S6 - Jurisprudence - II

JURISPRUDENCE – II 35LLB18
25th February 2021
JOHN RAWLS
Example – Appeared in AILET in 2018 and qualified for an admission in NLUD. What
would you do if you had to appear in AILET in 1895? How would things have been different
in 1895 from 2018? What would be the chances of success in 1895 as compared to 2018?
What contributed to your success in AILT 2018?
Factors that Contributed in 2018:
1. Infrastructure – poor transportation facilities
2. Luck
3. Financial Ability – Coaching, Good School Education, Books, GK Guides, Online

Material, Language Proficiency, Time to study (no other responsibilities).
4. Intelligence, Hard Work, Dedication, Focus, Strategy – socialisation and family ecosystem
also may have a role in developing these qualities but these qualities are inherently present in
a person to some extent.
5. Family Support – Ecosystem that family offers; liberal enough to respect my choices.
6. Social Constraints – they were not illegalised.
Factors that Contributed in 2018:
1. Family Support – Ecosystem that family offers; liberal enough to respect my choices.
2. Financial Ability – Coaching, Good School Education, Books, GK Guides, Online

Material, Language Proficiency, Time to study (no other responsibilities).
3. Intelligence, Hard Work, Dedication, Focus, Strategy – socialisation and family ecosystem
also may have a role in developing these qualities but these qualities are inherently present in
a person to some extent.
4. Luck
5. Certain level of absence of Social Constraints – Gender, Caste. Identity of a person

belonging to a particular religion may outweigh all other identities. The place where you live
may also have a role to play. (Constitution) in 2018, the constitution came into existence and
did something to these social constraints. Due to the constitution, these social constraints
have been outlawed legally. In that sense, the normative structure in play has a role to play in
success in AILET.
What has the Constitution does in making you better placed with respect to appearing and
qualifying AILET 2018? – Freedom of Profession, Education, Reservations, Equality in
terms of treatment and addressing existing inequalities (Equality before Law and Rule of
Law), Non-Discrimination.
The major difference between 2018 and 1895 is in terms of social constraints which has been
brought about by the Constitution. The Constitution tried to address the exclusion certain
groups and did not just focus on individualism; it tried to promote collective rights. The
Constitution established a new framework through certain institutions, ideals and rights. This
framework is more enabling as compared to the framework that existed in 1885. This
framework removed restrictions in the sense that now there is a positive obligation on the
state to uphold rights; the state can’t indulge in restricting rights and discrimination. Thus, the
institutional framework is required to give certain guarantees in the form of rights and
freedoms. The Constitution offers Universal Adult Franchise; these institutions are political
institutions. Civil liberties have been recognised and all the institutions are required to respect
these. Part 4 of the Constitution talks about socio-economic rights.
There are certain constraints that are addressed by political equality and civil liberties. But
there are certain other constraints such as financial constraints that are still left which are
provided by Part 4 such as redistribution of wealth, income, etc.
Framework – Institutions – Political Equality, Civil Liberties, Redistribution of Wealth &

Income.
Political Equality – Constitution, Parliament, State Legislatures, Rules pertaining to election

to these institutions, etc. These are bound by civil liberties. They cannot trample upon them
by laws.
Redistribution of Wealth and Income – Market.
BASIC STRUCTURE OF SOCIETY
The basic point is that Rawls’ Theory of Justice pertains to this basic framework. He termed
this framework as the Basic Structure of Society. He talks about distributive justice; how
certain things in the society should be distributed. His theory is not applicable to the rules of a
club or a cooperative society; he is looking at the basic organising pillars of our social
existence. In India, these pillars are in the form of Constitution, Parliament, Executive,
Judiciary, Market, etc. Basic Structure of Society refers to the rules pertaining to these
institutions. He says that his principles of justice apply at this level. How basic structure
should be organised so as to say that it is a just basic structure. Rawls will not apply to a
situation of a contract because in the beginning only he refers to the basic structure of a
society.
26th February 2021
⮚ Rawls is not talking about individual action unlike Kant’s theory which can be applied to
individual actions. Rawls is not talking about individual action but is only concerned with
how a society is organised. A society is called well-organised only when there are institutions
and thus, he is considering when do we say that a society is well-organised. He is saying that
he is looking for principles to find an answer to the previous question. According to him, a
society is well-organised if his principles of justice are followed. Ultimately, these principles
also affect the individual life. For instance, the AILET example.
⮚ Rawls further seeks to look for a procedurally correct way to get to the principles that would
govern the basic structure of the society. For this, he talks about the Veil of Ignorance. And,
he also distinguishes between the idea/theory of justice and complete social organisation. He
says that he is not talking about a complete social organisation; he says that there could be a
social ideal and principles of justice are a party of it but they do not completely constitute the
social ideal. Principles of Justice are a subset of the social ideal; he is only giving us one part
of the social ideal and that is principles of justice.
VEIL OF IGNORANCE
⮚ Rawls is called a contractarian because his theory is based on a contract. If his principles are
arising out of an agreement among people, then he becomes a contractarian. He identifies

principles of justice on the basis of a contract between human beings.
What kind of contract is this and what are the conditions?

⮚ Unlike Hobbes and Locke, he is not talking about a real contract; no historical contract was
made. He is imaging a situation in which people would sit together, discuss and agree upon
Principles of Justice. It is a philosophical device that he has adopted which he uses to imagine
an agreement. So, it is an imaginary agreement and not a real one. The reason why he is
imagining a contract and not thinking about a real contract is that because he wants to come
up with the Principles of Justice and while doing this, he wants to exclude prejudices out of
this entire scheme. If it is a real contract, then prejudices would come up because there are
power differentials and people would be driven by their own interests. When people want to
secure their own interest, then the agreement cannot be just enough to come up with
Principles of Justice. If principles of justice give effect to certain interests, then that would be
problematic So, he imagines an original position. This original position is a methodological
device for Rawls to come up with a natural theory of justice which is not influenced by
prejudices that people nurture.
ORIGINAL POSITION
⮚ The original position is required because he is basing his theory on a contract between people
but to avoid any prejudices, his is using a devise to form this agreement. One’s interest as a
capitalist might different from one’s interest as a worker. He wishes to do away with such
influences. The original position is constructed through certain conditions to exclude certain
aspects because you want to come up with an ideal theory of justice. If you cannot extract a
person from their socio-economic condition, then agreement that you want a person to get
into will be influenced by those conditions or existing position in the society. There would be
no initial fairness in the condition wherein these principles are agreed upon. This is why he
constructs the contract in a form of the original position. Principles acceptable to people in
the real world cannot come up on basis of agreement between people in the real world. This
is so because individual interests would have an influence over this agreement. If they use
this agreement to arrive at principles of justice, then they would not be fair because of
existing inequality.
⮚ To ensure the fairness of the original position, it is important to ensure that the people in this
position are:
1) Rational Beings – a person is called a rational being because you have some self-interests and
you want to protect those.
2) Free Individuals
3) Equal Individuals
4) They do not know their position in the society. The level of information that they have or
ignorance would be the same. This is why he says that they would be working under the Veil
of Ignorance. They have the capacity to reason and they can connect the self-interests of the
society and a rational way of realising those interests. But they do not know what particular
interests that they themselves have in the society; they are ignorant about their interests in the
society. In that sense, the society is yet to come up and they will be born in that society. They
do not know whether they will be capitalists, workers, religion, race, caste, political opinion,
age, skills, level of intelligence etc. will be in that society. They just know that there will be
different positions in the society. They do not know what they are going to be born as in the
society. This is why we say that people in original position are getting to justice under a veil
of ignorance. This veil of ignorance is a methodological device which ensures the prejudices
don’t creep into the society.
⮚ Otherwise, the construction of the individual position would be unfair. The fairness is coming
from the construction of the original position. In a real social contract, biases would be there.
A people would want to ensure that whatever position they are born in, they would have the
capacity of meeting their interests. But the original position ensures fairness.
⮚ The question that remains unanswered is that Rawls does not say that they have common
self-interest? What is the basis of this commonality? On what grounds do we say that there
are some common interests? – Common interests can emerge out of particular identities.
When you talk in terms of group having a common interest, you are talking as a
communitarian and not a liberal philosopher. Liberal philosophy is based on freedom and
individuals. When you talk about a group, you talk not in terms of individuals but a group
having a common identity. Common self-interest is like an oxymoron from a liberal point of
view. In that sense, Rawls rejects common interest but recognises self-interests. He
recognises that they are mutually-disinterested beings. This is how he secures the liberal basis
of his theory. You become a communitarian philosopher if you think about mutual interests.
These people are interested in pursuing their own interests and not concerned about the
interests of others. Being rational beings, they have the capacity to pursue their own interests.
The question now is whether people in this original position accept utilitarianism as an
organising principle?
2nd March 2021
RAWLS’ PRINCIPLES
⮚ The people in the original position are rational beings who are self-regarding people and
mutually disinterested. They know what will affect their life plans and therefore, they will be
interested in securing their own future. Due to this, they would refrain from choosing
utilitarianism as the basis organising feature of society because they do not know what they
will be born as in the society for which they are responsible for choosing the principles of
justice; they would not like to gamble with their interests especially when it comes to the
fundamental principles that govern the society. Then, the question arises as to what principle
will be chosen by these people? – The two principles will be accepted by the people through
an overlapping consensus amongst themselves. Rawls is a contractarian and his concept of
justice emerges from a contract. This contract is an imaginary contract under the veil of
ignorance in the original position. The people are equal, free and mutually disinterested. This
is the condition in which the contract is made. Rawls says that the two principles are lexically
ordered. The second principle will forever remain second. Liberty is prior to the second
principle. Any curtailment of liberty can only be for the sake of liberty itself.
(1) Principle of Liberty
⮚ The negative connotation of right to life prevents others from harming the person holding the
right. Apart from survival that the basic right to life can secure, the AILET example shows
other things one might need. The primary aspect of a person not being affected by anyone
else and in securing a leading a life, is the first step in enabling a person to achieve what they
want to achieve. This recognition that one is free to do whatever one wants to do is required.
Rawls being a liberal scholar, it is crucial for him to recognise individual freedom. Thus, his
first principle is the Principle of Liberty.
⮚ First Principle – Principle of Liberty – “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.”
(i) Equality of liberty. Every person is supposed to have an equal right.
(ii) Maximum liberty, but at the same time equal. It can’t be absolute liberty because it has to
be compatible with the liberty of others.
(iii) Compatible. Similar to the Harm Principle. My liberty cannot be a pretext for
encroaching upon the liberty of others.
(iv) He qualifies basic liberties with the expression “total set of basic liberties.” This means
that they have to be seen as a whole.
⮚ Total set of maximum and equal liberties for everyone which is compatible with equal
liberties for others. He places all the liberties on the same level. He wants to maximise the
total set of liberties. He does not talk in terms of prioritising liberties but the conflicts
between liberties need to be resolved. There is freedom of religion but at the same time one
may be intolerant towards someone else’s religion. The point is that Rawls is not talking
about liberties in terms of prioritisation but he is taking into account those situations where
one liberty may conflict with another liberty. The total set has to be internally coherent, and
internal coherence cannot be achieved until and unless one liberty is curtailed with respect to
another.
⮚ Distribution of what is the concern of the principles? – Rawls is saying that there would be
something called the Basic Structure of Society based on rules emerging from the principles.
In distributive justice, he is concerned with who is entitled to what. Through the first
principle, he is concerned with just distribution of liberty. There is also distribution of wealth.
Considering the 1895 AILET example, financial ability is important and it comes from
income and wealth one possesses. Thus, it has the propensity to affect your life chances.
Absence of liberty would be a barrier in life chances. Opportunities would also be a factor.
Rawls says that rights, liberties, income, wealth, power, opportunities and basis of
self-respect are the things on which one’s life chances depend. Whatever may be your life
chances are dependent on these “primary goods”. These primary goods are essential for
everyone because whatsoever plans a person may have with respect to their life, these things
are required for the realisation of those plans. Therefore, he is thinking about principles
governing the basic structure of the society which would then determine what kind of
distribution is just or fair.
⮚ So, the first principle pertains to distribution of life and liberty. However, the first principle
does not talk about the distribution of income and wealth. Therefore, the second principle
deals with this.
(2) Difference Principle
⮚ Second Principle – Social and economic inequalities are to be arranged so that they are both
(i) to the greatest benefit of the least advantaged consistent with the just saving principle and
(ii) attached to offices and positions open to all under conditions of fair equality of
opportunity.
⮚ The expression “social and economic inequalities are to be arranged” means that justice does
not pertain to equal distribution but what kind of inequality is a just inequality. It is about
arrangement of inequalities. There are certain inequalities that are just and he is trying to find
them. These have to be arranged in a way so that they benefit most the least advantaged
people. There is differential income depending on the position that you hold, but if they are
attached to offices and position then it cannot be said that they are unjust provided that these
positions are open to all under the condition of fair equality of opportunity.
⮚ The two principles are lexically ordered, and the first principle is prior to the second
principle. Liberty cannot be curtailed for the sake of income or wealth. He also sets out
certain priority rules.
1. With regard to liberty – there are two cases within this;
(i) less extensive liberty must strengthen the total system of liberty shared by all. In the total
set of liberties, shrinking of any liberty is allowed if it expands the total set of liberties. Thus,
less than maximum liberty is just only if it expands the total set of liberties.
A child or a person of unsound mind would have less liberty.
(ii) a less than equal liberty must be acceptable to those with lesser liberty.
2. With regard to income and wealth – these pertain to how the difference principle is situated
with regard to efficiency and liberty. Difference principle is prior to efficiency but not prior to
liberty.
3rd March 2021
The Maximin Principle
⮚ These people are in the original position and are interested in protecting their own interest.
So, they won’t go for utilitarianism. It is an original contract pertaining to basic structure so it
is very fundamental since it will prevail till eternity. Can’t base life chances on law of
probability. Once the contract is formed, there is no going back and everyone will be bound
by it. The person will have to live with lack of privilege forever. Therefore, people will not
choose utilitarianism. The difference principle pertains to the distribution of water. One is
equal distribution is just principle. But Rawls is considering what kind of unequal distribution
can also be treated as just. This is why he gives those conditions – only those inequalities
which add to the advantage of disadvantaged person. So, greater share may be given to the
privileged as long as it adds to the benefits of the underprivileged. Rawls considers three
situations and applies the maximin principle.
C1 C2 C3
D1 -7 8 12
D2 -8 7 14
D3 5 6 8
⮚ He says that if D1 is taken, then C1 will lose 700 but C2 and C3 will get 800 and 1200
respectively. In D2, then C1 will lose 800 but C2 and C3 will get 700 and 1400 respectively.
In D3, C1, C2 and C3 will get 500, 600 and 800 respectively. In the original position, people
will go by D3 because everyone is at an advantage. Therefore, even though the gains might
not be as high as they were in D2 and D1 for C2 and C3, D3 will be taken because no one is
losing out on anything. So, there are differences in the allocation; it isn’t equal. However,
they are to everyone’s advantage. That kind of distribution is going to be favoured; the one
that is in everyone’s advantage. Since no one knows what the position will be, they take care
to not disadvantage underprivileged persons. They are fearful and they want to protect
themselves against contingencies. Only those socio-economic inequalities are acceptable
which are to everyone’s advantage. This is what is meant by to everyone’s advantage. D1 and
D2 are not to everyone’s advantage.
⮚ Consider the AILET example. In that illustration, we identified barriers that existed in 1885
and that existed in 2018. The second part of difference principles is about equality of
opportunity. Provisions pertaining to the general framework of equality in the Constitution –
Articles 14, 15, 16, 17 and 18. Equality of opportunity is a part of the general framework of
opportunity. There is a difference in the approach of Article 14 and Article 16. There is
distinction between formal equality and substantive equality. Article 14 is seen as a provision
protecting formal equality but other articles enable the state to take positive steps to secure
equality by recognising that inequalities exist.
⮚ The question is, what is equality of opportunity? – AILET illustration. How would you
compare the equality of opportunity aspect in 1885 and 2018? What inequalities were
recognised and addressed? Inequalities were: (i) Economic; (ii) Social Inequality – belonging
to certain/caste areas (iii) Gender. These would basically the grounds mentioned in Article 15
are covered.
The fact that AILET exists is a reflection of some equality that is supposed to be there. it is
better than distributing seats on the basis of capitation fee etc. there is a single test for
everyone. This is what Rawls called natural liberty, where nothing else is being done but it is
at least open to everyone. Though the performance in the test might be affected by your
social position, anyone who performs will be taken in. this is a condition of natural liberty
where you consider to be free, but nothing special is being done to address the social and
economic barriers. He calls it a situation of formal equality of opportunity. Compare it with
Article 14. Certain people might be better, but it is the same test for everyone.
What is to be done to move beyond formal equality of opportunity to fair equality of

opportunity? – A person might have a high IQ but may not have the financial capacity to
appear for AILET. If a person has not graduated class 12 and has not scored a certain
percentage, then they cannot appear for AILET. Secondly, they should have the money to fill
the form. If people are getting excluded due to the fact that they haven’t even cleared class 12
or no money for form, then reservations in AILET won’t help. Reservation is just one form of
affirmative action. There can be many other forms when thinking about basic policy terms.
So, two barriers have been recognised as yet.
To redress the Class 12 issue, one can think of free universal primary and secondary level
education. The state can provide this. At least those people who have a high IQ would then be
able to clear the test. For the barrier of registration fee, as a policy maker, the solution must
be for a general problem and not just specified for AILET. Lack of economic resources may
be an issue not just in the domain of education but other domains as well. Inequalities of
income or wealth maybe barriers in different domains, and a system of taxation may help
redress this. There can be minimum wage as well. But what kind of barriers do these steps
address? What kind of fairness will it introduce and for whom?
Assume that social inequalities are getting addressed. So, social and economic barriers might
get addressed. Social inequalities and universal education are not getting addressed through
progressive taxation. What you are ensuring is that people who are inherently intelligent and
are hardworking do not get left out because of their socio-economic position in the society. At
least you are not leaving out talent on the ground of social and economic barriers. They will
have a fair chance of getting through AILET. This is what is being addressed.
We are considering the attributes that help people succeed in life and the attributes that act as
barriers. Social and economic differences can be addressed but not the difference in inherent
talent. People can be inherently talented and have a higher IQ. The privilege you accumulate
in life on account of fact that you are inherently intelligent and dedicated, is it morally just on
the basis of these attributes to allocate different social and economic life chances to people?
Should success be dependent on inherent intelligence? Is there a claim on intelligence in that
sense?
What attributes are valued depends on the society. In India, the skills that a woman cricketer
has, is not as valuable that a man cricketer has. Therefore, what you are born with is like a
gamble; Rawls says that it is a natural lottery. People do not have a claim to natural talent. It
is just by chance that you are born the way you are born. Rawls suggests that these natural
talents are just like lottery, and morally they are as arbitrary as economic and social equality.
So, morally it would not be right to exclude people on the basis of such inherent attributes. In
formal equality, we could not address social and economic barriers. In fair equality of
opportunities, we tried to address social and economic barriers through progressive taxation
and free universal education. Rawls’s difference principle moves beyond the second situation
of fair equality of opportunity to democratic equality of opportunity. He talks about

democratic equality rather than fair equality. Fair equality lacks on certain grounds where
natural attributes help people to do better than others and have a claim to greater resources as
compared to others. Rawls says that this is not morally right because just like social and
economic barriers, natural attributes are just as arbitrary and there is no claim that you can
make that you deserve natural attributes. Therefore, accumulation of wealth and income on
the basis of these natural attributes is problematic on the basis of justice.
4th March 2021
⮚ Liberal equality generally addresses the effect that social and economic inequality has on life
chances of people. If you are born in a particular social and economic position, your life
chances are affected by it. Liberal equality tires to address such arbitrariness through
aggressive taxation and universal education. The purpose is to even out those barriers and
ensure that at least those born with talent are not excluded. However, Rawls considers this
arbitrary to the extent that people are born with different inherent skillsets. People stand
differently positioned with regard to these qualities – some people may have inherent
capacity of hard work, higher IQ, etc. These are also differently distributed in the society.
One would be in a position to clear AILET because of these inherent qualities. One cannot
say that one deserves to be born with a higher IQ. Therefore, Rawls calls it Natural Lottery.
Just on account of natural lottery some people would be better placed and have better life
chances. This is morally arbitrary and this also needs to be addressed. He terms his approach
as democratic equality. Just because one has a higher skillset, they do not have a claim of
higher income. Rawls refuses to accept such disproportionate claim. Rawls say so because of
arbitrariness. He also views society in terms of a venture for social cooperation. People live
in the society because it positions them better as compared to a lonely life. It is to everyone’s
advantage so they decide to cooperate with each other. This venture for social cooperation is
a collective venture, in which something is coming out of natural lottery. To say that people
have greater claim to better life chances on account of the fact that they are born with a skill
set would be wrong. This is the justification behind his difference position. Those who are
advantaged should refuse to take advantage of their advantaged position unless they benefit
the disadvantaged as well.
⮚ In that sense, these inherent qualities are seen as something that is socially owned. There is
no sense of ownership by an individual. This valued skill-set do deserve something more than
others but it cannot be disproportionately more and the idea that they deserve more value has
to have more association with the position that others are placed in. In that sense, certain
higher income may be acceptable because it enhances other’s chances. He is no treating the
skill-set as individually owned but collectively owned. His original position is constructed as
any liberal scholar would construct it, but his difference principle tries to address the
inequalities. Also, he says that there is nothing equal or unequal about these inherent
attributes. It is only that these inherent attributes are differentially distributed in the society;
these are social facts. It is different but not necessarily unjust. The question of justice emerges
when one thinks about how this difference is dealt with in the basic structure of the society.
So, justice and injustice can be understood from the point of view with how the basic
structure deals with these differences. Rawls proposed that the basic structure should deal
with these differences in terms of the Difference Principle. He said that people with more
valued attributes may have unequal income however, there claim to this higher income is
justified only if it improves the position of the most disadvantaged person; a person who has
no skill or inherent attributes. So, advantaged people have a higher claim to primary goods in
economic terms. There is no such restriction with respect to liberty and he is not in favour of
differential attribution of liberty. The first principle is based on the ideas of equality and
liberty. So, there is an equal set of basic liberties.
⮚ Difference principle is inherently based on economic inequalities. Intuitively, equal
distribution is just but certain unequal distribution is also just when they improve the
condition of the most disadvantaged. He also brings in the idea of efficiency. How this is
prior to the principle of efficiency and in most of the circumstances the difference principle is
also an efficient principle but prioritises justice over efficiency. He borrows the understanding
of efficiency from economics and says that any kind of distribution of economic resources is
efficiency if no other distribution is possible which would improve the position of any person
without disadvantaging any other person. That arrangement is economically efficient. There
cannot be an improvement in any situation without disadvantaging any other person. More
efficient will only be a situation where at least one person’s condition improves without
lowering the position of another person.
⮚ But he says that this efficient arrangement may not be just all the time. Absolutely skewed
distribution may also be efficient. If the entire wealth is owned by one person and nothing is
owned by any other person. Now, you cannot improve the position of others without lowering
the position of the person having all the resources. It is not an absolute plus and therefore,
this kind of skewed distribution will also be efficient economically. But from the perspective
of justice this is problematic. Since it is unjustified from the perspective of morality, therefore
he says that justice as a principle is prior to the principle of efficiency. In most of the
circumstances, his difference principle would be in line with efficiency because it has the
capacity of improving the life chances of others with improvement in life chances of those
already better placed. There are certain people who are better placed and certain
disadvantaged, so higher claim to primary goods is acceptable provided it raises the existing
position of lower group. In that sense, difference principle is compatible with efficiency
principle. Everyone is benefiting. There is no minus with regard to the condition of anyone.
⮚ However, when this distribution is skewed to the extent that one has everything and others
haven nothing, then no distribution without lowering of position. So, difference principle is
compatible with efficiency but in some circumstances, it prioritises justice to efficiency. For
example, he says that there can be three situations within the difference principle:
1. Raise the expectations of the most disadvantaged to the maximum level. At this maximum
level there is a rise in the life chances of most disadvantaged. Consider that there are 100
pieces of land. Each owner of the land has a particular set of income. Income is rupees 10. If
some of these 100 people are given greater land, say 5 people have more land than others
then there is unequal distribution now. He says that more land to others have raised the
position of others but this is acceptable only if the existing income of others is also raised. If
we redistribute and give greater land to some, the income of these 5 people may increase
from 10 to 100 but it would also be just and efficient only and only if it increases the income
of 95 others who were till now earning 10, to say 50. Think about this arrangement from the
POV of capitalism: as long as everyone’s condition improves, it is fine. Thus, improvement
in condition of better place to a certain level which maximally increases the position of
disadvantaged. This is a perfectly just position. Now, even if you add more to advantaged, the
position of disadvantaged won’t change.
2. Improvement in condition of better ones, adds to the welfare of more disadvantaged but it
does not take their life chances to the maximum level. This position is reasonably just though
adding more to the advantage of already advantaged can add more to the position of
disadvantaged people.
3. This is the unjust situation. Here, the advantaged and disadvantaged are placed at different
levels. He says that if the condition is such that lowering the advantages of the better placed
will improve the conditions of the disadvantaged, then that initial position where you are not
lowering the advantages of the more advantaged, therefore it is not leading to improvement
of the disadvantaged. Only where inequality of income is to everyone’s advantage is
supported. In the last situation, better ones are taking advantage at the cost of disadvantaged
people. This is unacceptable. One may have a claim to better life chances or greater
advantages only if you add to the advantage of most disadvantaged ones. He would say that
advantages in such position should be lowered.
⮚ Therefore, perfectly just situation is the first situation. Life chances of disadvantaged are
raised to the maximum level. There is no increase possible beyond that. Second situation is
where the conditions are both levels is increased reasonably. The problem is where the
greater advantage to the better ones is lowering the advantage of the worst ones. This is a
situation where he would prioritise justice over efficiency. This is so because venture of
social cooperation is a collective venture and should be to everyone’s benefit.
Reason 1 – He also says that within the difference principle, advantages attached total
position open to all by fair opportunity of equality. Probably we will be more efficient if
people with more IQ have a claim to these positions, but that is unjust. He does not favour
unequal position with respect to positions in public offices. He is not talking about
ineuqalties; inequalities may come out of these posotons. But, the positon should be open to
everyone. It should not be a psoton where ceratin people are prefreretd to others. Better
managers may make the system more efficient but that is unacceptable.
Reason 2 –The other problem is that the oppotibites these people would have to develop there
skills is getting adversely affected if you are excluding people. If people are able to recognise
their potentional, then they get a sense of self-respect.
10:24.
Rawls also brings on board as far as political theory is concerned,
He brings in reciprocity. He won’t claim a higher income or wealth if it comes at the cost of
others. I have a claim only if it also benefits others. He is thinking about the most
disadvantaged because if their condition is improved, since the people are connected through
a chain, the condition of people in between would also improve. This is why he views the
conditions from the view of the most disadvantaged. This is where reciprocity comes.
The first principle of liberty is based on the ideas of equality and liberty. The first part of the
second principle is based on the idea of fraternity. The second part of the second principle is
based on the idea of equality. In that sense, he brings in the ideas of equality, liberty, and
fraternity in construction of his principles. But he prioritses liberty over the difference
principle and liberty cannot be compromised for the sake of economic order. That is why he
says that these principles are lexically ordered. Restrictions on liberty must be for the sake of
liberty itself. Maximum liberty is not absolute liberty because it may come at a set of other
people’s liberty. For the sake of liberty, maximum liberty compatible with liberty of others is
needed.
8th March 2021
Last Class – Agree to unequal accumulation of wealth by capitalists otherwise disadvantaged

will be more disadvantaged.
Reasonably Just Situation – When addition to the position of advantage would also raise to
the position of advantage but no to the maximum level. There is still a possibility of raising
the welfare of the disadvantaged and therefore, it is reasonably just situation.
Unjust Position – there is no reciprocity. The advatnages that the more privileged are deriving
is coming at the cost of disadvantages. Therefore, it is not beneificial to everyone but the
privileged.
He is called liberal egalitarian because he supports welfare capitalism.
In the comparison between the two AILET exams, aspects such as financial and intellectual
ability and access in social terms were identied. When liberal philosophy treis to move awat
from formal equality … 9;47 . so that people who are naturally talented are not disadvated.
However, Rawls suggests democractic equality. This type of equality does not … if you
economic and soial positon is arbitarya determined, then tou natural talent is also natural
lottery. Sicne it si abraigttuyea dsitrubuted, cooperative is ventyre. We cooperate so that all of

us are placed in a better psotiomn. Potoheris,e there is not point of coopertating with each
other. Social eixtebce is better than solidary existence. We are doing that because efeyroen is
getting bebeffots out of this. The fact that you are bornwith skills througha natural lottery,
should not substantially or disportieonalte increase/depresss your life chacnces because that
would be arbitrary from a moal perspecite. So, people will lesser IQ do have a calim to be
tretad well and reieve advagtaefed when we are getting into social ciipeatib. This is so
because that would be in accordance with justice. That’s how he buils his potion with regard
to democractic quality qhere people reuse to take adgnage which comes at the cost of
disadvantage to toehrs.
It is just for the peroan to take advanta of their intellect provided that it beneifts ithers as well.
He is not looking at natural lottery as something which is individually woned. This
difrerentiates Rawls from libertarianis. Liberatiain would clain intellect as an individual’s
claim. Rawls rather saya that it is because of social cooperation. Liberatiarins in that sense
take as given or assumet htat it is only an outcome of his special interllect. The point is that
when are you in a position to create something and apply for a patent, it is only at a certain
level of maturity; can do that as an adult and not as a child. Even as an adult you are required
on others; grow foods, manufacture cloths and machinery, etc. everyone is contributing. You
rely on others for these 9:53. … Think about Eisntien being required to grow his food, weave
his clothes, etc. this contirbueion mught not have happened then. So, liberatiarinas take it for
assumption. Rawls does not support that. This is the difference beween them. this is why
Rawls is a liberal egalitarian.
Rawls differentiaes btwene perfufce procueal justice, imperfect procuedal hjhustice, and pure
procudeal justice.
Perfwect justice is when tyou know that herte is a perfeclt just outcome. This outcome is
identifiable. You are only looking at the procedure at the porcduer that will get you atr the
perfectly just outcome. For example, if a cake is to be distributed among six people, then the
best way would be to say that the person who cuts the cake would be the last person to take
the cake. If the person cuts disproporatienately, the people before them will take the peicce.
So, this person would have an interst in cutting it perfectly. So, this rpocuder will take yo
perfect outcome.
Imperfect procedural justice – he gives the example of a trial of a person. Just outcome is that
if a person is guilty, but if innocent then the person should cone out innocme.t the procure of
the trail is such that it helps as reach the outcome. However, Rawls says that there is perfect
preocure to get this outcome. 10:05
Since there is no independent measure of just outcome, then maximally what one can have is
a jjust procedure and you beilebe that whatever it fetches would be just. In his theory of
justice, what is coming up is pure proceual justice. He is not deiding beforeehad what kind of
income and wealth distirbuteon would be just.
If we say that only equal distbiton is just distbition, then this kind of take is coming from
your subjejectivity; that people should not have a claim to what tjey are borng with and if
they are born with a silver spoon in their wealth, others have claim to it. When you talk about
equalty of wealth, some wealth exists but some wealth is created through people’s labour.
If person A has created something through their labour, still it’s going to be equallty dvided.
What Rawls instead is saying is that A might keep the major chunk of this thing, and the rest
may be divided among people. He is not saying that if A is out of 100, then let 1/100 to A. If
others are not putting hard labour, then A is entitled to a greater portion due to the hard
labour. Rawls is not a communitarian and not at equal distributon. He is only at certain
unequal distibuton wthin certain levels.
If someone has created something, then the question is how do you bring about equality. He
is not taking the position that equal disrbtirbtuon is just position but whatever is coming out
of the two principles he gave is just equality. He is trying to be objective with regard to
outcome. Philsopjhycailly, there has always been a debate between means and ends. 10;13.
This will be contrary to liberal philopshgy because you are identifying and imposing a goal.
Liberal phislokby will never go by imposition because that is contrary to freedom. So, he
would refrain from identifiying what share constitutes just distubition. He is only saying that
whatever shares come up following the liberty principle and the just shares wll be just ones.
He is saying that unequal dsibtution will remain jsust because it is the outcome of just
procedure.
10:17 to 10:24
The second principle would be at concernd at the third stage which is the legialtive stage. At
the legialtive stage, you might know the level of resources that the country has, the
crumstancs that prevail, but you do not know your postion in the country. The veil of
ignorance still pertains to lack of knowledge in the society.
The fourth stage is the advisnitative stage. No veil of ingnoracne is required. All principle of
justice have been incoproated. Administrative stage deal only with the dusputes that mught
arise. What is required at this stage is that the decisions you take are impartial and in
accordancewuth the principles of natural justice. It is just impetail justice in accordance with
PNJ and no veil of ignorance.
Chapter 30 –
12th March 2021
FOUR-STAGE SEQUENCE
⮚ Rawls thought of a situation of original position under the Veil of Ignorance where people
decide the principles of justice and then as part of the Theory of Justice, Rawls discusses how
these principles may be operationalised. In furtherance of this, he talks about a four-stage
sequence where First Stage is the stage of original position where the principles of justice are
accepted by people. In the Second Stage, the constitution is accepted by people. At each of
these stages, the level of Veil of Ignorance is difference; thickest at the first stage and then it
is lifted to some extent in the constitutional stage so they would know the basic political
principles that may exist in society but they would not know about the resources they have
for disposal in their society. At the second stage the veil is lifted merely to decide upon the
constitutional principles on the basis of the two principles of justice identified in the first
stage. The third stage is the legislative stage. Since he has talked about the lexical order of the
principle (liberty principle is prior to the difference principle), therefore he takes up these
principles at different stages. At the second stage what is being thought about is not the
difference principle but the difference principle. Difference principle will be deliberated upon
only at the legislative stage where people would think of the kind of legislations that should
be put in place to give effect to the difference principle. Here, the veil of ignorance is lifted to
a certain extent to know the kind of resources available and the state of development of the
society. However, they would still not know their own socio-economic position in the society.
Fourth Stage is the administrative stage where the veil of ignorance is lifted all together.
There is no need for veil of ignorance because at the fourth stage, impartial administration of
justice is required. So, the principles have been accepted and operationalised, and now
administrative decision will be taken in accordance with the principles.
⮚ For operationalisation of liberty, it is important that firstly, freedom of conscious and
expression is to be protected though there have to be certain limitations on account of order;

principles for maintenance of order must be put in place for the sake of liberty. It can be
something as simple as people speaking one by one rather than simultaneously. People can
exercise their rights properly only if there is order. If there is no order, the liberty of
expressing yourself will get curtailed. One of the priority principles of the liberty rule is that
liberty can be curtailed for liberty itself and not to give effect to the difference principle. This
is what lexical ordering of the principles also indicate.
⮚ Rawls distinguishes between liberty and worth of liberty. When it is said that a person is not
in a position to enjoy their liberty due to poverty etc., then that is not violation of liberty.
Meaning thereby, just because a person does not have the economic resources to move
around freely, it does not mean that their right to freedom of movement is violated. This is so
because of the difference between liberty and worth of liberty. What is different for this
person is the worth of liberty. The liberty is equal but the worth of liberty may be different on
account of one’s economic status. Rawls says that people can’t complain about the different
worth of liberty that they experience. This different worth of liberty is coming from the
second principle. Complete adherence to second principle ensures that everyone benefits. The
entire structure is based on the idea that you have equal and maximum liberty for everyone
and at the same time difference principle allows that economic equality provided that it
improves the condition of the most disadvantaged. Therefore, this structure is fair and just.
The two principles adopted in the original position places the most disadvantaged in a better
position.
OPERATIONALISATION OF THE IDEA OF LIBERTY
⮚ He discusses two ideas: Political Liberty and Liberty of Conscience
Liberty of Conscience
⮚ Rawls starts with the liberty of conscience; the idea that people have the right to hold
whatever opinion they want to hold. Basically, this is the idea of freedom of religion. It might
also include any other beliefs that a person holds. From this, freedom of religion emerges in
the constitution. According to Rawls, freedom of religion would form an integral part of the
constitution. However, certain beliefs protected by the liberty of conscience might be
intolerant beliefs. So as long as one person’s belief does not conflict with that of another,
there is no problem. But if one person’s belief necessitates that they do not tolerate another
person’s belief, then there is a situation of conflict.
⮚ In this situation, can it be said that the principle of liberty recognised in the original position
necessitates tolerating the intolerant and whether intolerant can raise a claim against the
tolerant as well? – Rawls says that they can’t be given the right of complaining against the
tolerant. This is so because complain would be a kind of espousal of shared values. One
would complain thinking that there are certain shared values and the other person has gone
against the shared values. Complaint implies that there is a shared value. Since there are no
shared values (value of toleration is not shared), the intolerants don’t have the right to
complain to the tolerant. However, Rawls is not saying that have the right of existence but
they can’t complain.
⮚ At the same time, in what circumstances can it be said that tolerant can take an action against
the intolerant? Whether the intolerant can be allowed to do anything or do the tolerant have
any power to do anything about it? What if the institutions established by the constitution are
abolished by them? – Rawls says that only when the intolerants cause an immediate and
imminent danger, then they might not be tolerated. He is talking about tolerating the
intolerants because the original position should that people do not know with what belief they
will be born as; they just know that whatever belief one holds is integral to them and
therefore they are to be protected. If they are born as intolerant set, then they would have a
firm belief that there is a certain way in which they can protect themselves. So, the intolerants
have the right to be intolerant and exist.
⮚ Rawls is discussing freedom of conscious through religious freedom but it can be discussed
from moral convictions as well. The intolerants might have a firm belief that vaccination is
bad. However, the question whether they can thwart the vaccination of others as well; to what
extent can intolerants be tolerated. Mills drew the line based on the harm principle.
⮚ The first aspect of freedom of conscience is on what grounds the constitution will embody the
idea of tolerating the intolerants. The second aspect is whether there is a duty to tolerate the
intolerant under any or every condition. This is where the restrictions of public order and
safety would step in. Public order and safety would be a limitation that would be recognised
on the basis of the liberty principle at the constitutional stage. There is no greater or lesser
liberty but everyone is entitled to equal liberty which are compatible. There are two parts of
Rawls’ theory. One is the ideal part where the principles are fully realised and followed so
there is no deviation from the principles of justice. But in unideal situations, there may be
digression and it will be seen how to deal with such situations. Less than maximum liberty is
acceptable provided it enhances the total set of liberties. Only those restrictions on liberty are
acceptable which enhance the total set of liberties and one such restriction is that of public
order and safety. So, you have liberty but it is less than maximum. If everyone is allowed
maximum liberty, they may start harming others, for example, stopping others from getting
vaccinated.
⮚ Now, the question is as to what is public order and security. It is not that any restrictions
would be acceptable merely because the state feels that the damage is probable, but there has
to be certain and imminent danger to the system of liberty; to public order and security.
Liberty can be enjoyed only when there is some sense of security and public order. So, a
religion might be intolerant to homosexuality and that’s okay. However, the intolerance ends
if they want to interfere with the liberty of those who want to tolerate or practice
homosexuality. Gradually, the intolerants would recognise that they are being tolerated. It
would result in cultivation of respect for the system; they won’t be allowed to dismantle the
system. It is accepted in the original position that people are free to hold whatever beliefs
they have. Rawls is assuming that every individual is committed to the principles of justice.
Basically, Rawls is talking about liberal individuals.
Political Liberty
⮚ He discusses political liberty in terms of equality of participation in political process. He has
given moral philosophical reasons in favour of constitutional democracies. Constitutional

democracies are just because they generally uphold civil liberties such as freedom of
expression, etc. They also uphold political freedom and political participation. He discusses
political freedom by way of equal political participation in the political process. In India,
there is one person, one vote, UAF, etc. These principles would be integrated into the
constitution at the second stage. However, there is also the fear that on account of democracy,
one may also find that there is a tendency that the constitution would turn out to be
majoritarian. So, the idea of political freedom is discussed in the context of the kind of
restrictions that may be imposed on the constitution so that the constitution does not become
a majoritarian constitution. Practically, you cannot move out of a certain level of
majoritarianism but that may be curtailed to a certain extent in the long run. Restrictions such
as bicameral legislature, federal structure, judicial review, bill of rights, separation of powers,
etc. to ensure that the constitution does not become a majoritarian constitution.
⮚ Rawls particularly delves into the types of political freedoms and how to operationalise them.
Rawls draws out attention to the fact that it is fine that at the normative level there is
universal adult franchise, however, we find that the way system operates it is questionable as
to everyone has the ability of contesting elections. Rawls is in the favour of multi-party
elections. Political debates and contesting elections also depend on financial support from
others; business groups give donations to political parties. With these resources, they may be
able to steer the public debate in the path in which they want to. Political debate ought not to
be tilted towards any side on account of economic capacity. Political equality and political
freedom cannot be secured if this happens. So, people with financial resources may put in
peril the political equality and political freedom guaranteed by the Constitution. Therefore,
Rawls says that there must be public spending on organising political debates and there must
be public funding for political parties. Private funding for political parties should not exist.
Political participation emerges from his first principle which is prior to economic inequalities.
But if economic inequalities are such that they are in a position to affect the first principle,
then it would be problematic because that would take away the priority of the first principle.
If private actors are allowed to fund political debates and parties, then they would have a
greater influence thereby putting in peril political equality.
Priority Rules
1. Less extensive liberty must strengthen the total system of liberty shared by all.
2. Less than equal liberty must be acceptable to those with lesser liberty – The question of less
than equal liberty may arise out of certain natural conditions of human life. People are aware
of the natural conditions of life and accept these rules and principles in the original position
since they are interested in protecting their own interest. They know that as a child, it is
advisable that adults decide on behalf of them or to protect mentally challenged persons, it is
better if others act on their behalf. The reason behind this restriction is that people in the
original position will accept this because a child or mentally challenged person might harm
themselves due to limited rationality. This is a principle of paternalism. When the child
comes of age, they would realise that it was the right thing to do.
⮚ Rawls also goes on to his unideal part of his theory which may not meet the principles of
justice. In those unideal situations, we may prefer that condition which is better than a worse
condition that may exist in an ideal situation. For example, when nation states led wars
against each-other, they used to take prisoners of war and they used to put them to death. This
is an unideal situation as a person’s liberty is being curtailed. The states may come together
and decide that whenever prisoners of war are taken, they won’t be killed but they would be
used as slaves. In this unideal situation, Rawls is choosing a better option.
15th March 2021
⮚ Rawls is trying to provide a fair system insofar as liberties are but he is not going beyond that
when it comes to the actual realisation of liberties. He is of the view that there might remain
certain difference and to ensure that those difference are not huge, he has introduced the
Difference Principle. He is just trying to limit the inequalities in the society and he is not
saying that the society would be absolutely equal in terms of liberty and worth of liberty
because worth of liberty ultimately depends on economic resources which in turn are taken
care of by the Difference Principle and not the Liberty Principle. He intends to establish a just
system through the Difference Principle.
OPERATIONALISING THE DIFFERENCE PRINCIPLE
Third Stage
⮚ It is the legislative stage. Here, the primary concern is how the difference principle is to be
operationalised. Rawls expresses this operationalisation through various branches and these
branches have various roles to play in the economic organisation of the state. Rawls does not
take a position with regard to capitalism or socialism. So, whether the means of production
are privately owned or state owned, it does not matter and the difference principle can be
operationalised in any of the regimes. However, he primarily builds upon the difference
principle through the private means of production.
⮚ The first branch is the allocation branch. The purpose of this branch is to ensure competitive
market prices and to ensure that there is no monopolisation in the market. Basically, he wants
to make sure that the market operates efficiently.
⮚ The second branch is the stabilisation branch. Its’s purpose is to ensure that there is full
employment. All those who want to work can find employment and can work wherever they
want to work.
⮚ The third branch is the transfer branch. The task of this branch is to transfer money. Rawls is
working through markets and markets function on the principle of efficiency. So, wages will
be determined by demand and supply which would lead to variable wages. Therefore, he says
that markets do not take care of needs but assigns resources only on the basis of demands and
supply. In that sense, wages may not be very high and they might be very low and the person
might not be able to fulfil their needs. When these needs cannot be fulfilled, the transfer
branch will transfer resources to this person. So, the total income of a person would be wages
plus the transferred amount. An alternative to this is fixing minimum wage. But Rawls
prefers transfer rather than fixation of minimum wage because the latter interferes with the
market. Increasing market efficiency ensures efficient use of resources; if people do not have
enough resources, then it is better that the state transfers the resources.
⮚ Rawls is not an absolutely free market proponent. He is fine with certain level of interference.
He is talking about a welfare state and therefore, the state has a role to play. Though he is
conscience of the kind of role the state will play. Thus, he is trying to ensure to a great extent
that the market functions efficiently but at the same time ensure that the market does not lead
to huge inequalities.
⮚ Fourth branch is the Distribution Branch and its aim is to secure that the inequalities remain
within certain limits. It can do it in two ways – (1) imposing certain taxes on inheritance, gifts
and imposing limits on bequests. He says that inheritance and gifts are like natural lottery;
you don’t have a prior claim to them. There is inherent arbitrariness. The purpose of this is
not to get revenue for the state but to ensure that the difference in wealth remains within
certain level. (2) by imposing taxes in general. The purpose of this tax is to collect revenue.
He mentions universal education for democratic equality of opportunity. To ensure this he
wants to impose taxes and he prefers expenditure tax to income tax. He says that through
income the person is contributing to the common goal. The reason why he prefers
expenditure tax is that when you spend money, you are taking something out of the common
goal. He says that progressive taxation can be imposed.
⮚ Fifth branch is the Exchange Branch and its purpose is to arrive at a consensus or agreement
with regard to allocation of resources for certain public goods. For example, reducing water
pollution or air pollution. This branch would decide on the basis of the public good and once
decided, it will also decide where the money will come from. So, there has to be an
agreement with regard to both the things.
⮚ Intergenerational Justice – One of the priority rules to difference principle – it is called the
just savings principle and is based on justice between generations. He makes the point that
resources are being allocated through difference branches to limit inequalities, however, at
the same time there is a particular limit or restriction on the level on which you ought to
spend on the difference principle and that limit emerges from intergenerational justice, that is,
the demand of the next generation. Therefore, it acts as a priority rule with regard to the
difference principle. The allocation to be made for operationalisation of difference principle
is with regard to the just savings principle.
CRITIQUE OF RAWLS
⮚ Ali’s Doubt – Rawls is considering justice in a particular society and not global justice. This
society too is a closed society. He is not talking about justice in a society in a globalised
world where the countries are interconnected. The resources that a country has will definitely
affect how better placed the disadvantaged are but when deciding the principles of justice,
people do not know about their status due to the veil of ignorance. He is not considering how
the different distribution of resources came about but he is only considering that people are
thinking about the justice that should prevail in the society in which they will take birth, and
they do not know about the resources that will be available with the society.
⮚ One of the critiques of Rawls is the Feminist critique. He mentions social and economic
position, but he does not mention sex as a ground of discrimination. So, until and unless sex
is mentioned in the social position, there is no mention of sex in his work. It can be applied to
all other structural discriminations that exist; it can be caste as well. He is even taking into
account religion, but not gender. Feminists have specially mentioned absence of the term sex
in the way he structures his veil of ignorance. Therefore, all the discrimination emerging out
of sex get left out.
⮚ Okin mentions that firstly, there is no mention of sex by Rawls and secondly, while talking
about the difference principle, he talks about family income and not the distribution of
income within the family. On of the critiques emerges from the fact as to who the people
deciding the principles in the original position are.
⮚ Many differential treatments come to light only through experience and one may not even
envision such treatments in the abstract sense. The idea of abstraction is problematic
according to feminists. Rawls went for abstraction to remove any subjectivities. His
independent, self-contained beings are not formed by experiences but rationality. Rawls is a
modern thinker and the zeal to get to an objective basis of knowledge, and the
methodological tool that modern scholars have used is the tool of abstraction. They leave out
all those parts of human beings which they do not think that is essential for rationality. They
just retain rationality in a way which is considered by mutual disinterest. The question is why
should he in the first place choose mutual disinterest as a quality. The way he has constructed
his original position gives these two principles in a hierarchical order. Only if a person is
self-concerned and not connected through others with bonds of love and affection, then only
liberty will be prioritised. It is the assumptions that get Rawls to the two principles and the
hierarchy between them. if the original position is substituted, the liberty won’t be the first
principle. Liberty is something which only independent, self-interested people will prioritise
over anything else. Also, she critiques Rawls methodologically where he uses abstraction as a
methodology to arrive at the principles of justice. Abstraction is used to get to objective truth
but in reality, it is this methodology of abstraction which itself is problematic. Feminists have
gotten into finding out truths through experience sharing rather than abstract truths. This is
how feminists bring in their experience to show how the society actually is and
discrimination exists.
⮚ She says to think about the veil and who is it behind the veil. Most of the time, it is the
objectified woman who is behind the veil. Abstractions don’t always find the realities and the
assumptions are responsible for his principles. He excludes sex out of the initial exposition of
veil of ignorance as if it does not matter.
⮚ He talks about family income and not individual income and assumes everyone to be a person
who contributes to the labour income. Public-Private is something that Mcsuka focuses on.
The philosophical position adopted by Rawls completely excludes women and all the
attributes that are stereotypically related to women – emotion, care, private sphere, equality
within family, etc.
25th March 2021
AMARTYA SEN
⮚ He launches a critique of the existing theories of justice, identifies a gap, and fills the gap
with his own ideas. Sen analyses and criticises intensively Rawls. Since Sen is from India, he
contextualises a lot with Indian things. One could one argue that his origins play a huge role
in his approach to justice.
⮚ The broad question that Sen asks is how do you understand justice and who should be
concerned with justice and how do you understand whether or not justice has happened. His
entire theory unfolds in answering these questions. The important pillar he identifies is the
pillar of reason. In some instances, you intuitively gather that justice has happened. But in
cases where the injustice is not widespread, you need to reason it out. For him, it is necessary
that this reasoning happens.
⮚ The second idea that he puts out is that is there is a need to identify one dominant reason to
say the presence or absence if something would determine justice or injustice. For instance,
for utilitarians, happiness is required for justice to happen. But Sen has a problem with this
idea. He gives an example – Warren Hastings v Edmund Burke. He concluded this example
by saying that Burke is simply arguing by saying that Hastings has violated the laws of
justice by laying down multiple reasons without really arguing that a particular reason is the
most dominant one. For Sen, the idea of reason or what he calls the Reason Diagnosis of
justice is very specific. He focuses more on injustices rather than justice.
⮚ His argument is that there are two ways of looking about all the conversations around justice.
One category he places with very influential thinkers. Second category is a set of disparate
thinking who are not talking in the same direction but have some underlying common ideas.
He discusses this to simply outline how the pursuit of justice is being understood currently.
TRANSCENDENTAL INSTITUTIONALISM
⮚ There are two broad approaches to justice – Transcendental Institutionalism is one of them.
the simple way of understanding this is that it is simply the best and there is nothing beyond
it. Theorists belonging to this school of thought are all focused on how to reach a perfectly
just society. In that focus, he looks at the just institutions required to look at the just society.
Rawls had identified certain institutions and if you ensure these institutions, you will end up
in a perfectly just society. That’s the focus of transcendental institutionalist. They are looking
to get a perfectly just society.
⮚ Requirements of Rawlsian Theory of Justice – A bunch of people in the original position
decide upon a bunch of principles that would be used to create institutions required for a just
society. Since they are behind the veil of ignorance, they would have no vested interests. This
is exactly what a transcendental institutionalist would say. They look for the most just society.
These philosophers use a lot of term interchangeably.
POINTS OF CONCERN FOR SEN AGAINST TRANSCENDENTAL INSTITUTIONALISM
⮚ He raises the point, firstly, when you are talking about the working of the society, you make
an assumption for what kind of society you will end up with but there is a difference between
assumption and reality. You should account the factor that the nature of the society will be
influenced not only with the institutions you have identified but other non-institutional factors
as well. For example, the actual behaviour of people and how do they interact with
each-other. The question is that for whom are you making this society. It does not happen in
abstract. If the society is being made for individuals, then how can you not look at their actual
behaviour. Not many transcendental scholars have actually answered this question whereas
Rawls actually tries to respond to this question.
⮚ Rawls presumes that people would behave in a just manner. Only this is when his theory will
work, but Sen has a huge issue with this. Everyone will always not behave. For example, not
everyone will follow traffic rules. Actual behaviour of people must be accounted for in the
theory of justice. You cannot assume this because at the end of the day justice is about how
people interact with each other. So, one problem with transcendental thinkers is the kind of
assumptions they make.
⮚ Secondly, Sen asks what are Hobbes and Locke looking at. They are looking at a perfectly
just society. He asks a blunt question – is such a just society even feasible. The reason why he
is asking this question is because he is saying what amounts to a just society. When would
you say that a certain arrangement is just. He goes back to Rawls here. In the Rawlsian
understanding, you had a set of people who reasoned, identified principles, which in turn
identified institutions. The crucial assumption that Rawls made is that if all of them are
reasoning, then what is the basis to argue that when people get together, that they will always
arrive at the two principles of justice. Sens says that he fails to provide that; there seems to be
something arbitrary here. And that too which are lexically ordered.
⮚ He gives the example of a flute and three children. Out of the three, one made the flute and
the question is as to which kid should get the flute. Which would be the just solution. One
argument is that when the first child comes up and says that he is the only one who can play
the flute really well and give immense happiness to a lot of people. The second kid would say
that the other two already have a resources and toys and he is extremely poor, if you give him
this, he’ll have something otherwise nothing. The third argument is by the child who made it.
He says that he put his time, energy and challenge in making the flute and it is his flute.
⮚ First child is a Utilitarian. Second child is an Egalitarian and the third child is a libertarian. If
you look at each of these principles, then they are impartial principles and each of them are
equally plausible.
⮚ There is no reason to make that arbitrary junk that Rawls made. There is no reason to say that
impartial arguments would lead to single outcome; all of them would lead to multiple
outcomes. You have to pick one of the multiple ideas. When you reason, you get a large set of
principles and all of them may work and none of them may be compatible with each other. He
picks the issue of feasibility to argue that the entire search for a just society based on certain
set of principles is highly infeasible. He takes a dig at Rawls. He has got immense respect for
Rawls but always brings him down by saying that he has a fundamental problem with what
he is suggesting. Unless Rawls can remedy it, his theory is in big trouble.
⮚ The other idea is the Redundancy Issue. He is simply asking why should we end up searching
for perfect just institutions which is virtually impossible to reach in all institutions. The
children gave competing alternatives and you have to select one. When you have these
alternatives, how will the perfectly just virtual society help.
⮚ For example, in the last few weeks, multiple students have asked to re-open the hostels. They
have argued that justice requires it – it would help in recruitment, internship, etc. A just
arrangement in this can be multiple things. In the current situation, there would be a
combination of ideas – access, quarantine, etc. When you need to select these combinations,
does the knowledge of the perfect combination help?
⮚ One argument in favour would be to look at the closest to the perfect combination. But Sen
raises two counter-arguments. Does that also imply closeness of justice? 2. Since it is a
combination of things, it may be close in some aspects but not in terms of others. For
example, it may be close in terms of time you spend out of hostel but not in terms of
information you need to give to the uni.
⮚ His idea has been that the dominant theories of justice could broadly be placed within this
transcendental institutionalism which is only trying to get to a just society which almost
always stays out of reach. Most of the theorists go back to locating the perfect set of rules and
institutions. Sen argues that it is alright to think that way, but there are a lot of nuts and bolts,
including assumption, for this logic to run to get the perfect society. He picks Rawls’s
framework to show the problematic areas including the plurality of reasons and down to
suggesting that is there even a need to look at a perfectly just society.
⮚ What Sen has done for us is expose the gaps. Transcendental Institutionalism approach is the
dominant approach in justice. Sen’s theory is considered by a lot of policy-makers. He argues

to think differently. He has given us an inkling that why are we bothered with this perfectly
just society. The underlying understanding is that if we get this just society, everything will
be just. But if we are not looking at a just society, then what will be looking at?
⮚ Transcendental Institutionalism is often equated with contractarian way of understanding
justice.
⮚ A lot of scholars are saying that if we look at certain institutions in the current society that are
unjust, for example, the institution of slavery. They are not concerned with what will happen
if slavery is abolishes but addressing the problem of slavery. This second approach, is called
the Realisation focused Comparison. He makes a broad categorisation. This approach is

equated to the social choice theory. The focus here is to get a consensus on injustices. They
basic question they are asking is as to how to address these injustices. If the question is about
addressing injustices, one could argue that all Sen is doing is focusing on the ends, and how
you reach to the end is not something we are bothered with. So, one way of understanding is
that transcendental institutionalism looks at the process while realisation focused approach is
looking at what you actually get in a comparative understanding.
⮚ Realisation focused approach is focusing on outcome irrespective of how you come to it. Sen
raises an argument that it is not really a consequential approach but the focus is also on how
you reach this argument. So, there are two ideas involved. The process of reaching the
outcome and the final outcome. But for Sen, that would be an incorrect understanding since
he also focusing on the process.
26th March 2021
⮚ Sen concedes that there are different ways of understanding justice. He identifies core ideas
and links them with the broad frame. This is based on reasoning. What any theory of justice
does for us is provide a basis for reasoning. If it is said that a certain arrangement is better,
then you have to give reasons to prove why it is just. It cannot be arbitrary. All the major
thinkers have gone for transcendental institutionalism – focusing on a just society. This is not
a framework that he readily subscribes and has a deep concern about the kind of focus these
theories have.
⮚ In contrast to this theory, there is the Realisation Focused Comparison. It focuses on the
actual happenings in the society. Since they focus on actual happenings to see whether justice
or injustice is there, it is called realisation focused. The word comparison indicates that
realisation focuses across the world at a multiple set of societies to see what can be
categorised as consensus. This comparison is to identify and address injustice. To work out
whether something is just or unjust, you need a lot of information. In certain cases, like flood
or genocide, you can say that there is injustice. However, in cases of complex injustice, you
need more information. Two things are required: 1) more information required by those who
determine and 2) you need to engage with the idea of reason. Rawls simply looks at the
society and shelters it from outside things – makes an original position and takes away their
vested interests – but there is no discussion on their values and prejudices. But what about
people who are outside this original position. What Sen is trying to say is that there is a need
of the viewpoint of an outsider.
⮚ Example – Value of women’s work in the household. For a long time, this work was not
accounted for. How did one get to the idea that this is problematic? – One had to look from
the outside to see that there is something wrong here. There is a bigger notion of equality;
work is work irrespective of what is happening. Unless you engage with this exercise, the
people who are in this position may never understand that something wrong is taking place.
They tend to re-enforce the ideas they always carry. Thus, Sen uses the concept of ‘Trap of
Colloquialism’ suggested by Adam Smith. Unless you permit Open Impartiality (viewing as
an outsider), your understanding of what is just or unjust would be problematic. You would
have to account for your own values and perspective.
⮚ The takeaway is that for Sen it is not just adequate to think that merely because you have
made institutions and rules and assume that justice has happened, then it is problematic. He
argues that what you need to do is firstly, look at what is happening and secondly, engage
with what is happening to see if it is injustice or not. The need for information becomes
extremely important for this public reasoning or public scrutiny to happen. He has no
illusions that at the end of the public scrutiny everyone would end with some conclusion and
he said that one may find nothing at the end of this exercise. But the idea is that you cannot
come to any idea injustice without engaging with the happenings with reason.
NITI AND NYAY
⮚ Sen is contextualising the two set-up approaches from an Indian viewpoint. He uses the
notion of Niti and Nyay to drive home is argument. ‘Niti’ tends to align itself with what
transcendental scholars would say. It is a search for certain institutions and the kind of
behaviour one should have. He calls this coming together of focus on institutions and focus
on what may be termed as socially appropriate behaviour as an ‘arrangement focus’ wherein
you figure out a social arrangement involving the presence of certain behaviour and
institutions. The moment you have this social arrangement in place, justice is automatically
delivered. This is what most of the transcendental scholars do. They outline an arrangement
and the moment it is achieved; justice is delivered. Rawls did not test his theory but he simply
argued that justice would happen if his arrangement is achieved. This is also how most of the
legal reforms are taking place today; frameworks are being put in place. But there is another
bunch of people arguing that this is not enough. Sen says that you can focus on the Niti or
you look at something far bigger, and that is the concept of Nyay. Niti is connected to the
contractarian idea of transcendental intuitionalism while Nyay is a far bigger idea of what is
actually happening. Sen’s argument is that you need to focus on Nyay because it is not
adequate to simply focus on rules and assume that justice has happened. There is no way that
you cannot not look at what is happening in the society for your conclusion of justness or
unjustness.
⮚ Justice of the Fish – Among fish, the bigger fish can eat the smaller fish and this cannot be
allowed in the society. If the bigger fish continues to eat smaller fish, would you still say that
there is justice. The idea is that where it is possible for individuals to do injustice to others
and get away with? – Sens says that you need to move away from these notions you are
creating to what is actually happening. This becomes necessary when talking about justice.
⮚ There is a problem which Sen himself points. At the end of the day, we are focusing on what
is actually happening. When we do this to look at questions of justice and injustice, it seems
to us that we are only focusing on the consequences. If that is the case, then others have also
done the same. The utilitarians are also focusing on consequences. How are we different
then?
⮚ He introduces another idea here. What actual realisation is looking at not just what happens
but how it is happening. focus on the process as well. The coming together of
consequentialism and deontology is important for Sen – looking at both what and how. He
calls the evaluation of both these ideas as the Comprehensive Outcome. The continued
scrutiny cannot happen in a vacuum.
⮚ Another problem with TS was that they were only focusing on the state. Sen says if we can
look across the globe, and if we are doing so, then are we looking at global justice? It is
difficult for him to say that TS would agree to global justice or for them to have a state which
will adhere to the principles.
⮚ Sen’s concern is that if this formulation of just society is done with state as a component, and
if you look at global justice, would you look for a global sovereign. Scholars say that you do
require a global sovereign for global justice. Sen does concede that Rawls has made this
attempt but at best Rawls could give out how people should beave with each other –
humanitarian behaviour. But beyond that with the robust structure he gave, he could not do
that for a global stage. This failure is happening simply because you do not have a global
sovereign to work with the institutions. On the other hand, the social realisation scholars
never really focused on the perfectly just society and they just focused on the injustices that
were happening.
⮚ Wall Street – Protesting against economic inequality – economic inequality as unjust is
present everywhere. In that sense, when you can get to a consensus as something is unjust at
the global stage, it is as good. You need not start from the globe but look at different things.
He looked at genocide, domestic violence, etc. the bigger idea is that simply by looking at
these injustices, there is never a claim made by realisation scholars by looking these problems
that they will reach a just society. You just need to look at the injustices. Since they do not
have such restrictive requirements, thinking about global justice is not a big problem for Sen.
⮚ Issue of Death Penalty – the idea whether it is unjust or not? – there is no consensus even
though there is a lot of public reasoning on this. Sen acknowledges that it is possible that
despite public reasoning, one may not reach anything. But with the information, there will be
an increase in nuance due to public scrutiny and you may in the future reach somewhere.
31st March 2021
⮚ How does Sen understand Geeta Udheysha with respect to the difference between
culmination outcome and comprehensive outcome? – He says that in the Geeta, on the eve of
battle, Arjun is expressing some concerns about engaging in a battle since it would result in
killing of a lot of people. But Krishna tells him that he should fight in accordance with his
duty irrespective of how many people die. Krishna took a deontological stand whereas Arjun
took a consequentialist stand.
⮚ What is Sen adding to this debate? – Sen is bringing the deontologists and consequentialists
closer to each other. Otherwise, they are far apart from each other. He is bringing them closer
by talking about deontological stand and consequential stand in respect of culmination
outcome and comprehensive outcome. Culmination outcome is entirely consequential stand.
But comprehensive outcome is neither a completely consequential stand nor completely a
deontologist stand. Comprehensive outcome is somewhere in between and he is bringing
them closer. Consequentialists look only at the consequences and doing so is problematic.
Bentham and Mill have been critiqued for doing so.
⮚ With regard to the debate between Krishna and Arjun, Sen said that Krishna focused on
performing your dharma and even if the world perishes, then let it perish. Amartya Sen is
against this idea. Here, Krishna is taking a completely deontological stand. But Arjun is
taking neither a consequential stand nor a deontological stand. Arjun is bringing the two
together and looking at it from the point of view of comprehensive outcome.
⮚ Sen is using the term comprehensive as against culmination. In culmination, you do not look
at the process but the consequences. But in comprehensive outcome, you are cognizant of the
processes as well, it should be just. Both ends and means are considered. By bringing the two
closer, Sen is taking the debate forward.
⮚ Couplet – “Tu karm ka hetu bankar, karm na karna wala mat ban.” The point is that you do
not let the consequences determine whether you should do a particular act or not. Let the duty
determine whether you should do an act of not. However, Sen does not agree with this. In the
process of doing your duty, you need to be aware of the consequences.
⮚ How comprehensive outcome is more in tune with individual freedom? – Most of the theories
of justice have focused on freedom. Rawls gave priority to liberty. The libertarians
considered only freedom as equality of outcome is in conflict with individual liberty. Sen
takes cognizance of inequalities existing in the society to identify the kind of disadvantages
people suffer from and doing something about it. But at the same time, he does not talk about
equality and rather focuses on liberty. But he is not a libertarian. He is a free-market
proponent and is not in favour of a minimalist state. He looks at the state as an entity which
would address the fallout of the free-market. He also believes that the State should contribute
to the market so that people are not left out.
⮚ Sen talks about three scenarios. Firstly, you decide that you won’t go out on Sunday and that
you’d relax at home. Secondly, where some goons enter your house, thrash you and throw
you out in a gutter outside the house on Sunday. Thirdly, where goons enter your house and
say that you dare not go out, and if you go out then they’ll throw out. In which of the three
scenarios is the liberty outrightly violated? – Sen is indicating at the ability of making a
choice and realising the choice. So, scenario two is a clear-cut violation of your freedom. The
distinction between scenario 1 and scenario 3 is that there is no choice in scenario 3. Though
you had decided you will not go out and that is what happened, but there was a compulsion
because the goods wouldn’t let you go out. You may have changed your mind to take a walk
in your own garden. Therefore, scenario 1 and scenario 3 are same in terms of outcome.
Culmination outcome is same in both situations. But comprehensive outcome is there in
scenario 1. The process for realising the outcome of staying at home is very different.
⮚ Sen talks about freedom in terms of substantive freedom. He uses the term ‘capabilities’ to
signify his idea of substantive freedom. He defines capabilities in a particular way. Capability
is the ability to lead a kind of life you have reason to value. Capability is the substantive
freedom or the ability. He is talking ability in terms of substantive freedom and not just
formal freedom. What aspect of freedom is this definition of capability bringing out? –
⮚ Identification of reason as distinguishing factor is important. It is not all-pervasive universal
kind of reason that Sen is talking about. Sen recognises public reason as a way towards
addressing existing injustices. And reasoning can happen from various perspective. Going
back to the example of three children and the flute, all had specific reasons. If there was an
all-pervasive reason, then he would not have been able to draw the inference that he made.
There is a multiplicity of objective reasons and it is difficult to choose any one out of them.
They may be mutually conflicting reasons and all of them may be equally valuable. Sen is not
talking in terms of final kind of scoring point which would say that if it is met, then justice
would prevail. Sen is dealing with multiplicity. We may not want to use the term objective
while talking about Sen because Sen does not talk about an objective standard of reason or
justice. That is why Sen qualifies reason with the term ‘you’. It would not be completely
subjective as well. It is somewhere in between subjectivity and objectivity. Sen is not at the
two ends of the spectrum but he is trying to bring them closer. Sen is not giving the
ingredients of a perfectly just society like Rawls did. He is saying that we don’t need to get
into that because it may never exist. What we instead need to know is how we can move from
greater injustice to lesser injustice. We may have to make choice and it may be “partial
ranking on limited agreements.” The injustices may get addressed even on account of partial
rankings.
⮚ When you are talking about public reasons, you are not talking about your reasons only but
other reasons as well. While talking about Female Genital Mutilation – there are health
hazards, cultural roots of the practice and cultural rights of people, subordination of women,
etc – there can be multiple perspectives to make sense of a particular happening. He says that
you may not be able to achieve an agreement on right and wrong in terms of anything right
now, but you may have a limited agreement with regard to health hazard it causes. You may
proceed with that at the moment and at least take a step forward. You can continue with the
engagement with the community who are taking different stands. To move from greater
injustice to lesser injustice, you can pick the aspect of health hazard and proceed.
⮚ Sen’s idea of reason is not completely a deontological stand like Kant. He is bringing
consequential stand and deontological stand together. Therefore, he would not qualify reason
with the term objective. Use of the word objective also goes against his idea of freedom. Kant
had to give us a reason as to why in acting in accordance with the categorical imperative
humans would be free. He said that it is on account of rationality of humans. Therefore, while
you are under an obligation, you are free. Kant suggested a way out of paradox but Sen does
not say that at all. No universal reason here with which a person is bound.
⮚ What ability is required to lead a kind of life that has a reason to value? What are the
catalysts in enabling this and the barriers that one might encounter? – He is talking about a
situation where you are away from whatever you don’t value. So, if you want a life free of
diseases, then you are not compelled to live a life full of diseases. You have the ability to
avoid that. In that sense, from maximum to minimal, he is probably at the minimal. He is not
looking at perfect justice. He is concerned with the injustice that prevail and how to address
them and therefore, he would be at the minimalist position in life. Capability-based help in
understanding this minimalist position and address injustices with regard to this.
⮚ How would capabilities help in addressing injustices? – Avoiding infant mortality, avoiding
diseases, etc.
⮚ Then, what is it that one would require? – AILET example – financial position was one
factor. Social barriers. In the independent society, the social barriers were lesser because in
theory they do not exist. Rawls was talking about institutions and he stopped there. Now
normatively rules recognise equal liberty for everyone and that is where Rawls ends. How
does Sen take this forward? – Sen also talks about the non-institution factors such as
behaviour of people. Sen takes into cognizance the realities. Institution structure may be fair
but what do you do to realise the scheme set by it? It has not addressed all the injustices
because caste, gender and religious barriers still exist and socially they are very pronounced.
They still exist as barriers. Rawls in his ideal theory says that institutions have fair rules and
therefore it is fine. It is definitely required but something further is also required. The
identities of people do act is barriers. Therefore, Sen takes us to another level of realisation.
Here, ability is real ability. You may choose what you want to choose but are you able to
avoid exclusion from AILET or a life full of diseases. So, Sen takes a realisation focused
approach to justice. Rawls is working downwards whereas Sen is working upwards.
Utilitarianism is not accepted because it is too much of a gamble. The current society cannot
be taken by to the original position envisaged by Rawls. Sen says that if the theory does not
match with the realities and history, then what is the point of engaging with it. His brining of
realisation makes him work upwards.
1st April 2021
⮚ How is Sen adding to the existing understanding of justice? – He moved beyond Rawls.
Rawls stopped at rules pertaining to institutions but Sen looks at the realities. Just institutions
are not sufficient to address inequalities. There is a need to look at the gap between
institutions and the realities. Despite the norms regarding equality and non-discrimination,
social barriers exist because social structure remains the same. There has not been as much
change in the society and the way people think in comparison to the change in the norms.
Therefore, there still remains a barrier and that needs to be addressed. Rawls emphasises on
freedom but because he stops at the institutional structure and does not look at the disconnect
between realisation and institutional structure, this is where Sen comes in and says that this
needs to be addressed.
⮚ According to Sen, ability is parallel to substantial freedom. He does not stop at the negative
conception of freedom. So, here Sen differs from libertarians. Though he recognises liberty as
of a great value, he moves beyond the negative conception and says that it is ability. To lead a
kind of life you have reason to value – one element is that it is your own choice. His
formulation is non-paternalistic in that sense; your assessment is considered. Sen is between
objective and subjective in terms of reason. He foregrounds public reason as one of the ways
of moving from greater injustice to lesser injustice. Sen takes the position where individual
reason is coupled with public reason.
⮚ While talking about substantive freedom, are we looking at functionalities or achievements?
The question is whether we test substantive freedom on the basis of what you want to do you
are able to achieve or in some other way? What are the drawbacks of thinking about
substantive freedom in terms of achievement? He moved away from negative conception of
freedom to positive conception of freedom and is bringing them closer.
⮚ When you think about malnutrition, if you eat junk food all the time then you may be
malnourished in terms of vitamins and minerals. But what is the difference when such
malnutrition is compared to a malnourishment caused due to poverty? – The difference is that
in the first situation, the person has the ability to consume healthy food and chooses not to but
the poor person does not have the ability to do so. This is the value addition that happens
through the way that Sen is developing the understanding of capabilities. He says to not look
at the culmination only. Culmination outcome is problematic. The end sliced principle
envisaged by libertarians only looked at the existing situation without looking at the history.
Here also, culmination is like end sliced because it is only looking at malnourished. But
within that, there are people have who have access, choice and ability but they choose to be
malnourished. If a person is conscious of their body and want to maintain a particular size
and starve yourself, then it would be a different thing if you get malnourished. Only if you go
through the process of comprehensive outcome can you identify properly.
⮚ Social structures matter for Sen but his approach is more nuanced than just social structures.
He takes cognizance of certain variations. There can be various on multiple accounts and not
just social structure, social structure is just one variation. In the 2018 AILET, social structure
was one of the barriers and not the only barrier. Social structure does not capture all the
grounds of barriers. So, Sen adds more to this and does not stick to one kind of delineation of
additions. He is starting from realities and realities may vary on multiple accounts.
⮚ Absolute Poverty – You have a threshold in terms of basic needs and poverty is identified
accordingly. If talking about calorie level, then an absolute level is identified. Monetary
measure of getting the require level of calories is also there. So, varying from region to
region, there would be a food basket and there would be monetary equivalent of the food in
this basket. Whosoever has the required income, would be able to get this. Based on this, the
ones who have the income are not poor but the ones who don’t have the income are poor.
What are the drawbacks of the absolute conception of poverty? –
⮚ Identification of poor on the basis of an absolute standard of poverty has involves problem of
under inclusion – Some categories of people such as pregnant women, lactating mothers,
people doing hard labour etc may need more calories than their current position provides
them. So, having a common standard for even those with more calorie requirements does not
help. They might be consuming the calories recognised by the government but in reality, they
may need much more than that, and therefore, the absolute standard is bad. The person may
be recognised as non-poor but since the person needs more, this person must be recognised as
below poverty line. In that sense, under inclusion becomes an issue. (discussion, Nupur)
⮚ Poverty is a state of being and it cannot be reduced to mere calorie intake. Not being able to
meet the basic needs of life must also be included. In addition to calories, education, clothing,
etc. might be added but it would still be within the scope of absolute conception of poverty.
There would be an absolute standard of shelter, education, etc. But if social exclusion is to be
added, then it would be necessary to identify the grounds on which people are excluded. But
there would be an absolute standard here as well because people from certain backgrounds
would be here as well. (discussion, Supriya)
⮚ Sen is saying that people who are rich enough may starve themselves but that is not a policy
concern. They may counsel them because they do not want people to make bad choices, but it
won’t be a pressing concern. Against this, there is a huge number that exists which do not
have a choice. There are other constraints such a lack of money to buy food. So, there are
other more pressing concerns than people making bad choices. People having no choices at
all is a much more pressing concern. You need to address these barriers first. (discussion, Ali)
⮚ Many people are struggling at the lowest level. So much is to be done at this level and not
only in terms of providing free or subsidised food. Deprivation is there in terms of multiple
levels – food, clothing, social background, etc. Capabilities take into account multiplicity of
aspects. There can be variations on various grounds. As against absolute or relative
conception of poverty, poverty as capability definition adopted by Sen is very different. It
does take cognizance of social exclusion but in a more nuance manner. It does not lose out on
the complexities of the issues.
⮚ So, firstly, there is heterogeneity – people from different backgrounds in terms of religion,
ethnicity, gender etc. Sen’s approach brings in everything. Even high-end things like higher
education are included. Sen severely criticises poverty in terms of lack of money or income.
He says that there are multiplicities of variations that you need to take into account. Multiple
factors affect multiple people differently. Secondly, physical environment is also included.
For instance, a highly polluted area would be considered as they deprive you of your ability
to lead a kind of life that you have reason to value; you do not want a life with respiratory
diseases but you are condemned to live that kind of life. Thirdly, social climate. The social
structure adds to the economic conception of poverty but social structure is just one thing.
When he talks about social climate, Sen is also taking into account educational arrangements,
the epidemiological conditions in which people live as people living in certain regions might
be prone to some diseases, or an area which is prone to serious crimes, etc. It may be
considered how pronounced is patriarchy in a given set up.
⮚ Sen takes into account the relational perspectives – relationally, you are in a bad position.
There is a particular standard for food, clothing, etc and in relation to that, you are excluded.
Also, what part of your identify matters how much in a particular environment in a particular
region. For example, in a cosmopolitan city where people from varied religions are living, the
fact that you belong to a minority might not matter that much. But if you are in a context
where there is dominance of a particular religion and you are a miniscule minority and people
are conscious of their religion and religious identity in terms of what they accept and don’t
accept, then your exclusion would be more pronounced. In that sense, contextually also it
varies. You may be more vulnerable and excluded in a given context as compared to another
context. The political-social atmosphere would also have a role to play. All this is captured by
the term capabilities. Sen defines poverty as capability deprivation. Many layers get added to
the absolute conception of poverty when you shift to the capability approach.
⮚ Sen is saying to bring all the factors on table and then decide. There will be a need of some
clarity with regard to what is more pronounced where to a certain extent to take note of
variations. He wants to beyond the policies which provide for subsidised food; address social
exclusion, gender exclusion, etc as well. That is how you address poverty in a comprehensive
manner. He is not giving a priority list but he is saying that people suffer on account of such
exclusions. These things need to be redressed by reconceptualising poverty and moving
beyond poverty as lack of income to capabilities deprivation. In India, poverty is not defined
as capabilities deprivation and that is why we have provisions such as PDS etc. But all this
does not address social exclusion. So, there is a need for multiple strategies to address all the
barriers.
Sen’s approach to poverty has been adopted en masse by the UN. In 1997, the UNDP Report
picked up Sen’s approach.
5th May 2021
⮚ If individual is central to Sen’s idea of justice, then how does he differ from Rawls? – As
against individuals, institutional arrangement is central to Rawls. This is where Sen and
Rawls differ. Rawls says that if institutional arrangement is just, society is just whereas Sen
starts from the individual. This is why Sen’s approach is realisation-focused approach; people
will realise the kind of life they have reason to value.
⮚ Drawback of Income Approach to Poverty – Secondly, Sen defines capabilities as substantive
freedom to achieve a kind of life. Substantive freedom as against lowness of income are
inherently significant. Income is only instrumentally significant whereas freedom is

inherently important for human beings. Thirdly, the ability to convert income into capability
is conditioned by many other factors. Even if you compare two people with same income, the
kind of life they would have reason to value depends on other factors. For example, physical
abilities, social status, political freedom, gender, basic infrastructure, etc. Sen identified many
aspects. One is personal heterogeneity. Then he talks about diversities in physical
environment – air pollution in Delhi, flood-prone areas, etc. Then he talks about variations in
social climate. Relational perspective as well. A person from a minority community might
not have a great impact. Relational aspect determines whether the person is able to realise
their capabilities or not.
⮚ Earning handicap and converting handicap – Sen focuses on a lot of information regarding an
individual covering plural aspect of an individual’s life – person heterogeneity, physical

environment, social climate and relational perspectives. All these together encompass a lot
about individuals. There are a lot of variations. Not just a person’s income, but a lot of things
are taken together. Sen takes the example of a person with disability. Then he says that
disadvantages couples. There is capability deprivation in terms of earning in account of a
particular condition. The other is a conversion handicap. Not only the person’s income is low
but the capacity of converting that income into capabilities is also low. If you identify poverty
only as low income, then you are not in a position to discern these two. This takes us back to
the family unit. When you think about poverty in terms of expenditure per household, then
the distribution in the household gets hidden; there is unequal distribution within household.
All these are drawbacks of the traditional approach to poverty. Sen unravels all these hidden
aspects of poverty. The way we are identifying poverty is leaving out many who are
capability deprived. These people are not being identified as poor. In that sense, many who
are above the BPL includes people who are actually poor. In calorie approach, the person’s
physical state and social/environmental context is not being considered; this person may have
to spend more to achieve the same thing that others are getting.
⮚ If you are taking into account all these variations, is it easy to come up with policies that
would address deprivations? – What would be the barriers that a policy-makers would face? –
Both Sen and Nussbaum together developed the capability perspective. Sen didn’t enlist
capabilities but Nussbaum went on to enlist the capabilities. Sen said that there are many
variations and there is no possibility of identifying all of them. But we can get to major
aspects that strengthen deprivation by identifying whatever falls under the four heads
mentioned above. Gender, minority status, caste discrimination, environmental context –
flood/draught, good education infrastructure, etc would be considered. You would not just
focus on transfer of money because it is not sustainable. But if you bring about changes by
improving the infrastructure, it would support people forever. If the spending on education is
high, sustainable change. Transfer of money is short term and an ad hoc approach to
deprivation. It may just be an immediate relief in a certain point of time but changes in all
aspects are required to be sustainable. So, as a policy maker multiple entry points can be
identified for addressing poverty as capability deprivation.
⮚ Income approach is possible because here, you identify the calorie requirement, you prepare a
food basket which will give the calorie, look at the prices of the things in the food basket and
convert everything into monetary equivalent. Then you get one amount on the basis of which
you determine poverty. Here, problem of incommensurability arises. Sen seeks to address this
problem. It is difficult to have a common denominator for multiple factors and if this can’t be
done, then it is difficult to determine which problem should be addressed first and which is
more pressing. The making of choice becomes difficult. But Sen says that in life we do make
such choices all the time. When we go to market and have to choose between soap and
bucket, or clothes and vegetables, we make a choice and they are incomparable with each
other. It is not necessary that there should be incommensurability. Even between
incommensurable things a decision can be taken.
⮚ The third criticism against capabilities approach is that it is individual-focused.
Methodological individualism is criticised. Individual was taken as the starting point of

identification of capability approach. But Sen rebuts this point by saying that we are talking
about individual’s ability to lead a kind of life they have reason to value. But what is valued
by a person is not decided in vacuum but in a particular context – prevailing thought in the
society is conditioned by the fact that you exit in society. In that sense, there is a relation
between the individual and the society in which they live. This is how he counters the
challenge of methodological individualism.
⮚ Sen applies capabilities approach to global justice, inter-generational justice and compares
Grantland approach with his own approach towards sustainable development. (Read on your
own).
CAPABILITIES AND FUNCTIONING
⮚ Sen distinguishes between capabilities and functioning. He says that functioning is actually
what we do. He refrains from comparing functioning of people because finally what they do
is their choice. One cannot say if it is a good choice or a bad choice. This is where Sen comes
across as a liberal where he prioritises individual liberty over everything else. The question is
whether the person is free to make that choice – in a position to choose a live which is free
from diseases. If the person is living in a condition in which he cannot avoid diseases where
he cannot get any nutrition, then the capability of the person is deprived. If given a choice, he
would choose a life free from diseases. Since no choice, he is capability deprived. However,
Sen is not imposing any choices. He makes a distinction between well-being and capability.
⮚ American Declaration of Independence– everyone is endowed by the creator with certain
inalienable rights – life, liberty and pursuit of happiness – Sen picks this up. Bentham also
said that pain and happiness are two sovereigns – happiness is positioned at a high pedestal in
the theories of justice. Sen counters that and says that capabilities is better perspective than
happiness. Those who put forth happiness as an idea for determining justice emphasise on the
fact that happiness is ultimate and it is a self-evident truth (Bentham also said this) and there
is nothing beyond this, but Sen says that there is a problem with this. In many movies, people
struggle in different situations but those characters are found happy as well. How do you look
at their happiness/what does that indicate to you? – as a human being, we look for little joys
in our life regardless of the condition we are in. we may not be completely satisfied with that
condition. Persons who work as bonded labourers, it is not that they don’t laugh but their
happiness or aspirations are conditioned by the context in which they are placed. They are
placed in difficult circumstances and they adopt to it. For example, the Pandemic condition is
given and only this much can happen. So, we are lowered our expectations for ourselves.
Now a days, we are happy only because we are alive. We might not have seen this as a
condition in 2016. Our expectations and aspirations or the kind of life we have reason to
value gets conditioned by the circumstances we are in. Therefore, there is a problem in
having happiness as the criteria of determining whether the condition is just or unjust.
⮚ Sen developed a distinction between functioning and capabilities. He focuses on capabilities.
Functioning is an end and capability is a way to get to that end. In terms of functioning, the
person who is starving and chooses not to eat, when you want to address deprivation or
injustice in these situations from policy perspective, you cannot club the two. You need to
focus your policy towards the person who does not have the capacity to buy food and is
starving and not the person who chooses to fast. Sen says that both the individuals are
positioned as far as functioning or ends are concerned. However, as far as their capabilities
are concerned, they are different. Therefore, he focuses on capabilities and not functioning.
Once you have the capability, it is your choice.
⮚ He further develops this into the distinction between well-being and agency, well-being
freedom and agency freedom. We can think about these from the perspective of the difference
between functioning and capabilities.
6th May 2021
⮚ It is not essential that capabilities involve happiness. Sen is defining capabilities as distinct
from happiness and well-being. Therefore, he brings into analysis, whether we should focus
on achievement of capabilities of freedom of capabilities, achievement of well-being or
freedom of well-being. This distinction between achievement and freedom is emerging from
the distinction with respect to functioning and capabilities. So, functioning is the end goal or
any kind of experience that you have, whereas, capabilities is just the ability to move to that
kind of experience if you value that experience in your life and therefore, you must have the
ability to move towards that experience. Sen supported capabilities rather than functioning
because functioning may be restrictive of choices of people and being a liberal emphasizes
individuality and individual freedom.
⮚ He uses the term agency. A distinction is made between freedom and achievement on one
hand, and well-being and agency on the other hand, right. So, well-being is objective type of
an assessment of a person’s situation, whereas agency is something that prioritizes person's
choices. He's distinguishing between agency achievement & agency freedom and well-being
achievement & well-being freedom. Should agency achievement be a policy concern or
well-being achievement should be a policy concern? Agency achievement would be that you
are actually able to realize and achieve the choices that you have, or the ends that you seek to
achieve. Well-being achievement would be that you are able to actually realize your
well-being. Well-being freedom would be you have the freedom or the choice or the access to
well-being. So, you may enjoy your well-being.
⮚ Well-being obviously is not an appropriate end. He's focusing on capabilities because he
prioritizes choices of people. But as far as agency achievement is concerned, when you say
that he prioritizes capabilities, he is definitely choices of an individual. So, when we talk
about achievement of well-being, we seem to be imposing our choices on people. So,
definitely Gandhi's past unto death was not something that would qualify as well-being
achievement. He's not achieving his own well-being; his well-being is being put into peril by
fast unto death. There are many examples (Aung San Suu Kyi, Sharmila) where people do
certain acts, not for themselves or for their achieving their own well-being, but for higher
goals that they are interested in. And therefore, it's their commitment to those goals that
encourages them to make such choices even at the cost of their own well-being. So, if we
focus on well-being achievement, that'd be problematic because then we will be suppressing
people's choices. As a liberal scholar, he would not go the way where people's choices are
made subservient to someone else's, or an objective assessment of well-being. So, well-being
achievement is out in that sense.
⮚ Consider well-being freedom and agency freedom or agency achievement and agency
freedom. Agency is basically when you exercise your own choice. So, agency is your will in
that sense. It is your will do something and when you're able to achieve that. It is basically
prioritizing an individual’s choices. As an agent as an active being, you decide for yourself. It
is kind of self-determination. In that sense, how would you compare agency achievement and
agency freedom? What should be the concern of policymakers – agency achievement or
agency freedom? Sen is distinguishing between freedom and achievement in terms of
freedom and functioning. Freedom is much more in tune with capabilities because he defines
capabilities as substantive freedom – to be able to achieve whatever you value in your life.
Whereas achievement would be actually achieving whatever you value in your life.
⮚ Sen takes the position that freedom is of concern and not achievement. Suppose you want to
go to the moon or build a monument like Taj Mahal. You may choose that but the concern is
with the injustices that prevail in society, should policymakers be concerned with agency
achievement. When you think about agency, it's about all the choices or plans that you have.
So, focusing on that cannot be prioritized when you have other more pressing problems to
address. Therefore, agency achievement is out. But agency freedom is where you at least
create conditions where people may make choices and, in that sense, they have substantive
freedom to move towards or achieve those choices. Therefore, he prefers agency freedom
rather than agency achievement.
⮚ Well-being achievement is also knocked out. With respect to well-being freedom, Sen says
that it is also of concern to policymakers. But not in terms of prioritisation of well-being over
agency or prioritisation of well-being over capabilities as such. He doesn't prioritize
well-being over capabilities. However, from the point of view of the kind of depravations that
exist in society, he said that it would be good for policymakers to focus on wellbeing freedom
as well.
⮚ So, substantive freedom should be available to people to lead a kind of life they have reason
to value or achieve their well-being. In the broader perspective of the kind of life you value,
if you value your own well-being more than anything else and there’s no other priority like
Gandhi, then you must be substantively free to be able to achieve your well-being. You
should not be compelled to live in destitution. So, well-being freedom may be a concern for
policymakers, but between well-being freedom and agency freedom, Sen prioritizes agency
freedom rather than just well-being freedom because agency freedom prioritizes individual's
own choices and therefore is much more in tune with the basic premises of liberal philosophy.
which emphasizes on individuality and prioritizes individuality.
⮚ Sen is all for capabilities. Through his capabilities approach, does he try to achieve equality
of capabilities for everyone meaning thereby everyone has the equal substantive freedom to
be able to be able to lead a kind of life they have reason to value. Or, would he like to build a
case for capability freedom rather than capability equality? – He opts for capability freedom
rather than capability equality because equality inhabits many dimensions. There can be
equality with regard multiple dimensions in our lives – economic advantages, resources etc.
In that sense, he says that it's better to focus on freedom of capabilities rather than equality of
capabilities. He takes an example. It has been scientifically proved that if similar conditions
are offered to both men and women, women enjoy a greater life expectancy as compared to
that of males. He says that if we go by equality of capabilities, then it can be argued that you
pay less attention to providing health care facilities for women because biologically they have
a greater life expectancy as compared to men. Therefore, prioritize on healthcare for men. So,
he says that when we focus on equality of capability like this, we may be in a position to
come up with an argument which is contrary to equity.
⮚ It may be taking you towards equality of capability where everyone has equal life chances by
equal life expectancy, but it is inequitable to seek that goal because you would require less
attention to be paid to providing health care facilities for women. So, there are concerns of
multi dimensionality of equality. Here, Sen again considers the example about three children
and the flute. One of the children made the arguments that he had produced that flute and
therefore, it should be given to him right. In that sense, there is a there is valid reason that this
child puts forth to get the flute; he has put in his labour to create it and therefore, it should be
given to him.
⮚ Sen says that this is a concern that cannot be countered through capability equality. Equal
capabilities to lead a kind of life you have reason to value these days he says would not be in
tune with all the other concerns that justice has. Also, he says that rather than capability
equality, he would focus on capability freedom and enhancing capabilities of everyone right.
Rather than achieving some kind of equality as far as capabilities is concerned. Also, he says
the capabilities is an idea which is highly influx. Capabilities vary for each individual. There
are ambiguities in that idea because it is very subjective. As it is individual’s ability to lead a
kind of life that individual has reason to value and because it prioritizes individual and
individually is central to the idea of capabilities, what you value in your life may vary to a
great degree. Therefore, you can never have complete ranking, even in terms of capabilities.
Thus, how to talk about equality of capability where it doesn't offer you complete ranking? –
They are so individualistic in nature that you can think of achieving capability equality. You
can't even have a complete set of capabilities even with regard to a particular person. One
person may prioritize X value today Y value tomorrow. Therefore, he is in favour of
capability freedom to enhance everyone's capabilities rather than singularly focusing on

achieving equality of capability. Equality is not the other aspect of justice; there are other
aspects as well.
⮚ Sen distinguishes between the republican idea of freedom and his own idea of freedom. He
takes an example of a person suffering from disability not being in a position to move out of
the house. The second scenario is this person is able to move out of a house through the
support of people around him or NGOs. The third scenario is where the person is able to
move out of the house through the paid servants that he has in his house. In which scenario is
he more independent?
⮚ Situation one is out and situation three is at least optimal. Situation two also involves certain
kind of dependency and therefore, it is not an optimal situation. This is how republicans think
about freedom. They would not see situation as a situation where he is free. Sen says what
can be done people through public policy to support people. Only if you have enough money
to help you to move out of the house, only then are you free; individualistic thought. Even if
you depend on public resources allocated for creating enabling conditions for people, Sen
says that is also good enough. If there are arrangements, institutions structures in place which
provide you the enabling conditions to exercise your freedom, you will still have that
substantive freedom to be able to lead the kind of life you have reason to value. Sen says that
republican approach belittles public policy contribution in addressing these kinds of
injustices.
⮚ Sen is a liberal scholar. He is a free market proponent however he's not a libertarian because
libertarians favour free markets and they favour minimalistic state whereas Sam does not
favour a minimalistic state. That is where Sen differs from libertarians. Nevertheless, he is a
liberal scholar liberal scholar different from Rawls. He does not call for withdrawal of the
state. Let the market prevail but states should provide enabling conditions to ensure that
people do have substantial freedoms to do the kind of life they have reason to value.
RIGHTS
⮚ One may define rights as an interest protecting principle. The interest is protected by
recognising that someone else is under a duty to respect the interest. So, there is this idea that
when there is a right, someone is under a duty. When you define rights in terms of interest
protecting principle, it is basically captured by the Interest Theory of Rights. Interest theory
says that there are certain interests which are to be protected and therefore, we have the
concept of rights which protects interests which are worthy of protection. Contrary to that,
there is also a Will Theory of Rights. This theory says that rights are something which give
expression to your will or protects your will against others. So, individual as a rational being
tries to exercise their will against others. Interest theory is broader because Will Theory runs
into trouble when we talk about people who do not have will. For example, an infant or a
person whose mental capabilities are compromised might not have a will but that does not
mean that these people do not have rights.
⮚ Concepts in law are often based on certain assumptions. For example, people would prefer to
exclude others from things that they own and the idea of ownership emerges from this. So, it
is important to look at how rights are constructed and once this is done, one may analyse the
assumptions that underlie rights and these assumptions might be questioned; to find out if
these assumptions are universally applicable. If these assumptions can be questioned, then the
foundation of the rights also crumbles.
HOHFELD’S IDEA OF RIGHTS
⮚ It is important to understand the Hohfeldian arrangement to better deal with rights. The term
rights may be understood in different sense within the field of law. therefore, it is important to
distinguish between different ideas. The Hohfeldian scheme of rights is attributed to Hohfeld.
⮚ Rights are claims to someone else’s duties. X may claim that he has a right not to be arrested
without due process. There is a right in X and a duty in the state. Alternatively, X may enter
into a contract with Y. If X is buying something from Y and has paid the money, then X has a
claim to those goods. When you say claim, it implies that “you ought” to do something. In
strict sense of the term, a right is a claim which puts someone under a duty to satisfy that
claim.
⮚ Are rights only in the form of a claim or are there other senses in which the term rights can be
used? – Article 15(3) of the Constitution is an enabling provision which allows the State to do
something. So, right may be in form of a power.
⮚ Co-relative of claim is duty. There is a correlation between right and duty. But at the same
time when it is said that power may not correspond to a duty, that is the reason why right as a
claim and right as a power are distinguished. The idea of right as a power is different form
right as a claim.
⮚ At times the term right is used to depict claim to which there is a corresponding duty. At
times the term right may be used in the form of a power. Hohfeld is trying to discern different
ideas imbedded in the term rights. He is using this term very generically; the way the word
‘vehicle’ is used. We are used to using the term ‘right’ as a very generic term. The term
‘right’ has different implications in law.
⮚ When we think about power of the state to create enabling condition for certain section of
people, we do not think of duty. There is a disconnect because the term right as a claim has a
correlation with duty. The correlative of power is liability.
⮚ A right may imply an immunity as well. Immunity is something which disables someone else
from doing something to you. For example, diplomatic immunity. From this, we get to the
idea that correlative of immunity is disability. Article 23 cannot be termed as an immunity but
as a claim. People are under a duty to not exploit anyone.
⮚ A right may also be used in the sense of liberty. Liberty is distinct from claim, power and
immunity. The correlative of liberty is ‘no claim’. Article 19 of the Constitution – It uses the
term freedom.
⮚ So, the four connotations of the term ‘right’ are claim, power, immunity and liberty. They
imply different things and have different meanings. Every right is not a claim as some are
freedom, power or immunity. Their correlatives in the form of duty (claim), no claim
(liberty), liability (power) and disability (immunity) are also different from each other.
12th May 2021
The word ‘rights’ is a generic term just like the word ‘vehicles’ is used for various kinds of
vehicles. Hohfeld and many others talked about the various connotations of rights.
When we say that X has a claim, we imply that Y is under a duty. That is why the term claim
implies “you ought”. A right in strict sense of the term is a claim which implies that someone
is under a duty. Similarly, liberty connotes “I may” do something.
12:57.
These two are separate and separable. For example, you may say that you have a freedom to
move or not to move. To better protect this freedom, you have a claim that others are under a
duty to not interfere with your movement; others can’t refrain you. So, there is a separate idea
to not refrain you from moving and you have a claim to not to be interfered with. You may
give up that claim without giving up the liberty of not to be interfered with – this means that
the freedom still remains but the claim that you have to other protect your freedom has been
given up and you allow someone to stop you from moving. This means that the idea of liberty
and claim are separate and separable. The co-relative of claim is duty. Liberty is better
protected if you have a claim as well. But you can possibly give up your claim without giving
up your liberty. But if you give up the claim and the person stop you, then you don’t have any
recourse but if you end up moving, then you have exercised your liberty. So, the freedom is
not as well protected but it still exists; it’s just not supported by a claim. In such a situation,
your liberty would depend on your might.
Austin said that certain duties are absolute duties and they do not correspond to claims of
individuals. These duties can be found in criminal law. However, the debate amongst scholars
have countered Austin by saying that the correlative of a claim lies in the society rather than
the individual. But the significance of Hofeldian correlation lies in the fact that there is an X
and Y correlation. If you say that X is a right holder and there is no one under the duty, then
the claim does not mean anything. For the claim to be of some significance, it is important
that someone is under a duty. Kant also talked about duties of imperfect obligations – there
are obligations but there are no claimants to these obligations. At times, you don’t find these
co-relationships actually existing.
MP Singh – P Rathinam v State – Recognised right to die as right to life – MP Singh critiques
the right to die from a hofelidan perspective and said that the right to die is incoherent with
the hofledian scheme. He gives examples of right to die. What if someone says that they want
to die by a road accident, so should the state facilitate this? he pointed at the incoherence that
right to life leads to. In that sense, the hodleian scheme allows you to understand some basic
co-relations.
Box 2
The correlative of power is liability. Duty imposing rules give rise to claim but power
conferring rules do not give power to claim. The idea of right as power does not correspond
to duty. Therefore, when talking about power of legislature to make laws, you are not talking
in terms of duty.
1:34-36
Why is it said that the legislature has the power to legislate or judiciary has the power to
adjudicate and the duty to do so? How would you categorise that right to vote? – Right to
vote is a power because by casting or not casting the vote, you have the ability of changing
someone else’s position. It is a power coupled with liberty. This is why the term power is
used when you talk about the task that legislature performs while enacting the law. By
enacting a law, it can change the legal position of people. By adjudication, judges can change
the legal position of parties.
Can power be exercised in a private sense and not a public sense? – 1:39
Right to make a will is not a claim.
Execution happens when the testator is gone. There is no claimant in that sense because the
testator is dead.
The correlative of power is not duty but liability. This means that someone is in a condition to
change your legal status and it will change when that someone exercises their power.
This susceptibility is not the same as duty.

Till 1:43
Liability and duty are also distinct. Liability is only susceptibility that you may be put under a
duty. For example, how would you categorise Section 406 of IPC (breach of trust) – If I give
my property to someone for safe keeping, then have I exercised any of my rights? – it is a
power because you have changed the legal status of other person and now, they are entrusted
with my property. The other person is now under a duty to safekeep it and they can’t dispose
it off. But that duty is not coming from the power of entrustment but from the claim that once
the property is entrusted, it has to be kept safely and it cannot be siphoned off. So, there is a
claim supporting the power and a power to claim your property back. This means that I retain
the power to change the legal position of the other person. When I raise the claim, the other
person gets under a duty to give back the property. Till the claim is made, the person is
susceptible to be put under a duty. Therefore, liability and duty are different.
Claim implies ‘you ought’, liberty implies ‘I may’, and power implies ‘I can’. The
implications of casting or not casting as votes are better categorised as power coupled with
liberty rather than just liberty. When you say ‘I can’ with regard to power, you can change the
legal status of the other person. Liability is just susceptibility.
Immunity – the correlative of immunity is disability. How would immunity be categorised? –

Immunity means that the person who is immune is protected. Immunity is primarily in terms
of “you cannot”. Unless there is immunity, there is a possibility of the person being sued.
Immunity grants them a shield against an action that is possible. Immunity implies that a
legal possibility exists but the law is shielding you against that possibility. So, there is an
ability that lies somewhere but you are disabling that ability. For example, you may not be in
a position to sue a diplomat. The diplomat has a duty to not commit an illegal act but he is
still immune from any action that can be taken against him.
One would not want to use the term immunity while talking about right against exploitation
as it would not be appropriate because then you would be recognising that there is a legal
possibility of exploiting people. Right against exploitation would be categorised as a claim
because people are under a duty to not exploit anyone.
Initially, right to information act was named as freedom of information act. Would you want
to see it as a freedom of seeking information with no corresponding claim? – It would be
ineffective if it is categorised as liberty because then there would be no claim. Freedom
makes sense when talking about free space. When not talking about free space, you should
20th May 2021
CRITIQUE OF RIGHTS
⮚ Bhikhu Parekh is the reading to be covered. He offered a Marxist critique of rights. Before
critiquing the conception of rights, Parekh traced the history of development of the idea of
rights. India, like most of the earlier societies, was a duty-based society. The idea of rights
emerged gradually – Magna Carta, American Declaration of Independence, French
Revolution – are the historical developments from where we trace the emergence of the idea
of rights. Since Parekh’s critique goes to the roots of the conception of rights, which is rooted
in liberal philosophy. Most of the societies were duty-based societies and even if the
conception of rights existed in any societies, that conception was very different from the
modern conception of rights.
⮚ How was the conception of rights different from the modern conception? – Firstly, he said
that the scope and the way rights were defined was different. Secondly, the source of rights
was also different. Today, rights primarily emerge through law. We generally go back to
positive law to claim a right. In that sense, he says that this did not exist in ancient days.
earlier, law was not the only source of rights. Rights could emerge from traditions, customs,
communal relationships, etc. Thus, there were many sources of rights as compared to the
single source of rights that we have today. Thirdly, he says that the kind of conception of
rights that existed did not mean that if you have a right over something, then you have a
complete control over it. When we talk about rights today, we point out at the relationship
between the individual and the state. Earlier, there no such relationship was established
between the two though it was within the civil society. People’s relationship was determined
by the relationship that existed between them. Finally, he said that individuals were not the
bearer of rights earlier. You could talk about right to land, estate, guilds, etc. These inanimate
things were seen as the bearer of rights. Earlier, rights were entitlements that reflected either
rights of collectivises or things. Anyone could be a bearer of rights and not just the
individual. Further, Parekh talked about how things changed over the 17th Century.
⮚ If you do not define rights individualistically, how would that society be different from the
present society? – to this, he said that the society existed as a moral whole, as a collective. In
that sense, rights were not defined as borne by individuals but one would find individuals
along with his land and political rights seen as the bearer of rights. So, the bearer of rights
would include the individual himself, his land and his political rights. In ancient Athens, this
was seen as the bearer of rights – collectively. Similarly, individual was defined differently. It
was not a biological individual. The bearer of rights was seen, for example, a craftsperson
along with their tools. In that sense, the self of a craftsman was defined not just as his
biological body but also as his tools. Taking away his tools would mean mutilating him. That
is how the difference in conceptualisation actually brings about a major distinction in the kind
of society that we live in.
⮚ The first aspect that Parekh takes up is the that who is the bearer of rights. In the ancient
times, the bearer of rights would be a collective like a guilt. It was not just an individual. If
you are a part of a collective, then you would be a bearer of rights. For example, a member of
a trade union gets certain rights. In the 17th century, there was a transition from collectivity as
bearer of rights to an individual. But if these two are to be separated, then an individual is to
be separated. The process of defining an individual requires individuation. Individuality got
defined in a very minimalistic way. This means something that is within a person’s physical
body. Everything outside the biological body cannot be a part of the self. Due to this, the
rights that emerged as significant were right to life and individual liberty because self was
defined in a very restrictive manner. Violence became violence against this biological self.
The subject of rights is the biological being and when you say that the bearer of rights is the
bearer of rights, then only the violation of this biological being would be seen as a violation
of rights and not taking away of the tools or anything. Thus, the bearer of rights has shifted
from the collective (broad idea of bearer of rights) to the individual (minimalist idea of bearer
of rights).
⮚ Since you are materially defining the subject of rights, therefore, the psychological or social
pressure that exists on an individual will never be seen as a violation of their rights. So, a
person’s liberty is curtailed only when the person is locked in a room and not when a person
is confined to a room due to social or economic existence. For example, Article 19 gives the
right to move freely. However, if you do not have the money to travel, you cannot enjoy this
right. But that is not seen as a violation of the right. It only amounts to a violation when
someone physically prevents you. The implication of the way the subject of rights is defined
is very broad. What we identify as a violation has emerged on account of the process of
individuation where the subject of right is defined in a minimalistic sense. Due to this
definition, life and liberty are also defined in a minimalistic sense without taking into
consideration any pressures or compulsions. Therefore, there is a separation of the individual
from the society. We find this individual as a disembodied individual which means an
individual extracted from individual’s culture, economic conditions & social existence. They
are all separate and this is the reason you are able to attribute responsibility to an individual
and punish them for violations. You don’t look the role that the society played in this
violation.
⮚ The second point is the object of rights. When you define an individual in a minimalist sense,
everything outside the biological body of the individual is not the subject. If they are not the
subject, then they become objects of rights. In ancient times, everything was not an object of
rights. In that sense, he says that the world which existed as a moral whole has got
desacralized. In that sense, when we think about this world as a collective whole wherein
everything is related to everything else that exists; we as biological individuals are connected
to other biological individuals. It was kind of sacred. But when the subject or bearer of rights
is defined as a biological being completely separate from nature, you immediately reduce this
entire nature and other beings as outside the individual and therefore, objects of control of
this individual as everything else. Earlier, your land and tools were part of you. There was no
distinction between subject and object. We find post-modern undertones in what Parekh is
writing – for the definition of the subject or bearer of rights, you had to separate it from the
object of rights. If the subject and object remained intermingled, then you can’t determinate
the object of rights. In ancient times, rights did not mean control over things. The idea of
property just meant certain rights over the property. Later, everything became an object of
rights. An individual had complete control over these objects. Also, public-private distinction
did not exist earlier. The right to collect revenue from a land also entailed your right to offer
military service. In medieval India, Mughals had mansabdars who had to the right to collect
revenue and provide military service in return.
⮚ The object of rights has changed. The way a right is conceptualised has changed. It never
meant complete control in the past. Under Roman Law, there was the idea of rex extra
commercial, i.e., things that cannot be owned or bought or sold. Land was one of these
things. Marxist undertones are also there in Parekh’s writing. So, private ownership of
property is a big concern. What happened over the 17th century was the emergence of the idea
of complete control over things which you have rights and it would entail doing anything
with that thing. You right to property does not mean your right to certain aspects about it but
complete ownership. If I as a baker have a right over the bread baked by me, I have a right to
not give it to a hungry person and throw it in the dustbin. Think of the moral sense that it
makes – giving sovereign control over the bread that I would not give it to the hungry person
and the hungry person cannot claim that bread.
⮚ Object is alienable and material. You can sell it off as you have control over them. Whatever
is the bearer of rights cannot be disposed of. Subject of rights is inalienable. If people can sell
their labour, intellect or donate your blood or organs, then how is individual defined? This
would mean that my complete body is not a bearer of rights because I can alienate any part of
my body. In this sense even the individual is desacralized. Parekh does not say that rights do
not have a role to play in a communist society but that they need to be reconceptualised. In
response to the collective exercising power over individuals, you went the liberal way and the
collective was gone to protect the individual and their rights. So, the problem is that you
moved from one extreme to another as if there was nothing in between and there was no
possibility to conceptualise something in between. It is important to engage with the Marxist
critique because we have moved from communitarian extreme to an individual extreme. The
theory of rights is based on certain assumptions and there are problems with these
assumptions. The point is that the individual is defined in a minimalistic way and not
only as a biological being. Biological being is not the subject of rights because you can
alienate everything out of your body. So, the bearer of rights is simply your will and
trust. As long as you retain your will and choice, you are a bearer of rights. You may be
starving but as a rational being you have your will and choice. Will and choice are
inalienable. This is the degree to which the bearer of right has gotten shrunk. The bearer of
rights is the abstract idea of will and choice and everything else is material objects over
which the will and choice of control.
⮚ When you move from a completely communitarian idea to a completely liberal idea, you cut
off this individual from the entire society. Everyone else becomes the other. They are not
inter-dependent beings. He says that the world is desacralized because everything is
objectified – capacities, talent, intellect, etc. You are now independent beings who are
self-contained, self-controlled, self-sufficient individual beings. But this is a problematic

conception because we are not independent beings. We are dependent on each other
throughout our lives. Every individual is dependent on the entire society. But liberal
philosophy dismisses this idea completely. What is integral to liberal conception of rights is
being critiqued by Parekh.
⮚ The whole distinction between first-generation rights (civil-political, Part 3) which are to be
realised immediately and second-generation rights (socio-economic, Part 4). The former was
seen as resource independent and the latter was seen as resource dependent. You can achieve
socio-economic rights only gradually. But for civil-political also police force etc. is needed
and therefore you cannot say that these are resource independent. Both of them are resource
dependent and both of them entail similar duties. The state should not violate the rights and at
the same time the state is required to protect violation by third rights and built the structure to
enjoy these rights. Amartya Sen is one scholar who extinguished this distinction. A famine
entails an economic-social right. He made the point that most of the famines have occurred in
countries which lacked a democratic set up. Democracies had lesser famines and they involve
civil-political research. This way, Sen established that these two categories are interdependent
and indivisible and they cannot be realised without each other. Parekh pointed out this
distinction emerged due to individuation of rights as positive rights got relegated to the
second generation. It was only recently in 1993 that there was an international declaration
recognised that these two categories of rights are independent and indivisible.
⮚ Now, when collective rights have been recognised and socio-economic rights are also
considered as equal to civil-political rights, then also we are not questioning the assumptions
on which the prioritization of civil-political rights was based. The liberal conception of rights
is not being questioned.
27th May 2021
Part 4 –
He makes eight points about the modern conception of rights.
Read – Part 4 of Parekh – Explained by Chelsea

⮚ Parekh says that because rights entail the right to exclude others, rights are actually sources of
benefits and burdens. With regard to right to life, you have right to live but others are
refrained from taking your life. Similarly, burdens get imposed on account of my right to
property. I have a right to exclude others even if the others need it more than I do. All rights
impose benefits and burdens. However, the two categories he mentions is right to life and
right to property. Right to life is a civil right. Right to property is an economic right. Civil
rights are negative rights as they impose negative obligations on persons. Right to property is
concerned, the distribution of benefits and burden is unequal. Burden falls on those who do
not own property. These two categories of rights appear to be very different. The burdens are
immense, disproportionate and unequal.
⮚ Rights are being conferred and protected by the state. The protection comes through the
monopoly of violence that state enjoys. If a right is violated, then the person can point it out
to the state. The state will enforce this right. Therefore, a person comes to have a share in the
sovereignty of the state by being a holder of the rights.
⮚ The civil law became the sole source of rights. Whenever you think about a problem, you
have a tendency of jumping to the idea that the right is not even recognised. This shows how
important the concept of rights is. People are denied of primary education so you recognise
that right as a part of Article 21. But even if you have the right to food, but at the same time
people are malnourished. If there are so many rights, then why is it that nothing is changed
and the problems still persist. He says that after the 17th century, the sole source of morality
was occupied by the concept of rights as if there is no morality beyond rights. Earlier, what to
do and not to do used to come from various sources – traditions, customs, loyalties, etc. If
rights become the only source of morality or what we ought to do, then it is problematic. The
only way a person can ask for something is by using the language of rights. Otherwise,
everything else beyond rights is reduced to charity. But this obligation of charity does not
come from anywhere. Traditional tides and common sentiments have taken the backseat and
therefore, everyone wants to trace their claim to some right that is embedded somewhere. If
one is not able to source this right, then one feels helpless and one can’t raise any demands.
During the movement for right to information, people struggled to find out the amount of
money institutions got, wages agreed upon with the contractor, whether name existed in the
muster role, etc. Therefore, it was statutorily identified as a right.
Child Rights
⮚ In earlier days, people thought that it is a perverse way to think about the relationship
between the child and the parents. People bring children into the world and they are
connected to them, love and care for them, and naturally make many sacrifices without there
being any rights. Conceptualising this in terms of rights is very offensive. If the parents do
not take care, then there has to be some recourse but such conceptualisation is problematic.
He says that rights have come to occupy a dominant position as the only source of demands
that may be validly made.
Part – 6
⮚ Concept of rights offer an ideological rationalisation for capitalism. There are certain
demands that capitalism raises. Firstly, labour is the source of surplus value. Therefore, it
requires that a person’s labour should be commodified. We should be able to buy and sell are
labour and only then surplus value can be created. Labour comes from human beings –
manual powers, capacities. Secondly, capitalism is based on free exchange of goods and
services between people. In that sense, if you say that it is free transaction between people,
then the ones who are getting into these transactions, and therefore, they should be seen as
subjects or inviolable self-determining beings who can take decision with regard to these
transactions. Therefore, he says that this requires a dualistic conception of human beings. It
was the will and choice of the human beings. It exists in abstract. This abstract being
becomes the owner of rights and is free. The person entering into transactions it the juristic
person and not the real human being because the real human being has been commodified.
The subject and object simultaneously exist – subject is abstract but the object is real.
Through this abstracted idea of human beings, you develop a social arrangement where
people are disconnected from each other. Independent entities who are only concerned about
themselves. Thus, the idea of rights institutionalises isolation and legitimises egoistic pursuits
of self-interests. [She said stuff about Rawls here; check recording for paper, 30th minute]
⮚ Every person considers themselves and independent being and feel free in that sense. This
freedom is like a veil that hides the class slavery. The exploitation that a person is subjected
to emerges from the class that exists. The property holders need not offer their labour. there is
a class distinction that already exists but this distinction is garbed by the ideology of rights
which recognises every individual as a free being who can decide for themselves. the class
character is obliterated/hidden and rights legitimise the distribution into classes. It perpetuates
exploitation in the capitalist mode of production. Our constitution says that everyone is equal
but the question is whether everyone is actually equal – the person who is equal is the
abstract being in the form of will and choice. A juristic person is constructed in the abstract
sense who does not have any social context, no gender, class, caste or religion. This person is
devoid of all these considerations. Therefore, the juristic person is seen as equal and not the
person in flesh. Inequalities exist due to caste, gender, etc. but these inequalities are hidden
within the liberal conception because the jurisdiction person is seen as equal. As a bearer of
rights, you continue to be the bearer of rights even if you are not enjoying the right. Rights
hide inequality and create an illusion of equality. Everyone is not equal. The ideological role
of reconciling the two requirements of capitalism is done by the concept of rights – we are
objects and subjects at the same time.
⮚ Marxists argue that rights are not significant and they play no role in a communist society.
They should not exist as they are only a tool of domination. There is no need to engage with
rights or law. Secondly, it is argued that the idea of rights is necessitated on account of the
scarcity that exists in a capitalist society and the unsocial individuality that exists in
capitalism. But Parekh counters these Marxists. It cannot be said that rights are tools of
domination and we cannot engage with them. the idea that there exists substantive equality
among humans is an illusion and the idea of rights is not an illusion. We can use the concept
of rights from their initial point, i.e., everyone is free and equal. Rights in general are not
illusionary because if we use this initial point of liberal philosophy, we can point out to the
substantial inequality that exists and see how it can be addressed. So, illusion exists in
mistaking rights for what they are not. They are not conferring substantive equality. At an
abstract level, they recognise the principle of equality as a starting principle. So, he does not
take the position that rights are useless but the way rights are conceptualised needs to be
revisited.
⮚ He offers his insights into how rights are to be reconceptualised and how the idea of rights
can be used to move forward the idea of substantive equality. All this is emerging from the
idea that human beings are independent, self-assertive, uninterested beings and this being is
constituted by this juristic person in the form of his will and choice. Independence of
individual and choice and will of individual is being prioritized and recognized in liberal
philosophy. The communitarian idea is that human being is an indissoluble part of
collectivity. Liberals work at one extreme where they say that you wouldn't be is independent
but communitarians do not recognize the independence of individuals. They rather they
recognize the idea that human being an indissoluble part of our collectivity. Parekh says that
this is not correct. To completely rubbish the idea of independence would be to support the
idea of a fascist state. Parekh wants to retain this idea of Individual independence at the same
time, not the kind constructed within the liberal philosophy through the way rights have come
to be conceptualized today, and therefore, he says that the way in which we can
reconceptualize rights is also to not think of individuals as mutually disinterested,
disconnected, competitive individuals where all of us stand in an adversarial position. This is
problematic. If you envisage rights more in terms of develop development and growth of
individual, they become more in less individualistic and more collective. Then you would not
be in competition with each other. If we focus on development of human capacities,
emotions, aesthetics, etc, then we as individuals don't stand in conflict with each other.
⮚ The idea of right the abstract idea of right is important. This idea has to be further through the
material pieces of rights. So, there are two ideas. Firstly, institution of right. It can play an
important role, but this institution remains hollow unless it is supported by the material basis
for the exercise of these rights. In liberal capitalist society is that right of an abstract person is
recognized, the material basis of right is not recognized. A distinction between civil, political,
economic, social, right is maintained. Freedom is conceptualised as freedom from rather than
freedom to. Parekh wants the institution of rights to be backed by the material basis of rights
so that rights can be fully exercised. For instance, to realise the right to life, you need food,
shelter, good health, etc. For food, you might need some land or property to buy food.
⮚ This material basis is restricted in a capitalist society through the idea of private property; it is
not available to everyone. As a Marxist, he would recommend doing away with private
property. But he is not doing away with any kind of property. He's saying that everyone has a
right to personal property, but not private property. There's a difference between personal
property and private property. Personal Property is what I need for myself – clothes, shelter,
food, etc required for sustenance. Private property is something which is not requires for
sustenance; it is beyond sustenance. Right to personal property is empowering and freedom
enhancing but right to private property is enslaving and restrictive of freedom. When you
own a huge property and you need someone else to work on this land, then as the owner of
the land you tend to have an upper hand and control over others. This is how private property
becomes restrictive of freedom – you are able to enslave and exploit others to work on your
estate. Therefore, it becomes a tool for subordination. So, he favours personal property as
against private property. Justice Mathew also made this distinction in Kesavananda Bharti. It
is legitimate to have private personal property rather than private property.
⮚ Therefore, his conception of individual also changes. The basis of liberal philosophy which
conceptualizes individual as self-contained, mutually exclusive, mutually disinterested being

is reworked. He does not work with the egoistic conception of human being but a connected
conception of human being. In a capitalist society, people feel that the only protection that
they have against all the others in society is a protection that can be given by the idea of
rights and not by the idea that we are connected to each other. Affection, love, etc. are
secondary ideas within the liberal conception. Parekh in a way deconstructed the idea of
rights; dismantled the kind of assumptions on which the entire worldview is based. The
western liberal philosophy lies at the base and this is problematic.
⮚ There isn’t much women representation in the Parliament and the judiciary. This is a matter
of concern. Even in private places this is evident. This is a recognised problem. What can be
done about this? – Lesser women in all these positions are symptoms and we need to address
the causes – structures created by families, stereotypes, etc. Patriarchal society.
⮚ Liberty and individuality are the two primary pillars of liberal philosophy. These are to be
protected against the primary violator – which was seen as the state. Rawls talked about
various institutions and institutional structures. He identified state, family, etc. as institutions
though he did not engage with family. Liberal philosophers are pre-occupied with the public
sphere as if everything is happening in the public sphere; as if the personal home is the castle
and the state should not intervene with it. It is from this notion that the statement came out
that “introducing equality in the bedroom is like introducing elephant in a China shop.” So,
state is the violator and individual needs to be protected. Culture informs law but law may
also inform culture. But to what extent have these changes taken place? [Didn’t answer]
28th May 2021
FEMINIST APPROACH
⮚ Liberalism applied to women becomes Liberal Feminism. Suffrage movement, equality of
opportunities etc. were their demands. Equality of opportunities falls within the public
sphere. The demand for these rights was crucial and important. However, we have now
moved beyond that as we have recognised what drawbacks liberal approach has. Equality of
rights at the normative level is important and thus, equal opportunity in the public sphere was
recognised. They did a lot in this field but they could not move beyond the normative
recognition of rights.
⮚ Does normative recognition of rights result in all women realising the rights that are
recognised? – Lack of awareness and education may affect the enjoyment of rights by women
even if rights are normatively recognised. Further, women may be aware of their rights but on
account of social pressure (although it may be subtle), they might not be able to enjoy their
rights. Even if women have been made coparceners (an important step normatively), nothing
may happen in reality because of the system of oppression. Even educated women would not
claim their share in the property because of this notion that women should try to maintain
cohesion in the family. traditionally, it is seen as the entitlement of the son. When daughter
also wants to have a share, she is seen as a bad woman as if she is eating the share of her
brother. Thus, she is seen in an adversarial position to the brother and seen as the family
breaker. This is why we find many women signing renunciation deeds in favour of their
brothers. It is not a problem of lack of education or a class problem. It resides deep into the
traditions. The natural heir of a father who is a businessman is seen as a son. It is the son
expanding the business even if the daughter is more skilful. Gender discrimination is not just
out there but it is in our houses as well.
⮚ The liberal philosophers maintain a distinction between public and private sphere and they
stop at the public sphere. Discrimination and violence in the private sphere are not
recognised. However, it has repercussions for the public sphere as well. The feminist slogan
that “personal is political” means that what is happening in the private sphere has
repercussions for the public sphere. How you are treated at home will affect your
performance at the workplace. Therefore, just focusing on the public spere would not help.
⮚ The drawback of liberal feminism is that systematic oppression is not taken care of by the
liberal feminism approach in identification of individual rights. Oppression is a part of the

structure rather than an individual thing. Its normalisation is also systematic. Even those who
know that it is wrong, still undergo and accept violence in the private sphere because it is
normalised. Example – the movie thappad. Since violence is seen as something normal, it
prevails. The system of violence does not get addressed through individual rights.
⮚ In liberal philosophy, the individual is constituted in a certain way. Liberal feminism does not
move away from that kind of individual. They are disembodied beings who are abstracts.
They do not correspond to the real individual. This individual does not have any affiliations.
They are a pre-social individual. Therefore, independence of individual and self-contained
nature of individual is a myth. No individual is independent in the true sense. Independence is
an abstract reality that has been constructed by the liberal philosophy. All of us are
interdependent beings and out thoughts have been conditioned by our surroundings. Liberal
philosophy sees everyone in the same homogenous category and therefore, you do not look at
the difference among women and how their experiences of discrimination is also different. A
white working woman and a domestic help, or a Dalit woman in construction work and an
upper caste woman in a business family would face different experiences. The experience of
a woman emerges from the multiple identities that a woman possesses. This is the point of
intersectionality.
⮚ Consider De-recognition of Triple Talaq – it had many identities enmeshed with each other. It
restrained divorce by just pronouncing talaq thrice but at the same time it also does
something to the minority community. The community may feel threatened.
⮚ Descartes statement that “I think, therefore I am” completely derecognises who individual an
individual comes already constructed in this world. Your being is already identified. As a
baby, your gender is recognised on the basis of your genitals. If you are intersex, then you are
bound to be marginalised. The point is that you cannot construct your identity but it is being
constructed by the world around you. How much value that will be attributed to what you say
and do will also be constructed by the world around you. If you are born as an intersex person
or a sex worker, then the weightage that will be given to your voice will be varying. In that
sense, normatively certain rights are recognised but the possibility of realisation of those
rights by people who are differently placed is uncertain. All women cannot realise the rights
although we have had a woman PM and President. But you need to look at that fact that
Indira Gandhi was the daughter of Nehru. The other women who got into politics had to go
through immense struggle. Most of the women get left out.
⮚ Another critique of liberal philosophy on how freedom is defined. Liberalism focuses more
on negative freedom. Therefore, the reading takes examples of pornography, abortion etc.
Liberal philosophy would see pornography or sex work as expression of a woman. You are
self-contained and self-sufficient who has free will. If you are into pornography, then it is
your choice. But is there any other explanation to it? – There is commodification of women’s
sexuality. A lot of sex workers have been stuck in it due to trafficking. Your context does not
provide you with much options. You do not have the freedom to make a free choice because
your choices are conditioned by the context in which you exist. Therefore, even recognition
of certain rights does not bring about a change in the conditions of people because what lies
at the root is the very understanding of humans as independent beings. Even those who are in
well-off conditions are not independent. Liberal approach does not address this aspect. The
negative conception of freedom will see pornography merely as an expression and no
interference will be called for. The conditions which got the person into pornography will not
be looked at. The voices of the people in this work will not be given due weight. If the
activity is criminalised, then they will be seen as criminals rather than seeing the context
which forced them to do it.
⮚ Liberal feminism relies a lot on the capacity of the law to secure gender justice. But they do
not see other problems that cannot be realised by recognition of rights. One may say that
culture is problematic. We have seen that even if normatively rights are recognised, culture
may be a barrier in realisation of rights by women. Therefore, culture plays an important role.
The cultural practices or norms actually are the major culprit. But then what is the
relationship between culture and law – law is an expression of the culture that prevails and
law has the capacity to reconstitute the culture (based on discussion with Chelsea, 45th
minute) – how a wife is seen as the property of the husband was seen in law relating to
adultery but the same was reformed through judicial intervention.
⮚ At times, we find a law directly discriminating women. There are different standards for men
and women. When there are same standards for men and women, it is excluding most of the
women. That is indirect discrimination. For example, this is what happened in the army. Two
judgments by the SC – 2020 and 2021. There was indirect discrimination in the sense that
apparently the rules were the same, but factually women got excluded by them. There is both
indirect and direct discrimination and you need to address both. Liberal philosophy identifies
direct discrimination but not indirect discrimination because it considers individuals as
independent beings. There is no caste or gender aspect to it. Liberal philosophy would not
recognise how law disproportionately affects women. When you want to secure a loan, you
want to furnish collateral, people submit land deeds at often. But most of the time women do
not have any land. So, although apparently the rule is the same, it indirectly results in
discrimination and it would remain hidden from the liberal perspective.
⮚ There was a slew of cases where women died in kitchen in a very similar way. But when you
looked at them closely, they were happening to newly marries women mostly for dowry
demands. It was only later that these were termed as dowry deaths. It was not happening to
unmarried women. So, the existence of dowry and the identity as a married women played a
role. It was a systematic oppression of women and it was recognised only when this abstract
individual was seen as a contextualised individual who lives in a certain context. The Act of
1961 was introduced to address dowry but the problem of dowry still prevails rampantly. In
that sense, the change in law may not bring a change in cultural practices. The change in law
comes from the legislature or the judiciary but the judiciary is also not doing that all the time.
In Joseph Shine, a different kind of position was taken but in Gita Hariharan. They refrained
from holding the Hindu Guardianship and Maintenance act as unconstitutional because it was
unequal. The judiciary come from the public and they may interpret the law in the context of
the same culture; they do not come from a separate worldview. In Tukaram v State, consent
was also defined this way. For the adjudication of the matter, they had to see if there was
consent on the part of this female who had been raped. In that sense, what constitutes consent
has to be identified before you can even apply the law to any situation.
⮚ There is a need to go back to poststructuralism and attribute meanings to words – the way
meaning was attributed to the word “after” in Gita Hariharan. In that sense, how we make
sense of words is extremely crucial. While giving meaning to anything, we identify what is
what. When you say that I know what the law of rape is, then you must have some conception
of rape and consent. Only then you can claim that you know what rape and consent is. How
do you make sense of these words where they are not defined in the law? – Words like
discrimination and consent have not been defined in the law but even then, judges have been
interpreting these words.
⮚ What you know depends on how you construct certain ideas. The way you construct consent
comes from your experience. You may say that since the person is a sex worker and has
sexual intercourse with someone, then it’s okay. The kind of interpretation that was given to
rape may also come from the concept of caste – upper caste men cannot rape, rape cannot
happen in public view, etc. so, where rape may happen or who can commit rape comes from
certain generalisations. These ideas are coming from certain generalisations – how we may
give meanings to acts. It may be said that since sexual intercourse is a private act, gang rape
cannot happen in public. Or, people may say that the woman was dressed in a particular way,
so she only invited it and therefore there was consent. The point is that how you make sense
of law depends on how you make sense of words used in law or the concepts/ideas defined in
the law. Words are giving social meaning if there is no definition. And this social meaning
would be a male meaning. It is mostly how anything is constructed dominatingly. The
dominant meaning of a religion text on a certain thing might be considered. Normally, people
at the helm of the affairs would be defining. It was seen in post modernism and post
structuralism and deconstruction that what is “just” merely depends on the consensus. So,
what is rape is just what the consensus says – same goes for equality, freedom, etc. This
consensus is among the dominant. The religion text will also be defined as what the people at
the helm of affairs say and this is generally the male version.
⮚ Suppose that there is religion X and all the religion interpreters are males. Now, we want to
imagine a situation where women are the interpreters – In that sense, just substituting females
for males would not help. It is a deeper problem. They are part of the same society. They
have also internalised the same ideas. Thus, what needs to be changed is how we think about
everything; the way our thoughts are conditioned. A major change will come back if we
address the problems at that level. It's not about substitution and in that sense male versus
female.
⮚ The initial connection between culture and law and how culture affects the law is something
that was captured by radical feminists. They say that the law is male (the standard is of
reasonable man). Therefore, it has limited capacity of bringing about change. Most of the
radical feminists focus on the sexual identity of women. It is crucial for them. What is work
for Marxist, sex is for radical feminists. They take the position that actually it is the sex of the
woman (they don’t even go to gender) that is the sole source of exploitation. The way women
are constituted as sex objects and not human beings. Their focus remains on pornography, sex
work, etc. Radical feminists move away from liberal feminists in terms of sexual identity of a
being is at the root cause of discrimination and injustice, rather than saying that equal rights
have not been recognized in law.
⮚ So, there are different strands of feminism. Culture feminist as against liberal feminists
emphasize on difference. Rather than saying that men and women are the same like liberals
who said that men and women are same and thus they are entitled to same rights, difference
feminists emphasize on the difference between the man and women. They celebrate this
difference and they want this difference to be identified. Therefore, difference feminists or
cultural feminists dismiss the idea of liberal feminism. When say that women are the same as
men, the male is constituting the standard. So, women are entitled to equal rights because
they are as rational as men are. Women would progress in the public sphere only if they are
able to perform as well as men do. So, men become the standard and we judge women on the
basis of that standard. Cultural feminists dismantle that as the standard.
⮚ In terms of post modernism or deconstruction, binaries and hierarchies were there –
male/female, public/private, rational/emotional – dichotomies. Liberal feminists and cultural

feminists have different view of these binaries. Both of them are engaging with the binaries,
but they're engaging with these binaries differently. One, these binaries are sexualized and
these binaries are gender and these binaries are hierarchized. There is hierarchy in these
binaries and there is gender in these binaries. For example, out of say rational and emotional,
rationality is higher in hierarchy as compared to emotions. Public is prioritized over private.
Subject is prioritized over object. There is also sexualization of this binary that out of
rationality and emotions, emotions are associated with females and rationality is associated
with males. Public is associated with males but private is associated with females. However,
liberal feminists would debunk this sexualisation of hierarchies. They would say that women
are as rational as men are.
⮚ But cultural feminists would dismantle the hierarchy. Cultural feminists dismantle this
hierarchy and adopt and recognize and claim the sexualization. They say that women are
emotional whereas men are rational, but emotions are as valuable as rationality. They deal
with these binaries differently. Cultural feminists experimented on young males and females.
They found that how males females responded was differently. Girls looked at the problem
more contextually whereas boys looked at the problem more in terms of abstract ideas like
rights or justice. In that sense, the cultural feminists claim that difference and say that it
needs to be valued. We must not give up this difference.
⮚ The reading builds upon how recognition of difference actually allows you to go beyond the
liberal conception and question and engage with various ideas in law – substance of law,
methods, reasoning adopted in law, etc. The idea that individuals are free, unconnected,
mutually disinterested being. This independent construction of a being is criticized for being
unreal. All of us are interdependent - we are dependent on our families, we're dependent on
people who grow food for us, we are dependent on people who offer internet services, etc.
Many things are done by others in the family. if not done by someone in the family, then it is
done by some one who the family can hire with its economic capacity. In that sense, class and
status hides the gendered division of labour – care work, cooking, etc is all gendered in a
family. There is interdependence. Homemakers actually doing all these tasks whereas all
other members of the family survive like parasites on the homemaker and then claim to be
independent. They make that claim in the outside world. Till the time you don't do everything
for yourself, you're not independent. We would essentially remain dependent.
⮚ Further, dependence in the private sphere actually ensures independence in the public sphere.
Men who are dependent on homemakers claim to be independent beings. In that context,
Naffin points out that woman sustained the impossible paradox of the man of law. The man
of law is the independent individual it's the woman who sustain this impossible paradox of
independent man. This kind of relationship that exists between the public and the private
sphere. Independence in the public sphere actually is heavily dependent on dependence in the
private sphere.
⮚ The reading also goes into the problem with the rights discourse – how we have identified
rights and how we conceptualize rights – all the theories emphasise on individual
relationships are like right/duty Will theory says, “my will against you”. It is positioning of
individuals as independent atomized individuals in this world. Parekh talked about this – the
way modern rights are conceptualised as where independence is hailed and human beings
emerge as independent islands. The interest theory actually offers a way in which various and
depressed sections, including those to whom will cannot be attributed (young children or
infants or unsound mind), all are seen as bearer of rights.
⮚ Lacey talks about the reconceptualization of these rights. Some points are similar to those
raised by Parekh. Focus on non-competitive rights like focusing on realising one’s potential.
Don't look at your own rights in an adversarial way where the bearer of rights stands in an
adversarial position to the duty bearer. Individuality is prioritized by liberal philosophy over
collectivity and how individual property is prioritized over collective goods. This
prioritization has huge repercussions with regard to the way we think about rights and we use
rights for the purposes of advancing women's rights.
⮚ In the scenario where the rights are recognised by law and the state acts as the protector of
rights, whose power is getting enhanced, individual or the state? – it would be the state whose
powers would be getting enhanced. In the aforementioned conceptualisation of rights as
exists in the modern society, it has implications with respect to distribution of power and the
state becomes really powerful. When injustice is perpetrated by the state through law, then a
problem arises. Lacey takes the example of pornography. Judiciary says that pornography is
free speech which is protected, without considering the context to take more nuanced
approaches.
⮚ What value does choice have if this choice is based on lack of information? Lacey takes the
example of abortion. Without information the ability to enforce or implement a choice, the
choice has no value. Individuals are beings with free choice but it doesn't exist in reality.
They should consider various ways in which rights can be reconceptualized. She goes back to
post modernism and deconstruction – how the dominant is defined actually gets its meaning
from the other that is excluded, and how the excluded actually exists at the centre of how you
define the dominant.
⮚ Therefore, the idea of meanings is open, they're not closed. Nothing has a closed meaning –
consent, discrimination, freedom, justice, etc are open-ended ideas. These are contested ideas
within philosophy. This offers an entry point to actually think in terms of those binaries and
say that the one that is being subordinated is integral to the definition of the dominant.
Reimagine the meanings that are attributed to anything – the meaning that law or justice has.
All these offer entry points for securing gender justice. How we imagine anything plays a
major role in how the same thing may be reimagined. This is a continuous process by
bringing to the centre what stands excluded, because you can't define what you are defining
without identifying the difference between what you're defining from all the other things.
This is what was done in deconstruction and post modernism. Words do not have a natural
meaning and everything is defined in the context of all the other things. For example,
movable property is defined as the other of immovable property. So, you necessarily have to
identify the other of what you are identifying and only then you will be able to attribute
meanings to words. This attribution comes in context and merges out of culture emerges. If
we deconstruct the assumptions on which our thoughts are based, we will move forward.
⮚ How reconstruction of rights is possible? – Lacey talks about how rights of equivalent worth
are something that is emphasized on. Rights of equal worth, in terms of the example of
pornography, how you attribute worth to people, their context, and other aspects of their life –
You contextualize them, and then see how they are being silenced. It may not just be an
expression of their free expression. How you attribute equal value to differently situated
subject – recognise the difference in the context in which this subject is placed, and then
make headway in terms of equivalent realization of their worth. Liberal philosophy does not
enable us to do this because it upgrades at an abstract level.
⮚ Also, recognition of collective remedial rights in terms of affirmative action is important.
Recognition of group rights is important – the move from the Covenant on Civil and Political
Rights and Socio-Economic rights to group specific rights. We are taking about women's
rights, child rights, rights of people with disability - we are recognizing group rights and
moving from the idea of individual. The international human rights discourses also moved
from the idea of decontextualized individual to the idea of contextualized individual or a

group.
⮚ Also, Lacey talks about not only the right to have but the right to being. Rights are not about
what I have but whether my being is identified or not. If you recognise all my rights to have
X, Y or Z, but you devalue me as a being and don’t recognise me as being of equal worth,
then it is problematic. Therefore, scholars like Nancy Fraser and Marian Young emphasise on
the right of being. They recognise identity or the being of individual rather than right as
merely having. We need to shrink the proprietary way of looking at rights and the right to
property. There is a need to look at rights in a relational way – the way Parekh talks about.

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JURISPRUDENCE – II 35LLB18

25th February 2021

Factors that Contributed in 2018:

1. Infrastructure – poor transportation facilities

3. Financial Ability – Coaching, Good School Education, Books, GK Guides, Online

6. Social Constraints – they were not illegalised.

Factors that Contributed in 2018:

2. Financial Ability – Coaching, Good School Education, Books, GK Guides, Online

5. Certain level of absence of Social Constraints – Gender, Caste. Identity of a person

Framework – Institutions – Political Equality, Civil Liberties, Redistribution of Wealth &

Political Equality – Constitution, Parliament, State Legislatures, Rules pertaining to election

Redistribution of Wealth and Income – Market.

BASIC STRUCTURE OF SOCIETY

26th February 2021

arising out of an agreement among people, then he becomes a contractarian. He identifies

What kind of contract is this and what are the conditions?

2nd March 2021

(1) Principle of Liberty

(i) Equality of liberty. Every person is supposed to have an equal right.

(2) Difference Principle

1. With regard to liberty – there are two cases within this;

A child or a person of unsound mind would have less liberty.

3rd March 2021

The Maximin Principle

What is to be done to move beyond formal equality of opportunity to fair equality of

of fair equality of opportunity to democratic equality of opportunity. He talks about

4th March 2021

⮚ Difference principle is inherently based on economic inequalities. Intuitively, equal

Rawls also brings on board as far as political theory is concerned,

8th March 2021

Last Class – Agree to unequal accumulation of wealth by capitalists otherwise disadvantaged

He is called liberal egalitarian because he supports welfare capitalism.

lottery. Sicne it si abraigttuyea dsitrubuted, cooperative is ventyre. We cooperate so that all of

12th March 2021

⮚ For operationalisation of liberty, it is important that firstly, freedom of conscious and

expression is to be protected though there have to be certain limitations on account of order;

OPERATIONALISATION OF THE IDEA OF LIBERTY

⮚ He discusses two ideas: Political Liberty and Liberty of Conscience

⮚ He discusses political liberty in terms of equality of participation in political process. He has

given moral philosophical reasons in favour of constitutional democracies. Constitutional

15th March 2021

OPERATIONALISING THE DIFFERENCE PRINCIPLE

25th March 2021

⮚ Requirements of Rawlsian Theory of Justice – A bunch of people in the original position

POINTS OF CONCERN FOR SEN AGAINST TRANSCENDENTAL INSTITUTIONALISM

dominant approach in justice. Sen’s theory is considered by a lot of policy-makers. He argues

⮚ Transcendental Institutionalism is often equated with contractarian way of understanding

the Realisation focused Comparison. He makes a broad categorisation. This approach is

26th March 2021

NITI AND NYAY

⮚ Wall Street – Protesting against economic inequality – economic inequality as unjust is

31st March 2021

⮚ Identification of reason as distinguishing factor is important. It is not all-pervasive universal

1st April 2021

⮚ While talking about substantive freedom, are we looking at functionalities or achievements?

What are the drawbacks of the absolute conception of poverty? –

5th May 2021

⮚ Drawback of Income Approach to Poverty – Secondly, Sen defines capabilities as substantive