Unit 1.. Genral Concept Law Justice-Easy

COURSE: LAW & JUSTICE IN A
GLOBALIZING WORLD
NATIONAL LAW UNIVERSITY TOPIC: Concept and Meaning of Law,
ODISHA Justice and Globalisation (WEEK 1)
INSTRUCTORS: MS. ELUCKIAA A.
CONCEPT AND MEANING OF LAW, JUSTICE AND

GLOBALISATION
CAN GLOBAL JUSTICE BE REALIZED?
To most of us, the understanding of the concept of justice that we have is limited mostly to
the administration of justice in a national or domestic level, where the state institutions are
responsible for guaranteeing justice in the domestic territory. On the other side, the forces of
contemporary globalization is flattening- and levelling the world for all countries to play an
equal part- integrating the world into a larger global system of social, economic and political
system.
This course is aimed at presenting the application of theories of law and justice in this
globalising world. There are of course several questions that we must ask ourselves when we
intend to embark upon this journey. The first question is of course, how we look at justice
and how we look at globalization. It is definitely difficult to come to one answer on these
questions, for each of us would perceive justice differently and perhaps would experience
globalization differently. For Rahul, a twenty-year-old man of the upper middle class- his
perception of the Indian police would be different, based on his experiences in dealings with
the police as a man of his socio-economic status, than it would be for Kajal, a 16-year-old
tribal girl given her socio-economic status. Not only would the age, the money, the difference
in education level, the caste or race play a part in such difference, but also the often over-
looked gender difference in such perception.
Hence, Abdul Mohammed, an immigrant from Syria in Canada might feel the world-wide
condemnation of terror attacks in Belgium is overrated and underplays the sufferings faced
by citizens in developing countries like his own, making him angry at the injustice of the
anti-Muslim bias in his Canadian school, while for his classmates in Canadian school, he
would seem to be advocating in favour of the Belgium attackers simply because of his
criticisms of the peaceful protest movements. In this case, both groups would be equally
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INSTRUCTORS: MS. ELUCKIAA A.
justified in their thinking, and both would believe the behaviour of the other is against the
norm of justice.
Hence the concept of justice in a globalised world is a discursive concept. The truth is after
all depends entirely on the perceptive interpretation of certain facts being highly subjective.
In the world we live in, several practical implications trouble us- what is justice, what is just,
why do we see justice differently-who guarantees that we are treated justly, who dispenses
justice? Every society answers these questions differently in their own context. Yet, the long
history of colonialism and the western hegemony of knowledge systems and information
distribution mean that the notions that we accept on global levels correspond mostly to the
established norms of the powerful economic rationale of these countries. This, of course,
changes the utopian answer to the first question. This also makes it clear to us, that in a world
governed by differences and discussions, justice in non-linear.
REFERENCES
1. Andrew Heywood, Political Theory (3rd ed. 2004).

2. Michael S. Barr and Reuven S. Avi-Yonah, Globalization, Law and Development-
Introduction and overview (Globalization, Law and Development Conference), Mich. J. Int'l
L. (2004).
3. Alison Brysk and Arturo Jiminez-Bacardi, The Politics of the Globalization of Law- Getting
from Rights to Justice, (1st ed., Alison Brysk, 2014).
THINKING EXERCISE
Interview seven children in your neighbourhood who come from affluent homes, and seven others
from not so affluent homes. Finally, talk to seven children who live on the streets or work as child
labour. Ask each if they know what justice is. See and note the differences in their conceptions of
justice (whatever they might be). Then contrast these views with that of seven adults who can be from
any realm of society. Discuss with your other fellow students about their results and compare these
discussions.
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INSTRUCTORS: PROF. RAO
WHAT IS JUSTICE?
Justice is generally perceived as connected to law. Thus justice too can be classified as
substantive and procedural justice. While procedural justice means legal processes are not
arbitrary in word or application and is guided by clear and specific rules to arrive at decisions
for penalties. This is what we mean by the phrase ‘due process of law'. It means basically
that, non-arbitrary laws when clearly followed would lead to just outcomes.
Substantive justice refers to the content of the laws and if such laws are bestowed by
legitimacy. The laws have to be just to be binding, says Andrew Heywood in his book,
meaning that such law ought not to be exploitative or discriminatory. The acceptance of laws
by all makes the said substance of the law legitimate. There again the question of the greater
good for greater number is bound to come in and destroy this simple linearity of the idea. To
the Assamese Hindu majority, updating the NRC database to weed out immigrants from
Bangladesh is a legitimate objective, and they may bestow such law with general acceptance
and legitimacy to the detriment of the minority of immigrants who have been settled in
Assam for the last 3 or four decades. Here, the linearity of substantive justice and legitimacy
is effectively destroyed.
For harmonization of the discursive concepts of justice, it is much easier thus to harmonise
the understanding of procedural justice while letting substantive justice be discursive to a
large extent to prevent creation and establishment of hegemonies nationally and
internationally.
There is of course, also a large discussion on the discussions in substantive justice due to the
different ways we believe that social and economic benefits are to be distributed amidst
various social groups. This would bring us, later in the course, to an extensive discussion on
social justice and how various theorists look at social justice.
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INSTRUCTORS: PROF. RAO, DR. SREELEKHA
MISHRA AND MS. ELUCKIAA A.
THE VARIOUS ASPECTS OF THE IDEA OF JUSTICE IN INDIA- AMARTYASEN’S TREATISE
Justice is generally perceived to mean fairness and equity. The Aristotelian idea of justice
that helped build the foundation of most occidental theories of social justice means to give
each was is due as deserved by him/her. This did not mean equality for the person so
concerned but rather reward per merit or virtue. (When we shall study Nozick, Rawls and Sen
in the third, fourth and fifth week of the course, the pros and cons of such a line will become
clear to us.)
This Aristotelian idea of justice prevailed also in the ancient Indian tradition of the
Dharmashastras. However incidentally, in the modern context it would seem that both the
Dharmashastra and Aristotle himself had in parts misapplied the concept, (unless we assume
given the socio-political context of their times, this application was intended) by according
lower status to women, the labourers and permeating through the exploitative caste system in
India.
In the Indian context, Justice is broadly depicted as „Dharma‟. The concept of Dharma has
attained prominence in the era of the Epic Mahabharata and the Dharmashastra and the
Manusmriti, and in this era Dharma emphatically became synonymous to the idea of justice.
The Mahabharata says clearly, “Whatever has its beginning in Justice, that alone is Dharma.
Whatever is unjust and oppressive is Adharma (against Dharma).”1
Amartya Sen in his book „The Idea of Justice' discusses to aspects of Justice- (i)Niti and (ii)
Nyaya. Sen described Niti to mean ethical or moral wisdom and justice in general while
Nyaya refers to Justice as administered or realized. Thus while Niti means the behavioural
correctness, Nyaya refers to a „comprehensive concept of realized Justice' – comprehensive
because it encompasses not only the outcome but the entire process of justice administration. 2
The dichotomy between the two concepts, in fact, forms the foundation of Sen's treatise on
Justice, even though according to the Indian scripts Nyaya is a derivative of the ethics of Niti.
1
M.V. Nadkarni, Interrogating the Idea of Justice, 58, IEJ, (2010).
2
Amartya Sen, The Idea of Justice, 20 (2011).
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I. JUSTICE AS RATIONALITY
In fact, the dual use of the word Nyaya in India to mean both logic and also justice suggests
the very modern concept that justice is to be rational and non-arbitrary. Plato's
conceptualization of justice holds that there ought to be some consistency in the idea of
justice and goodness and that such cannot be entirely relative to different times, people and
places, and instead of being governed by capricious whim it ought to be governed by
rationality. In fact, the Platonic classification of the human soul into the three parts of
rational, spirited and monstrous is completely in sync with the Saankhya classification of
gunas (meaning attributes or qualities) into Satvik, Rajasik and Tamasik. Plato believes it is
only when the rational part of the soul controls the other two parts that justice and goodness
prevails. The problem with the platonic concept here is that for Plato the rational and the
moral are not entirely synonymous, which also makes the idea of justice a murky one. In
Sen's treatise, the first chapter is devoted by Sen towards the discussion of the role of reason
and objectivity in ascertaining the meaning of justice. He points out yet again that the
Mahabharata says that „Dharma and Cultured Conduct arise from intelligence (or rationality)
and it is from intelligence that they are known.‟ He further points out that the Mughal
Emperor Akbar also believed that the rule of intellect (rahiaql) to be the basic determinant of
good behaviour as well as of an acceptable framework of legal duties and entitlements.
The age of enlightenment in Europe, as we all know, too was based on the supremacy of
reason. A smart person, writes Sen, may not necessarily be a good person but being smarter,
he/she shall have greater clarity about the goals and objectives and values of his time and
situation. Thus, reasoning is the main tool which requires an end (which might be ethics) in
terms of which a policy or action can be rationally viewed. However, when the reasoning is
applied to achieve an immoral end (a perfectly reasoned argument in defence of a tax evader,
or a perfectly devised murder), it becomes clear to us, that reason cannot be however the sole
determinant of justice, as reason is a dangerous double-edged sword.
II. JUSTICE AND THE DEONTOLOGY OF DUTIFUL ACTION

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Sen‟s treatise on justice also in detail critiques the concept of deontology- or the concept of
doing one‟s duty as a candidate for the effective realization of justice. The Bhagwad-Gita is
taken as the greatest deontological document where the argument of duty-centric action is the
all-pervasive philosophy in the background of consequence independent reasoning. Hence no
matter what the carnage of war is, the argument of warrior‟s duty is compelling enough to
make Arjun fight a war against his fellow brethren. Doing one‟s duty irrespective of all
consequences is not acceptable to Sen. Though he is well aware that the Gita is not all about
deontology only, it bothers Sen that the Gita elevates the Niti of doing one‟s duty to a purist
absolute status. While he believes consequences are important, he believes and advocates
primarily the fairness of processes, from which the intended consequence or outcome would
generally be comprehensive if such processes had been fair and morally justifiable. This
comprehensive outcome hence becomes the key element in securing justice as Nyaya or
realized justice.
While there is no problem with Sen's emphatic focus on Nyaya over the deontological Niti,
certain critiques including M. V Nadkarni believes that Sen's idea of the Gita is perhaps too
one-dimensional and that Gita does not necessarily ask for a performance of duty with utter
disregard to consequences. Rather, Nadkarni believes Sen is correct rather when he says that
Gita wants a human rooting for moral duty bound action in an unselfish way.
Also, the Gita upholds the Dharmashastra ideals of social order in the terms that the society
runs smoothly because each of its structural and functional elements performs their own
functions within the social structure, through observance of different duties which have
evolved for beneficial consequences. While Sen believes in translating the deontological Niti
towards a rights-based concept of Nyaya or realized justice through fairness of processes,
Nadkarni believes and defends the deontology of the Gita saying the problem with a rights-
based approach is that to guarantee the rights, corresponding duties ought to be first enforced.
III. JUSTICE AS HAPPINESS

GLOBALIZING WORLD
Happiness, welfare and utility go hand in hand as a prominent claimant for the basis of
justice. Even in the Indian Tradition, Dharma has always been associated with the end of lok-
hita or peoples‟ welfare. However, a distinction is made between short-term happiness
(preyas) and long-term happiness (shreyas). It is because of its emphasis on the nature of the
effect of an action, an approach closely tied with consequentialism. However Sen rejects the
narrow utilitarianism of Bentham‟s “greatest happiness for the greatest number” as a guide of
social policy making, saying it leads to greater injustice than justice, especially taking into
consideration that the greatest happiness of the greatest number may be achieved at the cost
of the happiness of an individual or a minority people. Even if all policies aiming at such
utilitarian good seeks to compensate those adversely affected by the policy, it may not
necessarily do justice to the people bypassed by the policy-makers. These people may be
continuously denied access to opportunities, while the generic utilitarian aim would still
continue to be met. It might also lead the neglected section to downplay their difficulties,
making them appear happier than those with the access to opportunities who are empowered
to voice such difficulty. In fact, it is the general tendency of utilitarianism to reduce all
human values and objectives to something like preference satisfaction particularly meets with
great criticism. Hence happiness, if looked at through the narrow mould of classic
utilitarianism cannot be taken to be an effective indicator of justice.
IV. JUSTICE AS MUTUAL ADVANTAGE
Many believe justice as a mutual advantage to be no justice at all. This principle of justice
appears in bargaining games between two parties each having given endowments and
preferences. The main difficulty in this approach lies in the fact that the two parties
concerned might not at all be equal in their endowments or preferences. For example, a party
used to poverty may have very low expectations as preferences in the first instance. The
parties may not also have equal bargaining skills and informative equality. Thus bargaining
between parties of unequal power would lead to injustice.
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Thus if the game is to be impartial each must stand in the shoes of the other when indulging
in the bargaining, through a preferred dialogue and negotiating process. Moreover, it is not
enough that the agreement reached between the two parties are just to the two parties
involved in the negotiation but to all others, being consistent with the general principles of
ethics and being generally morally acceptable in nature.
V. JUSTICE AS FREEDOM, FREEDOM AS CAPABILITY
Freedom as an indicator and determinant of justice has become a cornerstone in modern

philosophy. On the value of freedom, Sen remarks, “First, freedom gives us more opportunity
to pursue our objectives…Second, we may attach importance to the process of choice itself…
to make sure that we are not being forced into some state because of constraints imposed by
others.” There is however a difference between the opportunity to choose an option freely
and merely an opportunity to that option. This importance on the freedom of choice making is
the cornerstone of Amartya Sen's capability approach to justice where an individual‟s
advantage is adjudged by “a person's capability to do things he or she has reason to value.”
Equality is a prominent determinant of justice everywhere in the world. The Gita too puts
great stress on the notion of equality by saying one should treat others in the same manner in
which one treats himself. Aristotle has the concept of distributive justice of equal reward for
those on an equal footing and greater rewards for the meritorious.
The capability approach deals with this distributive concept of justice. Sen's idea of
equalizing is based on the equalization of capabilities. Drawing attention to the huge
significance of the expansion of human capabilities of all members of the human society is
the crux of Sen's approach, beyond the goods-based allocative idea of distributive justice.
Hence instead of concentrating on the means of living, Sen is more concerned with the
opportunities of living, going beyond the realm of formal equality to a concept of formative
equality where the one's being treated unequally today or lacking equal-footed can be
empowered with greater access to opportunities to rise to the equal footing, compensating
them for their lower access options, in the end reducing manifest injustices of poverty,
GLOBALIZING WORLD
hunger, ailment, disability, social alienation rather than the transcendentalist aim of building
formally equal institutions for a society fraught with inequalities. This insistence on attending
to the manifest cases of inequality of opportunity and manifest injustice emanating from such
inequality brings us back to Sen‟s original idea of the Indian philosophy of Nyaaya, or justice
realized through fairness.
REFERENCES
1. Amartya Sen, The Idea of Justice, 20 (2011).

2. S.D Sharma, Administration of Justice in Ancient India (1988).
3. M.V. Nadkarni, Interrogating the Idea of Justice, 58, IEJ, (2010).
THINKING EXERCISE
What Comes first- the right or the duty? – Take any four rights you enjoy as an individual. They
may be fundamental rights, constitutional rights, or other rights socially recognized or recognized as a
part of the UDHR. Identify the corresponding duties to these rights. Debate with your friends on
which came first in law, the corresponding duty or the right. Identify the reasons for the same.
GLOBALIZING WORLD
GLOBALISATION AND GLOBAL JUSTICE
Though globalization as a phenomenon has only attracted our attention in the last half-a-
century, the concept of globalization is nothing new. Great empires have had global
ambitions throughout the history of mankind, be it Alexander’s Macedonia, Caesar’s Rome,
The British Empire or Hitler’s Third Reich. However, these concepts of globalization were
merely territorial. Today, globalization has transcended territory. Today, human practices- be
they social, economic, political or cultural- are increasingly transnational. In such a world,
then what would be our understanding of normative ethics- which includes the concept of
justice?
The world has economically integrated, through international trade, multi-nationality of

corporations, and integration of the global market for goods and services. In such a world, on
one hand, the integration has enhanced production, increased opportunities, provided
livelihood and alleviated poverty. On the other hand, it has led to privatization,
commercialization of social services, obliteration of cultural diversity etc.
For example, on one hand the TRIPS agreement has helped harmonise the laws on trade in
intellectual property, leading to pharmaceutical industries benefitting and in turn contributing
to the GDP of the producing nations leading further to economic enhancement; on the other
hand, the same has had an effect of depriving poor people in developing countries from
access to cheap life-saving medicines.1
Globalization also means an essential increase in the powers and functions of transnational
and international institutions – both economic and political. The implication of democracy
and accountability in these international organizations would also have multifarious
implications in the understanding of justice meted out by these organizations.
1
GoranCollste, Globalization and Global Justice- A thematic Introduction, 3(1), De Ethica (2016).
GLOBALIZING WORLD
Remember Yasser Arafat’s ‘Gun and Olive Branch’ speech at the UNGA in November,
1974? He says:
“Great numbers of peoples, including those of Zimbabwe, Namibia, South
Africa and Palestine, among many others, are still victims of oppression and
violence. Their areas of the world are gripped by armed struggles provoked by
imperialism and racial discrimination, both merely forms of aggression and
terror. Those are instances of oppressed peoples compelled by intolerable
circumstances into a confrontation with such oppression. But wherever that
confrontation occurs it is legitimate and just. It is imperative that the
international community should support these peoples in their struggles, in the
furtherance of their rightful causes and the attainment of their right to self-
determination.”
How do we look at the people fighting for such liberation? Do we look at their guns," the
freedom fighter's gun" as they look at it and suppress them, do we look at the olive branch
they carry in the other hand and extend our olive branches? These are questions we must ask
ourselves- before we make terrorists into Statesmen and Statesmen into terrorists per
hegemonic narratives of political justice and peace.
More importantly, today we have wide access to global information. Which narratives and
dissemination of such information are we to believe? Which dissemination of such
information is just? Are we to interfere in the affairs of another based on such information or
misinformation? If we believe that we ought to, then what are the ethical ramifications of
such interference? How should such interference be?
Also, global actions would lead to global consequences. Global Warming is not the effect of
what one country has done, but the consequence of actions of all countries. But do all
countries play an equal country in causing global warming? Are all countries affected by the
phenomena in the same way- proportional to their contribution to global warming?
Geography is not a just distributor. It might be the indigenous people of the mangrove deltas
at the Sundarbans bear the worst brunt of inundation caused by global warming, while they
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live very environmentally sustainable lifestyles. How is then the collective burden of
responsibility for such global phenomena to be shared? Certain restrictions based on carbon
footprint and use of non-sustainable technologies might be opposed as unjust by the
developing countries on the ground that the developed countries in history have used such
practices to reach their level of economic prosperity and are now taking the ladder away from
the developing countries to reach such potential. How do we look at justice in such a context?
Globalization also has several cultural impacts. Zygmunt Bauman believes the people who
benefit from globalization are the ‘globals’, while the people who suffer in globalization are
the ‘locals'. It is no rocket science to understand their understanding of justice in the
globalizing world. However, it might also be that the same person experiences globalization
both from the point of view of the local and the global. As a local, he might face
unemployment due to the employment of global skills, and might as a global migrate to
another country for education to acquire such global skills.2
It is essential that we treat all of these questions and keep in mind all these perspectives as
thinking exercises while we walk through this module and largely this course. Globalization
thus today is a key factor for discussing justice in this world.
REFERENCES
1. GoranCollste, Globalization and Global Justice- A thematic Introduction, 3(1), De Ethica

(2016).
2. Zygmunt Bauman, Globalization. The Human Consequences(Polity Press, 1998).
3. Andrew Heywood, Global Politics, (2nd ed., Palgrave foundations, 2014).
2
Zygmunt Bauman, Globalization. The Human Consequences (Oxford: Polity Press, 1998), at 8-9.
GLOBALIZING WORLD
THINKING EXERCISE
Identify 10 international speeches on issues of globalization. Identify the speakers and their agendas
and compare them with your fellow students. See what emerge as the major points from all these
speeches that you come up with.

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COURSE: LAW & JUSTICE IN A

CONCEPT AND MEANING OF LAW, JUSTICE AND

CAN GLOBAL JUSTICE BE REALIZED?

1. Andrew Heywood, Political Theory (3rd ed. 2004).

THE VARIOUS ASPECTS OF THE IDEA OF JUSTICE IN INDIA- AMARTYASEN’S TREATISE

II. JUSTICE AND THE DEONTOLOGY OF DUTIFUL ACTION

III. JUSTICE AS HAPPINESS

IV. JUSTICE AS MUTUAL ADVANTAGE

V. JUSTICE AS FREEDOM, FREEDOM AS CAPABILITY

Freedom as an indicator and determinant of justice has become a cornerstone in modern

1. Amartya Sen, The Idea of Justice, 20 (2011).

GLOBALISATION AND GLOBAL JUSTICE

The world has economically integrated, through international trade, multi-nationality of

1. GoranCollste, Globalization and Global Justice- A thematic Introduction, 3(1), De Ethica

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