Amartya Sens Idea of justice. -Shivaraj.S.H and Kavita. S.

Belagali Abstract: Object behind writing this article is to analyze Amartya Sens Idea of Justice in comparison to contemporary western views (Rawls Theory of Justice) on concept of justice, Sen propounded his own approach towards justice, for clear understanding of which needs indepth study of His Idea of Justice. Sen sternly opposed characterization of just society, and he expressly made it clear that his approach towards justice is very different; he termed this development as The Enlightenment and Basic Divergence. By giving suitable examples Sen made it clear that justice should made according situation and also he correctly emphasized that there may be several reasons behind just claim. He tried to systematize Indian concept of justice by analyzing ancient views of several Indian Jurists. Sen also explained the importance Voice and Social Choice in democracy; accordingly we made an attempt analyze his views on concept of justice. Introduction: The concept of justice is held to be fundamental aspiration of every legal system, and object of every legal system is to secure justice. However the concept of justice is not same throught the world, even though naturalist claims that principle of justice are same throught the cosmos, there exist divergent views on nature, object and principles of justice. According to Plato justice is harmony both internal and external, internal harmony is proper balance in the soul, and external harmony manifests itself in the state.1 Aristotle classified justice distributive and corrective; distributive related to equal distribution of rights, liabilities, burdens and benefits where as corrective justice is to make proper balance between burdens and benefit2. Likewise Cicero, Hobbs, Locke, Rousseau, Thomas Aquinas, etc and contemporary jurist like Kant, Fuller, Stamller, Bentham, Austin and Rawls etc expressed divergent views on concept of justice. Besides these western jurist in India concept of Dharma prevailed to be supreme authority above all Human Power and it is considered as principle of righteousness or duty, principle of holiness and also the principle of unity. Amartya Sen by his in depth study of both western and

Students of LLM II year (Constitutional Law Branch), Karnataka State Law Universitys Law School, Rayapur, Dharwad. 1 st Vijay Ghormade Jurisprudence and Legal Theory, 1 edn, Hind law Publications;Pune,2008.p 197 2 nd Prof S.N.Dhyani Fundamentals of Jurisprudence (The Indian Approach) 2 edn,Central law Agency;Allhabad ,1997.pp138-139

Indian Concept of justice he paved new way to concept of Justice which is discussed as under. Before analyzing his concept of justice let us know in brief about his life and achievements. Early Life: Amartyakumar Sen born on 3rd November 1933 in Shantiniketan, Westbengal. Sen began his High School education at St Georges School in Dhaka in 1941, his family migrated to India in 1947. He studied in Presidency College, Kolkata, earned first class B.A (Hons) in Economics. After this he moved to Trinity College Cambridge and there he completed his Ph. D, he returned to India for two years, mean while he appointed as professor and he is the founder of Department of Economics at University at Jadhavpur University, Kolkata. Subsequently Sen Won a fellowship prize at Trinity College and after that he served in Trinity College, Oxford University and also in Cambridge University. Works of Amartya Sen: In 1970 he developed theory of Social Choice, in 1981 Sen published Poverty and Famines, an essay on Entailment and depravation in which he demonstrated that famine occurs not only from a lack of food, but from inequalities built in to mechanisms for distributing food. Sens Work in the field of Development Economics has had considerable influence in the formulation of the Human Development Report, published by the United Nations Development Programme. He developed Concept of Capability through his Article called Equality of what. In the year 1998 he received the Noble prize in economic sciences, for the work in welfare economics. In the 1999 he received Bharat Ratna award. Amartya Sens approach towards Justice. Amartya Sen in his Idea of Justice opens with the word, there is nothing so finely perceived and finely felt as injustice,3 according to Sen this saying is true and it is evident enough in our day to day life, it is fair to assume Gandhi would not have challenged the empire in which the Sun used not to set, Martin Luther King would not have fought white supremacy in the land of free and the home brave and Parisians would not have stormed the Bestille these events happen because they felt and fought against injustice.
3

Amartya sen, The Idea of Justice I Edn, Penguin Books India Pvt Ltd, New Delhi 2009.p vii.

Sen declares that his idea of justice is broad and it aims to clarify how we can proceed to address questions of enhancing (a) Justice and reducing injustice rather than aiming only at the characterization of perfectly just societies (b) The presence of remediable injustice may well be connected with behavioral transgressions rather than institutional short comings.4 What Sen wanted to say is justice is ultimately connected with the way in which peoples life go and not merely with the nature of the institution surrounding them. Sen criticsed Rawls theory of Justice by saying that Rawls theory only explains how to establish best institutions. According to Rawls theory of justice institution can only properly impart justice but Sen propounds that justice is connected with life of people it depends upon, how the people will going to lead their life. According to Sen Social institutions are only one of the form from which we can accelerate over growth. The focus actually lies in assessment of justice, which have many far reaching implications for the nature and reach of idea of Justice. Sen opines that the reasoning and feeling of injustice compels men to protest and makes him to fight against injustice, he explains this by taking the example of Edmund Bruke who was the member of House of Commons in England, it was during impeachment process of Warn Hastings. Sen by giving this illustration explains how feeling of injustice force the person to protest, he quotes words of Edmund Bruke as follows an event has happen upon which it is difficult to speak, and impossible to be silent. Sen expressed that to impeach Hasting Bruke invoked the eternal laws of justice which Bruke claimed, Hastings has violated. Sen also contended that for claiming justice there should be just reasons than only such claim may be concluded as Just claim. He explains how reasoning is important in deciding any particular matter by takings above example of Hastigns Impeachment process in which Bruke submitted his arguments as follows5

Supra note 1 p.ix Supra note 2.pp 1-2

I impeach him (Hastings) in the name of commons of Great Britain in parliament assembled, whose parliamentary trust he has destroyed. I impeach him in the name of all the commons of Great Britain whos National Charter he has dishonored. I impeach him in the name of people of India whose laws, rights and liberties he has sub served; whose properties he has destroyed, whose country he has led waste and desolate. I impeach him in the name of Human Nature itself, which he has cruelly outraged, injured and oppressed of both sexes, in every age, rank, situation and condition of life. These words of Edmund Bruke were in reaction to unjust activities of Hastings in India who faced impeachment proceedings from being member of House of Commons in England after returning from India to England who was Governor General of India. While initiating impeachment proceeding against Hastings Bruke submitted several grounds on which he should be impeached taking this fact into consideration Sen concluded that some time there will be several grounds to adjudge justice in one side which he termed it as plural grounding. Further he is of view that central to the idea of justice is that we can have a strong Sense of injustice on many different grounds, and yet not agree on one particular ground as being the dominant reason for the diagnosis of injustice. The Enlightenment and Basic Divergence. Under this heading Sen explains the divergent views of western world about the reasoning about justice. Among leading philosophers associated with radical thought like Thomas Hobbes in seventh century and followed by thinkers like Jean Jacques Rousseau etc, who concentrated on identifying just institutional arrangements for a society. Sen called this approach as Transcendental Institutionalism.6 This transcendental institutionalism according to Sen has two distinct features, (a) It concentrates its attention on what it identified as perfect justice, rather than on relative comparisons of justice and injustice. It only searches for justice and never tries for to reduce
6

Supra note 3.pp 96-102

injustice. It believes that justice can only be imparted by just institution. And not directly focus on society. Sen very correctly emphasized that the nature of society that would result from any given set of institution must, of course, depend also on non-institutional features for example actual behavior of people and their social interaction. He is of the view that identification of perfectly just society leads to contractarian mode of thinking as laid down by Hobbes, Rousseau, Locke, Kant etc. Sen called them as transcendental institutionalists or who in their search for perfectly just society or institutions have some time also presented deeply illuminating analysis of moral or political imperatives regarding socially appropriate behavior. (b) In contrast with transcendental institutionalism, a number of other enlightenment theories took a variety of comparative approaches that were concerned with social realizations, these authors had different ideas of demand of justice, they were all involved in comparisons of societies that already existed or could feasibly emerge, rather than confining their analysis to transcendental searches for a perfectly just society, the aim of this comparative thinkers is the removal of manifest injustice from the world they saw. Sen believed that the need for a theory of justice relates to the discipline of engagement in reasoning, about a subject on which it is some time claimed that justice is not matter of reasoning at all: it is one of being appropriately sensitive and having the right nose for injustice. Sen gives example of famine to explain this assertion. In the time British rule India experienced deadliest famine, this apparently seems to be natural phenomenon and yet a calamity would be a case of injustice only if it could have been prevented, and particularly if those who could not take any steps for its prevention or fails to take remedial measures, then result of famine is more worse then what it ought to be, Sen says that main cause for Bengal famine and wherein lakhs together people died not only because of famine but due to lack of food supply by then ruling British Government, he asserted that at that time of famine in India there was sufficient food production but British Government not taken any steps for its distribution in Bengal.7 He is of the view that reason behind the death of people may be famine but real cause is crooked act of
7

Supra note 4.pp 342-345.

British Government, accordingly he argues that reason for injustice is not be diagnosed. He said evaluation of justice may be anything but straight forward. In the opinion of Sen, sometimes certain peoples set aside or avoid reasoned decision, such persons are not indignant protesters, but they are placid guardians of order and justice. Accordingly institutions which are under obligation to impart justice may sometime vehemently denies it, for which he suggested that: such guardians of order and justice are advised to consider what think justice requires and decide accordingly, but never give your judgment will certainly be wrong. He calls to impart justice according to situation he opines the requirement of theory of justice includes bringing reason into play in the diagnosis of justice and injustice. Amartya Sens Idea of Justice. Sen argues that at the heart of particular problem of a unique impartial resolution of the perfectly just society is the possible sustainability of plural and competing reasons for justice, according to Sen justice should be according to situation which demands the making justice, justice should not pre-determined, it should be on the basis of best reasons that are available, however there may be infinite reason, although such reasons are justifiable among them best reason which is very nearer to justice must be taken in to consideration. Sen gives example of three children and a flute to establish how there may be several justifiable reasons in one instance. Anne, Bob and Carla were three children, who were quarrelling for flute.8 Anne claim flute as of her that she is the only of the three who knows how to play it (other do not deny this). Bob who speaks up, and defends his case for having the flute by pointing out that he is the only one among the three who is so poor that he has no toys of his own flute would give him something to play (Anne and Carla agreed that they were rich and they had other toys to play). Lastly Carla who speaks up and points out that she has been working diligently for many months to make the flute with her own labor (this contention of Carla is admitted by both Anne and Bob) and just when she had finished her work, these expropriates came along to try to grab the flute away from her.

Ibid.pp.13-15.

Having heard all three and different lines of reasoning we find, and all the reason looks just, moot question here is how to decide to whom flute should go. Sen assumes what might be result of this claim if it is taken before different theorists like utilitarians, economic egalitarians or before libertarians, he asserts decision may be as follows, according to egalitarians Bob, the poorest is entitled for flute. According to libertarians, Carla, the maker of the flute, would entitle for flute. According to utilitarians Anne being only person to know to play flute so she entitled to the flute. By taking this example Sen not only explains role of reason in deciding justice but also explains on what ground or principle allocation in general may be made, he says that we can not only by principles of egalitarian, libertarians, and utilitarian, he said that, justice should be according to situation, it is only by analyzing prevailing situation only we can decide whether Bob, Anne and Carla entitled to get flute, and not the preconceived notion of any theoretical explanation. This is reason why Sen disregards transcendental frame work of justice imparting system and he favored a comparative method of justice imparting system. He is of the view that if theory of justice is to guide reasoned choice of policies, strategies or institutions, then the identification of fully just social arrangements is neither necessary nor sufficient. He opines that theory of justice shall not confined to the choice of institutions nor to the identification of ideal social arrangements, the need for an accomplishment based understanding of justice is linked with the argument that justice cannot be indifferent to the lives that people can actually live. The importance of Human lives, experience and realization cannot be supplanted by information about institutions that exist and the rules that operate. Institutions and rules are, of course very important in influencing what happens, and they are part and parcel of the actual world as well but the realized actuality goes well beyond the organizational picture and includes the lives that people mange or do not mange to live.

A Classical Distinction in Indian Jurisprudence. As he explains that Indian legal heritage is very different from other part of world, he says that western concept of law or idea of justice closely linked with, idea of justice, fairness, responsibility, duty, goodness and righteousness. He is of the view that Indian way of thinking and idea of justice is very different from western world. He tries to elaborate it by giving the

example of Buddha. Sen explains that there were two different concept of justice prevailed in ancient Indian jurisprudence; he emphasized that concept of Niti and Nyaya, Niti relates to organizational propriety as well as behavioral correctness. Whereas Nyaya (in broader Sense) includes the roles of institutions and organizations, because they are very essential components of justice.9 Sen also explains the concept of Matsyanyaya10 which ancient jurist of India constantly advocate avoiding in administration of justice which means justice in the world of fish. Where big fish can freely devour small fish, he warned to avoid Matsyanyaya in administration of imparting of justice. He is of the view that in administration of justice might is right should not happen. He tries to lake distinction between Niti and Nyaya by quoting the example of Ferdinand11 the Holy Roman Emperor who famously asserted that let justice be done, though world perish. Sen opines that this principle is Niti because if it would be the Nyaya, for the cause of single person the world if perished there will remain nothing to enjoy. He says that the subject of justice is not merely about trying to achieve or dreaming about achieving some perfectly just society or social arrangements, but about preventing manifestly injustice such as avoiding the deadfall state of Matsyanyaya. Voice and Social Choice. According to Sen discussion less justice is hard to achieve so he asserted that public voice or voice of people should bear some relevance in imparting justice, voice refers to opinion of people, he elaborately discussed by giving example of Emperor Alexander, as Alexander the great roamed around North West India in 325 B.C as his soldiers objected, he decided to go back but lived for some day in India. In the meanwhile, he holds conversations with Indian philosopher and theorists,12Alexander in conversation with Jain philosopher asked why they were neglecting to pay any attention to him. To this question, he received following reply. King Alexander, every man can possess only so much of the earths surface as this we are standing on. You are but human like the rest of us,
9

Supra note 6.p.20 Ibid 11 Ibid. p. 21 12 Supra note 9. Pp.87-89

10

save that you are always busy and up to no good, travelling so many miles from your home, a nuisance to yourself and to others you will soon be dead, and then you will own just as much of the earth as will suffice to bury you. This illustration is to show how independent voice affects, if it is directly spoken irrespective of person against whom it was spoken. Sen is of the view that for better functioning of democracy independent voice is the backbone. Amartya Sen, says that debates and discussions are not always effective but they can be indeed does have some effect on the expanding liberty of thinking. Social Choice theory. This social choice theory concerned with relationship between individuals preferences and social choice. This theory is a theoretical frame work for measuring individual interests, value or welfare as an aggregate towards collective decision. In noting the nature of human lives, we have reason to be interested not only in the various things we succeed in doing, but also in the freedoms that we actually have to choose between different kinds of life. Beyond our life, freedom is more important, the freedom to choose our lives can make significant contribution to our well being so we were having right to choose our life style and also freedom and it is for us to decide what we have good reason to pursue, Sen says that, We do not have to be a Gandhi, or a Martin Luther King or Nelson Mandela to recognize that we can have aims or priorities.13 Amartya Sen contented that freedom to live according to our choice, give us the opportunity to decide what we should do but he says with opportunity, responsibility for acts also follows, opportunity and responsibility decides our capability. Capability is the power to do something.14 Critical Appraisal on Sens Idea of Justice. As Sen contended that not only justice be done but injustice also be reduced, in reality injustice is a result of certain acts of power occupied group, where by imposing unjust condition on particular class of people, exploits them because of this exploitation there exist enmity

13 14

Ibid. p. 18 Supra note. 11 Chapter 4.

relationship, this enmity relationship cannot be removed or reduced only by discussion or by talking about justice or about injustice, first of all antagonism between that class should be removed then only it is possible to reduce injustice and enhance justice. For reducing antagonism between various classes in society, justice imparting institutions necessarily be conducive towards justice. Sen has given a call for public reasoning and public debates to remove injustice,15 but the billion dollar question is who is going to take lead or conduct this public debates. There is impossibility to have dialogue on justice or injustice because, as Sen himself admitted that there is no uniform approach towards justice and it is also not possible. In our society there are egalitarians who may think differently than utilitarians, and as compare to utilitarians, libertarians may have different approach towards justice. In this situation in pluralistic society like India some short of injustice may remain unprotested. The popular example that has been illustrated by Sen (that is of Anne, Bob and Carla) though it greatly helped him in propounding justice should be made according to situation and also sometimes there exists several reasons for claiming justice which he termed as plural grounding, but Sen fails to provide solution to that illustration which would have laid down preferential approach towards justice. In this particular example claim of Anne should be upheld as she was only person among three who is capable of making proper use of that flute because she only knows how to play that flute. Though Bob is poor, as he is not capable of taking proper use of that flute, if it is given to him he would make it waste. Furthermore Carla, who is manufacturer of flute though she is having lawful interest over flute but it can be compensated by payment of money or by giving other toys of which she make proper use. It is not proper and impracticable to enjoy goods created only by his own labour. Further Carla is also not in position to take proper use of that flute as she is unable to play it. Under this conditions situation demands that flute should be given to Anne. But Sen with view to keep reader in curiosity not suggested any solution to this illustration. Sen being Indian would have focused more on Indian concept of Dharma, though he in brief talks about Niti and Nyaya which is totally inadequate to bring Indian concept of Dharma in

15

Ibid. pp 408-409.

to lights. Indian concept of Dharma is not as narrow in its ambit as of western concept of justice. Dharma is generally defined as principle of righteousness or duty, principle of holiness and also the principle of unity. Bhishma says in his instructions to Yudhishthira that whatever creates conflict is Adharma, and whatever puts an end to conflict and brings about unity and harmony is Dharma. Anything that helps to unite all and develop pure divine love and universal brotherhoodness is Dharma. Anything that creates discord, split and disharmony and foments hatred is Adharma.16 In this way Indian concept Dharma would have been properly exposed in contrast with western view of justice. Conclusion. It is indeed a privilege of Indians to have such unique personality amongst us, Sen being Economist very correctly assessed that Bengal famine (at the time of British rule) was worsened by inhuman attitude of British Government. His Idea of justice in totality paved way to new approach towards justice, the concept of justice according to situation is itself new development. Analysis of Sens Idea of Justice seems to be more rational as compared to Rawls Theory of Justice, Sen is of the view that institutions are just one of the important elements of imparting justice but it is not only way to achieve justice. According to Sen doing justice largely depends on how peoples life go in society and he also strongly argued that behavioral aspect of people will play very important role in deciding what is just and unjust. Sen rightly analyzed that for better functioning of Democracy, voice of people should be respected, to make people aware debate and discussion are to be conducted. He also emphasized that United Nations should play positive role in ensuring Global Democracy but in reality U.N is vehicle of U.S and other developed Nations imperialism, so in such condition how it will act as global democratic messenger is a big question; however Sen rightly asserted that U.N should be impartial messenger of justice. Sen very successfully established pit falls of Rawlsian Theory of justice, according to Sen Following are the wrong assumption of Rawlsian theory, inter alia

16

M. Rama jois, Legal and Constitutional History of India I Edn (1984) Reprint (2008) Universal Law Publishing Co. Pvt. Ltd, New Delhi.

(a) Rawls formulated the demands of justice in terms of principles of justice that are exclusively concerned with just institutions, ignoring the broader prospective of realizations; (b) He ignored the possibly adverse effects on people beyond the borders of each country from the actions and choices in this country, without any institutional necessity to hear the voices of the affected people elsewhere; (c) He ignored the discipline of answering comparative questions about justice, by concentrating only on the identification of the demands of a perfectly just society. These critics of Sen contain some element of truth in them. Accordingly his contribution towards building new Idea of Justice is immense which should be transformed to next generation.