communal, and that such clashes are, in principle, avoidable, and for wholly rational beings impossible;
Finally, that when all men have been made rational, they will obey the rational laws of their own natures, which are one and the same in them all, and so be at once wholly law abiding and wholly free.
Can it be that Socrates and the creators of the central Western tradition in ethics and politics who followed him have been mistaken, for more than two millennia, that virtue is not knowledge, nor freedom identical with either? That despite the fact that it rules the lives of more men than ever before in its long history, not one of the basic assumptions of this famous view is demonstrable, or, perhaps, even true?
THE SEARCH FOR STATUS
LIBERTY AND SOVEREIGNTY
THE ONE AND THE MANY
SUMMARY OF BERLIN
1. Idea of negative and positive freedom is superficial
2. Concerned with the conceptualization of Human Beings
3. Aspirations of Human Beings are conditioned upon circumstances
4. Other Philosophers make a very limited conception of Human Beings.
RAWLS (LIBERAL EGALITARIAN)
The primary subject of justice is the basic structure of society ie the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation.
By major institutions he means-
1. The political constitution and
2. The principal economic and social arrangements such as market and family.
3. Thus the legal protection of freedom of thought and liberty of conscience,
4. Competitive markets,
5. Private property in the means of production, and
6. The monogamous family are examples of major social institutions.
Taken together as one scheme, the major institutions define men’s rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do.
Basic structures of society determines where an an individual ends up being.
In this way the institutions of society favor certain starting places over others. These are especially deep inequalities. Not only are they pervasive, but they affect men’s initial chances in life; yet they cannot possibly be justified by an appeal to the notions of merit or desert.
What Principles of Justice should apply to the basic structures of society-
Basic structures of society-
Economic Structure, Political Structure, Legal structure, Social structure, Religious structure, Monogamous families, etc
Liberal Philosophy is concerned with the Freedom/Liberty of individual. They accommodated equality later.
Distributive Justice– Distribution of benefits and burdens (rights and duties). Assumes social cooperation.
Rawls accommodate Equality within Liberty
Why should Justice be based on structures of Society?
Because these structures play a huge role in determining one’s life chances.
If these structures are just, they enhance one’s life chances.
AILET 1918 v 2018 example.
Child of daily wage laborer example.
Presumptions of Rawls-If Basic structures are Just, society is Just-
1. Obstacles in one’s life chances may not be limited to just basic structure ie economic and political.
2. In India though constitution is by and large Just but still one’s life chances/prospects are not.
3. Not necessary that political liberty will translate into social liberty. BR Ambedkar
Rawls says that his theory only applies to basic structures and not at any other level.
Principles that should govern basic structure should be Just in order to ensure just distribution of primary goods (opportunities, rights, wealth)
THE MAIN IDEA OF THE THEORY OF JUSTICE
Aim is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant.
We are not to think of the original contract as one to enter a particular society or to set up a particular form of government.
Rather, the guiding idea is that the principles of justice for the basic structure of society are the object of the original agreement.
They are the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association.
These principles are to regulate all further agreements; they specify the kinds of social cooperation that can be entered into and the forms of government that can be established.
This way of regarding the principles of justice I shall call justice as fairness.
In justice as fairness the original position of equality corresponds to the state of nature in the traditional theory of the social contract.
This state of nature is a purely hypothetical situation. Among the essential features of this situation is that no one knows his/her-
1. Place in society,
2. Class position or social status,
3. Fortune in the distribution of natural assets and abilities,
4. Intelligence, strength, and the like.
5. The parties do not know their conceptions of the good or their special psychological propensities.
The principles of justice are chosen behind a veil of ignorance.
This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances.
Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain.
For given the circumstances of the original position, the symmetry of every-one’s relations to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice.
The original position is, one might say, the appropriate initial status quo, and thus the fundamental agreements reached in it are fair.
This explains the propriety of the name “justice as fairness”: it conveys the idea that the principles of justice are agreed to in an initial situation that is fair.
Justice with fairness begins with the choice of the first principles of a conception of justice which is to regulate all subsequent criticism and reform of institutions. 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.
They could all view their arrangements as meeting the stipulations which they would acknowledge in an initial situation that embodies widely accepted and reasonable constraints on the choice of principles.
No society can, of course, be a scheme of cooperation which men enter voluntarily in a literal sense; each person finds himself placed at birth in some particular position in some particular society, and the nature of this position materially affects his life prospects. Yet a society satisfying the principles of justice as fairness comes as close as a society can to being a voluntary scheme, for it meets the principles which free and equal persons would assent to under circumstances that are fair. In this sense its members are autonomous and the obligations they recognize self-imposed.
One feature of justice as fairness is to think of the parties in the initial situation as rational and mutually disinterested.
This does not mean that the parties are egoists, that is, individuals with only certain kinds of interests, say in wealth, prestige, and domination. But they are conceived as not taking an interest in one another’s interests. They are to presume that even their spiritual aims may be opposed, in the way that the aims of those of different religions may be opposed.
In working out the conception of justice as fairness one main task clearly is to determine which principles of justice would be chosen in the original position.
It may be observed, however, that once the principles of justice are thought of as arising from an original agreement in a situation of equality, it is an open question whether the principle of utility would be acknowledged.
Off-hand it hardly seems likely that persons who view themselves as equals, entitled to press their claims upon one another, would agree to a principle which may require lesser life prospects for some simply for the sake of a greater sum of advantages enjoyed by others.
A rational man would not accept a basic structure merely because it maximized the algebraic sum of advantages irrespective of its permanent effects on his own basic rights and interests.
The persons in the initial situation would choose two rather different principles:
1. The first requires equality in the assignment of basic rights and duties, while
2.The second holds that social and economic inequalities (inequalities of wealth and authority) are just only if they result in compensating benefits for everyone, and in particular for the least advantaged members of society.
These principles rule out justifying institutions on the grounds that the hardships of some are offset by a greater good in the aggregate. It may be expedient but it is not just that some should have less in order that others may prosper.
But there is no injustice in the greater benefits earned by a few provided that the situation of persons not so fortunate is thereby improved.
The intuitive idea is that since everyone’s well-being depends upon a scheme of cooperation without which no one could have a satisfactory life, the division of advantages should be such as to draw forth the willing cooperation of everyone taking part in it, including those less well situated.
The problem of the choice of principles, however, is extremely difficult.
Justice as fairness, like other contract views, consists of two parts:
An interpretation of the initial situation and of the problem of choice posed there, and
A set of principles which, it is argued, would be agreed to.
One may accept the first part of the theory (or some variant thereof), but not the other, and conversely. To be sure, I want to maintain that the most appropriate conception of this situation does lead to principles of justice contrary to utilitarianism and perfectionism, and therefore that the contract doctrine provides an alter- native to these views.
Justice as fairness is an example of what I have called a contract theory.
In particular, the content of the relevant agreement is not to enter a given society or to adopt a given form of government, but to accept certain moral principles.
The merit of the contract terminology is that it conveys the idea that principles of justice may be conceived as principles that would be chosen by rational persons, and that in this way conceptions of justice may be.
The theory of justice is a part, perhaps the most significant part, of the theory of rational choice. Furthermore, principles of justice deal with conflicting claims upon the advantages won by social cooperation; they apply to the relations among several persons or groups. The word “contract” suggests this plurality as well as the condition that the appropriate division of advantages must be in accordance with principles acceptable to all parties.
Justice as fairness is not a complete contract theory. For it is clear that the contractarian idea can be extended to the choice of more or less an entire ethical system, that is, to a system including principles for all the virtues and not only for justice. I shall consider only principles of justice and others closely related to them; I make no attempt to discuss the virtues in a systematic way.
THE ORIGINAL POSITION AND JUSTIFICATION
I have said that the original position is the appropriate initial status quo which insures that the fundamental agreements reached in it are fair. This fact yields the name “justice as fairness.”
Conceptions of justice are to be ranked by their acceptability to persons so circumstanced.
One excludes the knowledge of those contingencies which sets men at odds and allows them to be guided by their prejudices.
In this manner the veil of ignorance is arrived at in a natural way.
It seems reasonable to suppose that the parties in the original position are equal. That is, all have the same rights in the procedure for choosing principles; each can make proposals, submit reasons for their acceptance, and so on.
Obviously the purpose of these conditions is to represent equality between human beings as moral persons, as creatures having a conception of their good and capable of a sense of justice.
RAWLS (PROF. AMITA PUNJ)
Will people in original position look for utility?
No. Everyone is equal and rational in the original position.
They don’t know where they might end up being.
If end up being minority, their interests would get compromised to benefit the majority.
This fear would stop them from thinking liking utilitarians.
For utilitarians Rights are subjected to good. For utilitarians, its vice versa. For liberals, liberty and rights have priority over good.
Utilitarians think in terms of individual pleasure and pain and then combine all of that to reach an aggregate of community pleasure and pain. Liberals say that what is applicable to individual may not be applicable to community.
Justice as Fairness
Since everyone is equal and free in the original position, the principles of justice they will arrive at will be fair as well. Hence Justice as fairness.
Veils of Ignorance-no one knows about his/her social and economic status in original position.
Principles of Justice to be laid down in original position-
Principle of Liberty
1. Everyone has equal right to the most extensive system of Liberty
2. U have as much liberty as it doesn’t impinges with other’s liberty
3. Maximum liberty to one is comparable to similar liberty to others.
Principle of Difference
Unequal social and economic advantages are just only if-
1. They benefit everyone
2. They are attached to offices and positions open to all.
3. Less than extensive liberty is also acceptable as long as it strengthens the total system of liberty
Lexical order of Principles
First Principle is the principle of liberty and has primacy over the second principle.
2nd principle is not the first and is subordinate to the first.
Mind that Rawls is first Liberal and then Egalitarian.
Equality of opportunity is of two types-
No one is prohibited
All those talented have equal chance
It doesn’t do anything about the existing inequalities.
Liberal idea of equality
Other constraints are remedied by the progressive taxation and free education, etc.
Pareto efficiency-When one cannot be made better off without disadvantaging another even in the least way.
Rawls consider both efficiency and difference.
To overcome the problem of the natural talents.
Only if others derive benefit from the Natural Talents of an individual, it is democratic equality.
Life chances of the worst-offs are maximized.
Reciprocal and Fraternal Feelings
Theory of Pure Procedural Justice
Concept of Justice which does not envisage any outcome as Just.
So long as the procedures are just, outcome is supposed to be Just as well.
Perfect and Imperfect Procedural Justice
Division of Cake example
The one who cuts the pies takes the last one.
Trial according to CrPC.
Envisage Justice as end but takes no guarantee that outcome will necessarily be Just.
People generally prefer self-respect rather than Charity
There has always a tussle between Positive and Negative Rights
Most of the Part 3 of the Indian Constitution
3. Resource independent
5. Capitalism inspired
1. Most of the Part 4 of the Indian constitution.
3. Not enforceable
4. Resource Dependent
7. Socialism Inspired
8. Russia Revolution 1917
9. Right o Food, clean environment etc.
By universalisation of principles, Kant means Negative Rights.
Principle of MAXMIN
Maximum and Minimum
If there are many alternatives, u tend to chose the one where the lost is the least.
Different Stages of Rawls
1st Stage– Original Position (Veil of Ignorance)
2nd Stage- Constitutional Stage (People concerned with Principle 1)
3rd Stage– Legislative Stage. What policies to be made and what institutions to be established.
4th Stage– Application Stage. This where difference principle is utilized.
Hierarchy between principle consistently maintained by Rawls.
INSTITUTIONS AND FORMAL JUSTICE
We have seen that these principles are to govern the assignment of rights and duties in these institutions and they are to determine the appropriate distribution of the benefits and burdens of social life.
The principles of justice for institutions must not be confused with the principles which apply to individuals and their actions in particular circumstances.
By an institution I shall understand a public system of rules which defines offices and positions with their rights and duties, powers and immunities, and the like.
We may think of-
Games and Rituals,
Trials and Parliaments,
Systems of property.
Thus parliamentary institutions are defined by a certain system of rules (or family of such systems to allow for variations). These rules enumerate certain forms of action ranging from holding a session of parliament to taking a vote on a bill to raising a point of order. Various kinds of general norms are organized into a coherent scheme. A parliamentary institution exists at a certain time and place when certain people perform the appropriate actions, engage in these activities in the required way, with a reciprocal recognition of one another’s understanding that their conduct ac- cords with the rules they are to comply with.
A person taking part in an institution knows what the rules demand of him and of the others. He also knows that the others know this and that they know that he knows this, and so on.
In designing and reforming social arrangements one must, of course, examine the schemes and tactics it allows and the forms of behavior which it tends to encourage. Ideally the rules should be set up so that men are led by their predominant interests to act in ways which further socially desirable ends.
Bentham thinks of this coordination as the artificial identification of interests, Adam Smith as the work of the invisible hand.
There are, it should be remarked, institutions in regard to which the concept of justice does not ordinarily apply.
A ritual, say, is not usually regarded as either just or unjust, although cases can no doubt be imagined in which this would not be true, for example, the ritual sacrifice of the first-born or of prisoners of war.
A general theory of justice would consider when rituals and other practices not commonly thought of as just or unjust are indeed subject to this form of criticism.
Now let us suppose a certain basic structure to exist.
Let us also imagine that this conception of justice is by and large accepted in the society and that institutions are impartially and consistently administered by judges and other officials. That is, similar cases are treated similarly, the relevant similarities and differences being those identified by the existing norms.
This impartial and consistent administration of laws and institutions, whatever their substantive principles, we may call formal justice.
If we think of justice as always expressing a kind of equality, then formal justice requires that in their administration laws and institutions should apply equally (that is, in the same way) to those belonging to the classes defined by them.
Law and institutions may be equally executed and yet be unjust. Treating similar cases similarly is not a sufficient guarantee of substantive justice.
Formal justice in the case of legal institutions is simply an aspect of the rule of law which supports and secures legitimate expectations. A person is unjust to the extent that from character and inclination he is disposed to such actions.
TWO PRINCIPLES OF JUSTICE
The first statement of the two principles reads as follows.
First: Each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others.
The first principle simply requires that certain sorts of rules, those defining basic liberties, apply to everyone equally and that they allow the most extensive liberty compatible with a like liberty for all. The only reason for circumscribing basic liberties and making them less extensive is that otherwise they would interfere with one another.
Second: Social and economic inequalities are to be arranged so that they are both-
1. Reasonably expected to be to everyone’s advantage, and
2. Attached to positions and offices open to all.
3. These principles primarily apply, as I have said, to the basic structure of society and govern the assignment of rights and duties and regulate the distribution of social and economic advantages.
Now it is essential to observe that the basic liberties are given by a list of such liberties.
Important among these Liberties are-
1. Political liberty (the right to vote and to hold public office) and freedom of speech and assembly;
2. Liberty of conscience and freedom of thought;
3. Freedom of the person, which includes freedom from psychological oppression and physical assault and dismemberment (integrity of the person);
4. The right to hold personal property and
5. Freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.
These liberties are to be equal by the first principle.
The second principle applies, in the first approximation, to the distribution of income and wealth and to the design of organizations that make use of differences in authority and responsibility. While the distribution of wealth and income need not be equal, it must be to everyone’s advantage, and at the same time, positions of authority and responsibility must be accessible to all. One applies the second principle by holding positions open, and then, subject to this constraint, arranges social and economic inequalities so that everyone benefits.
These principles are to be arranged in a serial order with the first principle prior to the second.
This ordering means that infringements of the basic equal liberties protected by the first principle cannot be justified, or compensated for, by greater social and economic advantages.
Since they may be limited when they clash with one another, none of these liberties is absolute; but however they are adjusted to form one system, this system is to be the same for all.
Finally, in regard to the second principle, the distribution of wealth and income, and positions of authority and responsibility, are to be consistent with both the basic liberties and equality of opportunity.
All social values—liberty and opportunity, income and wealth, and the social bases of self-respect—are to be distributed equally unless an unequal distribution of any, or all, of these values is to everyone’s advantage.
Imagine, then, a hypothetical initial arrangement in which all the social primary goods are equally distributed: every- one has similar rights and duties, and income and wealth are evenly shared.
This state of affairs provides a benchmark for judging improvements. If certain inequalities of wealth and differences in authority would make everyone better off than in this hypothetical starting situation, then they accord with the general conception.
Now it is possible, at least theoretically, that by giving up some of their fundamental liberties men are sufficiently compensated by the resulting social and economic gains. The general conception of justice imposes no restrictions on what sort of inequalities are permissible; it only requires that everyone’s position be improved. We need not suppose anything so drastic as consenting to a condition of slavery.
INTERPRETATIONS OF THE SECOND PRINCIPLE
The liberal interpretation, as I shall refer to it, tries to correct for this by adding to the requirement of careers open to talents the further condition of the principle of fair equality of opportunity. The thought here is that positions are to be not only open in a formal sense, but that all should have a fair chance to attain them.
Free market arrangements must be set within a framework of political and legal institutions which regulates the overall trends of economic events and preserves the social conditions necessary for fair equality of opportunity.
THE DIFFERENCE PRINCIPLE
The difference principle is a strongly egalitarian conception in the sense that unless there is a distribution that makes both persons better off, an equal distribution is to be preferred.
The difference principle is compatible with the principle of efficiency. For when the former is fully satisfied, it is indeed impossible to make any one representative man better off without making another worse off, namely, the least advantaged representative man whose expectations we are to maximize. Thus justice is defined so that it is consistent with efficiency, at least when the two principles are perfectly fulfilled.
FAIR EQUALITY OF OPPORTUNITY AND PURE PROCEDURAL JUSTICE
The second part of the second principle, henceforth to be understood as the liberal principle of fair equality of opportunity.
The intuitive idea is to design the social system so that the outcome is just whatever it happens to be, at least so long as it is within a certain range.
The notion of pure procedural justice is best understood by a comparison with perfect and imperfect procedural justice.
To illustrate the former, consider the simplest case of fair division.
A number of men are to divide a cake: assuming that the fair division is an equal one, which procedure, if any, will give this outcome?
Technicalities aside, the obvious solution is to have one man divide the cake and get the last piece, the others being allowed their pick before him.
He will divide the cake equally, since in this way he assures for himself the largest share possible.
This example illustrates the two characteristic features of perfect procedural justice.
Imperfect procedural justice is exemplified by a criminal trial.
The desired outcome is that the defendant should be declared guilty if and only if he has committed the offense with which he is charged. The trial procedure is framed to search for and to establish the truth in this regard.
A trial, then, is an instance of imperfect procedural justice. Even though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome. An innocent man may be found guilty, a guilty man may be set free.
By contrast, pure procedural justice obtains when there is no independent criterion for the right result: instead there is a correct or fair procedure such that the outcome is likewise correct or fair, whatever it is, provided that the procedure has been properly followed.
The role of the principle of fair opportunity is to insure that the system of cooperation is one of pure procedural justice.
Why Liberty at Constitutional Stage?
Important for Political decision making, vote, structures of government
Total system of liberty, cumulative liberty
Parliamentary Privilege (105)
Rawls say that economic constraints do not constraint liberty
There is difference between liberty and worth of liberty
What if there is no difference principle?
People will be worst off. Rich will get richer, poor poorer
Difference people does not guarantee equality but make all people better off
His primary focus is political liberty, liberty of conscience
On what basis restrictions can be imposed on these liberties?
For the sake of liberty itself
Freedom of conscience
An important aspect of liberty
Freedom of conscience accepted at constitutional stage
Extent of limitation
It does not violate others liberty.
Example– A sect does not tolerate other’s liberty and holds intolerant view about others. It’s liberty should be recognized but not right to complain.
Undermine overall system of liberty
Criteria of Common Interest
Earlier the ground was internal disturbance
But later got converted to armed rebellion by an amendment
Curtailed the power of emergency
Reasonable and present and imminent danger
Whether intolerant should have right to complain?
No. Because of the absence of good faith.
1. Equal Participation
2. Elections-people chose their own representative who are accountable to them
3. Equal say in representation
4. Universal Adult Franchise
5. Delimitation of constituencies based on proportion of population
Extent of political liberty
Most extensive which is equal to similar liberty of others
Grounds of constraint
1. Fundamental Right
2. Basic Structure
3. Separation of Power
4. Judicial Review
5. Rule of law
6. For the sake of liberty itself
7. If unlimited it would violate other liberties such as of conscience
Connection between economic resources and political liberty
Economic resources enhances your political liberty by increasing your bargaining power, lobbying power and your power to affect political debate
How to ensure economic power does not trample political liberty?
Public funding of election debates
Disallowing private funding.
NON-IDEAL PART OF THE THEORY
His 2 primary rules get modified in the non-ideal situation
Less than maximum liberty acceptable as long as it strengthens overall system of liberty
Institution in this case-Democratic Institution
Less than equal liberty acceptable if it is acceptable to those having less than equal liberty
2 nations are at perpetual war with each other. They take prisoners of war and kill them
Rather than putting them to death, they should be enslaved if they agree to that.
Liberty of Children
2nd principle also connected to Inter-Generational Justice
Caring for future generations
Institution in this case-Market
Says his theory congruent with both public and private ownership of property
Market fine as long as it results in efficient use of resources
Socio-economic in equalities are just as long as they are for everyone’s advantage especially to the advantage of the least advantaged.
How market should be allowed to operate?
Keeping in account the difference principle
Market as institution
Works on prices-demand and supply, invisible hand
Henry Shu– Basic Rights of security and subsistence
Does market care about right to subsistence?
No. Market does not answers questions of need
Rawls idea of market satisfies basic principles
Says that certain institutions required to manage the economy as a whole because makers on its won does not care for individual needs.
Different Branches regarding market-
1. To ensure competition
2. Reasonable price
3. Restrict monopoly
4. Ensure wide distribution of property
5. To restrict inequalities at a certain level
Work towards providing jobs to those who are capable of working
1. Ensure minimum wages
2. If wages determined by market, there will be no minimum wage
1. Tax on income and property
2. Taxation of gifts and bequeaths
3. Purpose of taxation is to ensure equality of opportunity
4. Favors taxation of expenditure rather than income because by expenditure one takes out resources out of the common pool.
5. Tax to get fund for transfer branch, public funding of election debates, etc.
Invest in some public goods that need investment.
Just Saving principle
People in original position are heads of families who are sentient beings and care about their family members and future generations.
This is in somewhat contradiction with what Rawls earlier said about original position-that people are mutually disinterested and rational
How do u leave things for next generation?
Allocate funds for research and development
Funds come from taxation
Taxation come from distribution branch
Ensure equality of opportunity
Fund education, health etc especially for the least advantaged
Equality of opportunity
Investment in future generation
Important-Equality of opportunity is more important than difference principle which in turn is more important than efficiency. Equality of opportunity is about 1st principle ie Liberty. And difference principle is about 2nd principle ie Equality
After leaving Equality of opportunity, 2 charges left-
1. Difference Principle to benefit the least advantaged of the current generation
2. Investment in future generation
Both are competing as the source of funding for both is same. More investment in future generation will affect the life chances of the least advantaged of the current generation. But would they care about future generation?
Yes. They also have children, are sentient being and care about their future generation and its welfare. In original position they are also heads of their families and sentiment beings.
No clear cut demarcation between how much to be allocated to difference principle and how much to future generation but one has to stuck a balance so that life chances of one cannot be ignored completely.
CRITIQUE OF RAWLS
Mari J Matsuda (Feminist critique?)
Too much abstraction
1. Original Position
2. Veil of Ignorance
Justice in Political and Economic sphere only (Public Sphere)
1. Ignoring private sphere where so much violations take place
2. Most exploitation comes from society at large and not state
People in original position are assumed to be-
2. Mutually disinterested
3. Heads of families
Institutions he is talking about-
1. Political constitution
3. Private Property
4. Monogamous families
Why constitution excludes private sphere? Why only FR enforceable and not DPSP?
Many exclusions– Family and women
That person behind the veil is actually Rawls himself.
1. He is selectively choosing things to justify his theory
Why we cannot reach a theory of Justice agreeable to everyone without an agreed starting place such as original position.
In this way other standpoints get excluded
He is already thinking from a standpoint
Rational– excluding emotions-as argued by feminists
Mutually disinterested people– excluding other consideration such as fraternity
Head of families– excluding individuals
Rawls theory of Justice is fetched by certain assumptions of Rawls
Matsuda’s argument regarding FEELINGS
Rawls does not take into account feelings holistically
Only in a limited sense when he talks about that heads of families are sentimental beings
Background– 1971 Bengal Famine
Inaction of people and authorities
Australia’s aid, however, amounts to less than one-twelfth of the cost of Sydney’s new opera house.
The World Bank has said that India needs a minimum of $300,000,000 in assistance from other countries before the end of the year.
I begin with the assumption that suffering and death from lack of food, shelter, and medical care are bad.
My next point is this: if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it.
An application of this principle would be as follows: if I am walking past
a shallow pond and see a child drowning in it, I ought to wade in and pull the child out. This will mean getting my clothes muddy, but this is insignificant, while the death of the child would presumably be a very bad thing.
One feels less guilty about doing nothing if one can point to others, similarly placed, who have also done nothing. Yet this can make no real difference to our moral obligations.
If everyone in circumstances like mine gave 5$ to the Bengal Relief Fund, there would be enough to provide food, shelter, and medical care for the refugees; there is no reason why I should give more than anyone else in the same circumstances as I am; therefore I have no obligation to give more than 5$.
Since the situation appears to be that very few people are likely to give substantial amounts, it follows that I and everyone else in similar circumstances ought to give as much as possible that is, at least up to the point at which by giving more one would begin to cause serious suffering for oneself and one’s dependents-perhaps even beyond this point to the point of marginal utility, at which by giving more one would cause oneself and one’s dependents as much suffering as one would prevent in Bengal.
The traditional distinction between duty and charity-
Giving money to the Bengal Relief Fund is regarded as an act of charity in our society.
Because giving money is regarded as an act of charity, it is not thought that there is anything wrong with not giving.
We ought to give money away, rather than spend it on clothes which we do not need to keep us warm.
These implications may lead to further objections-
People do not ordinarily judge in the way I have suggested they should. Most people reserve their moral condemnation for those who violate some moral norm, such as the norm against taking another person’s property.
The second objection to my attack on the present distinction between duty and charity is one which has from time to time been made against utilitarianism. It follows from some forms of utilitarian theory that we all ought, morally, to be working full time to increase the balance of happiness over misery.
From the moral point of view, the prevention of the starvation of millions of people outside our society must be considered at least as pressing as the upholding of property norms within our society.
The issue here is: Where should we drawn the line between conduct that is required and conduct that is good although not required, so as to get the best possible result?
I now want to consider a number of points, more practical than philosophical, which are relevant to the application of the moral conclusion we have reached.
It is sometimes said that overseas aid should be a government responsibility, and that therefore one ought not to give to privately run charities. Giving privately, it is said, allows the government and the noncontributing members of society to escape their responsibilities.
This assumption is unsupported, and does not strike me as at all plausible.
Another, more serious reason for not giving to famine relief funds is that until there is effective population control, relieving famine merely postpones starvation. If we save the Bengal refugees now, others, perhaps the children of these refugees, will face starvation in a few years’ time. In support of this, one may cite the now well-known facts about the population explosion and the relatively limited scope for expanded production.
This point, like the previous one, is an argument against relieving suffering that is happening now, because of a belief about what might happen in the future; it is unlike the previous point in that very good evidence can be adduced in support of this belief about the future.
A third point raised by the conclusion reached earlier relates to the question of just how much we all ought to be giving away.
We ought to give until we reach the level of marginal utility-that is, the level at which, by giving more, I would cause as much suffering to myself or my dependents as I would relieve by my gift.
It is sometimes said, though less often now than it used to be, that philosophers have no special role to play in public affairs, since most public issues depend primarily on an assessment of facts.
No doubt there are some issues of social policy and foreign policy about which it can truly be said that a really expert assessment of the facts is required before taking sides or acting, but the issue of famine is surely not one of these.
The facts about the existence of suffering are beyond dispute. Nor, I think, is it disputed that we can do something about it, either through orthodox methods of famine relief or through population control or both. This is therefore an issue on which philosophers are competent to take a position.
PROF. AMITA PUNJ
Inter-state inequality reasons
Obligation of aid and assistance or charity
When there is an obligation, the other person is entitled.
We cannot exist as a society if we don’t have any obligation towards each others.
Whether people in developed countries have an obligation to provide aid and assistance to Bengal suffering from famine?
His argument is- if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it.
Drowning child analogy
Is he utilitarian-calculating costs and benefits in the context of global justice.
Like James Milll he is also teleological. For him suffering is bad.
Why obligations to help on far away people and not just neighbours?
The world has changed into a global village.
So no reason to differentiate between neighbours.
Principles- Universality, Impartiality and Equality
Two variants of obligations-
Stronger Obligation-contribute to the maximum extent possible ie taking into account marginal utility or unless u are also on the verge of similar suffering.
Critique of Singer
Not liberal-intrusive into liberty by imposing obligation on free individuals
Arguing for radical change in the moral code by bringing positive obligation along with the negative obligation.
Charity is just subererogatory behaviour ie praiseworthy. Not doing charity does not involve criticism as such
Duties have an -ve obligation. Refrain from doing something.
His principle that we ought to prevent something bad from happening is imposing a positive obligation.
How does he respond to criticism?
Philosophers talk about ideal situations. So not necessary it correspond to real situation.
Yes. Positive obligation but not too onerous.
If you make charity a duty in this case, people will be able to do that like they generally refrain from murder.
If there is starvation, the risk of breaking of our moral code to prevent that can be taken.
Other critique of Singer-
Does not explore causes of suffering
Thinks that aid is the only way to end suffering
Not remedying the structural problems
Not all problems or causes get addressed by aid.
Not looking at reasons is a lacuna
Amartya Sen thesis on Famine and Democracy won him Nobel Prize in Economics.
Political Freedom vis-a-vis economic rights.
So suffering as has-
Dale Jamison Critique of Singer
Singer is talking about positive obligation/duty
Kant’s response to Singer would be- there is no duty to provide international aid. Its an imperfect duty.
UDHR and ICESCR
When can u say people are not free?
Do we say coercion happens only when distinct human agency is responsible for causing the circumstances another human being is in by intending to cause the threat of harm?
Phenomenon that arise as unintended outcome of human action fall outside the ambit of responsibility.
So intention to cause harm matters.
What about a case where deprivation has been caused by market forces?
People pursuing their self-interest in a market is said to be a fair rule.
Since market does not address the question of needs, so it may cause problems for those unequally placed in the market. Market is an institution created by Human Beings.
Human rights can be violated not just by interactional violation by human beings but it can also be violated by institutions created by Human beings.
So two ways HR can be violated-
1. Interactional Violation
2. Institutional Violation
So who are responsible in the second case?
Those who created such unjust institutions?
Foundational principle is Negative Rights ie Kantian perspective.
You have negative duty not to cause harm but if that duty is violated then you have a positive duty to remedy that harm/violation by aid and assistance.
So primarily just Negative Duty but when it is violated then comes the Positive duty of aid and assistance.
Citizens of Global North have an obligation not to elect a government that violate HR. But if it does, then there arises a positive duty of aid and assistance.
Citizens of Global North elect governments. These governments sponsor institutions such as WB and IMF whose coercive policies cause suffering in the global south.
Portion of POGGE not covered in class will come in Exam-
Problem with Libertarians- They are outcome independent. Even if the system or procedure is just, violation can still occur.
Contribution– Respect for HR based not only on morality but from Legal and Rights perspective.
Limitation of POGGE
There are harms that are attributable to the causes mentioned by Pogge.
Less focus on prevention ie If government fails to protect a disaster which it could, then also there arises a liability.
As per Pogge there is an obligation on states not to cause harm but he does not say what about obligation to avoid harm
Amartya Sen calls Rawlsian theory as transcendental and Institutional ie these scholars believe that by creating just institutions one can solve all problems. They are also not outcome oriented ie that outcomes should be just.
How do you say that domestic violence is violation of HR?
Failure on part of state to detect and prevent DV.
Positive obligation on part of state to proactively engage to prevent HR violation by 3rd parties by making laws.
State failed to exercise due diligence.
RAWLS AND THE CONCEPT OF GLOBAL JUSTICE
His book ‘Law of the People.’
Why law of people and not states?
He constructs a second original position in which citizens of liberal states are to choose principles of justice for International arena.
Why limiting to citizens of liberal justice?
Why not bringing states?
Why avoid talking about states?
Avoiding states because with the idea of state comes the idea of sovereignty and non-interference and related problems.
Types of societies according to Rawls-
1. Liberal States
2. Decent States
3. Outlaw States (States which do not respect HR)
4. Burdened States (landlocked states, resource-less, unfavorable political and social regimes)
5. Benevolent Despotism (respect HR but no rights to citizen in decision making)
2nd Original Position
People get here and are under veils of ignorance ie
1. They don’t know the society they belong
2. Don’t know their territory
3. Are bound by common sympathies
4. They have reasonably just and constitutional democracies that serves the interest of people
5. They are moral
Section 4- Principles on law of people (page 715 of module)
1. People are free and independent and their freedoms are to be respected by other people
2. People are to observe treaties (Pacta sunt servanda)
3. People are equal and parties to agreements that bind them
4. Non-aggression and non-intervention
5. Right to self-defense but right ie no right to initiate war except in self-defense
6. People are to respect HR
7. Observes conduct of war
8. People have to assist other people living under unfavorable conditions which restrain their freedom and rights.
1. Talking about duties without going into the causes.
2. Assistance only to people living under unfavorable conditions ie people under those states where liberal institutions are missing due to lack of resources or other reasons.
3. He considers proposal by Charles Blitz who applies difference principle (as propounded by Rawls) to global Justice.
4. Singer’s conception of harm is broader than Rawls which is limited burdened societies.
5. Commensurability Problem. In liberal societies, he is looking at people while in others he is looking at states, in some others looking at societies, head of states etc as if in other states people don’t exist.
6. He has a conception of liberty, Human Rights. He is teleological
7. He is prioritizing his own conception of good and imposing on others.
No positive obligation
Self-ownership of property
People create things and they are owners of those things
3 children and flute example-
3 children were quarreling over ownership of a single flute
A said-I should be given the flute as I made it. (Libertarian)
B said- I should be given as I am the only one knowing how to play it. (Utilitarian)
C said- I should be given as I don’t have any other toy to play with. (Egalitarian)
Say that things comes in this world attached to people and not get showered from above.
Focus on minimal state and not welfare. State should only focus on-
Securing safety and security
Property rights (has proved most significant for growth of capitalism)
Night-watchman kind of state.
ROBERT NOZICK (Gives theory of Entitlement)
Property comes attached to people
Just principles of acquisition of property-
Whoever acquires property property according to this principle is entitled to that property
Another’s property can be acquired using this principle
Repetition of 1st and 2nd
The cycle of transfer and purchase of property
Rectification in case of violation
Says that his theory is Historical and unpatterned and is not the result of end result/state principle
Takes into account current time slice and is not teleological
If somebody got rich according to this just principle there should be no obligation on him of aid and assistance.
Provides Safety and Security (for this need resources)
State has monopoly over use of force
But not all people pay taxes yet everyone gets protection. It’s a kind of redistribution
So Nozick advocates for an Ultra Minimal State
State which has monopoly over use of force and provide protection to those who pay for it.
- State of Nature used to be governed by the principle of self-help-
- Subjective and arbitrary notions
- Not everyone was capable of remedying injustices
- Doctrine of might is right prevailed
- How ultra-minimal state solves this problem?
- By creating a system where people can pay for their security and direct their time and energy some other productive work.
- It will create some dedicated institutions to resolve disputes. The dispute resolving entity gets paid for its services by people who subscribe to its services.
- After sometime many such entities emerge and they compete with each other. They provide 2 kinds of services
- Protection against theft, assault, etc.
- Protection against outsiders
- Different agencies may become expert in different areas as a result of which they will be monopolies after sometime. The Protection agency that is more able to protect people’s right will become more dominant.
- What if disputes happens between 2 people who are subscriber to different protection agencies?
- The agencies will work out a mechanism to resolve such disputes.
- What about outsiders who do not subscribe to any private protection agency?
- Outsiders who do not subscribe to any private agency will have right of self-help.
- People who subscribe to protection agencies will have problem with such arrangements and they would like to place restriction on outsiders self-help. But such such restrictions will not be free of cost and has to be compensated by paying for their security.
- In this manner everyone comes under the protection net and minimal state comes into being.
- This is transition from ultra-minimal state to minimal state.
- The “step-forward” experiment done in the class
- Should discussion of Justice take into account people’s background situation?
- Rawls looks for justice only in public institutions. He said that ‘Just’ institutions result in Justice and did not look at people’s realities.
- Amartya Sen says that it is better to have a comparative approach.
- He looks at people’s realities, arrangements and realisations.
- Rawls focuses on arrangements but Sen focuses on realisations. Sen says that just having arrangements does not ensure realisation.
- Rawls is deontologists who only focus on means and not the ends.
- 3 scenarios example. The condition is that A wants to remain in his house
- Scenario 1- A stays at home and can do whatever he want.
- Scenario 3- Goons come and throw A out of his house.
- Scenario 4- Goons came but did not let him go out of his house.
- If you want to realise something you have to also look at the process. The process in which outcome is realised is also important.
- Two outcomes-
- Culmination Outcome– you only look at the end (Under this A is free in the 3rd situation)
- Comprehensive Outcome– You take into account the process through which the outcome is achieved.
- Sen is between realisation and consequences and not just consequences. Sen looks at both the process and the outcome.
- Niti is the policy and arrangement
- Nyaya is Justice
- Matsyanyaya- Fish Justice in which the bigger fish eats the smaller fish. Might is right kind of concept.
- Mahabharata example- Arjuna does not want to fight but is forced by Krishna.
- Poverty according to Sen is capability achievement
- CAPABILITY APPROACH focuses o information and plurality.
- Capability according to Sen is the substantive freedom to to lead a life one has reason to value.
- What impacts people’s achievements?
- Health, caste, gender, religion, environment, education, economic resources, identity (multiplicity+context+circumstances). Effect of identity varies according to circumstances.
- He is taking us back to plurality of choices where one is free to lead a life one has reason to value.
- What is those choices and reasons perpetuate current hierarchies which are problematic?
- He says that reasons should not be any reason but BUPLIC REASON.
- There may not be complete agreement as to what is public reason
- The agreement may be partial limited but it should be workable.
- It need not be fully comprehensive.
- Female Genital Mutilation example- Culture v Liberal values
- As per Sen one does not need to dismiss the culture completely
- If some cultural practice is wrong then it should be approached from other perspectives like health to remedy the situation. People are generally more accommodative if the reason is backed by health concerns rather than just rightness or wrongness of the practice in question.
- Public Reason
- It is arrived at by participation of people within and outside the community.
- Dialogues should be initiated within and outside the community.
- We are bearers of multiple identities and the identity that plays out depends on particular facts and circumstances.
- Is Sen focussing on methodological individualism in which individual has substantive freedom to lead a life he has reason to value?
- No. He is looking at both individual and community as individual choices might be shaped by community preferences.
- How policies are made in India?
- Case of Poverty
- It is measured not by income but by expenditure.
- Calories consumption
- Calories do not take into account nutritional aspect of food intake
- Calorie requirement cannot be uniform for all individuals
- Household expenditure does not take into account individuals.
- Backed by many assumptions and presumptions
- After all this, whether it remains a scientific calculation?
- Article 14- Differential treatment is fine if there is an intelligible differentia.
- In India resource deprivation is seen as poverty
- Sen however views poverty as capability deprivation. Poverty is not just lack of resources but lack of substantive freedom.
- He started off with realities- whether people are able to achieve what they want to achieve?
- If we go by only culmination outcome, then substantive freedom will only have instrumental value and not intrinsic value.
- Problem with India’s poverty measurement-
- Thieves, criminals who acquired money would be non-poor.
- Money is important for what it does. It’s value is only instrumental.
- 2 kind of deprivations-
- Deprived of capability to acquire resources.
- Unable to convert his capability into some utility
- Idea of capability deprivation is bringing more and more factors and aspects
- We tend to homogenise but individuals are different and their needs are different.
- How to frame policies keeping in mind Sen’s perspective?
- Different perspective, context.
- Stereotypical identities
- Problem of commensurability
- Capability approach and sustainable development
- Catering to the needs of current generation with compromising in the well being of the future generation.
- Robert Solo– He focuses from needs to standard of living.
- Anthroprocene– an era in Human History. Considering human beings as the most significant beings un universe.
- Why were we discussing sustainable development?
- Brundtland Report– replaced needs with Standard of living.
- How would Sen look at this? Needs or Standard of living?
- How do they differ from capability?
- Capability is sustainable freedom.
- People prefer agency to determine their goals.
- Sen distinguishes between WELL BEING ACHIEVEMENT and AGENCY ACHIEVEMENT.
- Agency achievement lets people determine their goals. Well being is just one of the goals out of many.
- Needs and standard of living are just ends.
- If Sen does not look at needs and standards of living what does he look at?
- How do they differ from capability?
- Should well being be the focus of policy making?
- No. It should be rather agency achievement
- Agency achievement lets people determine their goals. Well being is just one of the goals out of many.
- Agency is higher than well being.
- Problem with well being achievement?
- Imposes external goals.
- Irom Sharmila and Gandhi example.
- People are happy/experience happiness in exercise of agency freedom
- Richard Layard– Unless we justify our goals (we are being paternalistic) with how people themselves feel, we are paternalistic.
- He gave this statement wrt capability approach.
- Sen’s response- exercise PUBLIC REASON
- Whether we should aim at ‘Equality of Capability’?
- Since capability is based on substantive freedom, it is not looking at the process.
- There are other considerations as well
- 3 children and flute example
- Distributional concerns
- If people have substantive freedoms to lead a life they have reason to value, it will lead to exploitation of others.
- Capability results in partial agreements.
- Situation A- X does not have legs and cannot go outside of his on his own.
- Situation B- X is able to go outside with the help of a hired servant.
- According to Republicans, B is free in this case.
- Situation C- X is able to go out with the help of some social-welfare scheme undertaken by the State.
- Sen prefers this approach of social welfare services.
- Freedom is effective power.
WALTER ON COMMUNITARIANISM
- Individual rights v group rights
- Whether individual self is already constituted by several factors.
- In rights discourse, group rights came later
- 4 kinds of mobilities-
FEMINIST PERSPECTIVE OF JUSTICE
- Different strands of Feminism
- How feminists look at rights?
- Read ‘Face of Oppression’ by Irome
- Read Kennith Knob
- Read Capabilities approach by Martha Nusbam in which she disagrees with Sen.
- From subordination/Subjugation to autonomy and freedom
- Issue of Misuse- Whenever there is any women welfare centric legislation, there is talk of potential misuse as if there is no misuse of other laws. But the dominant psychological trends generally remember misuse when it comes to women centric laws.
- Methods of Empowerment-
- Abolition of certain practices
- Procedural Changes
- Institutional Changes
- Anti-Discrimination laws
- Two categories of Laws-
- Private Sphere
- Dowry Prohibition
- Hindu Succession Act
- Hindu Marriage Act
- Public Sphere
- Sexual Harassment at Workplace, etc
- Private Sphere
- Issue– Should not be state concerned with public sphere only?
- Definition of Discrimination-
- Article 1 CEDAW
- Distinction that impairs or nullifies- rights, enjoyment, exercise- political, economic, social, cultural, civil & other rights.
- Article 1 CEDAW
- LIBERAL FEMINISTS
- Earlier there was so much discrimination even at normative level that the focus of feminists was to challenge such discriminatory laws.
- Focus on espousal of liberal values for women as well
- Liberty, individuality, autonomy, rationality
- The focus was on securing equality in public sphere
- Women demanded rights that men had like right to vote, work, employment etc.
- Taking men as standard for right of women
- CULTURAL FEMINISM
- They celebrate differences.
- Nicola Lasy
Difference between sex and gender-
|Biological construct||Social construct|
|More static||Sits across spectrum|
|Chromosome, morphology & hormone||Not just binary (2 gender)|
| Now can be changed||can be changed|
Ideology of Gender is socially construed.
From sameness to celebration of differences-
- Experiment done with male and female children of same age. The experiment was about stealing medicine from a store to save life.
- Female thinking was found to be more inter-relational
|Public centric||Private sphere more important|
|Emphasis on reason||Emotions|
|Emphasis on independence||Interdependence|
Liberals– Reject sexualisation and accept hierarchy
Cultural– accept sexualisation
Radicals– Focus on systematic abuse
- Sexual subordination of women
- That law itself is male centric
- Catherine Mackinon
- Power of self-assertion rests on females
- Males have a parasitic existence over females
- Physical strength-
- Males have the power of being and power of having
- They name women as sexual object
- They have the power of owning
- Females internalise their own subordination
- She views prostitution as subordination of women.
- Women are reduced to their sexuality
- View procedural aspect of law as problematic
- That procedure is male centric
- The very idea of adversarial proceedings is male centric and involves charged aggression.
- Focus of rape trial is on the consent of the female as to whether she consented or not rather than on male aggression.
Problem with Radical Feminists
- They are reductionists
- They focus so much on the problem
- They are pessimistic
- Engles- discuses the history of origin of marriage, private property and state
- Differentiate between relationship of production and forces of production
- That subordination of women is the result of private property
- Private property determines lineage
- Earlier lineage was determined by mother side but with mechanisation and growth of private property, males could subordinate not only women but also other males.
Problem-Meta narratives ignore individual preferences.
Post Modern Feminists-
- Reject Grand Theorisations and Meta Narratives
- Focus on multiple truths
- Problems with grand theorisations
- Multiplicity of context and circumstances
- Power lies in discourses- the way knowledge is produced
- The idea of a a rational, independent and self-interested being is created by a discourse
- Reject the idea of coherence
- Text has a meaning because of other text surrounding it
- Variation in experiences
- Problem with coherence
- Rupture the core of the dominant identity by subordinated identity.
Iris Marine Young
- Challenging the basic idea of the focus of justice
- What is the focus of justice?
- Distributive Justice? Is it based on certain assumptions? What’s the value of justice?
- Liberty, equality, equality of resources and of opportunity
- Aristotle talked about Justice as a virtue
- Problem– whose gets to decide the virtue. Subjective imposition by society and powerful.
|Earlier Theories of Justice||Modern Theories of Justice|
|Virtue based||Freedom based|
|External choice is imposed||Individual choice|
Distributive Justice theories reduce everything to ‘having’ ie who has what and who is entitled to what.
2 kind of injustices prevail in society-
- Oppression- your capabilities are not allowed to develop
- Domination- absence of self-determination; not respectfully heard;
These are aspects of injustices which are beyond ‘having’
There is an assumption about individual choice as well-
- Individual is supposed to be rational and self-controlled beings who possess and acquire things
- It does not presume people as actors and doers.
- The idea of individual is not just having but ‘being’
Choices are limited-
- All choices are there within the framework ie capitalist system
- One is not allowed to choose the framework
- If you are critical about the system/framework then forget about recognition or honours
Rawls talked about distribution but within a framework-
5 faces of oppression-
- Comes from the socially prevalent rules as to the role of individuals ie who is to work for whom and what he has to get in return
- Capitalists as a class expropriate workers labour
- Workers manoverability is little
- Capitalism systematically determines as to who’s to get what
- Exploitation is based not on just class but other markers as well like gender, race, caste, etc.
- There are marginals everywhere
- How the system of production does not use labour of certain people.
- Capabilities Approach– how it applies to women
- Types of capabilities-
- Internal- bodily capabilities
- External- depends upon context and circumstances
- Combined- combination of both
- Measuring Development-
- Non-recognition of women’s contribution in domestic arena
- Women are primarily viewed as means- this is against Kantian principle of treating persons as ends in themselves.
- GNP is not a good way to measure development
- Measure only economic growth
- Its the aggregate and does not indicate the distributional aspect.
- Role of preferences-
- Whether people are able to live according to their preferences?
- Problem is that preference can be conditioned or shaped by external factors.
- Connection b/w capabilities and Human Rights-
- Human Rights is of western origin and focus on individuals
- Its Possible conflict with Asian communitarian values,
- Martha says that development should be measured in terms of 10 capabilities
- There should be a set a universal values which will not vary regionally
- Whether such universal values are possible
- Whether such universal values are desirable
- Imposing universal value is paternalistic. It deprives people of their agency/choice
- Culture is a contested arena
- Culture is dynamic and one cannot say claim a particular set of culture to be the culture.
- There should be a set a universal values which will not vary regionally
- 10 capabilities-
- Life (longevity)
- Bodily health
- Bodily integrity (safety and security)
- Senses, imagination and thought
- Practical reasonableness (ability to determine means and ends)
- Affiliations (with self-respect)
- Play (recreational activities)
- Association with other species
- Control over environment
- All of these values are equal and one cannot compensate the other.
- Women as caregivers-
- Her act of caregiving should be respected and she should not be exploited in the process of caregiving
- Right not to be illegally arrested
- Right to freedom of movement
Bradford v Pickles
There is no claim but there still is liberty.
Absolute duties- where jural co-relation is absent. For example- DPSPs
Right to make gift (I may)
Right to transfer property (I may)
Right to Divorce (I may) It’s a free space.
Right against illegal assault (Claim) as we ought not be assaulted.
Power– is where your exercise in liberty results in change in any situation/consequences (I can)
Power implies ‘Liability’ which is different from duty.
Power in ‘x’ implies liability in ‘y’
Power is ability to bring change in your own status or someone else status. Here duty is not discretion. For example- Judge deciding a case. He has to decide and he cannot recuse.
A 5 year old child murders x. He gets general exceptions. Does he have right not to be punished? Yes he has immunity. (U cannot ie it disables others from doing something against him but that does not mean no other remedy exists)
Why Rights are important?
They are interest protecting principles.
- Will Theory– emerges from rationality of Human Brings and their capacity
- Interest Theory– Principles that protect people’s interest.
Rights are Trumps– they trump appeal to social utility.
Whether Rights are indispensable? On what account?
- Trumping feature of Rights as was emphasised by Dworkin. But he said that this feature is only a priority making mechanism
- Rights are ‘Interest Protecting Principles’
- Whether Compensation should be provided when rights are infringed?
- Two Scenarios-
- Other considerations before one approaches court-
- Whether there is possibility of future infringement as well?
- Whether punishment will deter the accused?
- But in case of compensation, he will approach the court regardless of the future consequences regarding the crime.
- Has he established irrefutably the value of compensation? Can the compensation be substituted by something else?
- System of Reward-
- To address the problem of under-enforcement, systems of reward can also be established. (Reward include compensation)
- People would be reporting everything in the greed of reward
- A more complex system of reward should be put in place.
- Value of Reward should depend on the kind of violation that occurred.
- So for pity offences, people would not report
- Compensation is nonetheless important than reward because-
- Whereas both are addressing enforcement but reward to 3rd person does not offer restitution to a person whose interest is violated.
- Scenario where compensation is provided without violation of right-
- Tort- Based on duty and not right
- Two Scenarios-
CRITICS OF RIGHT- BIKHU PAREKH
- Lot of literature about rights
- Framework of Rights- Liberal Framework
- BF says this that liberal conceptualisation was not the framework
- Rights are vested in individuals-
- Before 17th century, things were also bearer of right and so were groups.
- But now individual has become prime bearer of rights.
- Rights were linked with Law and Justice- Integral Connection
- Rights emerged not only though laws but through custom as well
- Rights were recognised as Common Goods
- Earlier it was not like ‘Right to a Thing’
- They did not imply control over something
- Society continued to have some control
- Ownership– Bundle of rights including right to enjoy, possess, dispose and use.
- Social Control-
- Military Service
- Eg- Behind Mughal Mansabdar’s right to collect revenue was the obligation of providing military service
- Post 17th Century
- Change in the constitutive elements of ‘SELF’ and ‘Individuation’
- A very narrow conception of SELF emerged to mean ‘Physical Being’
- When individuals got severed from nature, they started plundering it.
- Two rights that gained significance-
- Right to Life
- Personal Liberty
- If everything has been reduced to property then what left?
- WILL AND CHOICE (this differentiated ‘individuals’ from ‘property’
- Right is- ‘Claim and Entitlement’ which implies ‘U Ought’
- Emerges from Law
- Gives complete control over things over which you have right
- Implies right to exclude others
- Right to Property– Its a negative right as no obligation on state to proactively provide property to citizens.
- Burden– I cannot interfere with someone else’s right
- Is everyone equally burdened with Right to Property?
- Different rights impose different benefits and burdens
- Who protects right to property?
- State which has monopoly over violence
- INDIVIDUAL (narrow conception)
- Suppose to mean-
- Bearer of Right (Subject)
- Object of Right (Disposable)
- What what is left?
- Not individual in flesh and blood but the ABSTRACT SELF.
- It is this abstract self which is supposed to exercise ‘Free Will and Choice’
- This abstract self is not tangible but bearer of dignity.
- This conception serves the purpose of capitalism-
- Physical Being– Unequal and Unfree
- Abstract Being- Equal and Free
- Suppose to mean-
For Personality and Possession, read Salmond
For Property, read Dias
How Possession different from Ownership?
Possession implies usage and enjoyment
Ownership implies right to use, enjoy and alienate.
NATURAL LAW THEORIES ON PROPERTY
- Talks about agreement, nature and economics
- Hugo Grotius
- Natural law bases property on ‘Agreement’ and ‘Nature’
- Roman Law differentiated b/w RES NULLIUS (not a subject of property)
- There has to be certain things before right to property is exercised
- Whether trees, mountains, rivers can be owned?
- They are for general benefit of mankind and cannot be privately used.
- RES ECTRA COMMERCIUM
- These can be the subject of property but not for commercial use
- Kamalnath v UOI
- Appellant wanted to change the course of a river to construct his Motel
- Court held that certain properties are held in Public Trust.
- Whatever was unoccupied, it came to be occupied by agreement amongst people
- Earlier, everything was RES-COMMUNE (common ownership) but later this got divided according to agreements.
- Goes to the basic nature of Human Being who had some nature of of temporary control along with the usage of things. Later this temporary control transformed into complete control.
- Economic Nature
- That there are things to be used.
METAPHYSICAL THEORY OF PROPERTY
- Propounded by scholars like Kant, Hegel, etc
- IMMANUEL KANT
- Two ideas-
- That individuality is inviolable. TF he goes into the idea of ‘Reciprocal Will’ If one occupies an unoccupied thing, he makes a juridical control by stopping others from interfering in it.
- Ideas of-
- Juridical Claim
- Reciprocal Will
- That I express my will in this land and corresponding to others occupation and juridical claim in another land.
- That you don’t interfere in mine and I will not interfere in yours.
- The idea of Individual Liberty and the idea of ‘Will’
- That individual is free to control things which do not have will of their own.
- Equality is of persons and the property that one owns would depend on his will and desire to own it.
- Problem- Resources are scarce and not unlimited
- That it is actually about conditions of existence of life.
- Most of these theorists explain that how unoccupied property came to be occupied later
- Two ideas-
POSITIVISTS THEORY OF PROPERTY
- Talks about creation of things through your own labour
- Sen’s illustration of 3 children fighting over flute
- New things come into existence because of labour (including intellect)+ Material
- Acquisition of land from people
- Non-applicability of economic laws in SEZ
- Huge profits generated
- Who owns this profit?
- Company. Why not people?
- What people are getting?
- Compensation is only for the land and not for the profit generated
HISTORICAL THEORY OF PROPERTY
- That both the idea of individual and individual property emerged from collectivities
- Earlier there were joint households
- Natural Possession- Exercise of physical control over the things that we possess
- Control depends upon your physical strength
- Idea of possession is not a creation of law
- Possession is a pre-legal idea
- Gradually people moved to juristic possession
- Juristic Possession– Physical control not necessary here. Ownership is on paper.
- Ownership implies complete control
- Welfare by state is important.
SOCIALIST THEORY OF PROPERTY
Private Property has two consequences-
- Personal use
- Relationship between you and the property
- Relationship between you and others.
- Huge ownership of property results in slavery
- Relationship of subordination between the owner and others
- Owner gets the power to curtail the freedom of others which perpetuates slavery.
Disclaimer– Pending review