The Sense of Justice

The Sense of Justice* “Whenever there is decline of righteousness, and rise of unrighteousness; I incarnate myself to protect the virtuous and to destroy the wicked, from age to age.” -Srimad Bhagvad Gita (IV. 7/8) “Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.” -Thomas Paine (Rights of Man) The pursuit of justice lies at the heart of all legal systems. The virtual equation of law with justice has a history of long standing. It can be found in the writings of Greek philosophers, in the Holy Bible and in the Roman Emperor Justinian’s codification of the lawi. What is justice and what does it comprises of; has been a far reaching speculative (jurisprudential) exercise. Plato and Aristotle, both, spent their respective lives in illuminating the principal features of; what is called as justice. Plato was of the opinion that good people don’t need laws to tell them to act responsibly, while bad people know of ways to circumvent the laws. Hence, for justice to prevail, not good laws but ‘moral code of ethics and conduct’ that shall bind the society together is important. Aristotle staunchly believed that justice consists in, treating equals equally and ‘un-equals’ unequally, in proportion to their inequality. Cicero described justice as the disposition of human mind to render everyone his due.ii According to Blackstone, justice is a reservoir from where the concept of right, duty and equity evolve. Jeremy Bentham defined justice through his influential theories of utilitarianism (to seek the greatest good of the greatest number) and hedonism (man seeks pleasure and avoids pain). iii H.L.A. Hart, in his celebrated book, The Concept of Law, maintains that the idea of justice consists of two parts, a uniform or constant feature, summarized in the precept ‘treat like cases alike’ and shifting or varying criterion used in determining when, for any given purpose, cases are alike or different. John Rawls in his famous work, A Theory of Justice, held: Justice should be thought of as ‘distinct’ and more fundamental than benevolence, charity, mercy, generosity and compassion. Traditionally, it has been associated with concepts of fate, reincarnation and divine providence. Justice is a concept that means different things to different people. To an accused person, justice will 1 mean that system of law which shall set him free, regardless of how immoral his acts may be; to the prosecution, justice is that, which is attained by securing conviction of the accused; to the society, justice is secured when the wrong person goes to jail and the right person is set free.iv John Rawls formulated two principles of justice by formulating a hypothetical situation, that is, by drawing a social contract theory, where he assumed that human beings, in what he termed as an ‘original position’, where they are having a ‘veil of ignorance’ about their future socio-economic positions in society, would agree to the principles of liberty and fair equality & difference, in mutual interest. The principle of liberty holds- “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others”; the principle of fair equality & difference holds- “socio-economic inequalities (and disparities) are to be arranged so that they are both- to the greatest benefit of the least advantaged, and attached to offices and positions open to all under conditions of fair equality of opportunity”. The definition in Justinian Corpus Juris Civilis states, ‘Justice is constant and perpetual will, to render to everyone that to which he is entitled’. Justice has much wider connotation than merely settling a dispute between two persons or determining whether a person is guilty of crime of which he is accused by the State. Justice in today’s day and age, in the democratic set-up, includes ensuring that every citizen gets his aliquot share of social goods and services, opportunities- his human rights- and right to be treated fairly.v The 20th Century English Judge- Lord Denning, once said: “The law as I see it has two great objects- to preserve order and to do justice; and the two do not always coincide. Those, whose training lies towards order, put certainty before justice; whereas those whose training lies towards redress of grievances, put justice before certainty. The right solution lies in keeping the proper balance between the two.”vi Broadly speaking, there are two schools of thought: “law in accordance with justice” and “justice in accordance with law”. The former sees ‘law’ as a reason free from passion (Aristotelian terms), while the latter sees ‘law’ as a tool promoting legislative arbitrariness. The Supreme Court of India in the decision of Maneka Gandhi v. Union of Indiavii, took opportunity to state that, laws must be fair, just and reasonable, and not only justice has to be in accordance with law, but law also has to be in accordance with justice. According to 2 Roscoe Pound, justice in accordance with law is a dominant concept and has the following advantages: firstly, ensuring predictability of the course of administration of justice; secondly, securing appeals and revisions against the errors of individual judgment; thirdly, ensuring security against the improper motives of those administering justice; fourthly, ethical ideas of the community are formulated in the laws and hence, judges also get an insight into the standards on which the ethical ideas of the community are formulated; and lastly, law prevents the sacrifice of the ultimate interest- social and individual for the more obvious and pressing, but less weighty and immediate interests. Professor Clarence Morris opines that, justice is realized only through good laws, but laws without ‘just quality’ are doomed in the long run. Hence, good laws are those which can be justified morally, socially and technically.viii The edifice of the ‘Rule of Law’ should rest on the adages, law is the means and justice is the end and let justice be done, though the heaven may fall ix , for establishment of a welfare state.x Words of Professor Lon L. Fuller are much insightful to present the law-justice conundrum, for he once said, “You can break the law, without breaking the letter of it”. Justice- Natural and Legal: The term ‘Sense of Justice’ in jurisprudential sense refers to the principles of natural justice, which in fact, call upon for the adoption of commonsensical approach for adjudication of matters before the court of law and before alternative dispute resolution forums (and tribunals) in manner that is fair and reasonable, with principles of equity and good conscience not compromised. What is “natural justice” is something that calls for elaborate discussion and debate. In the case of Abbott v. Sullivan xi , the court held, “the principles of natural justice are easy to proclaim, but their precise extent is far less easy to define”. Further, in the case of Maclean v. The Workers Unionxii, the court held, “the truth is that justice is a very elaborate conception, the growth of many centuries of civilization; and even now the conception differs widely in countries usually described as civilized”. Natural justice means ‘common sense justice’.xiii Geoffrey Lane, LJ in Regina v. Secretary of State for Home Affairs Ex Parte Hosenballxiv, preferred the phrase ‘common fairness’ for defining natural justice. In Fairmount Investments Ltd. v. Secretary to State for Environmentxv, Lord Russell of Willowan picturesquely described natural justice as “a fair crack of the whip”. However, in the case of Hookings v. Smethwick Local Board of Healthxvi, Lord Fasher, M.R., chose to define natural justice as “fundamental justice”. In the case of 3 Drew v. Drew & Leburaxvii, Lord Cranworth defined natural justice as “universal justice”. None the less, in the case of Vionet v. Barrettxviii, Lord Esher, M.R., defined natural justice as “the natural sense of what is right and wrong”. In Re R.N. (An Infaot)xix, Lord Parker, C.J., preferred to describe natural justice as “a duty to act fairly”. In the case of Maneka Gandhi v. Union of Indiaxx, the Apex Court (the Supreme Court of India) observed, natural justice is a great humanizing principle intended to invest law with fairness and to secure justice; over the years it has grown into a widely pervasive rule. The Apex Court took occasion to quote the speech of Lord Morris: “We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analyzed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. The soul of natural justice is fair play in action and that is why it has received the widest recognition throughout the democratic world.”xxi No sense of justice can prevail in absence of adherence to the principles of natural justice. In the case of Canara Bank and Ors v. Sri Debasis Das and Orsxxii, the Apex Court observed as follows: The expressions ‘Natural Justice’ and ‘Legal Justice’ do not present a water tight classification. It is the sense and substance of justice which is to be secured by both and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry and logical prevarication. For the sense of justice to prevail, the administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. Justice based substantially on natural justice is based substantially on natural ideals and human values. Rules of natural justice are not codified canons. Principles of natural justice are principles ingrained into the conscience of man. Justice and Law: Distinction between “A Law” and “The Law” is jurisprudentially enlightening. The term ‘law’ is used in two senses, namely, abstract sense and concrete sense.xxiii The term ‘law’ in the abstract sense, means, ‘system of law’, such as the law of India, law of defamation, law and justice etc. Law in its concrete sense means, a statute, enactment, ordinance or other exercise of legislative authority. 4 Jeremy Bentham opined, the term ‘the law’ means “neither more nor less than the total of a number of individual laws taken together”. Thus, every Act of the Parliament is “a law”, whereas the aggregate of all Acts comprising a legal system are known as “the law” of the country.xxiv Roscoe Pound held the view that, the expression ‘the law’ or ‘law’ means the legal system operating in a country. On the contrary, the term ‘a law’ means a particular statute in its isolated form; the Latin equivalent for the same being lex loci. The ‘Analytical School of Jurisprudence’ defined law in its imperative form, that is, law is the aggregate of rules set by men as politically superior (or sovereign), for men, politicallyinferior. The ‘Historical School of Jurisprudence’ defined law as, an expression of the will of the people (volkgeist), which as ‘custom’ not only precedes legislation but is also superior to it. The ‘Natural Law School of Jurisprudence’ defined law as a set of principles (practically reasonable) that help in putting human life and community in a just order. The ‘Sociological School of Jurisprudence’ held, law should serve the needs of the society, as law is a means to an end, the end being serving a social purpose.xxv The ‘Realist School of Jurisprudence’ (as the left wing of the functional school) held, law is what the judge thinks it ought to be; formal law is simply a guess as to what courts would hold the law to be. John Chipman Gray, in his famous work, The Nature and Sources of Law, held, “Law is what the judges declare and the personality and personal view of judge plays an important role in decisions; Judge made law is the final law; Positive morality is important.”xxvi The ‘Marxist School of Jurisprudence’ defined law as an instrument of domination (and exploitation) wielded by capitalists against the workers (proletariats). Karl Marx and Frederich Engels, held, law in its legal form replicates the prevailing economic conditions. The necessity to define law is visible in the fact that John Austin devoted six lectures to explain the “nature of law” in his work, The Province of Jurisprudence Determined (1832).xxvii Austin thought it necessary to define law in order to establish the province of jurisprudence. C.G. Keeton in his famous work, The Elementary Principles of Jurisprudence, observed, “to attempt to establish a single satisfactory definition of law is to seek to confine jurisprudence within a strait jacket from which it is continually striving to escape”.xxviii The law is an expression of the will of the community; all citizens have a right to concur (either personally or through their representatives) in its formation. It should be same to all, whether when it protects or punishes; and all being equal in its sight, are equally eligible to 5 all honours, places, and employments, according to their different abilities, without any other distinction than that created by their virtues and talents. It requires but a very un-extraordinary glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed and the non-repealing passes for consent.xxix This is, but a legal tyranny, oppose to the principles of natural justice. Justice, Law and Morals: For justice to prevail, shared moral code is a necessary condition, contributing to the establishment of a just community. Shared moral convictions are “invisible bonds”, acting as “social cement”, tie individuals together onto an orderly society.xxx Fundamental unifying morality is a kind of “seamless web”; for justice to prevail, laws must be moral. T.W. Taylor in his famous work, The Conception of Morality in Jurisprudence, held- genetically, morality and law are complementary. xxxi Philosophically speaking, there are two kinds of morality- conventional morality and critical morality. While conventional morality reflects the moral views of the majority of the population, critical morality denotes that which in fact is right irrespective of the opinion held by the majority of society. It is necessary to note that, jurisprudential theories such as the natural-law-theory and legal-positivism, when speak about a connection between law and morality, are by and large concerned about critical morality that denotes rational standards that do not depend upon the majority’s point of view in society.xxxii Law and morality are not the samexxxiii, yet absolute divorce of law from morality, often results in fatal consequences.xxxiv Laws and morals- act and react on each other. Morals act as a restraint upon the power of legislature and it is morals that perfect the law.xxxv Lon L. Fuller, believed, law is a product of sustained purpose and efforts which constitute ‘inner morality’; there are eight conditions which constitute ‘inner morality’: there must be rules; rules must be published; retroactive legislation must not be used abusively; rules must be understandable; rules must not be self-contradictory; rules must not require the conduct beyond the power of affected parties; rules must not be changed so frequently that the subjects cannot guide their actions; and there should be congruence between the rules as announced and their actual enforcement.xxxvi Justice- Political, Economic, Social, Distributive and Corrective: If justice is about giving every man his due, then to understand justice only in the natural-sense is not sufficient. The other realms of justice (beyond the philosophical periphery) are political, economic and 6 social. Political justice means, absence of any arbitrary distinction between man and man in the political sphere. In order to ensure political justice it is essential that every person, irrespective of his proprietary or educational qualifications should be allowed to participate in the political system of a country like any other person. Economic justice aims at banishment of poverty, not by expropriation of those who have, but by the multiplication of the nation’s wealth and resources and an equitable distribution thereof amongst all who contribute towards its production. Economic justice aims to install and establish economic democracy and welfare state.xxxvii The ideal of economic justice is to make equality of status meaningful and life worth living. Social justice in its comprehensive form helps to remove social imbalance by harmonising law to settle rival claims and to promote interests of different groups and/or sections in the social structure through the means by which alone it would be possible to build a welfare state.xxxviii Social justice implies securing minimum life necessities to every individual in the society. It has been stated that the concept of social justice is the yardstick to the justice administration system (or legal justice).xxxix Justice is to be further understood in the sense of distributive justice and corrective justice. Distributive justice consists in ensuring a fair division of social benefits among the members of society. While in commutative (corrective) justice, two persons confront each other as coequals; three or more persons are necessary in distributive justice in which one, who imposes burdens upon or grants advantages to others, is superior to them.xl Corrective justice asserts a connection between the remedy and the wrong. Here, the idea involved is that, the injustice done by one person to another person should be curbed and further should be corrected. The function of corrective justice is performed by the courts of law. Justice, Law and Rights: To talk of justice is to talk of rights. Therefore, Sense of Justice adheres to the believe, that every generation is equal in rights to the generations which preceded it and by the same rule every individual is born equal in rights with his contemporary. To speak of rights is to speak of claims, liberties, powers, privileges and immunities which are either natural or are civil in orientation. Every civil right grows out of a natural right. Natural rights are those which appertain to man in right of his existence. xli Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not sufficiently competent. Further, to speak of legal rights is to speak of rights which are accompanied by the power of instituting legal proceedings for the enforcement of it. Legal rights have the following characteristics: they 7 are vested in a person who may be distinguished as the owner of the right, the subject of it, the person entitled, or the person of inherence; they can be availed against a person, upon whom, lies the correlative duty (that is, person bound or, person who is the subject of duty, or person of incidence); they oblige the person bound to an act or omission in favour of the person entitled (this may be termed as the content of the right); the act or omission relates to something (in the widest sense of the word), which may be termed the object or subjectmatter of the right; every legal right has a title, that is to say, certain facts or events by reason of which the right has become vested in its owner.xlii Rights- Interests Conundrum: Rights are concerned with interests, and indeed have been defined as ‘interests protected by the rules of rights’, that is vide rules- moral or legal. Yet rights and interests are not identical. Interests are things which are to a man’s advantage; he has an interest in his freedom or his reputation; his rights to these, if he has such rights, protect the said interests concerned, which accordingly form the subject of his rights but are different from them. Conclusion: A well-ordered society is the one, which is effectively regulated by public perception of justice and fairness. Justice and fairness are not merely terms squaring ‘moral doctrine’ but these are terms having ‘political conception’ applying to all political and social institutions of the society. Justice results from reasoned prudence. To speak of a ‘just society’ is to speak of a society that is governed by the principles of the Rule of Law. Principles of the Rule of Law, serve as foundation to a Civilised State. Professor Peter Birks, states in somewhat like terms, “There is no shortage of re-current reminders of the necessity of deepening the knowledge of law and understanding of the phenomenon which we call justice, and the cost the world bears on account of failures in that endeavour. That cost can be counted (daily) in the injustice done to, cruelty inflicted upon, violence and abuse of power borne by the common man generally.”xliii Lastly, in all trueness, the Sense of Justice holds that; if law is bad, it is one thing to oppose the practice of it, but it is quite a different thing to expose the errors of it, to reason its defects, and to show-cause why it should be repealed, or why another ought to be substituted in its place. Experience says- it is better to obey a bad law, making use, at the same time of every argument to show its defects (inconsistencies) and procure its repeal, than forcibly violate it; because precedent of breaking a bad law might weaken the force of the State and of 8 the trust that people place in the State, resulting in discretionary violation, of those laws which are good. *Shivam Goel, B.Com(H), LL.B., LL.M.; [email protected] i According to Justinian, La is the ki g of all ortal a d i ortal affairs hi h ought to e the hief, the ruler and the leader of the noble and of the base and thus, the standard of what is just and unjust, the o a der to a i als aturall so ial of hat the should do; the for idde of hat the should ot do . ii Justice Markandey Katju, Law in Scientific Era- The Theory and Dynamic Positivism, Universal Law Publishing (2000), p.73 iii Bentham defi ed his idea of justi e through the follo i g li es: Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. The principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and of law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light. Be tha for ulated a feli ifi al ulus hi h, as per hi , happi ess fa tor of a a tio ould e al ulated. iv John Rawls, A Theory of Justice, Oxford University Press, Oxford, (1972) v Arun Mohan, Justice, Courts and Delays, Access to Justice- Questions to Ponder Over, Universal Law Publications (2009), p.1 vi Raymond Wacks, Law: A Very Short Introduction, Chapter : La s ‘oots, O ford U i ersit Press, 8 Edition, p.22 vii AIR 1978 SC 597 viii Garima Tiwari, Jurisprudence I, Chapter 5: Natural Law School, Lexis Nexis Publication, 2013 Edition, p.64 ix Latin Maxim: Fiat Justitia Ruat Caelum- Let justice be done, though the heaven may fall. x “ holars argue that justi e a ordi g to la is the concept of law which Dicey calls the ‘ule of La , least stressi g, all that Di e ea t, he he a e up ith the ter ‘ule of La as that, the esse e of legal justi e lies i , e suri g u ifor it a d ertai t of la a d at the sa e ti e e suri g that legal rights a d legal duties are respected by people. Essential attribute of justice is the element of impartiality. There should e a presuppositio that o o e is a o e la a d that justi e should appl to all alike . xi (1952) 1 K.B. 189 at 195 xii (1929) 1 Ch. 602, 624 xiii Natural justice is another name of common-se se justi e , “ee: Canara Bank and Ors v. Sri Debasis Das and Ors, AIR 2003 SC 2041 xiv 1977 (1) WLR 766 xv 1976 WLR 1255 xvi 1890 (24) QBD 712 xvii 1855 (2) Macg 1.8 xviii 1885 (55) LJRD 39, 41 xix 1967 (2) B. 617, 530 P xx AIR 1978 SC 597 xxi Justice T.S. Sivagnanam, Principles of Natural Justice, Tamil Nadu State Judicial Academy, Lecture addressed to the newly recruited Civil Judges (JR Division), Induction Programme 2009 xxii AIR 2003 SC 2041 xxiii Abstract law is jus while concrete law is lex. I a stra t se se, e speak of law or the law , in the concrete sense it is a law . The ter the law or law connotes the whole legal system in its totality. xxiv V.N. Paranjape, Studies in Jurisprudence and Legal Theory, Central Law Agency, Sixth Edition, 2013, p.7 xxv Rudolph Von Ihering, Law as a Means to an End, Boston Book Company, (1914) xxvi John Chipman Gray, The Nature and Sources of Law, Second Edition, Macmillan, (1921) xxvii According to Austin, La is the aggregate of rules set e as politically superior or sovereign, to men as politi all i ferior. A ordi g to this defi itio , la is the o a d of the so ereig , hi h o liges ertai course of conduct or duty and is backed by sanction. xxviii C.G. Keeton, The Elementary Principles of Jurisprudence, A & C Black, 1st Edition, 1930, p.1-2 9 xxix Thomas Paine (Edited by Laura Ross), Common Sense and Rights of Man, Sterling Publishing Co., New York, 2011 xxx Shaw v. Director of Public Prosecution, (1961) 2 All ER 446 xxxi T.W. Taylor, The Conception of Morality in Jurisprudence, Philosophical Periodicals, Oxford University Press, Volume 5, No. 18 (April, 1896), p.40 xxxii Fletcher, George P, Law and Morality: A Kantian Perspective, Columbia Law Review, Volume 87, No. 3, April 1987, p. 533-558 xxxiii Firstly, morals are concerned with individuals and they lay down the rules for moulding the character of the respective individuals; laws concentrate mainly on society and lay down the rules concerning the relationships of individuals with each other and with the State. Secondly, morals are an end in themselves, while laws are for convenience and expediency. Thirdly, morals look into the intrinsic value of conduct while the law is concerned with the conduct of the individual for which it lays down standards. Fourthly, observance of morals is a matter of individual conscience, while law brings into picture complete machinery of the State where the individual submits himself to the will of the organised society and is bound to follow its rules. Fifthly, morals are said to be of universal value while laws are relative to time, place and vary from society to society. Sixthly, application of morals is individual-case-based, while application of law is uniform. xxxiv Mr. X v. Hospital Z, (1998) 8 SCC 296 xxxv B.N. Mani Tripathi, Jurisprudence (Legal Theory), Allahabad Law Agency, 18th Edition, 2010, p.146 xxxvi Lon L. Fuller, The Law in Quest of Itself, The Foundation Press Inc., 1940, p.12 xxxvii Dr. Durga Das Basu, Introduction to the Constitution of India, Chapter 3: The Philosophy of the Constitution, Lexis Nexis Publication, 20th Edition (2011), p.24-25 xxxviii Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104 xxxix Balbir Kaur v. Steel Authority of India Ltd., (2000) 6 SCC 493 xl Gurbax Singh v. Financial Commissioner and Another, (1991) Supp (1) SCC 167 xli Bentham was of the view that, all rights are legal rights and hence, all rights are creation of law. Bentham was of further opinion that, natural law and natural rights are two kinds of fictions or metaphors, which play so great a part in books of legislation that they deserve to be examined by themselves. Rights properly so called are the creatures of law properly so called; real laws give rise to real rights. Natural rights are the creatures of natural law; they are a metaphor which derives their origin from another metaphor. xlii P.J. Fitzgerald, Salmond on Jurisprudence, Chapter 7: Legal Rights, Sweet & Maxwell Limited, Twelfth Edition, p.41 xliii Professor Dr. Ninon Colneric, Protection of Fundamental Rights through the Court of Justice of the European Communities, http://denning.law.ox.ac.uk/themes/iecl/pdfs/working2colneric.pdf, visited on: 02-03-2015 10