Unit 2.law and Justice-Long But Important Make Notes Points

JUDICIAL PROCESS LM-107
LL.M. Part-2
Subject: JUDICIAL PROCESS
Block-IV-Relation between Law and Justice

Unit-10- Equivalence Theories - Justice as nothing more than the
positive law of the stronger class
STRUCTURE
10.1 INTRODUCTION
1.02 OBJECTIVES
10.3 What is the Relation between law and Justice?
10.4. Equivalence theories of law and justice
10.5 Justice as positive law of stronger class
10.6 SUMMARY
10.7 SUGGESTED READINGS/REFERENCE MATERIAL
10.8 SELF ASSESSMENT QUESTIONS
UTTARAKHAND OPEN UNIVERSITY

Page 235
10.1 INTRODUCTION
In the previous unit you have read about various theoretical bases of
justice: the liberal contractual tradition, the liberal; utilitarian tradition
and the liberal moral tradition. Justice is the concept of moral
rightness based on ethics, rationality, law, natural law, fairness,
religion and/or equity. Justice is the result of the fair and proper
administration of law. It is the quality of being just; in conformity to
truth and reality in expressing opinions and in conduct; honesty;
fidelity; impartiality or just treatment; fair representation of facts
respecting merit or demerit. In this unit we will discuss about the
Equivalence Theories - Justice as nothing more than the positive law
of the stronger class.
10.2 OBJECTIVES
After reading this unit you will be able to:
 Discuss what is the Relation between law and Justice?

 Understand the concept of Equivalence Theories of law and
justice.
 Describe Justice as positive law of the stronger class.
10.3 What is the Relation between law and Justice?
The system of law is a set of rules of conduct of any organized

society that are enforced by threat of punishment if they are violated.
Justice is the concept of moral rightness based on ethics,
rationality, law, natural law, fairness, religion and/or equity. Justice is
the result of the fair and proper administration of law. It is the quality
of being just; in conformity to truth and reality in expressing opinions
and in conduct; honesty; fidelity; impartiality or just treatment; fair
representation of facts respecting merit or demerit.

Page 236
Distributive justice
Thomas Aquinas said that a just law was one that served the
common good, distributed burdens fairly, promoted religion, and was
within the lawmaker's authority. However, what are ―the common
good‖ and a "fair distribution of burdens‖ and what is the position of
religious values in a secular legal system? Later philosophers have
developed the concept of Distributive Justice has produced other
theories of justice.
Utilitarianism
Utilitarianism as a theory of justice is based on a principle of utility,
approving every action that increases human happiness (by
increasing pleasure and/or decreasing pain, those being the two
"sovereign masters" of man) and disapproving every action that
diminishes it. A utilitarian view is that justice should seek to create
the greatest happiness of the greatest number. A law is just if it
results in a net gain in happiness, even at the expense of minorities.
The problem here is that minorities may not form part of the "greater
number". This is a particular problem in a pluralist society.
Utilitarianism still plays a major part in the democratic decision-
making process; it is a secular theory requiring no reference to any
natural rights or other abstract religious principles defensible only by
faith. The idea of maximising the total happiness of the community
is often applied on a national political level and in ordinary dealings
among friends.In marginal cases; the theory breaks down and
produces results far removed from those that most people would
consider right. In an Economic Theory of Justice, there is conflict
between the views of the individual and the collective view,
sometimes referred to as the, social contract. Such conflict can be
seen by asking how a doctor with £100,000 to spend should chose
between 100 patients with a minor condition; he can treat all of
them, or 1 very sick person who would take all his resources. There
is no legal requirement that the National Health Service distributes
its assets evenly. This can produce results that anger the majority,
who respond emotionally; the case of Child B produced national
Page 237
anger, fuelled by newspaper reports. Jaymee Bowen (Child B) has

come to epitomise the dilemmas involved in making tragic choices in
health care. When 11 year-old Jaymee needed life-saving cancer
treatment for the third time, the hospital refused funding in R v
Cambridge Heath Authority ex parte B [1995] CA the Court of
Appeal upheld the hospital‘s decision. Medical advice that Jaymee
had only a 2.5 per cent chance of survival was basically that the
£75,000 it would cost to carry on her treatment would be wasted and
could be put to better use for others. An anonymous benefactor
stepped in and paid for Jaymee to receive the treatment privately,
she died 16 months later. T S Eliot famously remarked, ―Human
kind cannot take very much reality".
Harm principle
Jeremy Bentham and John Stuart Mill believed that the law should
not interfere with private actions unless they caused harm to others.
JS Mill writing in ―On Liberty‖ said that private acts of immorality
increase the pleasure of those who indulge in them and cause little
pain to others. Their net effect is to increase the sum of human
happiness and laws prohibiting them would be unjust.
The idea that wealth should be distributed evenly denies the
possibility that individuals will be stimulated to improve their own
income and thereby increasing the wealth available to all. The
theory that we all live in a society from which we draw benefits and
to which we contribute is called the ―social contract‖. Bentham said
that the ―social contract‖ and its claim to natural rights is "nonsense
on stilts" that inhibits desirable social changes.Bentham might argue
that compelling people to have their babies vaccinated using the
MMR vaccine, would be morally preferable than leaving such a
decision to the discretion of parents because it would drastically
reduce the incidence of measles, mumps and rubella (and their
horrible consequences) within the population at large.
Liberal-Natural Rights theories

Page 238
The Liberal-Natural rights view of justice is measured according to

the extent minorities and the most vulnerable are protected. It uses
a notion of natural rights, the minimum rights to which all are entitled.
What are these ‗basic rights‘?
Rawls' hypothesis of the ‗original position‘ (see below) gives some
guidance on what these basic rights are. It can be argued that this
simply returns us to the statement that what is just, is what is fair‘?
Libertarian-market theories
The libertarian-market view holds that any interference in market
distribution of benefits and burdens is an unjust restriction on
individual freedom, and that justice should only allow limited
intervention to prevent unjust enrichment, by which they mean
basically theft and fraud and exploitation. ‗What is justice?‘ is as
much a political question as a legal or philosophical one.
Marx, Perelman, Nozick, Hart and compensation
In ―The Concept of Law‖, Hart linked the idea of justice with that of
morality. Like cases, he said, should be treated alike. This is a
common theme in all theories of justice, which has its origins with
Aristotle. Aristotle believed that like should be treated alike and
unlike treated accordingly. In this case, Aristotle was referring to
people of similar class and status, free men should be treated alike,
but not treated the same as slaves. A slave was entitled to be
treated like any other slave. In less structured societies, it raises the
question "what makes cases alike or different?" In terms of
sentencing and defences such as insanity, it raises other questions
dealt with under ―Corrective Justice‖, below.
―To each according to…‖
In the Bible (Romans 2), there is reference to ―to each according to
his works‖. Marx believed that a communal society would operate
under the slogan: "From each according to his ability, to each
according to his need." Other Marxists, such as Perelman have
developed this idea. To each according to his
works/needs/merit/rank/entitlement/means/ etc.

Page 239
Most people would agree that most of the system of distribution

supported by law in the UK is just and leads to just results most of
the time. Marxists would disagree; the Marxist perspective is that
distributive justice favours capital and therefore works against the
interests of the working classes (the proletariat).
Rawls and the original position
American jurist John Rawls in "A Theory of Justice" (1971) analysed
law on the basis that a rational person will pay for those things
wanted badly enough. His theory rejects utilitarianism, which was
based on maximising happiness and constructs a social contract
aimed at establishing principles of justice. Free and rational persons
concerned to further their own interests adopt principles of justice,
which define the basis of their association.His analysis is purely
hypothetical. It holds that the concept of the rational choice as one
that could help our understanding of what justice might require. In
practice, all human beings are born into a particular society with no
option.
"Veil of ignorance" the original position
In making the hypothetical choice, Rawls insisted that the individual
should operate behind a "veil of ignorance" where they do not know
their sex, class, religion or social position or whether they are strong,
clever or stupid, the state or period in history in which they exist.
Rawls then predicted that any such society would exhibit two
essential features. First, people in the original position would agree
that each person should have an equal right to certain basic
liberties, such as freedom of person, freedom of speech and
thought, freedom to participate in government, and freedom to
possess property, to the greatest extent compatible with the
enjoyment of the same basic liberties by others.
Second, social and economic inequalities, and differences of
treatment, would be acceptable only insofar as they were available
in principle to anyone, and were for the benefit of the least well off
members of the society.

Page 240
Thus, for example people would agree that doctors should be paid
higher than average incomes, because this would encourage able
people to qualify as doctors and so benefit everyone in the long run.
On ‗lifting the veil‘, anyone could be at the bottom of the social
hierarchy. Rawls considers that there are two principles of justice
namely; liberty and equality, and they would select liberty over
equality. Liberty (ensures an equal right to basic liberties). Equality
(economic and social inequalities arranged for the benefit of the
least advantaged, and equality of opportunity).
Rawls is criticised for not explaining why liberty would be selected
before equality or why natural talents to be treated as collective
assets.
Nozick and historical entitlement
To Robert Nozick in "Anarchy State and Utopia" (1974) Justice is
based on rights. One of these rights is the right to retain our own
property, even against the state. He would claim that we have no
obligation to help those worse off unless we had obtained our wealth
from them improperly. There could therefore be no question of
redistribution of wealth for social purposes. This philosophy heavily
influenced the thinking of Margaret Thatcher, who was determined to
―Roll back the State‖. Therefore, Rawls‘ theory of distributive justice
involved interference with the inherent rights of individuals.
Justice – does it have boundaries?
Justice is, perhaps giving people what they are due. In this context,
one can ask, ―To whom (or what) is justice owed?‖ Historically, full
political equality has expanded slowly for example, recognition of
white property owning males, recognition of white females,
immigrants, members of minority and ethnic groups, gays and
lesbians. What then is the scope of justice? Justice is not only
about what courts and legal systems do there are some fundamental
philosophical questions that need to be addressed. Are foetuses
―persons‖? What rights do children have? Can claims of justice be
made on behalf of the dead or even on behalf of generations of
people as yet unborn (concerning, for example, claims to the
Page 241
preservation of natural resources)? What is the moral standing of

nonhuman animals, whether as whole species or even as individual
living creatures?
A further set of problems concerns the significance of geographical
boundaries, state boundaries. As UK subjects, we are increasingly
challenged to think of ourselves as citizens of Europe and perhaps
citizens of the world and not just as subjects of the UK. If we
consider, and act on, what others are due, the question of what
human beings in other counties are due becomes increasingly
important. Are there basic human rights? If so, do such rights
require supranational legal institutions to see that they are
recognized?Should we be considering these questions in the same
legal and philosophical way as we view domestic theories of
distributive justice? In particular, in a utilitarian sense, based on
Rawls entitlement should justice be concerned with larger
community issues, perhaps globally?
10.4. Equivalence theories of law and justice
This chapter provides a summary review of the theories influencing

the work for social justice. It is a reflection on the theories and
people who have actively worked for social justice, reform,
transformation, emancipation and revolution in and out of the
academy. There are three important commonalities shared by social
justice activists in the social sciences and education: (1) education
and research are not neutral; (2) society can be transformed by the
engagement of politically conscious persons; and (3) praxis
connects liberatory education with social transformation.Social
Justice Theoreticians generally focus their research and pedagogical
efforts toward the ways in which class, race, gender, sexual
orientations and systems of power influence our conceptions of
knowledge, the knowing subject, and practices of inquiry and
justification. One common aim of engaged inquiry identifies ways in
which dominant conceptions and practices of knowledge

Page 242
systematically disadvantage subordinated groups. Claims of

objectivity consistently benefit specific power holder interests.
Engaged educators strive to reform these conceptions and practices
so that they serve the interests of social justice and social equality.
Dominant knowledge practices disadvantage subordinate groups by
(1) excluding them from inquiry,
(2) denying them epistemic authority,
(3) denigrating their cognitive styles and modes of knowledge,
(4) producing theories that represent them as inferior, deviant, or
significant only in the ways they serve elite interests,
(5) producing theories of social phenomena that render their
activities and interests, or power relations, invisible, and
(6) producing knowledge (science and technology) that is damaging
at worst and not useful at best for people in subordinate positions,
thus reinforcing subjugation, exploitation and other social
hierarchies.One of the basic problems that social justice
theoreticians pose and expose is the manner in which the academy
in the USA is a foundational site for the maintenance of social and
economic inequalities. That universities were developed historically
excluding women, the indigenous, Africans, and the poor is historical
fact. In, Notes Toward an Understanding of Revolutionary Politics
Today, James Petras says that intellectuals, including academics,
are sharply divided across generations between those who have in
many ways embraced, however critically, ‗neo-liberalism" or have
prostrated themselves before "the most successful ideology in world
history" and its "coherent and systematic vision" and those who have
been actively writing, struggling and building alternatives (Petras
2001).Gramsci offered a theoretical paradigm combining the social
world and the economic world. He stressed the complexity of social
formations as a plurality of conflicts. Politics was assigned a
constitutive role in direct relation to ideology as a key prerequisite for
political action in so far as it served to ‗cement and unify' a "social
bloc'. Without this consciousness, there was no action (Martin 2002).

Page 243
One of the most important and the most complex concepts that
Gramsci analyzed, is "hegemony". The concept of hegemony is
crucial to Gramsci's theories and to understanding the critique in this
study. By ‗ideological hegemony' Gramsci means the process
whereby a dominant class contrives to retain political power by
manipulating public opinion, creating what Gramsci refers to as the
‗popular consensus' (Boyce 2003). Through its exploitation of
religion, education and elements of popular national culture a ruling
class can impose its world-view and have it come to be accepted as
common sense (Boyce 2003). So total is the ‗hegemony' established
by bourgeois society over mind and spirit that it is almost never
perceived as such at all. It strikes the mind as ‗normality' (reification)
(Boyce 2003). To counter this Gramsci proposes an ideological
struggle as a vital element in political struggles. In such hegemonic
struggles for the minds and hearts of the people, intellectuals clearly
have a vital role (Boyce 2003). Gramsci taught that the key index for
analyzing a social formation was the interaction of economic
relations with cultural, political and ideological practices or the
‗historical bloc'. As such, the interconnections between state and
economy and society were viewed processionally, as a mutually
determined whole (Martin 2002). By emphasizing the configuration
of the social formation Gramsci was able to dwell on the points at
which the elements of the social were linked. For example Gramsci
showed how intellectuals in Italy were engaged in the enterprise of
legitimizing the bourgeoisie state's power to the agrarian elite, in
other words at the service of or as agents of the bourgeoisie state
(Martin 2002). In the same manner that a historical bloc could serve
elite interests Gramsci posited that a historical bloc could counter an
historical bloc. Revolution was conceived as the gradual formation of
the collective will, an intellectual and moral framework that would
unite a diverse range of groups and classes through an organic
relation between leaders and the praxis of subjects. This was a
conception of revolution as issuing from the immanent will of the

Page 244
people wherein praxis constituted the very process of history itself

(Martin 2002).
Gramsci's theory posed that domination by an economic class grows
as they successfully embed economic activity (e.g., profit before
people) as a universal principle (Martin 2002). He identified how
domination was accomplished in conjunction with what he called
‗organic crisis' in which the various points of contact between the
dominant economic class intersected with other classes, specifically
with the help of intellectuals in institutions of education that link the
classes in a common identity (e.g., a nation) (Martin 2002). Gramsci
believed this same program could be countered using similar
methods within the non-dominant classes and groups. Thus a
popular identity could be fostered by using organic crisis to link
groups with the help of organic intellectuals guiding and guided by
vanguard intelligentsia creating a community with a popular identity
such as "the party". Using this model would mean building a
universalizing identity drawn from the praxis of the proletariat, by
which to supplant the bourgeoisie (Martin 2002).
Theoretically and practically, the terms and phrases such as
"organic intellectual," and "historical bloc" are Gramscian. Gramsci's
organic intellectual is someone whose knowledge is derived through
firsthand experience, and whose life-learning is complemented by
self education and other alternative forms of learning. The organic
intellectual emerges from a social class to speak against the
established order in a manner directly connected to the goals of a
political movement and a community (Martin 2002).
Gramsci identified how the various cultural and economic structures
force and reinforce people's consent to subjugation.
Methodologically, Gramsci proposed education as a process of
dialogue that would bring the working classes together in projects
and organizations politically and would develop a base of worker
intellectuals who would inform the intelligentsia of the Vanguard
Party.Gramsci advocated reflexivity as a mode for
counterhegemonic discourse and identified its importance as
Page 245
foundational for cultural revolution (Gramsci 1971). One of Gramsci's

insights was about cultural dialogue:Consciousness of a self which is
opposed to others, which is differentiated and, once having set itself
a goal, can judge facts and events other than in themselves or for
themselves but also in so far as they tend to drive history forward or
backward. To know oneself means to be oneself, to be master of
oneself, to distinguish oneself, to free oneself from a state of chaos,
to exist as an element of order-but of one's own order and one's own
discipline in striving for an ideal. And we cannot be successful in this
unless we also know others, their history, the successive efforts they
have made to be what they are, to create the civilization they have
created and which we seek to replace with our own . . . And we must
learn all this without losing sight of the ultimate aim: to know oneself
better through others and to know others better through oneself.
(Gramsci 1971)Gramsci held that each individual was the synthesis
of an "ensemble of relations" and also a history of these relations . . .
the constitution of the subject, then, is the result of a compex
interplay of "individuals" and larger-scale social forces (Hartsock
1998). The process by which the observations that we make are
dependent upon our prior understandings of the subject of our
observations-that they ‗refer back' to past experiences based on
class, culture, etc. are of central importance in praxisThe Gramscian
leitmotif of reflexivity served as a counterhegemonic method
fostering liberatory alliance among oppressed and exploited people.
The intent of the reflexive meth ds of revolutionaries and radicals
was to give voice to the lived experiences of exploitation and to
expose and incite action against oppressors (Fanon 1963). Reflexive
methodologies were intended to focus on the experiences and
interpretations of the oppressed toward the aims of increased
understanding of peoples relationships to power structures as they
play themselves out in social relations. Historically the ruling class
and appointed privileged class intelligentsia have defined and
constructed meanings and interpreted the world for the poor, the
labor class and middle class. In its literal sense, the term reflection
Page 246
derives from the Latin verb reflectere, which literally means "to bend
back." Reflexive emancipatory methods require that people claim the
positions they already occupy, and account for what working from
and for such positions means-in particular, in terms of what ends
these positions advance and what interests these positions serve
(Campbell 2001).
10.6 Justice as positive law of stronger class
The increasing disparity between rich and poor along with increasing
global control through overt and covert wars in Latin America led to
dialogues in the Catholic church about faith, transformation and
liberation. The Second Vatican Council produced a theological
atmosphere characterized by creativity influenced by the times
(decolonization, independence struggles, and a proliferation of
socialist ideologies, Marxism and revolutionary and liberation
theorists post WWII) (Boff and Clodovis 2001).This creative
theological atmosphere could be seen at work among both Catholic
and Protestant thinkers with the emergence of the group Church and
Society in Latin America (ISAL) taking a prominent role. There were
frequent meetings between Catholic theologians such as Gustavo
Gutiérrez, Segundo Galilea, Juan Luis Segundo, Lucio Gera, to
name a few. This movement led to intensified reflections on the
relationship between faith and poverty and the gospel and social
justice. In Brazil, between 1959 and 1964, the Catholic Left
produced a series of basic texts on the need for a Christian ideal of
history, linked to popular action, with a methodology that
foreshadowed that of liberation theology. They urged personal
engagement in the world, backed up by studies of social and liberal
sciences, and illustrated by the universal principles of Christianity.
(Boff and Clodovis 2001)
The foundational work defining a liberation theology praxis came

from Gustavo Gutiérrez who described theology as critical reflection

Page 247
on praxis. Liberation theology begins with the premise that all

theology is biased-that is, particular theologies reflect the economic
and social classes of those who developed them. Accordingly, the
traditional theology predominant in North America and Europe is
said to "perpetuate the interests of white, North American/European,
capitalist males." This theology allegedly "supports and legitimates a
political and economic system-democratic capitalism-which is
responsible for exploiting and impoverishing the Third World"
(Gutierrez 1971). Liberation theologians say theology must start with
a "view from below"-that is, with the sufferings of the oppressed.
Within this broad framework, different liberation theologians have
developed distinctive methodologies for "doing" theology (Boff and
Clodovis 2001).Gutierrez rejects the idea that theology is a
systematic collection of timeless and culture-transcending truths that
remains static for all generations. He views theology as a fluid
process, a dynamic and ongoing movement of human beings
providing insights into knowledge, humanity, and history.
Emphasizing that theology is not just to be learned, it is to be done
he says that "praxis" is the starting point for theology. Praxis involves
revolutionary action on behalf of the poor and oppressed-and out of
this, theological perceptions will continually emerge. The theologian
must therefore be immersed in the struggle for transforming society
and proclaim the message from that point. In the theological
process, then, praxis must always be the first stage; theology is the
second stage. Theologians are not to be mere theoreticians, but
practitioners who participate in the ongoing struggle to liberate the
oppressed (Gutierrez 1971). In this context, all social justice praxis
must be immersed in the struggle for transforming society as
revolutionary action on behalf of the poor and oppressed.
Using methodologies such as Gutierrez's and Baro's, liberationists

interpret sin not primarily from an individual, private perspective, but
from a social and economic perspective. Gutierrez explains that "sin
is not considered an individual, private, or merely interior reality. Sin
Page 248
is regarded as a social, historical fact, the absence of brotherhood

and love in relationships among men" (Gutierrez 1996).
Liberationists view present-day capitalism as sinful specifically
because it has embedded systems of oppression and exploitation
encompassing the majority of the world's people. Capitalists have
become prosperous at the expense of impoverishing people. This is
often referred to as "dependency theory"-that is, the development of
the rich depends on the underdevelopment of the poor (Gutierrez
1996).There is another side to sin in liberation theology. Those who
are oppressed can and do sin by acquiescing to their bondage. To
go along passively with oppression rather than resisting and
attempting to overthrow it-by violent means if necessary-is sin
(Gutierrez 1996). To go along passively takes many forms but
certainly the most consistent form is by participating in the
production of knowledge that benefits the production of both material
and psychological weapons of mass destruction. However, another
form of destructive knowledge production is the contribution to mass
media and educational propaganda which "dumbs down" the
people's development as critical thinkers and critical knowers.
The use of violence has been one of the most controversial aspects
of the liberation theology and liberation psychology of the 1960s
through the 1980s. Using violence to free oneself from oppression
was not considered sinful or psychologically damaging if it is used
for resisting oppression. Indeed, certain liberation theologians will in
some cases regard a particular action as sin if an oppressor commits
it, but not if it is committed by the oppressed in the struggle to
remove inequities (Gutierrez 1996). The removal of inequities is
believed to result in the removal of the occasion of sin as well"
(Gutierrez 1996). This praxis too has seen some shifts in the past
two decades from radical to pacifistic approaches.
Jose Ignacio Martin Baro was strongly influenced by Gutierrez, and
lived and worked in El Salvador. He developed a praxis model
described in his book, Writings for a Liberation Psychology. He used
the term "de-alienating social consciousness" as a core focus for
Page 249
dialogue. There are three aspects to this process in the theoretical

paradigm of Liberation Psychology: (1) Dialogue-human beings are
transformed through changing their reality. This is a dialectical
process that only happens through dialogue, conversation about our
thoughts and feelings in relationship to our world and our history. (2)
Decoding-through the gradual decoding of their world, people grasp
the mechanisms of oppression and dehumanization. This crumbles
the consciousness that posits a situation of oppression as natural,
and opens up the horizon to new possibilities for action (Baro 1994).
The individual's critical consciousness of others and the surrounding
reality brings with it the possibility of a new praxis, which at the same
time makes possible new forms of consciousness (Baro 1994), and,
(3) Social Identity-people's knowledge of their surrounding reality
carries them to a new understanding of themselves and, most
important, of their social identity (Baro 1994). They begin to discover
themselves in their action that transforms the problematic and in
their active role in relation to others. Thus, the recovery of their
historical memory offers a base for a more autonomous
determination of their future (Baro 1994).Baro says that liberation
theory asks us to respond to oppression on the social level in three
specific ways: (1) by promoting a critical consciousness of the
objective and subjective roots of social alienation (like the
socioeconomic mechanisms that cement the structures of injustice)
and the fatalistic thought processes and accompanying behaviors
that give ideological sustenance to the alienation of the popular
majorities such as women, children, elderly, the impoverished and
colonized peoples of the world (Baro 1994). (2) By breaking down
the machinery of the relationships of dominance and submission
through dialogue and relationship. The dialectical process that
fosters individual self-knowledge and self-acceptance presupposes
a radical change in social relations, to a condition where there would
be neither oppressors nor oppressed, and this change applies
whether we are talking about formal schooling, production in a
factory, or everyday work in a service institution (Baro 1994), and (3)
Page 250
by reclaiming our past, by experiencing the present and by

projecting that into a personal and national plan we cast ourselves in
our social and national context, thereby setting forth the problem of
one's authenticity as a member of a group, part of a culture, a citizen
of a country (Baro 1994).
Education and Liberation
Brazilian educator Paulo Freire also understood poverty from first
hand experience and was influenced by Liberationist methodologies
in Latin America. His life and work as an educator was full of hope in
spite of poverty, imprisonment, and exile. He was a world leader in
the struggle for the liberation of the poor and a great teacher to
many who are teaching using the model he developed. Paulo Freire
worked to instill the strengths and skills necessary for men and
women living in poverty to overcome their sense of powerlessness to
act in their own behalf.Freire believed that freedom through critical
literacy necessitates carefully conceived ethnographic research of a
given community, and this means, again, becoming one with the
people. That is, the ethnographer must learn to "respect the reality"
of the people in order to minimize the distance between the people
and him or herself so as to be positioned to effectively work in their
reality. He gave practical instructions for educational praxis with his
insistence that dialogue involves respect (Olson 1992).Freire
observed and experienced intense repression and oppression in
Latin America (Brazil, Chile, and Nicaragua). He developed and
practiced a radical approach to education that, as Gramsci had also
identified as necessary, must be linked to social movements.Paulo,
starting from a psychology of oppression influenced by the works of
psychotherapists such as Freud, Jung, Adler, Fanon and Fromm,
developed a "Pedagogy of the Oppressed." He believed that
education could improve the human condition, counteracting the
effects of a psychology of oppression, and ultimately contributing to
what he considered the ontological vocation of humankind:
humanization. In the introduction to his widely-acclaimed Pedagogy
of the Oppressed, he argued that: "From these pages I hope at least
Page 251
the following will endure: my trust in the people, and my faith in men
and women and in the creation of a world in which it will be easier to
love." Pedagogy of the Oppressed, which has been influenced by a
myriad of philosophical currents including Phenomenology,
Existentialism, Christian Personalism, Marxism and Hegelianism,
calls for dialogue and ultimately conscientization as a way to
overcome domination and oppression among and between human
beings. Interestingly enough, one of the last books that Paulo wrote,
Pedagogy of Hope, offers an appraisal of the conditions of
implementation of his Pedagogy of the Oppressed in our days.
(Godotti 1997).Freire also was concerned with praxis. He thought
that dialogue isn't just about deepening understanding-but is part of
making a difference in the world. Dialogue in itself is a co-operative
activity involving respect that has the potential to foster a community
of people who work together for community well being. Freire's
attention to naming the world has been of great significance to those
educators who have traditionally worked with those who do not have
a voice and who are oppressed (Smith 2001). The idea of
building‖pedagogy of the oppressed" or a "pedagogy of hope" and
how this may be carried forward has formed a significant impetus to
those of us seeking ways to develop a consciousness that is
understood to have the power to transform reality. Freire's insistence
on situating all educational activity in the lived experience of people
has opened up a series of possibilities for the way activists and
educators can approach practices in research and pedagogy (Smith
2001). Several generations of educators, anthropologists, social
scientists and political scientists, and professionals in the sciences
and business, felt Freire's influence and helped to construct
pedagogy based in liberation. What he wrote became a part of the
lives of an entire generation that learned to dream about a world of
equality and justice that fought and continues to fight for this world
today. Many will continue his work, even though he did not leave
behind ‗disciples.' In fact, there could be nothing less Freirean than
the idea of a disciple, a follower of ideas. He always challenged us
Page 252
to ‗reinvent' the world, pursue the truth, and refrain from copying
ideas. Paulo Freire leaves us with roots, wings, and dreams.
(Godotti 1997) For Freire, naming one's experience and placing that
voiced experience in context is the essence of dialogue (Freire
1970). Freire distinguished discussion from dialogue which is
characterized as a kind of speech that is humble, open, and focused
on collaborative learning. It is communication that can awaken
consciousness and prepares people for collective action. A
generative theme is one that emerges from the lives of learners as
they engage a course of study. It presents a point of entry for
learning that has meaning and relevance to a particular group of
learners at a particular time.
There are four aspects of Paulo Freire's work that were used in the
early praxis of the primary case study program and are practiced in
the writing of this study. Freire had seen the effects of vanguardism
and elitism in the academy and even community organizing and felt
very strongly that dialogue was about people working with each
other (Smith 2001). Second, Freire was concerned with praxis-action
that is informed (and linked to certain values). Dialogue wasn't just
about deepening understanding-but was part of making a difference
in the world. Dialogue in itself is a co-operative activity involving
respect. The process is important and can be seen as enhancing
community and building social capital, and to leading us to act in
ways that make for justice and human flourishing (Smith 2001).
Third, Freire's attention to naming the world has been of great
significance to those educators who have traditionally worked with
those who do not have a voice, and who are oppressed. The idea of
building a ‗pedagogy of the oppressed' or a ‗pedagogy of hope' and
how this may be carried forward has formed a significant impetus to
those seeking ways to develop consciousness, the consciousness
that is understood to have the power to transform reality (Smith
2001). Fourth, Freire's insistence on situating educational activity in
the lived experience of people has opened up a series of
possibilities for the way activist educators can approach practice
Page 253
(Smith 2001).Thick description is an ethnographic research method

developed by anthropologists. In her analysis of culture and
morality entitled, "Fieldwork in Familiar Places," Michelle Moody-
Adams posits that thick description means going beneath the
surface, showing the complexity behind social "facts" (or fictions)
and social actions. Thick description is commentary on more than
just the facts themselves. Thick description involves interpreting
intentions and expectations, and especially the intricate public
structures of meaning within which it is possible to form intentions
and actions on complex expectations. Thick description is thus
interpretation of those structures that constitute the complex
contexts within which meaningful action become possible (Moody-
Adams 1997). Thus, the questions must be called: What ideologies
and theories informed our practice? What are our expectations?
What do we actually do? What do we actually accomplish? Who
sponsors and benefits? There are multiple interpretations and
ideological frameworks from which these questions may be
answered. Geertz says that the principle tasks of ethnography
should be defined by reference to just such interpretive efforts to
identify intentions and expectations. Ethnography in his view is
interpretive science "in search of meaning" (Geertz 1973).
Critical Theory
Critical theorists claim that Gramsci's notion of hegemony is
fundamental for critical research (Kincheloe and McLaren 2000).
Gramsci understood that dominant power is exercised by physical
force and through social psychological attempts to win people's
consent through cultural institutions like schools (Kincheloe and
McLaren 2000). Criticalists claim that the formation of hegemony
cannot be separate from the production of ideology, a highly
articulated world view, master narrative, discursive regime, or
organizing scheme for collective symbolic production (Kincheloe and
McLaren 2000).Criticalists claim that hegemony's subordinates,
employed as gatekeepers, developed a set of tacit rules about what
can and cannot be said, who can and cannot speak and who must
Page 254
listen, whose social constructions are valid and whose are erroneous
and unimportant (Kincheloe and McLaren 2000). Academic
institutional gatekeepers become "agents of the state" given the
power to provide academic sandboxes in which activist educators
and researchers are allowed to play. This provides an illusion of
academic free inquiry while maintaining the status quo. Kincheloe
and McLaren state that the key to successful counter-hegemonic
cultural research involves (a) the ability to link the production of
representation, images and signs of hypereality to power in the
political economy; and, (b) the capacity, once this linkage is exposed
and described to delineate highly complex effects of the reception of
these images and signs on individuals located at various race, class,
gender, and sexual coordinates in the web of reality (Kincheloe and
McLaren 2000).One of my teachers said regularly, "We are the
people we serve" and I would add, "We are the people we study."
Those committed to social justice praxis would thus intervene in
whatever areas of influence they find open to them. They would
accept whatever opportunities arise to encourage social justice.
The injustice fostered by those attempting to dominate and own the
world produces rage and distress while destroying peoples lives
around the globe. We weep and keen for those incested in their own
homes; beaten in the home next door; starved on the streets;
despised in their poverty one neighborhood over; in training to
torture in the programs of local academies and the military base in
the next town; testing weapons in the labs of campuses;
manufacturing weapons in the regions of home states; imprisoned
in rural areas making Starbucks cups and Victoria's Secret "teddies";
shipping weapons of mass destruction from our borders; and
sending poor and working class boys and girls to invade and
terrorize people in their own homes and lands in Iraq, Afghanistan,
Palestine, and a hundred other countries.Getting a glimpse of our
own impotence, we consent to be diverted and distracted by the
consumerism, narcissism and egoism consistently promoted and
sold to us. Distress and distractions with how to pay the rent or
Page 255
mortgage, the food, the water, the utilities, the upgrades to the cell
phones, the lap tops, cars, the list is endless, dominates lifes in the
USA.The oppressor-invader requires distress and impotence and the
isolating behaviors with which we can and do distract ourselves in a
virtual world. The more we know and practice how to have
humanizing relationships creating concrete ties of solidarity we resist
distress, disease, despair and destruction. Breaking the isolation of
the academic department, the classroom, the lab, the field, the
practice and creating solidarity among the "haves" and "have nots"
requires a commitment towards an activism that no longer operates
"against" life but rather "for" life-- a liberation praxis.Liberation praxis
encourages multiple resistance methodologies and millions of
practices creating the networks that will take us out of isolation.
Resistance methodologies identify the manner in which we
recognize where we are at in our particular level of commitment:
knowing, on the one hand, what degree of commitment one has,
and, on the other, what side of the struggle one is committed to.
Engendering resistance methodologies against oppression and
exploitation revolves us to the core of liberation and self-
determination.According to Hans Georg Gadamer, our past
influences "everything we want, hope for, and fear in the future" and
only as we are "possessed" by our past are we "opened to the new,
the different and the true" (1976) Yet university-based research has
been slow to acknowledge the legitimacy and importance of
personal history as a way of understanding the world. This section
provides you with a summary review of the theories influencing my
teaching, research and activism. It is a reflection on the theories and
people who have actively worked for social justice, reform,
transformation, emancipation and revolution in and out of the
academy.My understanding of praxis methodologies shows that
reformers, liberationists, radicals, feminists and criticalists in the
USA have at least three basic assumptions in common about
methodologies in the social sciences and education: (1) education
and research are not neutral; (2) society can be transformed by the
Page 256
engagement of politically conscious persons; and (3) praxis

connects liberatory education with social transformation.
Traditionally qualitative research attempts to describe and interpret
discourse, symbols, behaviors, culture, environment and
relationships of participants or subjects under observation. The
qualitative interpretive process is described as inductive as the
researcher theorizes from specific examples observed to general
examples observed attempting to make the strange familiar or the
familiar strange (Renner 2001).Using a mixed methods research
strategy is a common choice for many contemporary activist
researchers. It offers us some creativity in responding to required
qualitative research designs and leads to multilayered themes
because topics are investigated from a multiplicity of different
approaches. One common aim of engaged methodologies
(emancipatory, liberationist, critical, radical, social justice, action
oriented, activist, and feminist) identifies ways in which dominant
conceptions and practices of knowledge attribution, acquisition, and
justification systematically disadvantage subordinated groups.
Conceptions of objectivity criticized by activist researchers identify
objectivity with a single point of view that dismisses all other points
of view as false or biased. These claims of objectivity consistently
benefit specific power holder interests. Engaged educators strive to
reform these conceptions and practices so that they serve the
interests of social justice and social equality.Various practitioners in
academic engaged fields of study argue that dominant knowledge
practices target certain groups based on color, class, gender and
creed by (1) excluding them from inquiry, (2) denying them epistemic
authority, (3) denigrating their cognitive styles and modes of
knowledge, (4) producing theories that represent them as inferior,
deviant, or significant only in the ways they serve elite interests, (5)
producing theories of social phenomena that render their activities
and interests, or power relations, invisible, and (6) producing
knowledge (science and technology) that is damaging at worst and
not useful at best for people in subordinate positions, thus
Page 257
reinforcing subjugation, exploitation and other social

hierarchies.Some engaged researchers trace these failures to
flawed conceptions of knowledge, knower's, objectivity, and scientific
methodology. They offer diverse accounts of how to overcome these
failures. They also aim to (1) explain why the entry of alternative
epistemic scholars (scholars of color, working class scholars,
organic intellectuals, and women) into all academic disciplines,
especially in biology and the social sciences, has generated new
questions, theories, and methods, (2) claim that inclusion of diverse
scholars across class, race, and sex has and will play a causal role
in the transformation of academic disciplinary approaches, and (3)
defend these changes as fundamentally cognitive, not just social,
advances.Using theoretical principles of liberation theology and
psychology, ethnography, thick description, reflexivity, and critical
hermeneutics, my intent for our class is on theory building in praxis
to advance the goals of engaged methodologies rather than theory
testing. One of the basic problems that engaged theoreticians in
educational and social science research pose and expose is the
manner in which the academy in the USA is a foundational site for
the maintenance of social and economic inequalities. Inequality is an
inescapable outcome and an essential condition of the successful
economic functioning of capitalism (Panitch and Gindin 2004).
In, Notes Toward an Understanding of Revolutionary Politics Today,
James Petras says that intellectuals, including academics, are
sharply divided across generations between those who have in
many ways embraced, however critically, ‗neo-liberalism" or have
prostrated themselves before "the most successful ideology in world
history" and its "coherent and systematic vision" and those who have
been actively writing, struggling and building alternatives (Petras
2001).The active struggle to resist oppression and build alternatives
occurs when a person reflects upon theory in the light of praxis or
practical judgment; the form of knowledge that results is personal or
tacit knowledge. This tacit knowledge can be acquired through the
process of reflection (Grundy 1982).In fact, many activist
Page 258
researchers and educators using engaged methodologies found in

emancipatory, liberationist, critical and feminist theories identify the
writings of Gramsci as foundational guides for praxis. Although
Gramsci is not well known or studied much in the USA it is fair to say
that he greatly influenced social justice movements and activist
educators in the West whether or not they are aware that their ideas
historically originate from his writings. Refusing to separate culture
from systemic relations of power, or politics from the production of
knowledge and identities, Gramsci redefined how politics bore upon
everyday life through the force of its pedagogical (teaching and
research) practices, relations, and discourses (Giroux 1999).
Perhaps it was Gramsci who first posited that the "personal is
political," a slogan much used by feminist academics in the USA.
Gramsci offered a theoretical model combining the social world and
the economic world. He stressed the complexity of social formations
such as class and race as a plurality of conflicts. Politics was
assigned a constitutive role in direct relation to ideology as a key
prerequisite for political action in so far as it served to ‗cement and
unify' a "social bloc'. Without this consciousness, there was no
action (Martin 2002).
In such hegemonic struggles for the minds and hearts of the people,
intellectuals clearly have a vital role (Boyce 2003). Gramsci taught
that the key index for analyzing a social formation was the
interaction of economic relations with cultural, political and
ideological practices or the ‗historical bloc'. In the case of our study,
you the students are an historical bloc. As such, the
interconnections between state and economy and society were
viewed processionally, as a mutually determined whole (Martin
2002). By emphasizing the configuration of the social formation
Gramsci was able to dwell on the points at which the elements of the
social were linked. For example Gramsci showed how intellectuals in
Italy were engaged in the enterprise of legitimizing the state's power
to the agrarian elite (rich land-owners), in other words the scholars
Page 259
were serving the state to change things to benefit the rich (Martin
2002). In the same manner that a historical bloc (such as students
and teachers) could serve elite interests Gramsci posited that a
historical bloc could counter the elite (also an historical bloc).
Revolution was conceived as the gradual formation of the collective
will, an intellectual and moral framework that would unite a diverse
range of groups and classes through an organic relation between
leaders and the praxis of subjects. This was a conception of
revolution as issuing from the immanent will of the people wherein
praxis constituted the very process of history itself (Martin 2002).
For example, when teachers have an organic intellectual relationship
with students and their theories and action combine to shift power for
social justice this constitutes a process of social change historically.
Using Gramsci's innovation to abolish the liberal distinction between
public and private that he applied to the praxis of factory production
through workplace solidarity is a concept extended by some activist
researchers applying it as counter hegemonic work in educational
and social science studies such as justice studies.Where Gramsci
posited a worker's "higher consciousness" as integral parts of an
organic whole I posit a student's consciousness raising process that
would unite them as a bloc. Gramsci's theory posed that domination
by an economic class grows as they successfully embed economic
activity (e.g., profit before people) as a universal principle (Martin
2002). He identified how domination was accomplished in
conjunction with what he called ‗organic crisis' in which the various
points of contact between the dominant economic class intersected
with other classes, specifically with the help of intellectuals in
institutions of education that link the classes in a common identity
(e.g., a nation) (Martin 2002). Gramsci believed this same program
could be countered using similar methods within the non-dominant
classes and groups. Thus a popular identity among students could
be fostered by using organic crisis (such as the present terror wars)
to link groups with the help of organic intellectuals (you, the student)
guiding and guided by vanguard intelligentsia (the teacher) creating
Page 260
a community with a popular identity such as "the movement" as

Gramsci hoped to maintain and "the brotherhood".Using this model
would mean building a universalizing identity drawn from the praxis
of the students, by which to supplant the ruling class (Martin 2002).
For the purpose of our study, both theoretically and practically, the
terms and phrases such as "organic intellectual," and "historical
bloc" are Gramscian. Gramsci's organic intellectual is someone
whose knowledge is derived through firsthand experience, and
whose life-learning is complemented by self education and other
alternative forms of learning. The organic intellectual emerges from a
social class to speak against the established order in a manner
directly connected to the goals of a political movement and a
community (Martin 2002). For example, I as activist researcher am
an organic intellectual emerged from the working class to speak
against the established order in a manner directly connected to anti-
capitalist movements.Gramsci identified how the various cultural and
economic structures force and reinforce people's consent to
subjugation. This point goes to the heart of our research. How and
why do students, after gaining access to the academy in the USA
concede to taking the paths that are counter to the aims of social
justice? Methodologically, Gramsci proposed education as a
process of dialogue that would bring the working classes together in
projects and organizations politically and would develop a base of
worker intellectuals who would inform the intelligentsia of the
Vanguard Party (those who know and practice theories of social
justice). Will the practices identified in our research bring students
together or develop a base of student intellectuals informing praxis?
Gramsci advocated reflexivity as a mode for counter hegemonic
discourse and identified its importance as foundational for Cultural
Revolution (Gramsci 1971). Gramsci summarizes this important
concept:Consciousness of a self which is opposed to others, which
is differentiated and, once having set itself a goal, can judge facts
and events other than in themselves or for themselves but also in so
far as they tend to drive history forward or backward. To know
Page 261
oneself means to be oneself, to be master of oneself, to distinguish

oneself, to free oneself from a state of chaos, to exist as an element
of order-but of one's own order and one's own discipline in striving
for an ideal. And we cannot be successful in this unless we also
know others, their history, the successive efforts they have made to
be what they are, to create the civilization they have created and
which we seek to replace with our own . . . And we must learn all this
without losing sight of the ultimate aim: to know oneself better
through others and to know others better through oneself. (Gramsci
1971) Reflexivity is said to be as relevant to the macro-contexts of
knowledge production as it is to the micro-context of research
design. As such, we must acknowledge the double hermeneutic (the
development and study of theories of the interpretation and
understanding of texts) nature of social science. When we learn
about people and about social events, the process is complex (Siraj-
Blatchford 1997).The Gramscian leitmotif of reflexivity served as a
counter hegemonic method fostering liberatory alliance among
oppressed and exploited people. Reflexive methodologies are
intended to focus on the experiences and interpretations of the
oppressed toward the aims of increased understanding of peoples
relationships to power structures as they play themselves out in
social relations.Historically the ruling class and appointed privileged
class intelligentsia have defined and constructed meanings and
interpreted the world for the poor, the labor class and middle class.
In its literal sense, the term reflection derives from the Latin verb
reflectere, which literally means "to bend back." Reflexive
emancipatory methods require that people in the roles of researcher
and subject ( such as students) claim the positions they already
occupy, and account for what working from and for such positions
means-in particular, in terms of what ends these positions advance
and what interests these positions serve (Campbell 2002). In other
words, who benefits if you learn research methods wherein you
study yourselves and your peers as a historical bloc for social
justice?Researchers represent positions, ends, and interests as is
Page 262
evidenced in their individual articulations and actions in and out of

the field. Engaged methods such as reflexive ones are intended to
produce conscious participation in praxis advancing aims as
effectively as possible for direct, immediate and relevant ways that
end oppression and exploitation. Emancipatory reflexivity is a
methodology wherein people take up the complexities of place and
biography; deconstruct the dualities of power and antipower,
hegemony and resistance, and insider and outsider constructs
revealing the variety of experiences and interpretations across class,
race, and gender. Reflexive methodological trends have described
and ascribed representations of the worlds of the exploited. When
confronting the problems and issues of social and economic justice
praxis in education, reflexive methodology invites us to explore and
analyze while hearing the voices and understanding the thinking of
the marginalized, exploited, and oppressed. An engaged analysis
requires our thinking as researcher and educator to be challenged-to
be made problematic so that we can locate that which in material
relations gives rise to various interpretations and points of view. In
this mode we are called to assess relations in the context of whether
they are liberating or dehumanizing.
10.8 SUMMARY
Utilitarianism as a theory of justice is based on a principle of utility,

approving every action that increases human happiness (by
increasing pleasure and/or decreasing pain, those being the two
"sovereign masters" of man) and disapproving every action that
diminishes it. A utilitarian view is that justice should seek to create
the greatest happiness of the greatest number. A law is just if it
results in a net gain in happiness, even at the expense of minorities.
The problem here is that minorities may not form part of the "greater
number". This is a particular problem in a pluralist society.

Page 263
In this unit we have discussed about the concept of Equivalence

Theories and Justice as nothing more than the positive law of the
stronger class.
http://juneterpstra.com/rich_text.html
Theories of Justice by June C. Terpstra, Ph.D.
SOURCE LIST AND WORKS CITED
Baro, Ignacio-Martin. 1994. Writings for a liberation psychology.

Cambridge: Harvard University Press.
Baym, Nina. 1995. The emperor redressed: Critiquing critical theory.

Tuscaloosa: University of Alabama Press.
Boff, Leonardo and Clodovis Boff. 2001. A concise history of

liberation theology. Maryknoll, New York: Orbis Books.
Boyce, Mary. 2003 Teaching critically as an act of praxis and

resistance.
http://www.mngt.waikato.ac.nz/Research/ejrot/Vol_3/Vol2articles/boy
ce.asp.
Brookfield, Stephen. 1995. Becoming a critically reflective teacher.

New York: Jossey-Bass.
Fine, Michelle. 1994. Working the hyphens: Reinventing self and

other in qualitative research. In Handbook of Qualitative Research,
Norman K. Denzin and Yvonna S. Lincoln. Thousand Oaks, CA:
Sage.
Fraser, Nancy. 1997. Justice interruptus: Critical reflections on the

"post-socialist" condition. New York. Routledge Press.

Page 264
Freire, Paulo. 1970. Pedagogy of the oppressed. New York:

Continuum Press.
Freire, Paulo and Antonio Faundez. 1989. Learning to question: A

Pedagogy of liberation. New York: Continuum Press.
Gadamer, Hans Georg. 1975. Truth and method. New York:

Continuum Press.
Gadotti, Moacir. 1997. Homage to Paulo Freire. Speech delivered at

the Latin American Center, UCLA.
http://jac.gsu.edu/jac/12.1/Articles/1.htm/
Geertz, Clifford. 1973. Thick description: Toward an interpretive
theory of culture. In The interpretation of culture, ed. Clifford Geertz.
New York: Basic Books.
Giroux, Henry. 1991. Border crossings: Cultural workers and the
politics of education. New York: Routledge.
1999. Rethinking cultural politics and radical pedagogy. In The work
of Antonio Gramsci. New York: Routledge.
Gramsci, Antonio. 1971. Selections from the prison notebooks.

Edited and translated by Q. Hoare & G. N. Smith. New York:
International Publishers.
1971. Selections from the prison notebooks. London: Lawrence and

Wishart.
Grundy, S. 1982. 3d ed. Three Modes of Action Research. In The

Action Research Reader. Geelong: Deakin University Press.

Page 265
Grundy, Shirley. 1987. Curriculum: Product or praxis. London: The

Falmer Press.
Gutiérrez, Gustavo. 1993. Las casas: In search of the poor of Jesus

Christ. Maryknoll, NY: Orbis Books.
1996. Gustavo Gutierrez Essential Writings. Maryknoll, New York:

Orbis Books.
1973. Teología de la liberación, perspectivas (A Theology of

Liberation: History, Politics, & Salvation). Maryknoll NY: Orbis Bo
Harding, Sandra. 1991. Whose science? Whose knowledge? Ithaca,

New York: Cornell University Press.
Hoffman, John. 1975. Marxism and the theory of praxis. London:

Lawrence & Wishart.
Holter, I.M. and D. Schwartz-Barcott. 1993. Action research: What is

it? How has it been used and how can it be used in nursing? In
Journal of Advanced Nursing, 1993:128; 298-304.
Humphries, Beth. 1997. From critical thought to emancipatory action:

Contradictory research goals? Sociological Research Online 2, no.
1: PAGES. http://www.socresonline.org.uk/socresonline/2/1/3.html
Kincheloe, Joe and Peter McLaren. 2000. Rethinking critical theory

and qualitative research. In Handbook of Qualitative Research.
Thousand Oaks, CA: Sage Publications.
Jameson, Fredric. 1988. History and class consciousness as an

`unfinished project'." In Rethinking marxism. Spring 1988, 1(1): 49-
72.
Page 266
Lather, Patti and Smithies, Chris. 1997. Troubling the angels:

Women living with HIV/AIDs. Boulder: Westview Press.
Lather, Patti. 1986a. Issues of Validity in Openly Ideological

Research: Between a Rock and a Soft Place. Interchange 17, no. 4:
PAGES.
. 1986b. Research as praxis. In Harvard Educational Review 56, no.

3: 257-277.
Macbeth, Douglas. 2001. On reflexivity in qualitative research: Two

readings, and a third. Qualitative Inquiry 7, no. 1.
Martin, James. 2002. Poststructuralism and radical politics. In

Poststructuralism and politics: An introduction, ed. Jeremy Valentine
and Alan Finlayson. Edinburgh: Edinurgh University Press.
McLaren, Peter. 2000. Che Guevara, Paulo Freire, and the

pedagogy of revolution. Lanham, Maryland: Rowman & Littlefield.
. 1995. Critical pedagogy and predatory culture: Oppositional politics

in a postmodern era. New York & London: Routledge.
. 1998. 3d ed. Life in schools: An Introduction to critical pedagogy in

the foundations of education. New York: Longman.
. 1997. Revolutionary multiculturalism: Pedagogies of dissent for the

new millennium. Boulder, Colorado: Westview Press.
McLaren, and Ramin Farahmandpur. 2000. Reconsidering marx in

post-marxist times: a requiem for postmodernism? In Educational
Researcher. Vol. 29 (3):25-33.

Page 267
Moody-Adams, Michelle. 1997. Fieldwork in familiar places: Morality,

culture, and philosophy. Cambridge: Harvard University Press.
Nowlan, Bob. 1993. Radical political praxis within the late capitalist
academy. The Alternative Orange 3, no. 1.
Olson, Gary. 1992. Introduction to Freire and his work in the light
of his contemporary critics. http://jac.gsu.edu/jac/12.1/Articles/1.htm.
Panitch, Leo & Sam Gindin. 2004. Global capitalism and American
empire. In The new imperial challenge, ed. Leo Panitch and Colin
Leys. New York: Socialist Register.
Petras, James. 2001. Notes Toward an Understanding of

Revolutionary Politics Today. No 19, Links. New York: New Course
Publications.
Renner, Peter. 2002. Vulnerable to possibilities: A journey of self-

knowing through personal narrative. Ann Arbor: University of
Michigan Press.
Schwandt, Thomas A. 1997. Qualitative inquiry: A dictionary of

terms. Thousand Oaks, CA: Sage Publications.
Siraj-Blatchford, Iram. 1997. Reflexivity, social justice and

educational research. Cambridge Journal of Education 27: PAGES.
Steiner, Claude, ed. 1975. Readings in radical psychiatry. New York:

Grove Press.
Taylor, Charles. 2001. Two theories of modernity. In Alternative

modernities. Ed. Dilip Parameshwar Gaonkar, 172-96.
Page 268
Tripp, David. 1992. Critical theory and educational research. Issues

In Educational Research 2, no. 1: 13-23.
http://education.curtin.edu.au/iier/iier2/tripp.html
Weber, Max. 1963. The sociology of religion. Translated by Ephrain

Fischoff. Boston: Beacon Press.
Wyckoff, Hogie. 1976. Love, therapy and politics: Issues in radical

therapy. New York: Grove Press.
Young, Michael. 1971. Knowledge and control: New directions for

the sociology of education. London: Collier Macmillan.
1. Discuss what is the Relation between law and Justice?

2. What do you Understand the concept of Equivalence Theories
of law and justice.
3. Describe Justice as positive law of the stronger class.

Page 269
LL.M. Part-2

Unit-11- Dependency theories - For its realization justice depends
on law, but justice is not the same as law
STRUCTURE
11.1 INTRODUCTION
11.2 OBJECTIVES
11.3 WHAT are the Dependency theories of Justice?
11.4. Whether Justice depends on law? - Various opinions
11.5 SUMMARY

Page 270
11.1 INTRODUCTION
In the previous unit you have read about the concept of Equivalence
Theories and Justice as nothing more than the positive law of the
stronger class.
Law and justice depend on each other for their realization. This is
what is commonly known as the dependency theory of justice.
Different people give different views on justice. Yet, to understand
justice from the legal philosophy point of view, we must understand
the basic soul of justice. Justice is an act of imparting fair relief to the
disputing parties in order to achieve universal good to the humanity
on the whole. Justice is always taken to be the end and law as well
as legal processes work as means to that end. earlier, it was
believed that peace is the ultimate end for human good, and later it
was thought that security is the real ultimate end. But when we look
at the social structure and the end-means structure of goals that
lead us to a well organized balanced society, we find that justice
plays a very vital role.In this unit we will discuss about the
Dependency theories of law and justice and for its realization justice
depends on law, but justice is not the same as law.
11.2 OBJECTIVES
 Understand the concept of Dependency theories of law and

justice.
 Describe whether justice depends on law?
 Discuss justice is not the same as law.
11.3 WHAT are the Dependency theories of Justice?

Page 271
Dependency theory of justice

Law and justice depend on each other for their realization. This is
what is commonly known as the dependency theory of justice.
Different people give different views on justice. Yet, to understand
justice from the legal philosophy point of view, we must understand
the basic soul of justice. Justice is an act of imparting fair relief to the
disputing parties in order to achieve universal good to the humanity
on the whole.
Justice in the end-means context:
Justice is always taken to be the end and law as well as legal
processes work as means to that end. earlier, it was believed that
peace is the ultimate end for human good, and later it was thought
that security is the real ultimate end. But when we look at the social
structure and the end-means structure of goals that lead us to a well
organized balanced society, we find that justice plays a very vital
role.Justice depends on law and security of many in the society
depend on justice and peace depends on the sense of security in
people and the general well-being depends on the peace in society.
as a result, justice is an end that law seeks, but justice is not the
same as law.
Also, at times, justice happens or is done even in the absence of
law. Law is something that has to be executed while justice is
something that has to be achieved.
Dependency theory of Justice:
The theory that says that justice and law have a dependency relation
that exists for the well being and harmony of the society is known as
the dependency theory of justice.
This theory proposes that justice depends on law but is not the same
as law.Justice is imparted by judiciary of the state as per law,l but
this is not the only way in which justice is imparted.
At times, some events happen in accordance of the laws of nature
that are never unique to any one single state, and as a result of
those happenings, the parties do receive justice that may not be

Page 272
imparted by the judiciary, but that may have been a result of the
work of laws of nature.
Yet, even such a justice is seen to depend on the laws created by
nature.In short, justice that is a means to the final ends of security,
peace and general well being, is an end that law seeks by working to
be its means.
11.4. Whether Justice depends on law? - Various opinions
Legal positivism is the thesis that the existence and content of law
depends on social facts and not on its merits. The English jurist John
Austin (1790-1859) formulated it thus: ―The existence of law is one
thing; its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed
standard, is a different enquiry.‖ (1832, p. 157) The positivist thesis
does not say that law's merits are unintelligible, unimportant, or
peripheral to the philosophy of law. It says that they do not
determine whether laws or legal systems exist. Whether a society
has a legal system depends on the presence of certain structures of
governance, not on the extent to which it satisfies ideals of justice,
democracy, or the rule of law. What laws are in force in that system
depends on what social standards its officials recognize as
authoritative; for example, legislative enactments, judicial decisions,
or social customs. The fact that a policy would be just, wise, efficient,
or prudent is never sufficient reason for thinking that it is actually the
law, and the fact that it is unjust, unwise, inefficient or imprudent is
never sufficient reason for doubting it. According to positivism, law is
a matter of what has been posited (ordered, decided, practiced,
tolerated, etc.); as we might say in a more modern idiom, positivism
is the view that law is a social construction. Austin thought the thesis
―simple and glaring.‖ While it is probably the dominant view among
analytically inclined philosophers of law, it is also the subject of
competing interpretations together with persistent criticisms and
misunderstandings.

Page 273
1. Development and Influence

Legal positivism has a long history and a broad influence. It has
antecedents in ancient political philosophy and is discussed, and the
term itself introduced, in mediaeval legal and political thought (see
Finnis 1996). The modern doctrine, however, owes little to these
forbears. Its most important roots lie in the conventionalist political
philosophies of Hobbes and Hume, and its first full elaboration is due
to Jeremy Bentham (1748-1832) whose account Austin adopted,
modified, and popularized. For much of the next century an
amalgam of their views, according to which law is the command of a
sovereign backed by force, dominated legal positivism and English
philosophical reflection about law. By the mid-twentieth century,
however, this account had lost its influence among working legal
philosophers. Its emphasis on legislative institutions was replaced by
a focus on law-applying institutions such as courts, and its insistence
of the role of coercive force gave way to theories emphasizing the
systematic and normative character of law. The most important
architects of this revised positivism are the Austrian jurist Hans
Kelsen (1881-1973) and the two dominating figures in the analytic
philosophy of law, H.L.A. Hart (1907-92) and Joseph Raz among
whom there are clear lines of influence, but also important contrasts.
Legal positivism's importance, however, is not confined to the
philosophy of law. It can be seen throughout social theory,
particularly in the works of Marx, Weber, and Durkheim, and also
(though here unwittingly) among many lawyers, including the
American ―legal realists‖ and most contemporary feminist scholars.
Although they disagree on many other points, these writers all
acknowledge that law is essentially a matter of social fact. Some of
them are, it is true, uncomfortable with the label ―legal positivism‖
and therefore hope to escape it. Their discomfort is sometimes the
product of confusion. Lawyers often use ―positivist‖ abusively, to
condemn a formalistic doctrine according to which law is always
clear and, however pointless or wrong, is to be rigorously applied by
officials and obeyed by subjects. It is doubtful that anyone ever held
Page 274
this view; but it is in any case false, it has nothing to do with legal
positivism, and it is expressly rejected by all leading positivists.
Among the philosophically literate another, more intelligible,
misunderstanding may interfere. Legal positivism is here sometimes
associated with the homonymic but independent doctrines of logical
positivism (the meaning of a sentence is its mode of verification) or
sociological positivism (social phenomena can be studied only
through the methods of natural science). While there are historical
connections, and also commonalities of temper, among these ideas,
they are essentially different. The view that the existence of law
depends on social facts does not rest on a particular semantic
thesis, and it is compatible with a range of theories about how one
investigates social facts, including non-naturalistic accounts. To say
that the existence of law depends on facts and not on its merits is a
thesis about the relation among laws, facts, and merits, and not
otherwise a thesis about the individual relata. Hence, most traditional
―natural law‖ moral doctrines--including the belief in a universal,
objective morality grounded in human nature--do not contradict legal
positivism. The only influential positivist moral theories are the views
that moral norms are valid only if they have a source in divine
commands or in social conventions. Such theists and relativists
apply to morality the constraints that legal positivists think hold for
law.
2. The Existence and Sources of Law
Every human society has some form of social order, some way of
marking and encouraging approved behavior, deterring disapproved
behavior, and resolving disputes. What then is distinctive of societies
with legal systems and, within those societies, of their law? Before
exploring some positivist answers, it bears emphasizing that these
are not the only questions worth asking. While an understanding of
the nature of law requires an account of what makes law distinctive,
it also requires an understanding of what it has in common with other
forms of social control. Some Marxists are positivists about the
nature of law while insisting that its distinguishing characteristics
Page 275
matter less than its role in replicating and facilitating other forms of
domination. (Though other Marxists disagree: see Pashukanis).
They think that the specific nature of law casts little light on their
primary concerns. But one can hardly know that in advance; it
depends on what the nature of law actually is.
According to Bentham and Austin, law is a phenomenon of large
societies with a sovereign: a determinate person or group who have
supreme and absolute de facto power -- they are obeyed by all or
most others but do not themselves similarly obey anyone else. The
laws in that society are a subset of the sovereign's commands:
general orders that apply to classes of actions and people and that
are backed up by threat of force or ―sanction.‖ This imperatival
theory is positivist, for it identifies the existence of legal systems with
patterns of command and obedience that can be ascertained without
considering whether the sovereign has a moral right to rule or
whether his commands are meritorious. It has two other distinctive
features. The theory is monistic: it represents all laws as having a
single form, imposing obligations on their subjects, though not on the
sovereign himself. The imperativalist acknowledges that ultimate
legislative power may be self-limiting, or limited externally by what
public opinion will tolerate, and also that legal systems contain
provisions that are not imperatives (for example, permissions,
definitions, and so on). But they regard these as part of the non-legal
material that is necessary for, and part of, every legal system.
(Austin is a bit more liberal on this point). The theory is also
reductivist, for it maintains that the normative language used in
describing and stating the law -- talk of authority, rights, obligations,
and so on -- can all be analyzed without remainder in non-normative
terms, ultimately as concatenations of statements about power and
obedience.Imperatival theories are now without influence in legal
philosophy (but see Ladenson and Morison). What survives of their
outlook is the idea that legal theory must ultimately be rooted in
some account of the political system, an insight that came to be
shared by all major positivists save Kelsen. Their particular
Page 276
conception of a society under a sovereign commander, however, is

friendless (except among Foucauldians, who strangely take this relic
as the ideal-type of what they call ―juridical‖ power). It is clear that in
complex societies there may be no one who has all the attributes of
sovereignty, for ultimate authority may be divided among organs and
may itself be limited by law. Moreover, even when ―sovereignty‖ is
not being used in its legal sense it is nonetheless a normative
concept. A legislator is one who has authority to make laws, and not
merely someone with great social power, and it is doubtful that
―habits of obedience‖ is a candidate reduction for explaining
authority. Obedience is a normative concept. To distinguish it from
coincidental compliance we need something like the idea of subjects
being oriented to, or guided by, the commands. Explicating this will
carry us far from the power-based notions with which classical
positivism hoped to work. The imperativalists' account of obligation
is also subject to decisive objections (Hart, 1994, pp. 26-78; and
Hacker). Treating all laws as commands conceals important
differences in their social functions, in the ways they operate in
practical reasoning, and in the sort of justifications to which they are
liable. For instance, laws conferring the power to marry command
nothing; they do not obligate people to marry, or even to marry
according to the prescribed formalities. Nor is reductivism any more
plausible here: we speak of legal obligations when there is no
probability of sanctions being applied and when there is no provision
for sanctions (as in the duty of the highest courts to apply the law).
Moreover, we take the existence of legal obligations to be a reason
for imposing sanctions, not merely a consequence of it.
Hans Kelsen retains the imperativalists' monism but abandons their
reductivism. On his view, law is characterized by a basic form and
basic norm. The form of every law is that of a conditional order,
directed at the courts, to apply sanctions if a certain behavior (the
―delict‖) is performed. On this view, law is an indirect system of
guidance: it does not tell subjects what to do; it tells officials what to
do to its subjects under certain conditions. Thus, what we ordinarily
Page 277
regard as the legal duty not to steal is for Kelsen merely a logical
correlate of the primary norm which stipulates a sanction for stealing
(1945, p. 61). The objections to imperatival monism apply also to this
more sophisticated version: the reduction misses important facts,
such as the point of having a prohibition on theft. (The courts are not
indifferent between, on the one hand, people not stealing and, on
the other, stealing and suffering the sanctions.) But in one respect
the conditional sanction theory is in worse shape than is
imperativalism, for it has no principled way to fix on the delict as the
duty-defining condition of the sanction -- that is but one of a large
number of relevant antecedent conditions, including the legal
capacity of the offender, the jurisdiction of the judge, the
constitutionality of the offense, and so forth. Which among all these
is the content of a legal duty?
Kelsen's most important contribution lies in his attack on reductivism
and his doctrine of the ―basic norm.‖ He maintains that law is
normative and must understood as such. Might does not make right -
- not even legal right -- so the philosophy of law must explain the fact
that law is taken to impose obligations on its subjects. Moreover, law
is a normative system: ―Law is not, as it is sometimes said, a rule. It
is a set of rules having the kind of unity we understand by a system‖
(1945, p. 3). For the imperativalists, the unity of a legal system
consists in the fact that all its laws are commanded by one
sovereign. For Kelsen, it consists in the fact that they are all links in
one chain of authority. For example, a by-law is legally valid because
it is created by a corporation lawfully exercising the powers
conferred on it by the legislature, which confers those powers in a
manner provided by the constitution, which was itself created in a
way provided by an earlier constitution. But what about the very first
constitution, historically speaking? Its authority, says Kelsen, is
―presupposed.‖ The condition for interpreting any legal norm as
binding is that the first constitution is validated by the following ―basic
norm:‖ ―the original constitution is to be obeyed.‖ Now, the basic
norm cannot be a legal norm -- we cannot fully explain the
Page 278
bindingness of law by reference to more law. Nor can it be a social

fact, for Kelsen maintains that the reason for the validity of a norm
must always be another norm -- no ought from is. It follows, then,
that a legal system must consist of norms all the way down. It
bottoms in a hypothetical, transcendental norm that is the condition
of the intelligibility of any (and all) other norms as binding. To
―presuppose‖ this basic norm is not to endorse it as good or just --
resupposition is a cognitive stance only -- but it is, Kelsen thinks, the
necessary precondition for a non-reductivist account of law as a
normative system.
There are many difficulties with this, not least of which is the fact that
if we are willing to tolerate the basic norm as a solution it is not clear
why we thought there was a problem in the first place. One cannot
say both that the basic norm is the norm presupposing which
validates all inferior norms and also that an inferior norm is part of
the legal system only if it is connected by a chain of validity to the
basic norm. We need a way into the circle. Moreover, it draws the
boundaries of legal systems incorrectly. The Canadian Constitution
of 1982 was lawfully created by an Act of the U.K. Parliament, and
on that basis Canadian law and English law should be parts of a
single legal system, rooted in one basic norm: ‗The (first) U.K.
constitution is to be obeyed.‘ Yet no English law is binding in
Canada, and a purported repeal of the Constitution Act by the U.K.
would be without legal effect in Canada.
If law cannot ultimately be grounded in force, or in law, or in a
presupposed norm, on what does its authority rest? The most
influential solution is now H.L.A. Hart's. His solution resembles
Kelsen's in its emphasis on the normative foundations of legal
systems, but Hart rejects Kelsen's transcendentalist, Kantian view of
authority in favour of an empirical, Weberian one. For Hart, the
authority of law is social. The ultimate criterion of validity in a legal
system is neither a legal norm nor a presupposed norm, but a social
rule that exists only because it is actually practiced. Law ultimately
rests on custom: customs about who shall have the authority to
Page 279
decide disputes, what they shall treat as binding reasons for

decision, i.e. as sources of law, and how customs may be changed.
Of these three ―secondary rules,‖ as Hart calls them, the source-
determining rule of recognition is most important, for it specifies the
ultimate criteria of validity in the legal system. It exists only because
it is practiced by officials, and it is not only the recognition rule (or
rules) that best explains their practice, it is rule to which they actually
appeal in arguments about what standards they are bound to apply.
Hart's account is therefore conventionalist (see Marmor, and
Coleman, 2001): ultimate legal rules are social norms, although they
are neither the product of express agreement nor even conventions
in the Schelling-Lewis sense (see Green 1999). Thus for Hart too the
legal system is norms all the way down, but at its root is a social
norm that has the kind of normative force that customs have. It is a
regularity of behavior towards which officials take ―the internal point
of view:‖ they use it as a standard for guiding and evaluating their
own and others' behavior, and this use is displayed in their conduct
and speech, including the resort to various forms of social pressure
to support the rule and the ready application of normative terms such
as ―duty‖ and ―obligation‖ when invoking it.
It is an important feature of Hart's account that the rule of recognition
is an official custom, and not a standard necessarily shared by the
broader community. If the imperativalists' picture of the political
system was pyramidal power, Hart's is more like Weber's rational
bureaucracy. Law is normally a technical enterprise, characterized
by a division of labour. Ordinary subjects' contribution to the
existence of law may therefore amount to no more than passive
compliance. Thus, Hart's necessary and sufficient conditions for the
existence of a legal system are that ―those rules of behavior which
are valid according to the system's ultimate criteria of validity must
be generally obeyed, and ... its rules of recognition specifying the
criteria of legal validity and its rules of change and adjudication must
be effectively accepted as common public standards of official
behavior by its officials‖ (1994, p. 116). And this division of labour is
Page 280
not a normatively neutral fact about law; it is politically charged, for it

sets up the possibility of law becoming remote from the life of a
society, a hazard to which Hart is acutely alert (1994, p. 117; cf.
Waldron).
Although Hart introduces the rule of recognition through a
speculative anthropology of how it might emerge in response to
certain deficiencies in a customary social order, he is not committed
to the view that law is a cultural achievement. To the contrary, the
idea that legal order is always a good thing, and that societies
without it are deficient, is a familiar element of many anti-positivist
views, beginning with Henry Maine's criticism of Austin on the
ground that his theory would not apply to certain Indian villages. The
objection embraces the error it seeks to avoid. It imperialistically
assumes that it is always a bad thing to lack law, and then makes a
dazzling inference from ought to is: if it is good to have law, then
each society must have it, and the concept of law must be adjusted
to show that it does. If one thinks that law is a many splendored
thing, one will be tempted by a very wide concept of law, for it would
seem improper to charge others with missing out. Positivism simply
releases the harness. Law is a distinctive form of political order, not
a moral achievement, and whether it is necessary or even useful
depends entirely on its content and context. Societies without law
may be perfectly adapted to their environments, missing nothing.
A positivist account of the existence and content of law, along any of
the above lines, offers a theory of the validity of law in one of the two
main senses of that term (see Harris, pp. 107-111). Kelsen says that
validity is the specific mode of existence of a norm. An invalid
marriage is not a special kind of marriage having the property of
invalidity; it is not a marriage at all. In this sense a valid law is one
that is systemically valid in the jurisdiction -- it is part of the legal
system. This is the question that positivists answer by reference to
social sources. It is distinct from the idea of validity as moral
propriety, i.e. a sound justification for respecting the norm. For the
positivist, this depends on its merits. One indication that these
Page 281
senses differ is that one may know that a society has a legal system,
and know what its laws are, without having any idea whether they
are morally justified. For example, one may know that the law of
ancient Athens included the punishment of ostracism without
knowing whether it was justified, because one does not know
enough about its effects, about the social context, and so forth.
No legal positivist argues that the systemic validity of law establishes
its moral validity, i.e. that it should be obeyed by subjects or applied
by judges. Even Hobbes, to whom this view is sometimes ascribed,
required that law actually be able to keep the peace, failing which we
owe it nothing. Bentham and Austin, as utilitarians, hold that such
questions always turn on the consequences and both acknowledge
that disobedience is therefore sometimes fully justified. Kelsen
insists that ―The science of law does not prescribe that one ought to
obey the commands of the creator of the constitution‖ (1967, p. 204).
Hart thinks that there is only a prima facie duty to obey, grounded in
and thus limited by fairness -- so there is no obligation to unfair or
pointless laws (Hart 1955). Raz goes further still, arguing that there
isn't even a prima facie duty to obey the law, not even in a just state
(Raz 1979, pp. 233-49). The peculiar accusation that positivists
believe the law is always to be obeyed is without foundation. Hart's
own view is that an overweening deference to law consorts more
easily with theories that imbue it with moral ideals, permitting ―an
enormous overvaluation of the importance of the bare fact that a rule
may be said to be a valid rule of law, as if this, once declared, was
conclusive of the final moral question: ‗Ought this law to be
obeyed?‖ (Hart 1958, p. 75).
3. Moral Principles and the Boundaries of Law
The most influential criticisms of legal positivism all flow, in one way
or another, from the suspicion that it fails to give morality its due. A
theory that insists on the facticity of law seems to contribute little to
our understanding that law has important functions in making human
life go well, that the rule of law is a prized ideal, and that the
language and practice of law is highly moralized. Accordingly,
Page 282
positivism's critics maintain that the most important features of law

are not to be found in its source-based character, but in law's
capacity to advance the common good, to secure human rights, or to
govern with integrity. (It is a curious fact about anti-positivist theories
that, while they all insist on the moral nature of law, without
exception they take its moral nature to be something good. The idea
that law might of its very nature be morally problematic does not
seem to have occurred to them.)
It is beyond doubt that moral and political considerations bear on
legal philosophy. As Finnis says, the reasons we have for
establishing, maintaining or reforming law include moral reasons,
and these reasons therefore shape our legal concepts (p. 204). But
which concepts? Once one concedes, as Finnis does, that the
existence and content of law can be identified without recourse to
moral argument, and that ―human law is artefact and artifice; and not
a conclusion from moral premises,‖ (p. 205) the Thomistic apparatus
he tries to resuscitate is largely irrelevant to the truth of legal
positivism. This vitiates also Lon Fuller's criticisms of Hart (Fuller,
1958 and 1969). Apart from some confused claims about
adjudication, Fuller has two main points. First, he thinks that it isn't
enough for a legal system to rest on customary social rules, since
law could not guide behavior without also being at least minimally
clear, consistent, public, prospective and so on -- that is, without
exhibiting to some degree those virtues collectively called ―the rule of
law.‖ It suffices to note that this is perfectly consistent with law being
source-based. Even if moral properties were identical with, or
supervened upon, these rule-of-law properties, they do so in virtue
of their rule-like character, and not their law-like character. Whatever
virtues inhere in or follow from clear, consistent, prospective, and
open practices can be found not only in law but in all other social
practices with those features, including custom and positive morality.
And these virtues are minor: there is little to be said in favour of a
clear, consistent, prospective, public and impartially administered
system of racial segregation, for example. Fuller's second worry is
Page 283
that if law is a matter of fact, then we are without an explanation of

the duty to obey. He gloatingly asks how ―an amoral datum called
law could have the peculiar quality of creating an obligation to obey
it‖ (Fuller, 1958). One possibility he neglects is that it doesn't. The
fact that law claims to obligate is, of course, a different matter and is
susceptible to other explanations (Green 2001). But even if Fuller is
right in his unargued assumption, the ―peculiar quality‖ whose
existence he doubts is a familiar feature of many moral practices.
Compare promises: whether a society has a practice of promising,
and what someone has promised to do, are matters of social fact.
Yet promising creates moral obligations of performance or
compensation. An ―amoral datum‖ may indeed figure, together with
other premises, in a sound argument to moral conclusions.
While Finnis and Fuller's views are thus compatible with the
positivist thesis, the same cannot be said of Ronald Dworkin's
important works (Dworkin 1978 and 1986). Positivism's most
significant critic rejects the theory on every conceivable level. He
denies that there can be any general theory of the existence and
content of law; he denies that local theories of particular legal
systems can identify law without recourse to its merits, and he
rejects the whole institutional focus of positivism. A theory of law is
for Dworkin a theory of how cases ought to be decided and it begins,
not with an account of political organization, but with an abstract
ideal regulating the conditions under which governments may use
coercive force over their subjects. Force must only be deployed, he
claims, in accordance with principles laid down in advance. A society
has a legal system only when, and to the extent that, it honors this
ideal, and its law is the set of all considerations that the courts of
such a society would be morally justified in applying, whether or not
those considerations are determined by any source. To identify the
law of a given society we must engage in moral and political
argument, for the law is whatever requirements are consistent with
an interpretation of its legal practices (subject to a threshold
condition of fit) that shows them to be best justified in light of the
Page 284
animating ideal. In addition to those philosophical considerations,

Dworkin invokes two features of the phenomenology of judging, as
he sees it. He finds deep controversy among lawyers and judges
about how important cases should be decided, and he finds diversity
in the considerations that they hold relevant to deciding them. The
controversy suggests to him that law cannot rest on an official
consensus, and the diversity suggests that there is no single social
rule that validates all relevant reasons, moral and non-moral, for
judicial decisions.
Dworkin's rich and complex arguments have attracted various lines
of reply from positivists. One response denies the relevance of the
phenomenological claims. Controversy is a matter of degree, and a
consensus-defeating amount of it is not proved by the existence of
adversarial argument in the high courts, or indeed in any courts. As
important is the broad range of settled law that gives rise to few
doubts and which guides social life outside the courtroom. As for the
diversity argument, so far from being a refutation of positivism, this is
an entailment of it. Positivism identifies law, not with all valid reasons
for decision, but only with the source-based subset of them. It is no
part of the positivist claim that the rule of recognition tells us how to
decide cases, or even tells us all the relevant reasons for decision.
Positivists accept that moral, political or economic considerations are
properly operative in some legal decisions, just as linguistic or logical
ones are. Modus ponens holds in court as much as outside, but not
because it was enacted by the legislature or decided by the judges,
and the fact that there is no social rule that validates both modus
ponens and also the Municipalities Act is true but irrelevant. The
authority of principles of logic (or morality) is not something to be
explained by legal philosophy; the authority of acts of Parliament
must be; and accounting for the difference is a central task of the
philosophy of law.
Other positivists respond differently to Dworkin's phenomenological
points, accepting their relevance but modifying the theory to
accommodate them. So-called ―inclusive positivists‖ (e.g., Waluchow
Page 285
(to whom the term is due), Coleman, Soper and Lyons) argue that
the merit-based considerations may indeed be part of the law, if they
are explicitly or implicitly made so by source-based considerations.
For example, Canada's constitution explicitly authorizes for breach
of Charter rights, ―such remedy as the court considers appropriate
and just in the circumstances.‖ In determining which remedies might
be legally valid, judges are thus expressly told to take into account
their morality. And judges may develop a settled practice of doing
this whether or not it is required by any enactment; it may become
customary practice in certain types of cases. Reference to moral
principles may also be implicit in the web of judge-made law, for
instance in the common law principle that no one should profit from
his own wrongdoing. Such moral considerations, inclusivists claim,
are part of the law because the sources make it so, and thus
Dworkin is right that the existence and content of law turns on its
merits, and wrong only in his explanation of this fact. Legal validity
depends on morality, not because of the interpretative
consequences of some ideal about how the government may use
force, but because that is one of the things that may be customarily
recognized as an ultimate determinant of legal validity. It is the
sources that make the merits relevant.
To understand and assess this response, some preliminary
clarifications are needed. First, it is not plausible to hold that the
merits are relevant to a judicial decision only when the sources make
it so. It would be odd to think that justice is a reason for decision only
because some source directs an official to decide justly. It is of the
nature of justice that it properly bears on certain controversies. In
legal decisions, especially important ones, moral and political
considerations are present of their own authority; they do not need
sources to propel them into action. On the contrary, we expect to
see a sourceÑa statute, a decision, or a conventionÑwhen judges
are constrained not to appeal directly to the merits. Second, the fact
that there is moral language in judicial decisions does not establish
the presence of moral tests for law, for sources come in various
Page 286
guises. What sounds like moral reasoning in the courts is sometimes

really source-based reasoning. For example, when the Supreme
Court of Canada says that a publication is criminally ―obscene‖ only
if it is harmful, it is not applying J.S. Mill's harm principle, for what
that court means by ―harmful‖ is that it is regarded by the community
as degrading or intolerable. Those are source-based matters, not
moral ones. This is just one of many appeals to positive morality, i.e.
to the moral customs actually practiced by a given society, and no
one denies that positive morality may be a source of law. Moreover,
it is important to remember that law is dynamic and that even a
decision that does apply morality itself becomes a source of law, in
the first instance for the parties and possibly for others as well. Over
time, by the doctrine of precedent where it exists or through the
gradual emergence of an interpretative convention where it does
not, this gives a factual edge to normative terms. Thus, if a court
decides that money damages are in some instances not a ―just
remedy‖ then this fact will join with others in fixing what ―justice‖
means for these purposes. This process may ultimately detach legal
concepts from their moral analogs (thus, legal ―murder‖ may require
no intention to kill, legal ―fault‖ no moral blameworthiness, an
―equitable‖ remedy may be manifestly unfair, etc.)
Bearing in mind these complications, however, there undeniably
remains a great deal of moral reasoning in adjudication. Courts are
often called on to decide what would reasonable, fair, just, cruel, etc.
by explicit or implicit requirement of statute or common law, or
because this is the only proper or intelligible way to decide. Hart
sees this as happening pre-eminently in hard cases in which, owing
to the indeterminacy of legal rules or conflicts among them, judges
are left with the discretion to make new law. ―Discretion,‖ however,
may be a potentially misleading term here. First, discretionary
judgments are not arbitrary: they are guided by merit-based
considerations, and they may also be guided by law even though not
fully determined by it -- judges may be empowered to make certain
decisions and yet under a legal duty to make them in a particular
Page 287
way, say, in conformity with the spirit of preexisting law or with

certain moral principles (Raz 1994, pp. 238-53). Second, Hart's
account might wrongly be taken to suggest that there are
fundamentally two kinds of cases, easy ones and hard ones,
distinguished by the sorts of reasoning appropriate to each. A more
perspicuous way of putting it would be to say that there are two
kinds of reasons that are operative in every case: source-based
reasons and non-source-based reasons. Law application and law
creation are continuous activities for, as Kelsen correctly argued,
every legal decision is partly determined by law and partly
underdetermined: ―The higher norm cannot bind in every direction
the act by which it is applied. There must always be more or less
room for discretion, so that the higher norm in relation to the lower
one can only have the character of a frame to be filled by this act‖
(1967, p. 349). This is a general truth about norms. There are
infinitely many ways of complying with a command to ―close the
door‖ (quickly or slowly, with one's right hand or left, etc.) Thus, even
an ―easy case‖ will contain discretionary elements. Sometimes such
residual discretion is of little importance; sometimes it is central; and
a shift from marginal to major can happen in a flash with changes in
social or technological circumstances. That is one of the reasons for
rejecting a strict doctrine of separation of powers -- Austin called it a
―childish fiction‖ -- according to which judges only apply and never
make the law, and with it any literal interpretation of Dworkin's ideal
that coercion be deployed only according to principles laid down in
advance.It has to be said, however, that Hart himself does not
consistently view legal references to morality as marking a zone of
discretion. In a passing remark in the first edition of The Concept of
Law, he writes, ―In some legal systems, as in the United States, the
ultimate criteria of legal validity explicitly incorporate principles of
justice or substantive moral values …‖ (1994, p. 204). This thought
sits uneasily with other doctrines of importance to his theory. For
Hart also says that when judges exercise moral judgment in the
penumbra of legal rules to suppose that their results were already
Page 288
part of existing law is ―in effect, an invitation to revise our concept of

what a legal rule is …‖ (1958, p. 72). The concept of a legal rule, that
is, does not include all correctly reasoned elaborations or
determinations of that rule. Later, however, Hart comes to see his
remark about the U.S. constitution as foreshadowing inclusive
positivism (―soft positivism,‖ as he calls it). Hart's reasons for this
shift are obscure (Green 1996). He remained clear about how we
should understand ordinary statutory interpretation, for instance,
where the legislature has directed that an applicant should have a
―reasonable time‖ or that a regulator may permit only a ―fair price:‖
these grant a bounded discretion to decide the cases on their merits.
Why then does Hart -- and even more insistently, Waluchow and
Coleman -- come to regard constitutional adjudication differently? Is
there any reason to think that a constitution permitting only a ―just
remedy‖ requires a different analysis than a statute permitting only a
―fair rate?‖
One might hazard the following guess. Some of these philosophers
think that constitutional law expresses the ultimate criteria of legal
validity: because unjust remedies are constitutionally invalid and void
ab initio, legally speaking they never existed (Waluchow). That being
so, morality sometimes determines the existence or content of law. If
this is the underlying intuition, it is misleading, for the rule of
recognition is not to be found in constitutions. The rule of recognition
is the ultimate criterion (or set of criteria) of legal validity. If one
knows what the constitution of a country is, one knows some of its
law; but one may know what the rule of recognition is without
knowing any of its laws. You may know that acts of the Bundestag
are a source of law in Germany but not be able to name or interpret
a single one of them. And constitutional law is itself subject to the
ultimate criteria of systemic validity. Whether a statute, decision or
convention is part of a country's constitution can only be determined
by applying the rule of recognition. The provisions of the 14th
Amendment to the U.S. constitution, for example, are not the rule of
recognition in the U.S., for there is an intra-systemic answer to the
Page 289
question why that Amendment is valid law. The U.S. constitution, like
that of all other countries, is law only because it was created in ways
provided by law (through amendment or court decision) or in ways
that came to be accepted as creating law (by constitutional
convention and custom). Constitutional cases thus raise no
philosophical issue not already present in ordinary statutory
interpretation, where inclusive positivists seem content with the
theory of judicial discretion. It is, of course, open to them to adopt a
unified view and treat every explicit or implicit legal reference to
morality -- in cases, statutes, constitutions, and customs -- as
establishing moral tests for the existence of law. (Although at that
point it is unclear how their view would differ from Dworkin's.) So we
should consider the wider question: why not regard as law
everything referred to by law?
Exclusive positivists offer three main arguments for stopping at
social sources. The first and most important is that it captures and
systematizes distinctions we regularly make and that we have good
reason to continue to make. We assign blame and responsibility
differently when we think that a bad decision was mandated by the
sources than we do when we think that it flowed from a judge's
exercise of moral or political judgement. When considering who
should be appointed to the judiciary, we are concerned not only with
their acumen as jurists, but also with their morality and politics--and
we take different things as evidence of these traits. These are
deeply entrenched distinctions, and there is no reason to abandon
them.The second reason for stopping at sources is that this is
demonstrably consistent with key features of law's role in practical
reasoning. The most important argument to this conclusion is due to
Raz (1994, pp. 210-37). For a related argument see Shapiro. For
criticism see Perry, Waluchow, Coleman 2001, and Himma.)
Although law does not necessarily have legitimate authority, it lays
claim to it, and can intelligibly do so only if it is the kind of thing that
could have legitimate authority. It may fail, therefore, in certain ways
only, for example, by being unjust, pointless, or ineffective. But law
Page 290
cannot fail to be a candidate authority, for it is constituted in that role

by our political practices. According to Raz, practical authorities
mediate between subjects and the ultimate reasons for which they
should act. Authorities' directives should be based on such reasons,
and they are justified only when compliance with the directives
makes it more likely that people will comply with the underlying
reasons that apply to them. But they can do that only if is possible to
know what the directives require independent of appeal to those
underlying reasons. Consider an example. Suppose we agree to
resolve a dispute by consensus, but that after much discussion find
ourselves in disagreement about whether some point is in fact part
of the consensus view. It will do nothing to say that we should adopt
it if it is indeed properly part of the consensus. On the other hand,
we could agree to adopt it if it were endorsed by a majority vote, for
we could determine the outcome of a vote without appeal to our
ideas about what the consensus should be. Social sources can play
this mediating role between persons and ultimate reasons, and
because the nature of law is partly determined by its role in giving
practical guidance, there is a theoretical reason for stopping at
source-based considerations.
The third argument challenges an underlying idea of inclusive
positivism, what we might call the Midas Principle. ―Just as
everything King Midas touched turned into gold, everything to which
law refers becomes law … ‖ (Kelsen 1967, p. 161). Kelsen thought
that it followed from this principle that ―It is … possible for the legal
order, by obliging the law-creating organs to respect or apply certain
moral norms or political principles or opinions of experts to transform
these norms, principles, or opinions into legal norms, and thus into
sources of law‖ (Kelsen 1945, p. 132). (Though he regarded this
transformation as effected by a sort of tacit legislation.) If sound, the
Midas Principle holds in general and not only with respect to
morality, as Kelsen makes clear. Suppose then that the Income Tax
Act penalizes overdue accounts at 8% per annum. In a relevant
case, an official can determine the content of a legal obligation only
Page 291
by calculating compound interest. Does this make mathematics part

of the law? A contrary indication is that it is not subject to the rules of
change in a legal system -- neither courts nor legislators can repeal
or amend the law of commutativity. The same holds of other social
norms, including the norms of foreign legal systems. A conflict-of-
laws rule may direct a Canadian judge to apply Mexican law in a
Canadian case. The conflicts rule is obviously part of the Canadian
legal system. But the rule of Mexican law is not, for although
Canadian officials can decide whether or not to apply it, they can
neither change it nor repeal it, and best explanation for its existence
and content makes no reference to Canadian society or its political
system. In like manner, moral standards, logic, mathematics,
principles of statistical inference, or English grammar, though all
properly applied in cases, are not themselves the law, for legal
organs have applicative but not creative power over them. The
inclusivist thesis is actually groping towards an important, but
different, truth. Law is an open normative system (Raz 1975, pp.
152-54): it adopts and enforces many other standards, including
moral norms and the rules of social groups. There is no warrant for
adopting the Midas Principle to explain how or why it does this.
4. Law and Its Merits
It may clarify the philosophical stakes in legal positivism by
comparing it to a number of other theses with which it is sometimes
wrongly identified, and not only by its opponents. (See also Hart,
1958, Fuesser, and Schauer.)
4.1 The Fallibility Thesis
Law does not necessarily satisfy the conditions by which it is
appropriately assessed (Lyons 1984, p. 63, Hart 1994, pp. 185-6).
Law should be just, but it may not be; it should promote the common
good, but sometimes it doesn't; it should protect moral rights, but it
may fail miserably. This we may call the moral fallibility thesis. The
thesis is correct, but it is not the exclusive property of positivism.
Aquinas accepts it, Fuller accepts it, Finnis accepts it, and Dworkin
accepts it. Only a crude misunderstanding of ideas like Aquinas's
Page 292
claim that ―an unjust law seems to be no law at all‖ might suggest
the contrary. Law may have an essentially moral character and yet
be morally deficient. Even if every law always does one kind of
justice (formal justice; justice according to law), this does not entail
that it does every kind of justice. Even if every law has a prima facie
claim to be applied or obeyed, it does not follow that it has such a
claim all things considered. The gap between these partial and
conclusive judgments is all a natural law theory needs to
accommodate the fallibility thesis. It is sometimes said that
positivism gives a more secure grasp on the fallibility of law, for once
we see that it is a social construction we will be less likely to accord
it inappropriate deference and better prepared to engage in a clear-
headed moral appraisal of the law. This claim has appealed to
several positivists, including Bentham and Hart. But while this might
follow from the truth of positivism, it cannot provide an argument for
it. If law has an essentially moral character then it is obfuscating, not
clarifying, to describe it as a source-based structure of governance.
4.2 The Separability Thesis
At one point, Hart identifies legal positivism with ―the simple
contention that it is no sense a necessary truth that laws reproduce
or satisfy certain demands of morality, though in fact they have often
done so‖ (1994, pp. 185-86). Many other philosophers, encouraged
also by the title of Hart's famous essay, ―Positivism and the
Separation of Law and Morals,‖ (1958) treat the theory as the denial
that there is a necessary connection between law and morality --
they must be in some sense ―separable‖ even if not in fact separate
(Coleman, 1982). The separability thesis is generally construed so
as to tolerate any contingent connection between morality and law,
provided only that it is conceivable that the connection might fail.
Thus, the separability thesis is consistent with all of the following: (i)
moral principles are part of the law; (ii) law is usually, or even always
in fact, valuable; (iii) the best explanation for the content of a
society's laws includes reference to the moral ideals current in that
society; and (iv) a legal system cannot survive unless it is seen to
Page 293
be, and thus in some measure actually is, just. All four claims are
counted by the separability thesis as contingent connections only;
they do not hold of all possible legal systems -- they probably don't
even hold of all historical legal systems. As merely contingent truths,
it is imagined that they do not affect the concept of law itself. (This is
a defective view of concept-formation, but we may ignore that for
these purposes.) If we think of the positivist thesis this way, we might
interpret the difference between exclusive and inclusive positivism in
terms of the scope of the modal operator:
(EP) It is necessarily the case that there is no connection between
law and morality.
(IP) It is not necessarily the case that there is a connection between
law and morality.
In reality, however, legal positivism is not to be identified with either
thesis and each of them is false. There are many necessary
―connections,‖ trivial and non-trivial, between law and morality. As
John Gardner notes, legal positivism takes a position only one of
them, it rejects any dependence of the existence of law on its merits
(Gardner 2001). And with respect to this dependency relation, legal
positivists are concerned with much more than the relationship
between law and morality, for in the only sense in which they insist
on a separation of law and morals they must insist also--and for the
same reasons--on a separation of law and economics.
To exclude this dependency relation, however, is to leave intact
many other interesting possibilities. For instance, it is possible that
moral value derives from the sheer existence of law (Raz 1990, 165-
70) If Hobbes is right, any order is better than chaos and in some
circumstances order may be achievable only through positive law.
Or perhaps in a Hegelian way every existing legal system expresses
deliberate governance in a world otherwise dominated by chance;
law is the spirit of the community come to self-consciousness. Notice
that these claims are consistent with the fallibility thesis, for they do
not deny that these supposedly good things might also bring evils,
such as too much order or the will to power. Perhaps such derivative
Page 294
connections between law and morality are thought innocuous on the

ground that they show more about human nature than they do about
the nature of law. The same cannot be said of the following
necessary connections between law and morality, each of which
goes right to the heart of our concept of law:
(1) Necessarily, law deals with moral matters.
Kelsen writes, ―Just as natural and positive law govern the same
subject-matter, and relate, therefore, to the same norm-object,
namely the mutual relationships of men -- so both also have in
common the universal form of this governance, namely obligation.‖
(Kelsen 1928, p. 34) This is a matter of the content of all legal
systems. Where there is law there is also morality, and they regulate
the same matters by analogous techniques. Of course to say that
law deals with morality's subject matter is not to say that it does so
well, and to say that all legal systems create obligations is not to
endorse the duties so created. This is broader than Hart's ―minimum
content‖ thesis according to which there are basic rules governing
violence, property, fidelity, and kinship that any legal system must
encompass if it aims at the survival of social creatures like ourselves
(Hart 1994, pp. 193-200). Hart regards this as a matter of ―natural
necessity‖ and in that measure is willing to qualify his endorsement
of the separability thesis. But even a society that prefers national
glory or the worship of gods to survival will charge its legal system
with the same tasks its morality pursues, so the necessary content of
law is not dependent, as Hart thinks it is, on assuming certain facts
about human nature and certain aims of social existence. He fails to
notice that if human nature and life were different, then morality
would be too and if law had any role in that society, it would
inevitably deal with morality's subject matter. Unlike the rules of a
health club, law has broad scope and reaches to the most important
things in any society, whatever they may be. Indeed, our most
urgent political worries about law and its claims flow from just this
capacity to regulate our most vital interests, and law's wide reach

Page 295
must figure in any argument about its legitimacy and its claim to
obedience.
(2) Necessarily, law makes moral claims on its subjects.
The law tells us what we must do, not merely what it would be
virtuous or advantageous to do, and it requires us to act without
regard to our individual self-interest but in the interests of other
individuals, or in the public interest more generally (except when law
itself permits otherwise). That is to say, law purports to obligate us.
But to make categorical demands that people should act in the
interests of others is to make moral demands on them. These
demands may be misguided or unjustified for law is fallible; they may
be made in a spirit that is cynical or half-hearted; but they must be
the kind of thing that can be offered as, and possibly taken as,
obligation-imposing requirements. For this reason neither a regime
of ―stark imperatives‖ (see Kramer, pp. 83-9) nor a price system
would be a system of law, for neither could even lay claim to obligate
its subjects. As with many other social institutions, what law, though
its officials, claims determines its character independent of the truth
or validity of those claims. Popes, for example, claim apostolic
succession from St. Peter. The fact that they claim this partly
determines what it is to be a Pope, even if it is a fiction, and even the
Pope himself doubts its truth. The nature of law is similarly shaped
by the self-image it adopts and projects to its subjects. To make
moral demands on their compliance is to stake out a certain territory,
to invite certain kinds of support and, possibly, opposition. It is
precisely because law makes these claims that doctrines of
legitimacy and political obligation take the shape and importance
that they do.
(3) Necessarily, law is justice-apt.
In view of the normative function of law in creating and enforcing
obligations and rights, it always makes sense to ask whether law is
just, and where it is found deficient to demand reform. Legal systems
are therefore the kind of thing that is apt for appraisal as just or
unjust. This is a very significant feature of law. Not all human
Page 296
practices are justice-apt. It makes no sense to ask whether a certain

fugue is just or to demand that it become so. The musical standards
of fugal excellence are preeminently internal -- a good fugue is a
good example of its genre; it should be melodic, interesting,
inventive etc. -- and the further we get from these internal standards
the less secure evaluative judgments about it become. While some
formalists flirt with similar ideas about law, this is in fact inconsistent
with law's place amongst human practices. Even if law has internal
standards of merit -- virtues uniquely its own that inhere in its law-
like character -- these cannot preclude or displace its assessment on
independent criteria of justice. A fugue may be at its best when it
has all the virtues of fugacity; but law is not best when it excels in
legality; law must also be just. A society may therefore suffer not
only from too little of the rule of law, but also from too much of it.
This does not presuppose that justice is the only, or even the first,
virtue of a legal system. It means that our concern for its justice as
one of its virtues cannot be sidelined by any claim of the sort that
law's purpose is to be law, to its most excellent degree. Law stands
continuously exposed to demands for justification, and that too
shapes its nature and role in our lives and culture.
These three theses establish connections between law and morality
that are both necessary and highly significant. Each of them is
consistent with the positivist thesis that the existence and content of
law depends on social facts, not on its merits. Each of them
contributes to an understanding of the nature of law. The familiar
idea that legal positivism insists on the separability of law and
morality is therefore significantly mistaken.
4.3 The Neutrality Thesis
The necessary content thesis and the justice-aptitude thesis
together establish that law is not value-neutral. Although some
lawyers regard this idea as a revelation (and others as provocation)
it is in fact banal. The thought that law could be value neutral does
not even rise to falsity -- it is simply incoherent. Law is a normative
system, promoting certain values and repressing others. Law is not
Page 297
neutral between victim and murderer or between owner and thief.

When people complain of the law's lack of neutrality, they are in fact
voicing very different aspirations, such as the demand that it be fair,
just, impartial, and so forth. A condition of law's achieving any of
these ideals is that it is not neutral in either its aims or its effects.
Positivism is however sometimes more credibly associated with the
idea that legal philosophy is or should be value-neutral. Kelsen, for
example, says, ―the function of the science of law is not the
evaluation of its subject, but its value-free description‖ (1967, p. 68)
and Hart at one point described his work as ―descriptive sociology‖
(1994, p. v). Since it is well known that there are convincing
arguments for the ineliminability of values in the social sciences,
those who have taken on board Quinian holisms, Kuhnian
paradigms, or Foucauldian espistemes, may suppose that positivism
should be rejected a priori, as promising something that no theory
can deliver.
There are complex questions here, but some advance may be made
by noticing that Kelsen's alternatives are a false dichotomy. Legal
positivism is indeed not an ―evaluation of its subject‖, i.e., an
evaluation of the law. And to say that the existence of law depends
on social facts does not commit one to thinking that it is a good thing
that this is so. (Nor does it preclude it: see MacCormick and
Campbell) Thus far Kelsen is on secure ground. But it does not
follow that legal philosophy therefore offers a ―value-free description‖
of its subject. There can be no such thing. Whatever the relation
between facts and values, there is no doubt about the relationship
between descriptions and values. Every description is value-laden. It
selects and systematizes only a subset of the infinite number of facts
about its subject. To describe law as resting on customary social
rules is to omit many other truths about it including, for example,
truths about its connection to the demand for paper or silk. Our
warrant for doing this must rest on the view that the former facts are
more important than the latter. In this way, all descriptions express
choices about what is salient or significant, and these in turn cannot
Page 298
be understood without reference to values. So legal philosophy,

even if not directly an evaluation of its subject is nonetheless
―indirectly evaluative‖ (Dickson, 2001). Moreover, ―law‖ itself is an
anthropocentric subject, dependent not merely on our sensory
embodiment but also, as its necessary connections to morality show,
on our moral sense and capacities. Legal kinds such as courts,
decisions, and rules will not appear in a purely physical description
of the universe and may not even appear in every social description.
(This may limit the prospects for a ―naturalized‖ jurisprudence;
though for a spirited defense of the contrary view, see Leiter)
It may seem, however, that legal positivism at least requires a stand
on the so-called ―fact-value‖ problem. There is no doubt that certain
positivists, especially Kelsen, believe this to be so. In reality,
positivism may cohabit with a range of views here -- value
statements may be entailed by factual statements; values may
supervene on facts; values may be kind of fact. Legal positivism
requires only that it be in virtue of its facticity rather than its
meritoriousness that something is law, and that we can describe that
facticity without assessing its merits. In this regard, it is important to
bear in mind that not every kind of evaluative statement would count
among the merits of a given rule; its merits are only those values
that could bear on its justification.
Evaluative argument is, of course, central to the philosophy of law
more generally. No legal philosopher can be only a legal positivist. A
complete theory of law requires also an account of what kinds of
things could possibly count as merits of law (must law be efficient or
elegant as well as just?); of what role law should play in adjudication
(should valid law always be applied?); of what claim law has on our
obedience (is there a duty to obey?); and also of the pivotal
questions of what laws we should have and whether we should have
law at all. Legal positivism does not aspire to answer these
questions, though its claim that the existence and content of law
depends only on social facts does give them shape.

Page 299
11.5 SUMMARY
The theory that says that justice and law have a dependency relation
that exists for the well being and harmony of the society is known as
the dependency theory of justice. This theory proposes that justice
depends on law but is not the same as law. Justice is imparted by
judiciary of the state as per law, but this is not the only way in which
justice is imparted.
In this unit we have discussed about the concept of Dependency
theories of law and justice and for its realization justice depends on
law, but justice is not the same as law.
 Austin, John (1832). The Province of Jurisprudence

Determined. Ed. W.E. Rumble, 1995. Cambridge: Cambridge
University Press.
 Bentham, Jeremy (1782). Of Laws in General. Ed. H.L.A. Hart,
1970. London: Athlone Press.
 Campbell, Tom (1996). The Legal Theory of Ethical
Positivism. Dartmouth: Aldershot.
 Coleman, Jules (1982) ―Negative and Positive Positivism,‖ 11
Journal of Legal Studies 139.
 Coleman, Jules (2001). The Practice of Principle.Oxford:
Clarendon Press.
 Dickson, Julie (2001). Evaluation and Legal Theory. Oxford:
Hart Publishing.
 Dworkin, Ronald (1978) Taking Rights Seriously. Cambridge
MA: Harvard University Press.
 Dworkin, Ronald (1986). Law's Empire. Cambridge MA:
Harvard University Press.
 Finnis, John (1996). ―The Truth in Legal Positivism,‖ in The
Autonomy of Law, ed. Robert P. George. Oxford: Clarendon
Press, pp. 195-214.

Page 300
 Fuesser, Klaus (1996), ―Farewell to ‗Legal Positivism‘: The

Separation Thesis Unravelling,‖ in The Autonomy of Law, ed.
Robert P. George. Oxford: Clarendon Press, pp.119-162.
 Fuller, Lon (1958). ―Positivism and Fidelity to Law: a Reply to
Professor Hart,‖ 71 Harvard Law Review 630.
 Fuller, Lon (1964). The Morality of Law, rev. ed. New Haven:
Yale University Press.
 Gardner, John (2001) ―Legal Positivism: 5 ½ Myths,‖ 46
American Journal of Jurisprudence 199.
 Green, Leslie (1996). ―The Concept of Law Revisited,‖ 94
Michigan Law Review 1687.
 Green, Leslie (1999). ―Positivism and Conventionalism,‖ 12
Canadian Journal of Law and Jurisprudence pp. 35-52.
 Green, Leslie (2001). ―Law and Obligations,‖ in Jules Coleman
and Scott Shapiro, eds. The Oxford Handbook of
Jurisprudence and Philosophy of Law. Oxford: Clarendon
Press.
 Hacker, P.M.S. (1973). ―Sanction Theories of Duty,‖ in A.W.B.
Simpson, ed. Oxford Essays in Jurisprudence: 2nd Ser.
Oxford: Clarendon Press.
 Harris, J.W.(1979) Law and Legal Science: An Inquiry into the
Concepts Legal Rule and Legal System. Oxford: Clarendon
Press.
 Hart, H.L.A.(1955) ―Are There Any Natural Rights?‖ 64
Philosophical Review, pp. 175-91.
 Hart, H.L.A (1958). ―Positivism and the Separation of Law and
Morals,‖ 71 Harvard Law Review 593 repr. in his Essays in
Jurisprudence and Philosophy (1983). Oxford: Clarendon
Press.
 Hart, H.L.A (1983). Essays on Jurisprudence and Philosophy.
Oxford: Clarendon Press.
 Hart, H.L.A (1994, first edition 1961). The Concept of Law, 2nd
ed. ed.P. Bulloch and J. Raz . Oxford: Clarendon Press.

Page 301
 Himma, Kenneth I. (2001). "The Instantiation Thesis and Raz's

Critique of Inclusive Positivism," 20 Law and Philosophy,
pp.61-79
 Kelsen, Hans (1928) ―The Idea of Natural Law,‖ in his Essays
in Legal and Moral Philosophy (1973) ed. O. Weinberger,
trans. P. Heath .Dordrecht: Reidel.
 Kelsen, Hans (1945). General Theory of Law and State, trans.
A. Wedberg, repr. 1961. New York: Russell and Russell.
 Kelsen, Hans ( 1967). Pure Theory of Law, trans. M. Knight.
Berkeley: University of California Press.
 Kramer, Matthew (1999). In Defense of Legal Positivism: Law
Without Trimmings. Oxford: Clarendon Press.
 Ladenson, Robert (1980). ―In Defense of a Hobbesian
Conception of Law,‖ 9 Philosophy and Public Affairs 134
 Leiter, Brian (1997). ―Rethinking Legal Realism: Toward a
Naturalized Jurisprudence,‖ 76 Texas Law Review 267.
 Lyons, David (1982). ―Moral Aspects of Legal Theory,‖ 7
Midwest Studies in Philosophy 223
 Lyons, David (1984). Ethics and the Rule of Law. Cambridge:
Cambridge University Press
 MacCormick, Neil (1985). ―A Moralistic Case for A-moralistic
Law,‖ 20 Valparaiso Law Review 1.
 Marmor, Andrei (1998). ―Legal Conventionalism,‖ 4 Legal
Theory 509.
 Morison, W. L. (1982) John Austin. Stanford: Stanford
University Press.
 Pashukanis, Evgeny (1983) Law and Marxism: A General
Theory. Trans. B. Einhorn. London: Pluto Press.
 Perry, Stephen (1989). ―Second Order Reasons, Uncertainty,
and Legal Theory,‖ 62 Southern California Law Review 913.
 Raz, Joseph (1979). The Authority of Law. Oxford: Clarendon
Press.
 Raz, Joseph (1986) The Morality of Freedom. Oxford:
Clarendon Press.
Page 302
 Raz, Joseph (1990). Practical Reason and Norms. Princeton:

Princeton University Press.
 Raz, Joseph (1995). Ethics in the Public Domain: Essays in
the Morality of Law and Politics. Oxford: Clarendon Press.
 Schauer, Fred (1996), ―Positivism as Pariah,‖ in R.P. George,
ed. The Autonomy of Law. Oxford: Clarendon Press.
 Shapiro, Scott (1998). ―On Hart's Way Out,‖ 4 Legal Theory
469.
 Soper, Philip (1977) ―Legal Theory and the Obligation of a
Judge: The Hart/Dworkin Dispute‖ 75 Michigan Law Review
473.
 Waldron, Jeremy (1999), ―All We Like Sheep,‖ 12 Canadian
Journal of Law and Jurisprudence 169.
 Waluchow, W.J. (1994). Inclusive Legal Positivism. Oxford:
Clarendon Press.
 http://wikibin.org/articles/dependency-theory-of-justice.html
1. What do you understand by the concept of the concept of

Dependency theories of law and justice?
2. Describe whether justice depends on law?
3. Discuss that justice is not the same as law.

Page 303
LL.M. Part-2

Unit-12-The independence of justice theories - means to end
relationship of law and justice; the relationship in the context of the
Indian constitutional ordering
STRUCTURE
12.1 INTRODUCTION
12.2 OBJECTIVES
12.3 WHAT are the Independence theories of justice?
12.4. Means to end relationship of law and justice
12.5 Indian Concept
12.6 SUMMARY

Page 304
12.1 INTRODUCTION
In the previous unit you have read about the concept of Dependency
theories of law and justice and for its realization justice depends on
law, but justice is not the same as law.Justice and its independence
constantly cause nourished and impassioned debates. Admittedly,
the subject is sensitive since it touches at the same time law and the
judiciary, politics and its users, society and its citizens. Curiously,
any approach on the independence of justice is invariably declined
towards two other subjects: the independence of the judicial power
and that of the judges.In this unit we will discuss about the
independence of justice theories - means to end relationship of law
and justice and their relationship in the context of the Indian
constitutional ordering.
12.2 OBJECTIVES

 Understand the concept of the independence of justice
theories.
 Explain the means to end relationship of law and justice.
 Describe the relationship between law and justice in the
context of the Indian constitutional ordering.
12.3 WHAT are the Independence theories of justice?
The Independence of Justice

Justice and its independence constantly cause nourished and
impassioned debates. Admittedly, the subject is sensitive since it
touches at the same time law and the judiciary, politics and its users,
society and its citizens.Curiously, any approach on the
independence of justice is invariably declined towards two other
subjects: the independence of the judicial power and that of the
judges.

Page 305
I - Independent Justice or Independence of the Judicial Power?

A) The Concept of Independent Justice and Independence of the
Judicial Power.The concept of independent justice and judicial
power is comprehended in a confused way by a public which has
difficulties to dissociate them. However the distinction is of
importance.To speak about justice is to apprehend the system as a
whole. Justice, in its traditional meaning, is a body of judges, but
also of auxiliaries and judicial officers. It is a whole material
organisation and it is an overall system at the service of the public!
Justice can be multiform. Thus it can have a scientific connotation:
civil, penal, military or international. Justice is not only that of the
judges and the lawyers. It can, indeed, be of a philosophical,
religious or clannish nature. Justice is also a common act of the
everyday life, such as repairing the injustice of having unevenly
shared the cake between children... the topic of the independence of
justice is very extendable. Consequently in this context, the logic
commands us to turn to the independence of the judicial power.
Since Locke and Montesquieu in the 17th and 18th centuries, the
concept of State takes as a starting point the theory of the
separation of powers between the legislature, the executive and the
judiciary. However, Locke (1690) made the distinction in the
variation of the powers, as to distinguish between the legislative
power, the executive power and the federative power or the capacity
to start a war and to sign treaties. Montesquieu (1748), however
considered as the inspirer of the three powers, stated in his ―Spirit of
the laws‖: ―There are in each State three kinds of powers: the
legislative power, the executive power of the things which depend on
the law of nations, and the executive power of those who depend on
the civil law‖. This hesitation to sanctify the judicial power and its
independence has lasted ever since. Thus, in France, the
Constitution of 1958 only instituted, next to an executive power and
a legislative power, a judicial ―authority‖.
Moreover, as it was pointed out recently by a high-ranking judge at
the time of an international conference, ―the independence of justice
Page 306
is always proclaimed but remains subjected, in many countries, to

the omnipotence of the sovereignty of the State‖.It will be noticed
that the terms of ―independence of the judicial authority‖ and of
―independence of justice‖ are indistinctly employed.This persistent
confusion does not influence the heart of the matter, i.e. the nature
of the relations between the executive and the judiciary.
B) The Independence of the Judicial Power
The mutual intrusion of the two powers - executive and judicial - in
their respective spheres of influence is often stigmatised. The
political State speaks about ―the power of the judges‖ while the
judges denounce ―the interventionism of the State‖. In fact, all
depends on the applicable mode and the concept which one adopts,
which postulates for two options:
one which founds a true judicial power where the president of the
Supreme Court is at the same time the chief of the highest
jurisdiction and the manager who governs the functioning of all the
legal body. He enjoys a great autonomy and occupies a hierarchical
row in the State, equal to that of the chief of the government.
the other which institutes a supreme jurisdiction: the Supreme Court
of appeal which function only consists in judging in law. At his side is
a minister of justice who has high capacities in the legal organisation
and in the appointment of the judges, particularly those of the public
prosecutor's department. A Council of judges decides of the career
of the judges and a Constitutional Council ensures the respect of the
constitutionality of laws.
This formula is far from giving satisfaction, because it unceasingly
calls into question the fine line between the political power and the
independence of the judges.
II-The independence of justice: a constitutional value shared
between the judge and the judicial officer
The independence of justice cannot be understood under the only
benefit of the independence of the judicial power, in other words the
capacity of the judges.

Page 307
A) The independence of the auxiliaries of justice and the members

of the legal profession: a necessary complement.In a conference
relating to the independence of justice, Mr Abderham Diouf,
prosecuting attorney at the Supreme court of appeal of Senegal,
declared: ―The independence of justice is about the independence of
the judges and its natural corollary: the lawyer‖.
In same time, Mr. Ancel, president of a chamber at the Court of
cassation of Paris stressed that the independence of justice was to
go beyond the judge to take into account two consubstantial
elements:
-the access to the judge,
-the specific enforcement of judgements.
It is understood that under the only angle of the judicial power, the
concept of independence of justice appears very reducing.And as a
matter of fact, the work of justice does not stop with the intervention
of the judge, nor even when the judgement is given, which makes
the professor Duple, of the University of Laval in Quebec, state that
―the concept of the Rule of Law rests on the principle whereby the
judge has as a function to judge, lawyer to represent the parties‖
and, would we add, judicial officer to carry out court decisions.This
last precision leads us to add the following remark. Too many times
it is considered that justice has fulfilled its role once the judgement is
given. The judges themselves do not mark but a minor interest in the
fate of their decision and rare are those who wonder about the
capacity of the parties to even understand or to interpret their
judgements. More seriously, enforcement only causes a very minor
interest. Fortunately, things are changing... Gradually the political
sector, the legal world, as well as the economic operators express
an increasing concern about enforcement of legal titles.Initially, it is
the European Union which put on orbit, since the Council of
Tampere in 1999, the area of freedom, security and justice and
published not less than seven European instruments concerning
enforcement and judicial procedures. Then, it was the turn of the
European Court of Human Rights which, by the means of article 6.1
Page 308
of the European Convention on Human Rights, posed the principle,

in the wake of the Hornsby v. Greece case of March 19, 1997, of a
right to an enforcement of judgements, which turned, due to the
evolution of jurisprudence, into a true autonomous right of
enforcement. Finally, the Council of Europe, under the terms of a
Recommendation of September 9, 2003 (Rec2003(17)), proposes
the implementation of common standards in the field of the trans-
national enforcement and which in addition delivers a catalogue of
normative measures intended to promote a harmonization of the
statute of the European judicial officer.
B) The liberal judicial officer: and independent actor essential
to an independent justice
The aim set by the Council of Europe is to support - it is a truism -
the creation of an occupation of judicial officer, if not uniform, at least
harmonised on the basis of common standard. This concept of the
judicial officer is to be compared to the doctrines of the UIHJ which
preaches the introduction of a statute of the liberal and independent
judicial officer. In this respect, let us recall that the whole of the
national chambers or orders of judicial officers of Africa of the
OHADA zone, which represents 16 Member States, filed in under
the aegis of the International Union a project of unified statute,
conceived according to the criteria of independence and freedom of
exercise such as mentioned.
As it was many times proved, the liberal and independent judicial
officer is a pledge of independence of justice. What would be a
justice which would be proclaimed independent if the judgements,
once given, were to pile up in the cupboards without being carried
out? The question is not an innocent one. The facts are actual and
known.A State which does not ensure the enforcement of its
judgements is a State which weakens its legal security and cultivates
the grounds for corruption and discourages economic operators. To
guaranty an effective and quality enforcement the liberal and
independent judicial officer becomes, consequently, an essential
element of the judicial chain. The judicial officer, like the judge, must
Page 309
be independent: i.e. independent from the power, and safe from all
sources of influence. An independent judicial officer is submitted to
no hierarchy. He must only yield with his authority of discipline and
act under the control of the Public Prosecutor's Department. The
judge should not interfere in the action of the judicial officer because
his prerogatives must be limited to judge litigations and to take
measures when seized.The procedure of execution must be left to
the free will of the parties. For a justice to be worthy of its
independence it is important to proscribe any interference between
the executive power and the judicial officer.It is intolerable that today
still, in a number of countries, the authorities of the State, with the
contempt of the principle of the separation of power intervene under
fallacious pretexts, to stop the course of enforcement or to modify its
range. It is inadmissible that members of government of a State,
which presents itself as a strong promoter of democracy, Rule of
Law, and Human Rights, can suspend or dismiss judicial officers
who refuse to yield to the pressure to draw up an illegal act.
It is necessary to condemn with the most extreme strength the
decisions of governments which unilaterally issue the extinction of all
the enforcement procedures, or which push the population to resist
the injunctions of the judicial officers. How many of our fellow-
members had to undergo vexations, sanctions, or even were
imprisoned for having resisted intimidating and unlawful
manoeuvres, whereas they were only concerned about fulfilling the
noble mission which fell to them: that to carry out a judgement for
the people or the Republic. Yes, the independence of justice passes
by the respect of the given decision and a full support for the judicial
officer who is the only agent in charge of the operations of
enforcement. To deny this would result in ignoring the decisions of
the European Court of Human Rights, proclaiming in a case of June
22, 2004, that the judicial officer ―is an essential element of the Rule
of Law‖.Lastly, and such will be my conclusion, where court
decisions remain dead letters for lack of a body of liberal and
independent judicial officers, there comes insecurity and there
Page 310
settles private justice, in other words the laws of the strong against
the weak and of the powerful against the impecunious. The un-
enforcement of decisions then becomes a true attack against
democracy.To reach a true independent justice, it is thus advisable
to have not only an independent judicial power but also an
independent and liberal body of judicial officers.
12.4. Means to end relationship of law and justice
The concept of natural law—higher moral law over and above the
positive law embodying certain values of universal validity like
dharma (righteousness) artha (wealth), kama (desires) and moksha
(salvation) were expounded by ancient Indian philosophers and
thinkers 5000 years ago with a view to establish a harmonious social
order by striking a balance between inner and outer, spiritual and
material aspects of life. The quest for equilibrium, harmony,
knowledge and truth inspired the Indian minds more than their
counterparts the Greeks and the Romans. The major goals of life
were to be attained, controlled and regulated according to the dictate
and direction of dharma. The immortal Veda Vyasa declared Artha
and Kama flow from dharma and so why not follow dharma? In other
words that is first follow dharma and dharma will also give artha and
Kama. Thus ethos of Indian way of life was characterized by an all
pervading law—dharma. It is this law of dharma—the Hindu‘s natural
law was neither a cult or creed nor a code in the Western sense but
the right law of life and true ideal of living and social ordering. It is
this law of dharma which is neither static nor rigid nor absolute but
relative, dynamic and evolving—always changing according to the
needs and development of society. Thus, philosophical ideals and
constructing scientific concepts and methods which have deeply
influenced the law and life of people. The spirit of intellectual inquiry
which possessed the Hindu mind led them to question experience,
to question the environing world, to question their gods and the
tenets and of their traditional faith. They were not hampered by the

Page 311
tyranny of religious dogmas or political authority or even pressure of

public opinion. They sought and elaborated the law of dharma and
truth with single-minded devotion rare in the history of spiritual
thoughts and theology. As Yajurveda declared i.e. son of immorality
all should listen the message of Truth. In the words122 of Max Muller
(Six Systems of Indian Philosophy).‗It is surely astounding that such
a system as the Vedanata should have been slowly elaborated by
the indefatigable and intrepid thinkers of India thousands of years
ago, as system that even now makes us feel giddy, as in mounting
the last steps of swaying spire of an ancient Gothic Cathedral. None
of our philosophers, not excepting Heraclitus, Plato, Kant or Hegel
has ventured to erect such a spire, never frightened by storms or
lightenings. Stone follows on stone after regular succession after
once the first step has been made, after once it has been clearly
seen that in the beginning there can have been but one, as there will
be but one in the end, whether, we call it At man or Brahman.
Personal Liberty
In the pre-Constitution era Gandhiji had blazed the trial of higher law
against State by expounding the doctrine of legitimacy of right
means to achieve right ends. He never hesitated to disobey unjust
laws, customs and traditions which were an affront to human liberty
and dignity. The concept of higher law in so far as human dignity,
liberty and equality is concerned is clearly epitomised in different
Articles of the Constitution. Articles 19, 21 and 22 especially
guarantee personal freedoms and civil liberties which are the very
soul of democracy and of a free society. However, curbs on civil
liberties and personal freedoms in free India are not uncommon. To
curb communists or naxalities or communalists civil liberties have
been curtailed and abrogated from time to time.

Page 312
The Bombay Public Security Act, 1947, the Bihar Maintenance of

Public Order Act, 1947, the West Bengal Security Act, 1948, The
Preventive Detention Act, 1950, the Maintenance of Internal Security
Act, 1971 (MISA), the National Security Act, 1980, etc. are such
statutory measures which have been upheld by the courts being
reasonable restrictions on Fundamental Rights guaranteeing civil
liberties and personal freedoms. In Gopalan,123 the constitutional
validity of the Preventive Detention Act came for consideration
wherein the Court was asked to pronounce upon true meaning of
Article 21 of the Constitution guaranteeing right to life and right to
personal freedom. The Court declared that the words ‗according to
procedure established by law‘ in Article 21 meant ‗according to the
substantive and procedural provisions of any enacted law.‘ If,
therefore, a person was deprived of his life or personal liberty by law
enacted by a legislature, however, drastic and unreasonable the law,
he would be rightly deprived of his life and liberty. There would be no
infringement of personal liberty or freedom in such a case. In effect
the Gopalan meant that in respect of civil liberties and personal
liberty no person in India had any remedy against legislative action.
In this connection Justice Mukherjee observed ‗My conclusion,
therefore, is that in Article 21 the word ‗law‘ has been used in the
sense of State-made law and not as an equivalent in the abstract or
general sense embodying the principles of natural justice.‘ It was
held the term ‗law‘ has been used in Article 21 in the sense of lex
(State made law). The Gopalan approach has been characterized as
the ‗high water mark of legal positivism.‘ The Supreme Court‘s
approach was liberal, rigid and strict too much coloured positive or
imperative (Austinian approach) theory of law. The similar attitude of
the Court is discernable in the Habeas Corpus,124 case wherein the
Court revolves around Austinian positivism.
124
A.D.M. Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C. 1207; A.K. Roy v. Union of India,
A..I.R. 1982 S.C. 710.
Page 313
It was Subba Rao, Chief Justice of India who introduced the concept
of natural law at its zenith in the Golak Nath, 125 during sixties. Its
influence, however, diminished especially during the Internal
Emergency of 1975. It has once again revived with greater vigour in
the post-Emergency era. The Supreme Court in the Maneka,126
corrected its error of the Gopalan case in which it had strictly
interpreted the word ‗law‘ and had not taken into consideration the
‗procedure‘ which ought to be just, fair and reasonable. Both
Bhagwati, J. and Krishna Iyer, J. are emphatic that the procedure in
Article 21 means fair and reasonable procedure. The Court
observed,127 ‗the ambit of personal liberty protected by Article 21 is
wide and comprehensive. It embraces both substantive rights to
personal liberty and procedure provided for their deprivation.‘ Thus
Maneka has over-ruled Gopalan. Maneka rejects the theory that
each fundamental right is a self-contained code itself. Bhagwati, J.
and Krishna Iyer, J. have highlighted the need to keep in view the
synthesis of these rights while interpreting each right according to
social milieu of changing times, place and situation.Thus, a number
of cases on personal liberty have enriched Indian jurisprudence on
human rights. As already observed Maneka has enriched and
enlarged personal liberty, Nandini128 saves the poor suspects from
terrorised and tortured into involuntary discrimination, Batra 129
rescues prisoners from solitary confinement and iron bars.
Hosfcof,130 gives the convict the fundamental right to file appeal and
the legal aid needed to file such an appeal. Charles Sobraj, 131 has
drawn the attention of the courts that imprisonment does not bid a
farewell to Fundamental Rights, and Bhantidas, 132 protects the
125
Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643 at 1656.
126
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
127
Ibid.
128
Nandini Satpathy v. P.L. Dani, A.I.R. 1978 S.C. 1025.
129
Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675.
130
Hoskot v. Maharashtra, A.I.R. 1978 S.C. 1548.
131
Charles Sobraj v. Superintendent Central fail, A.I.R. 1978 S.C. 1514.
132
Union of India v. Bhanudas, A.I.R. 1978 S.C. 1027.
Page 314
dignity of convicts laying down that conviction does not degrade a

person into a non-person. Prem Shankar133 too protects prisoners
kept as undertrials from police brutalities and indignities. Moti
Ram,134 succeeds in expanding and liberalising age old concept of
bail so as to make in, more responsive to the needy and poor and in
Madhav,135 the Supreme Court clarifies the larger questions who
silently suffer behind the stone walls due to deprivation of liberty
caused by unreasonableness, arbitrariness and unfair procedures.
In Shivkumar,136 the High Court of Allahabad sets aside the
prosecution of the accused extolling naxalite activities and asking
people to boycott elections. Mantoo Maztimdar137 is an instance of
callous detention of the prisoner not 90 days but 1900 days or more
without bothering for the law of the land as the Supreme Court
observed, ‗If the salt hath lost its flavour wherewith shall it be salted?
It he law officers charged with the obligation to protect the liberty of
the persons are mindless of Constitutional mandate and Codes how
can freedom survive for ordinary citizens. Hussainam138 is another
example of Supreme Court concern for men, women, and children
who are behind prison bar for years waiting trials and the Supreme
Court says ‗speedy trial.....is an integral part of the fundamental right
to life and liberty enshrined in article 21‘. In Bachan Singh139 the
Court through judicial interpretation ingrafted the concept of
reasonableness in the entire fabric of the Constitution as it remarked
‗every facet of law which deprives a person of life or personal liberty
would, therefore, have to stand the test of reasonableness, fairness
and justice in order to be outside the inhabitation of Article 21‘ : The
Court thus laid down that death sentence can be inflicted only in the
133
Prem Shankar v. Delhi Administration, A.I.R. 1980 S.C. 1535, Raghubir Singh v. State of
Haryana, A.I.R. 1980 S.C. 1087.
134
Moti Ram v. State ofM.P. A.I.R. 1978 S.C. 1594.
135
Supra Note 35.
136
Shiv Kumar Mishra v. State of U.P.. 1978 Cri. L.J. 701.
137
Mintoo Mazumdar v. State ofBihar, A.I.R. 1980 S.C. 847.
138
Hussainara Khatoon v. Home Secy. State ofBihar, A.I.R. 1979 S.C. 1360,1819.
139
Bachan Singh v. State of Punjab, AIR 1980 SC 267, 898,1355.
Page 315
rare of the rarest cases when the ‗alternative option is

unquestionably foreclosed‘ or for ‗special reasons‘ to be recorded. Of
course ‗special reasons‘ justifying capital punishment, in the
absence of legislation or guiding principles are bound to vary from
judge to judge,140 depending upon his ‗attitude and approaches,
predilections and prejudices, habits of mind and thought and his
social value system.‘ Although the Apex Court has justified the
imposition of death sentence,141 when according to the judge the
nature of the crime is ‗brutal‘, ‗cold-blooded‘, ‗deliberate‘, ‗heinous‘,
‗violent‘ etc. But prolonged delay in the execution of sentence of
death is one such ground where it has been substituted by
imprisonment for life. The Court unanimously accepted,142 the view
that undue delay in the execution of death sentences not only leads
to inhuman suffering and dehumanising treatment but it is also
unjust, unfair and unreasonable deprivation of life and liberty of a
condemned prisoner and, therefore, infringes the mandate of Article
21 of the Constitution.
New Jurisprudence—New liberal setting
Prior to 1973 the Court with great difficulty had to acquiesce with the
prevailing view which existed since the adoption of the Constitution
that Parliament is ‗Sovereign‘ which even can replace the
Constitution‘, or supremacy of the Executive vis-a-vis the Judiciary in
the context of a so-called ‗committed judiciary‘ during the days of
Golak Nath case controversy. However, it was in Maneka together
with Kesavananda Bharati that the Supreme Court expounded a
new jurisprudence—some fundamental and higher principles of law
which may endure and adapted to varying social and political
140
Bachan at 1375-76 in Lachman Devi execution of death sentence by public hanging was
declared barbaric and violative of Article 21—Attorney Gen. of India v. Lachma Devi, AIR 1987
SC 487.
141
See also Blacksheild, AR Capital Punishment in India 21JILI139-174 (1979).
142
Javed Ammed v. State of Maharashtra, AIR 1985 SC 231; Madhu Mehta v. State of Gujarat,
AIR 1989 SC 1335; Triveni Ben v. State of Gujarat, AIR 1989 SC 142, Brij Mohan v. State
ofRajasthan, AIR 1994 SC 739.
Page 316
situations in India. It is through judicial fiat or review that the judiciary

has created both a philosophy of law and theory of politics
inextricably based on values like reason, nature, morality, liberty,
justice and restraint consistent with the spirit of the Constitution and
traditions of the people. In Kesavandanda,143 the Court rejects the
positivistic instance that sovereign power lay with Parliament.
Denying such claims the Court postulated what it described ‗the
basic features, doctrine as an impenetrable bulwork against every
assumption of despotic or unconstitutional exercise of power by the
legislature and the executive. This indeed is a far-reaching
development in the annals of Indian jurisprudence for meeting the
challenges of troubling times and issues,144 confronting our
democratic and secular Republic.The Maneka Gandhi,145 is another
landmark decision from the point of human rights and remedial
jurisprudence in which Justice Bhagwati has beamed the ‗Lead
Kindly light message‘ admits the encircling gloom of State repression
by emitting New Freedoms for making human rights a living reality
for those denied or unable to exercise and enjoy such rights on
account of poverty or ignorance. Through Maneka people now
realise what State is if it is devoid of justice or denies liberty, human
dignity, equality etc. to ordinary citizens under the garb of populist
democracy, capsuled socialism and controlled freedoms.
Deprecating absolutism of the Executive and its interference with
individual freedom Justice Bhagwati declared:146
‗We must reiterate here what was pointed out by the majority in E.P.
Royappa v. T.N. Namely, that ‗from the positivist point of view,
equality is antithetic to arbitrariness. In fact, equality and
arbitrariness are sworn enemies, one belongs to the rule of law in a
143
Kesavananda is not ‘merely a reported case......but it is the Indian Constitution of the future’
Baxi, U, (1967) 9 JILI, 323.
144
S.R. Bommai v. Union of India, AIR 1994 SC 1918; M. Ismail v. Union of India, AIR 1995
SC 605.
145
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
146
Ibid., 624.
Page 317
republic, while the other to the whims and caprice of an absolute

monarch. Where an act is arbitrary, it is implicit in it that is unequal
both according to political logic and constitutional law and, therefore,
violative of Article 14. Article 14 strikes at arbitrariness of State
action and ensures fairness and equality of treatment. The principle
of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article 14
like a brooding omnipresence and the procedure contemplated by
Article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. It must be ‗right and just and fair‘ and not
arbitrary, fanciful or oppressive, otherwise it would be no procedure
at all and the requirement of Article 21 would not be satisfied‘.In
Chandrima Das,147 the Supreme Court has broadened and greatly
widened the meaning of the word ‗LIFE‘ as adopted in International
Covenants on Civil and Political Rights, the Covenants of Economic,
Social and Cultural Rights including Universal Declaration of Human
Rights 1948. On this principles even those who are not citizens of
this country and come here as merely as tourists in this
country........will be entitled to the protection of their lives in
accordance with the constitutional provisions. They also have a right
to ‗Life‘ in this country. Thus, they also have the right to live, so long
as they are here, with human dignity, just as the State is under an
obligation to protect the life of every citizen in this country, so also
the State is under an obligation to protect the life of the persons who
are not citizens.‘
Judicial Process—blending new values
In the post-Emergency era under the dynamic leadership of judges

like V.R. Krishna Iyer, Y.V. Chandrachud, P.N. Bhagwati, D.A.
Desai, O. Chinnappa Reddy and Kuldeep Singh like their
counterparts Justices Holmes, Cardozo, Brandeis, Frankfurter in
USA, have made their mark overwhelmingly upon great issues of

Page 318
human liberty, social justice and human rights,148 as enshrined in the

Constitution even by antagonising the Parliament and the
Government of the day. These judges through their scintillating
judgments made a bold departure from the traditional judicial role
and sharply focused the debilitating effects of executive and
legislative tyranny on individual autonomy and freedoms as was
evident in Gopalan and Shivkant Shtikla.149 They found a sanctuary
in the Preamble, Parts III and IV of the Constitution for destroying
barriers and fetters on individual liberty and henceforth assumed the
role of philosopher, law-maker and defender of basic rights and
needs of the little Indians. In a similar setting Justice O. Chinnappa
Reddy declared,150 that equal pay for equal work is not a ‗mere
demagogic slogan‘ but a constitutional goal which can be achieved
through enforcement of fundamental rights. He specially hailed ‗the
rising social and political consciousness and the expectations as a
consequence among the under-privileged who are now asking
Court‘s intervention to protect and promote their rights.....the judges
of the Court have a duty to redeem their constitutional oath and do
justice no less to the pavement dweller than to the guest of the Five
Star Hotel.‘Accordingly the Apex Court has been adopting organic,
functional and sociological method of interpretation over the
traditional mechanical method in the enforcement of the provision of
the Constitution. By providing flesh and blood to political, social and
economic rights instead of living in ivory tower the Court has become
activist by compelling the executive and the political leadership not
to turn volte-face in redeeming their pledges towards the hapless
Indians in the true Gandhian spirit. Under the spell of new economic
liberalization and privatisation it is the judges who have been
148
By ‘human rights’ means rights of individuals have or ought to have against the government
under the ‘fundamental’ constitutional law.
149
A.DM. Jubalpur v. Shivkant Shukla, AIR 1976 SC 1207.
150
Randhir Singh v. Union of India, AIR 1982 SC 879; GB Mutliamma v. Union of India, AIR
1979 SC 1868, Air India v. Nargesh Meerza, AIR 1981 SC 1829.
Page 319
standing for the poor in their quest for justice and dignity. In this
context, Justice V.R. Krishan Iyer exhorted151 the judges:
‗Where doubts arise the Gandhian talisman becomes a toll of

interpretation : whenever you are in doubt.......apply the following
test. Recall the face of the poorest and the weakest whom you may
have seen, and ask yourself, if the step you contemplate is going to
be of any use to him.‘Such is the constitutional promise and goal in
favour of ‗We, the People of India‘ that the Apex Court has been
assiduously evolving in the post-Emergency era under the niche of
Article 21 of the Constitution. Thus, Article 21 in conjunction with
Articles 14, 19, 39 etc. have proved gold mine forvi Court in
achieving the two objectives, namely, providing a shield on moral,
humanitarian and constitutional grounds to the poor as a guarantee
against executive action and of making new law for governing the
life of citizens and regulating the functioning of the State in
accordance with law of the land. A brief resume of judicial decisions
in the realm of individual liberty, freedom, social justice and other
human rights under Article 21 are capsuled to demonstrate the
extent of judicial creativity in contemporary Indian jurisprudence.
12.5 Indian Concept
Much earlier to Greeks and Romans the early Rigvedic thinkers

were also deeply impressed by the forces and powers of nature.
They began to wonder at the natural forces like the sun, the moon,
the rains, the storms, lightening, etc. They felt they were surrounded
on all sides by the mysteries of the universe and that they were
naturally dependent on these natural phenomena. They began to put
themselves the original questions such as ‗where is the sun by
night?‘, ‗Where go the stars by day‘?, ‗Why does the sun not fall
down‘?, etc.‘ They thought that the forces of nature were all
represented by mysterious divine forces. They began to posit a God

Page 320
for each of these natural powers and forces of the universe e.g.
Mitra (agent of bright sky and day), Vanma (the agent of dark sky
and evening), Surya (agent of sun), etc. It is the God Vanma who
was very important and extolled by Vedic sages. He is considered in
the Vedas as the apostle of justice, virtue and righteousness in the
universe. He is the chief guardian of Rita in Vedas. Rita is cosmic
order, the ordered course of things in the universe as revealed
regular alteration of day and night, the pageantry of seasons and all
other disciplines as represented by laws of uniformity of nature and
universal causation. Rita also means moral order in the individuals in
society. It is the Truth, the truth of the world, in men and matter
included. The contrast of Rita is Anrita—i.e. lie, untruth falsehood.
Rita is Sati/a and dharma—-truth, justice and equity. The Vedic gods
are not only the maintainers of the Cosmic order but also the
upholders of Moral Law. They have the double responsibility of
maintaining both physical and moral orders. God Vanma is
considered the accredited trustee of this Rita. He has fixed the laws
of the physical universe. The sea does not flow back into rivers, nor
does the wind cease to blow. So also he is holding the reins of
righteousness in men. He is the guardian and champion of Rita.
However, Vedic seers were not polytheistic but they also moved to
monotheism and pantheism and still further to find out the source of
this entire universe, of all being and existence. Thus, the Vedas
represent at an early stage in the history of man, the worship of the
great powers of nature personified. The ideal of Rigvedic man is to
become like Gods not only through worship but also by way of life.
Virtue is obedience to the Law of God which includes love of man
also. Vice is disobedience to law. Rita furnishes the measure of
morals. It is Satya, Anrita is opposite of Rita, the opposite of truth. It
is disorder or disquietude. An ordered conduct is Vrata. Vanma is
the guardian of Rita and himself a person of unalterable ways. All
good habits like speaking the truth, self-restraint, benevolence to
neighbours, charity, kindness, etc. are considered virtues. All

Page 321
malpractices like adultery, seduction, sorcery, witchcraft, etc. are

considered as evils. Even gambling is denounced.
Dominant Trends—Indian way of life
In substance there are three predominant trends of Indian way of

life. First, the Indian social tendency from time immemorial has been
to subordinate the individual to the claims of society. Second, the
Indian religious and spiritual thought and traditions have always
been individualistic—the individual‘s claim to inquiry, to discover and
exercise his spiritual freedom and greatness and moral splendour—
the first great charter of the ideal of humanity promulgated by Vedic
seers. Third, it is in India that religion and J morality have always
been the sheet anchor of polity, economy and administration. At no
time in the history of India the ruler could be a dictator or despot
unmindful of traditions,; dharmashastras and majority public opinion
(lokmat). Thus natural law and ethics have always occupied the
central place in 1 law and politics. Efforts of so-called western jurist
like Austin and his tribe to separate morality from law and politics
have resulted in tyranny, intolerance, regimentation, exploitation,
discrimination and power hunger as is evident from the Second:
World War and other post-War developments in South Africa,
Vietnam War, Black Movement in U.S.A. and East-West
confrontation etc. In the ultimate reality it is the Indian tradition of
Dharma which alone is the path breaker to search and stipulate for
individual his righteous goals and rebel against such! Adharmik law
(unjust law) and to re-assert the natural law of his‘ Maker. At no time
of history of man is discovery and reinstatement of ancient Indian
natural law more urgent than it is today.
Government—Judiciary Conflict—and Natural Law
In the pre-Golak Nath era in a number of cases it had become amply

clear that a situation was developing, on account of Supreme
Court‘s nullifying the progressive legislation, which was irksome both

Page 322
to Parliament and the Executive? There were a series of cases

where the government lost and these were also the decisions which
where linked to enforcement of fundamental rights. The Supreme
Court in all such cases adopted ideal, moral or natural law approach
in order to invalidate the various legislative measures,152 under the
canopy of fundamental rights especially in post-Nehru period. In the
Golak Nath,153 the Court ruled that Parliament has no power to
amend the Constitution so as to take away or abridge the
fundamental rights. The majority held,154 that ‗the fundamental rights
enshrined in Part III were intended to be finally and immutably
settled and determined once for all and were beyond the reach of
any future Parliament‘. Similarly, the Supreme Court held the bank
nationalisation,155 law and Privy purses abolition,156 law
unconstitutional. These judgments led to a mid-term poll. The Fifth
Parliament passed the 25th Amendment of the Constitution in 1971
to establish supremacy of the Directive Principles contained in
clauses (b) and (c) of Article 39 over Fundamental Rights as
specified in Articles 14, 19 and 31. The validity of the 24th and 25th
Amendments was challenged before the Supreme Court in Hzs
Holiness Kesavananda Bharati v. State of Kerala,157 which was
heard by 13 Judges with 11 judgments. While the Court did not
specifically considered fundamental rights as a basic feature of the
Constitution it declared,158 that ‗every provision of the Constitution
can be amended provided in the result basic foundation and
structure of the Constitution remains the same.‘ The basic structure
or feature may be said to consist of the following features:
1. Supremacy of the Constitution;
152
Agrarian slum clearance, Town Planning, Labour Legislation, etc.
153
Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643.
154
Ibid, at 1954.
155
R.C. Cooper v. Union of India, A.I.R. 1970 S.C. 564.
156
Madliav Rao Scindia v. Union of India, A.I.R. 1971 S.C. 530.
157
A.I.R. 1973 S.C. 1461.
158
Ibid., pp. 1462-63 per Sikri, C.J.
Page 323
2. Republican and Democratic form of Government;
3. Secular character of the Constitution;
4. Separation of powers between the legislature, executive

and judiciary, and
5. Federal character of the Constitution.
Thus, in Kesavananda Bharati the Supreme Court modified its

attitude towards fundamental rights which it now declared to be
relative and not absolute, changeable and not immutable or
transcendental. As Mathew, J. aptly remarked ‗In building a just
social order, it is sometimes imperative that the Fundamental Rights
should be subordinated to the Directive Principles.........................
The economic goals have a contestable claim for priority over
ideological ones on the ground that excellence comes only after
existence. It is only if men exist that there can be fundamental
rights.‘ Justice Mathew further observed,159 ‗The Fundamental
Rights themselves have no fixed content; most of them are mere
empty vessels into which each generation must pour its content in
the light of its experience. Restrictions, abridgment, curtailment, and
even abrogation of these rights in circumstances not visualised by
the Constitution-makers might become necessary; their claim to
supremacy or priority is liable to be over-borne at particular stages in
the history of the nation by the moral claims embodied in Part IV.
Whether at a particular moment in the history of the nation, a
particular Fundamental Rights should have priority over the moral
claim embodied in Part IV or must yield to them is a matter which
must be left to be decided by each generation in the light of its
experience and values.‘
159
His Highness Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1462-63.
Page 324
The validity of the Constitution (Forty-second Amendment) Act, 1976

was challenged in Minerva Mills case,160 in which the Supreme Court
reiterated the doctrine of basic structure which it had laid down in
Kesavananda Bharati case. However, the Court insisted on the need
of harmonious construction. Chief Justice Chandrachud rightly
remarked,161 ‗The Indian Constitution is founded on the bed-rock of
the balani 3 between Parts III and IV. To give absolute primacy to
one over the other is to disturb the harmony of the Constitution. This
harmony and balance between Fundamental Rights and Directive
Principles is an essential feature of the basic structure of the
Constitution. The goals set out in Part IV have to be achieved
without the abrogation of the means provided for by Part III. It is in
this sense that Parts III and IV together constitute the core of our
Constitution and combine to form its conscience. Anything that
destroys the balance between the two parts will ipso facto destroy an
essential element of the basic structure of our Constitution.‘ Such is
also the ratio decidendi of the Waman Rao,162 wherein the Supreme
Court reaffirmed the basic structure doctrine. Of course, basic
structure doctrine is no deterrent on the welfare policies and
postures of the executive or legislature. However, if the sensibilities
and sensitivities of the emergency period are to be healed along with
restoring of common man‘s faith in fairness and equity and
constitutional property the only symbol of higher law not only for
preserving the Constitution but also for protecting the ordinary man
against legislative tyranny and executive despotism is the basic
structure doctrine. Therefore, in India in the last quarter of the
twentieth century and in the early 21st century we find the
resurgence of new natural law in the garb of basic structure doctrine
for preserving and promoting democratic human values, human
rights and social justice. This doctrine has become a sheet anchor of
160
Minerva Mills Lied. v. Union of India, A.I.R. 1980 S.C. 1789.
161
Ibid., at pp. 1806,1807.

Page 325
individual liberty and social justice and has impelled us to revise our
old ideas and ideals in jurisprudence which had hitherto been
Austinian in form, spirit and content. Kesavananda has given a
Copernican turn to Indian jurisprudence and has postulated new
ideals and values which may feed back democratic ideals of free
society and further the constitutional goals and commitment of
ending poverty, exploitation and injustice.
12.8 SUMMARY
Justice can be multiform. Thus it can have a scientific connotation:

civil, penal, military or international. Justice is not only that of the
judges and the lawyers. It can, indeed, be of a philosophical,
religious or clannish nature. Justice is also a common act of the
everyday life, such as repairing the injustice of having unevenly
shared the cake between children... the topic of the independence of
justice is very extendable. Consequently in this context, the logic
commands us to turn to the independence of the judicial power.
In this unit we have discussed about the concept of the
constitutional ordering.
 Institute of Manu, Chapter VIII, 41.

 Ibid., Chapter VIII, 15.
 Goswami Tulsidas Ramayana also refers this concept in
Chapter II, 57.
 Quoted by Pulparampil, John K., Indian Political System, pp.
17-18 (1976).
 Santiparvam, 89,33.
 Kautilya‘s Arthsltashtra, IV, XI, 229.
 Manusmriti, Chapter VII, 19.
Page 326
 Narada Smriti, XVIII, 20-21.

 Maneka Gandhi, AIR 1978 SC 597.
 Sangram Singh v. Election Tribunal, AIR 1955 SC 425.
 A.K. Kraipak v. Union of India, AIR 1970 SC 150.
 Ibid., para 20; see also Union of India v. Indo Afghan
Agencies, AIR 1968 SC 718.
 Maneka Gandhi v. Union of India, 1978 SC 597 at 616,
Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC
851; Delhi Transport Corp. v. D.T.C. Mnzdoor Union, AIR
1991 SC 101; Supreme Court Legal Aid Committee v. Union
of India, AIR 1994 SCW 5115.
 S.P. Gupta v. Union of India, AIR 1982 SC 149.
 Maneka Gandhi v. Union of India, 1978 SC 597.
 Mohinder Singh v. Chief Election Cominr., AIR 1978 SC 851
at 870.
 Ibid., at 873.
 Ibid., 876.
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
 AIR 1978 SC 659.
 R.D. Shetty v. International Airport Authority, AIR 1987 SC
1628; Kasturi Lal v. State of] & K, AIR 1987 SC 1992; R.S.
Dass v. Union of India, AIR 1987 SC 850 at 858; Ashok Kuinar
Yadav v. State of Haryana, AIR 1987 SC 454 at 468;
Sheonandan Paswan v. State of Biliar, AIR 1987 SC 877;
Vaidyanatli Malmpatra v. State of Orissa, AIR 1989 SC 2218;
Neelima Mishtra v. Harinder Knur, AIR 1990, SC 1402; Delhi
Transport Corpn. v. D.T.C. Mazdoor (Congress), AIR 1991 SC
101; D.V. Bakshi v. Union of India, (1993) 3 SCC 663; O.K.
Yadav v. f.M.A. Industries, (1993) 3 SCC 258; Union of India
v. W.N. Chadlm, AIR 1993 SC 1843; Union of India v. V.P.
Setlii, AIR 1994 SC 1261; Premium Granites v. State of Tamil
Nadu, AIR 1994 SC 1233; Khedat Mazdoor Cltetna Sangh v.
State ofMP, AIR 1995 SC 31; M.f. Sivani v. State of

Page 327
Karnataka, AIR 1995 SC‘l770; Lawyers Initiative Through RS

Bains v. State of Punjab, AIR 1996 P & H 1; Kammalapati
Bralunmarao v. State of Karnataka, AIR 1996 Kar 37;
Wariyam Singh v. State ofU.P., AIR 1996 SC 305; }.N.
Banavalikar v. Municipal Corpn. Delhi, AIR 1996 SC 326;
Union of India v. M/s. Jesus Sales Corprn. AIR 1996 SC 1508;
Baburao Vishwananth Mathpati v. State, AIR 1996 Bom 228;
State Bank of Pntinhi v. S.K. Sltarma, AIR 1996 SC 1669.
1. What do you understand by the concept of the independence

of justice theories?
2. Explain the means to end relationship of law and justice?
3. Describe the relationship between law and justice in the
context of the Indian constitutional ordering?

Page 328
LL.M. Part-2

Unit-13- Analysis of selected cases of the Supreme Court where the
judicial process can be; seen as influenced by theories of justice
STRUCTURE
13.1 INTRODUCTION
13.2 OBJECTIVES
13.3 Role of Judicial process in Indian Judiciary as an
instrument of social ordering
13.4. Selected Cases of Supreme Court of India which are
influenced by theories of Justice
13.5 SUMMARY

Page 329
13.1 INTRODUCTION
In the previous unit you have read about the concept of the
constitutional ordering.In India, social justice is the new dream of
liberals, Gandhians, socialists, marxists and others who are inspired
and aspire for an egalitarian politico-social order where no one is
exploited, where every one is liberated and where every one is equal
and free from hunger and poverty. In such a social order liberty is
not made a casualty over security or vice-versa and balance is
maintained without curtailing the rights of the individual with
supremacy of the Constitution as expounded in the basic structure
theory which contain the cardinal principles of democracy, human
rights and social justice.In this unit we will discuss the role of judicial
process in Indian Judiciary as an instrument of social ordering. We
will also analyze selected cases of the Supreme Court where the
judicial process can be; seen as influenced by theories of justice.
13.2 OBJECTIVES

 Discuss the role of judicial process in Indian Judiciary as an
instrument of social ordering.
 Understand and analyze selected cases of the Supreme Court
where the judicial process can be; seen as influenced by
theories of justice.
13.3 Role of Judicial process in Indian Judiciary as an

instrument of social ordering
Jurisprudence Paradigms
Together with Kraipak (1970) Kesavananda Bharati, (1973) and

Maneka Gandhi (1978) became an essay for Indian jurists and
Page 330
judges in defence of human liberty, freedom and natural justice.

Since then the ideals of human rights and natural justice have been
vigorously pursued reminding and educating Indians the underlying
purposes and goals of the Preamble and the Bill of Rights under the
Constitution. The Supreme Court has declared in these judgments
that the Constitution to do not envisage a sovereign government but
a government under law with constitutional limitation and ‗We the
People of India1 being the Sovereign Power. As, Constitution is the
supreme law of the land, laws of the Union and the States must be
in pursuance of the Constitution wherein judiciary is the protector
and guarantor of the Fundamental Rights of the citizens. The
Supreme Court is empowered to issue appropriate writs in the
nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and
Quo Waranto for the enforcement of fundamental rights and any
person can move the Court for appropriate remedy whenever there
is a violation of such rights by legislative or executive body163.Article
226 empowers the High Courts to issue writs for the enforcement of
fundamental rights. In the interest of justice the courts have relaxed
the rule of locus standi in favour of those who for want of poverty,
ignorance, illiteracy, deprivation and exploitation are unable to
approach the Court for appropriate relief. While expanding the scope
of access to justice the Indian judiciary has initiated a veritable
revolution in our political and social system by achieving its grand
purpose—the protection of the poor and exploited individuals or
contracts upon their liberty protected by procedure,164 established by
law or due process theory. It is for this reason that natural justice is a
brooding omnipresence although of varying form and facet.
According to Justice Krishna Iyer,165‗Indeed natural justice is a
pervasive facet of secular law where a spiritual touch enlivens
legislation, administration and adjudication to make fairness a creed
of life. It has many colours and shades, many forms and shapes and

Page 331
save where valid law excludes, it applies when people are affected
by valid authority..... Indeed from the legendary days of Adam—and
of
Kautilya‘s Arthasastra—the rule of law has had the stamp of natural

justice which makes it social justice......that the roots of natural
justice and its foliage are noble and not new-fangled.....Our
jurisprudence has sanctioned its prevalence even like the Anglo-
American system.‘Justice Iyer explaining further the nuances of
natural justice observed,166:Today in our jurisprudence, the
advances made by natural justice far exceed old frontiers and if
judicial creativity belights penumbral areas it is only for improving the
quality of government by injecting fair play into its wheels.......Law
cannot be divorced from life and so it is that the life of law is not logic
but experience.....Law lives not in a world of abstractions but in a
cosmos of concreteness and to give up something good must be
limited to extreme cases. If to condemn unheard is wrong it is wrong
except where it is overborne by dire social necessity. Such is the
sensible perspective we should adopt if ad hoc or haphazard
solutions should be eschewed.‘Justice Iyer summing up the ethos of
natural justice concluded:167‗.that the content of natural justice is
dependent variable not an easy casualty.‘
In short, since the rejection168 of Austinian and Diceyian concept of

law and rule of law in Maneka,169 Articles 14 and 21 have assumed
new dimensions especially after the introduction of due process in
Indian constitutional jurisprudence by making the doctrine of natural
justice an effective sword and shield both against executive actions
and legislative inroads against life and liberty of a person. The new
interpretation given to these provisions is a far reaching
development in India‘s constitutional and criminal jurisprudence for

Page 332
providing easy access to justice to the under-privileged under the

vast and panoramic canopy of natural justice.170 It is around the
principles of natural justice that the Supreme Court of India has
evolved new Indian jurisprudence with new legal ideology and
techniques which links judicial process with social change. Since
Maneka and Mohinder Singh it is the judiciary which has been the
harbinger of social revolution in bringing about a new social order in
which justice—social, economic and political—informs all the
institutions of contemporary Indian society.
Social Justice—Indian Context
In India, social justice is the new dream of liberals, Gandhians,

socialists, marxists and others who are inspired and aspire for an
egalitarian politico-social order where no one is exploited, where
every one is liberated and where every one is equal and free from
hunger and poverty. In such a social order liberty is not made a
casualty over security or vice-versa and balance is maintained
without curtailing the rights of the individual with supremacy of the
Constitution as expounded in the basic structure theory which
contain the cardinal principles of democracy, human rights and
social justice. The Constitution171 being more a social document
rather than political makes the legislature, the executive and the
judiciary for the advancement of liberties and welfare of the people
and the courts are to harmonise conflicts consistent with social
philosophy of the Constitution. Such a strand is echoed by Justice
Krishna Iyer when he remarked172 : ‗Our thesis is that dialectics of
social justice should not be missed if the synthesis of Part III and
Part IV is to influence State action and Court pronouncements.‘ The
Court has abandoned the initial hesitation when it failed to
recognise,173 the compatibility between Part III and Part IV by

Page 333
making the former transcendental beyond the reach of the

Parliament. However since the days of Kesavananda Bharati it has
been consistently adopting the approach,174 that Fundamental
Rights and Directive Principles are supplementary and
complimentary to each other and that the provisions of Part III
should be interpreted having regard to the Preamble and the
Directive Principles of State Policy. The basic law of the country has
adopted and accepted democracy and liberty with social justice as
the way of life. The judgments of the Court only reflect and respect
of collective judgement of the We the People of India and their
commitment to social, economic and political democracy so that
social justice and human rights are effectively realised peacefully
without violence through democratic process. The architects of the
Constitution, the Father of the Nation and makers of modern India
had kept in mind the words of Mr Atlee, the former Prime Minister of
Britain when he remarked:‗If a free society cannot help the many
who are poor, it cannot save the few who are rich.‘ Gandhian
Talisman and Social Justice—Initial Judicial Hurdles Of course, the
Constitution fully reflects the Gandhian ethos in its Preamble and
Parts III and IV towards creation of just and democratic society in
India. By such a society Gandhiji meant175 ‗...the levelling down of
the few rich in whom is concentrated the bulk of the nation‘s wealth,
on the one hand, and levelling up the semi-naked millions, on the
other. A non-violent system of government is clearly an impossibility
so long as the wealth gulf between the rich and the hungry million
persists. The contrast between the places of New Delhi and the
miserable hovels of the poor labouring class nearby cannot last a
day in a free India in which the poor will enjoy the same power of the
riches in the land.‘
For the alleviation of yawning gap between the rich and poor
Gandhiji suggested definite and humane policy indicators. As he

Page 334
put‘176 it: ‗I will give you a talisman. Whenever you are in doubt or
when the self becomes too much with you, apply the following test.
Recall the face of the poorest and the weakest man whom you may
have seen, and ask yourself, if the step you contemplate is going to
be of any use to him. Will he gain anything by it? Will it restore him
to control over his own life and destiny. In other words, will it lead to
Sivaraj for the hungry and spiritually starving millions?
Then you will find your doubt and yourself melting away.‘
The Swaraj of Gandhiji‘s conception is truly enshrined in the

Preamble and parts III & IV of the Constitution. Such has been the
thrust of welfare legislation for socio-economic reforms in India since
1950 which led to several constitutional amendments for the
implementation of land reform measures which had been held up
because of fundamental right to property and equality. The
judgments,177 of the courts hindered agrarian reforms,
nationalisation of big industries and banking business and abolition
of privy purses. A conflict ensued between vested interests
supported by the Courts and the Government of India—the architect
of social change and social justice. The charge that the Supreme
Court was insensitive to the cause of common welfare and social
justice programme came no less than from the Prime Minister
Jawaharlal Nehru himself as agrarian statutes were struck down
unconstitutional. So was the fate of State Monopoly Bills and
Nationalisation schemes which fell at the altar of fundamental rights.
As several schemes or legislative measures—fiscal, agrarian, social
and educational—invariably went to the Court and no one could
predict what this ‗third house‘ might do. Accordingly Nehru exhorted
the judges to come down from the ‗ivory tower‘ and sympathise with
the legislatures which had to do a thousand things urgently needed
by an awakened but deprived people. Like the criticism of U.S.

Page 335
Supreme Court as ‗nine-old men‘ by President Franklin Roosevelt

Nehru echoed similar dig at the Apex judiciary when he remarked 178:
‗No Supreme Court and no judiciary can stand in the judgment over
sovereign will of Parliament representing the will of the entire
community. If we go wrong here and there, it can point out, but in the
ultimate analysis where the future of the community is concerned, no
judiciary can come in the way. And if it comes in the way, ultimately
the whole Constitution is a creature of the Parliament. ...it is obvious
that no system of judiciary can function in the nature of a third
house, as a kind of third house of correction.‘However, the judiciary
did not adopt a more modern liberal and progressive outlook and
declared,179 property as a sacrosanct fundamental right resulting in
making fundamental rights immutable, transcendental and beyond
the reach of Parliament. Subba Rao C.J. declared180: ‗We declare
that Parliament will have no power from the date of this decision to
amend any provision of Part III of the Constitution so as to take away
or abridge the fundamental rights enshrined therein‘.Since the
amendments in the Constitution were necessary to give effect to the
purpose enshrined in the Preamble and Directives of the
Constitution but the Apex Court being conservative came in the way
of removal of poverty and in the establishment of social justice. It
appeared as if the Court was trying to protect vested interests and
becoming an obstacle in creation of more humane and just social
order as was evident in the Bank Nationalisation181 case and Privy
Purses,182 case. The main problem before the Supreme Court during
the 1950-71 was that it failed to uphold, promote and establish social
justice with democracy as envisaged in the Constitution.
13.4. Selected Cases of Supreme Court of India which are

influenced by theories of Justice

Page 336
Kesavananda Bharati—Basic Structure Theory
When 24th, 25th, 26th and 29th Constitution Amendments were

enacted by the Parliament after 1971 general elections their validity
was challenged on the authority of Golak Nath in Kesavananda
Bharati.183 The majority of judges held that the view taken in Golak
Nath that the word ‗law‘ in Article 13 included a constitutional
amendment could not be upheld. The said decision was, therefore,
overruled. However, the 13 Judges Bench was sharply divided on
the question whether the word ‗amend‘ in Article 368 included the
power to alter the basic features or repeal the Constitution itself.Six
Judges led by Sikri CJ. were of the view that the Constitution could
not be amended so as to abrogate or emasculate the basic features
of the Constitution which could not be touched by Parliament.
Supreme Court and Social Justice—A Copernican Change.
Hitherto the Supreme Court had been strucking down all the laws
and legislation meant for the amelioration of condition of rural and
urban poor. It appeared as if judiciary had failed in ensuring
distributive justice. A new generation of progressive judges came on
the scene who castigated Oxford-oriented judges who declared law.
illegal without regard to the social and economic consequences of
their decisions. Consequently hereafter laws enacted in furtherance
of the Directive Principles of State Policy contained in Article 39 (b)
and (c) were upheld against all attacks notwithstanding the basic
structure theory of Kesavananda Bharati. This period witnessed the
emergence of new Indian jurisprudence with more socialist content
including the addition of the word ‗socialist‘ in the Preamble of the
Constitution in 1976 coupled with some progressive judges fully alive
to the cause of social justice and ever responsive to the social
philosophy of the Constitution. The founding fathers of Indian
Constitution too had envisaged,184 the Supreme Court ‗to be an arm

Page 337
of social revolution‘ and the national goals enshrined therein were

addressed,185 as much to be judiciary as to the legislature and the
executive. As Krishna Iyer J. observed,186 ‗Our Constitution is a tryst
with destiny, preambled with luscent solemnity in the words ‗Justice-
social economic and political.‘ The three great branches of
Government, as creatures of the Constitution, must remember this
promise in their functional role and forget it at their peril, for to do so
will be a betrayal of those high values and goals which this nation
set for itself in its Objective Resolution and whose elaborate
summation is in Part IV of the paramount parchment...... While
contemplating the meaning of the Articles of the Organic Law, the
Supreme Court shall not disown social justice.‘Consequently after
1976,187 there was a solemn commitment on the part of Supreme
Court to promote social change for bringing about a new egalitarian
order in furtherance of the Directive Principles of State policy. The
Supreme Court in Minerva Mills remarked188 :The significance of the
perception that Parts III and IV together constitute the core of
commitment to social revolution and they together, are the
conscience of the Constitution is to be traced to a deep
understanding of the scheme of the Indian Constitution...... They are
like a twin formula for achieving the social revolution.... The Indian
Constitution is founded on the bedrock of the balance between Parts
III and IV. To give absolute primacy to one over the other is to
disturb harmony of the Constitution. This harmony and balance
between Fundamental Rights and Directive Principles is an essential
feature of the basic structure of the Constitution. Those rights are not
an end in them selves but are the means to an end. The end is
specified in Part IV.‘Accordingly the Apex Court has been fully alive
to the cause of social justice and has been responsible to the claims

Page 338
to social justice of the poor and disadvantaged persons.189 The

sensitivity of the contemporary, Indian judicial process to the social
justice claims of poors because of their exploitation at the hands of
State,190 or powerful sections,191 of the community the Supreme
Court has been successful in counteracting social injustice despite
the criticism that it has usurped the powers which rightly pertain to
Executive and Legislature. In the face of Himalayan poverty the
Apex Court has not waivered or looked back in advancing and
promoting social justice to the poor, the miserable and the weaker.
In 1976 the Supreme Court of India observed 192.‗Social Justice is the
conscience of our Constitution, the State is the promoter of
economic justice, the foundation faith which sustains the
Constitution and the country..... The Public Sector is a model
employer with a social conscience not an artificial person without a
soul. Law and Justice must be on talking terms and what matter
under our constitutional scheme is not merciless Law but Human
legality. The true strength and stability of our policy is in Social
justice.‘Likewise in the same strain but with greater concern and
vigour the Supreme Court (K. Ramaswamy J.) expounds the new
fabric of social justice in the current social milieu of 1995. It
declares193 :―The Preamble and Article 38 of the Constitution of
India—the supreme law envisions social justice as its arch to ensure
life to be meaningful and liveable with human dignity..... The
Constitution. Commands justice, liberty, equality and fraternity as
supreme values to usher in egalitarian social, economic and political
democracy......Social justice is a dynamic device to mitigate the
sufferings of the poor, weaks, Scheduled Castes (Dalits), Tribals and
deprived sections of society and to elevate them to the level of
equality to live a life with dignity of a person. Social justice is not a

Page 339
simple or single ideal of a society but is an essential part of complex

of social change to relieve the poor etc. from handicaps, penury to
ward off distress, and to make their life liable, for greater good of
society at large..... The Constitution, therefore, mandates the State
to accord justice to all members of the society in all facets of human
activity. The concepts of social justice imbeds equality to flavour and
enliven practical content of ‗life‘. Social justice and equality are
complimentary to each other so that both should maintain their
vitality. Rule of law, therefore, is a potent instrument of social justice
to bring about equality in results.‘
Dialectics of Social Justice and the Constitution
The Constitution envisages,194 a casteless and classless society

equality to all citizens with equality of treatment under Article 14
which ‗pervades like a brooding omnipresence.‘ However, in the
interest of social justice it retains the concept of ‗Scheduled Castes;
and ‗Scheduled Tribes‘ as a caste for extending to them protective
discrimination because these castes had suffered in the past from
certain historical and social disabilities. Such a concern for their
upliftment and regeneration have been expressed through several
constitutional amendments and court decisions from time to time. At
the same time demand for affirmative action was also raised for
extending reservation in government and public sector employment
for a large ‗intermediary section‘ of society vaguely called Socially
and Educationally Backward Classes (SEBCs) or Other Backward
Class (OBCs) who constitute about 52% of the population of India.
In political jargaon of SCs, STs and OBCs are compendiously
described as ‗weaker sections of the people.‘ It is for their
advancement that the Constitution in Articles 15, 16, 38 and 46
makes provision so that these communities cross the rubicon.

Page 340
Article 15 (1) and (2) prohibit discrimination between citizens on

grounds of religion, race, caste, sex, place of birth etc. with the
underlying ideal to eradicate anachronistic disabilities of Hindu social
system to pave way for an egalitarian casteless society. However,
clauses (3) and (4) of Article 15 constitute exceptions to Article 15
(1) and (2) to make provision for the advancement of socially and
educationally backward classes of citizens or SCs and STs. Article
15 (3) makes exception in favour of women and children and Article
15 (4) is also an exception to Article 15 (1) and (2). added by the
Constitution (1st Amendment) Act, 1951 which has overruled the
decision of the Supreme Court in State of Madras v. Champakam
Dorairajan.195 In short, it is an enabling measure for facilitating the
making of special provisions for backward classes. However, the
Supreme Court invalidated,196 the classification of backwards into
‗Backward Classes‘ and ‗More Backward classes‘ for purposes of
Article 15 (4) which is similar to Article 16 (4) of the Constitution. In
Devadasan,197 the Court overruled the rule of carry forward as
unconstitutional, in these cases the Court had set it face against
excessive reservation in the interest of merit and efficiency.
However, in Thomas198 the court took a liberal view to give
preferential treatment to SCs and STs under Article 16 (1) outside
Article 16 (4) to help SCs and STs. It had thrown in the melting pot
the decision in Devadasan in which the carry forward rule of
reservation was not to exceed 50%. In ABSK,199 the Supreme Court
following Thomas upheld the validity of the Railway Board Circular
under which reservations were made in selection posts for SCs and
STs. It also upheld the carry-forward rule under which 17% posts

Page 341
were reserved for those categories. Justice Krishna Iyer thus

summed,200 up to overall thrust of social justice.
The dynamics and dialectics of social justice vis-a-vis the special

provisions of the Constitution calculated to accelerate the prospects
of employment of the harijans and girijans in the civil services with
particular emphasis on promotions of these categories in the Indian
Railway—that in all these cases, is the cynosure of judicial scrutiny,
from the angle of constitutionality in the context of guarantee of
caste-free equality to every person.‘
Justice Iyer reminds the people on the urgency of social justice

dispensation which the Founding Fathers dreamt, as he puts it:201
The authentic voice of our culture voiced by all the great builders of
modern India stood for the abolition of hardships of the pariah, the
malecha, the bonded labour, the hungry, hardworking half-slave
whose liberation was integral to our Independence. To interpret the
Constitution rightly the Courts must understand the people for whom
it is made the finer ethos, the frustrations, the aspirations, the
parameters set by the constitutional interpretation if alienation from
the people were not to afflict the justicing process.‘ The Apex Court
have consequently evolved clear indicators to be followed in respect
of reservations for SCs and STs by asserting protective
discrimination as a tool for promoting social justice. In K.C.
Vasanth,202 the 5—Judge Constitution Bench—with Chandrachud
C.J., D.A. Desai, O. Chinnappa Reddy, A.P. Sen and
Venkataramiah, J.J. dealt the subject comprehensively with a slant
to social justice to weaker sections of society. The Chief Justice
accordingly laid down the policy propositions thereto:

Page 342
(i) the reservation in favour of Scheduled Castes and

Scheduled Tribes must continue as at present, that is
without the application of a means test, for a further period
not exceeding fifteen years. Another fifteen years will make
it fifty years after the advent of the Constitution-a period
reasonably long for the upper crust of the oppressed
classes to overcome the baneful effects of social
oppression and humiliation;
(ii) the means test that is to say, the test of economic

backwardness ought to be made applicable even to SCs
and STs after the period mentioned in (i) above;
(iii) so far as the backward classes were concerned, they

should satisfy, two tests, namely, (a) that they should be
comparable to the SCs and STs in the matter of their
backwardness and (b) that they should satisfy the means
test such as a State Government may lay down in the
context of the prevailing economic conditions;
(iv) the policy of reservation is employment, education and

legislative institutions should be reviewed every five years
or so. That will at once afford an opportunity to the State to
rectify distortions arising out of particular facets of the
reservation policy and to the people, both backward and
non-backward, to ventilate their views in a public debate on
the practical impact of the policy of reservation.
Justice D.A. Desai, on the other hand, advocated the application of

economic criteria for identifying socially and educationally backward
classes. He noted with concern how the use of caste as a criterion of
the backwardness had created vested interest in remaining or being
identified as backward. On the contrary Justice O. Chinnappa Reddy
did not agree to individual poverty as a criterion of social
backwardness. Instead he favoured poverty as well as social and

Page 343
educational backwardness. But mere poverty,203 it seems is not

enough to enough the constitutional branding, because the vast
majority of the people of our country are poverty-struck but some
among them are socially and educationally forward and others
backwards. The judge further observed204: ‗Class poverty, not
individual poverty, is therefore the primary test. Other ancillary tests
are the way of life, the standard of living, the place in the society
hierarchy, the habits and customs etc.....Notwithstanding our
antipathy to caste and sub-regionalism these are facts of life which
cannot be wished away.‘Indra Sawhney and Social Justice to
OBCs—The Mandal Case.The momentous Indra Sawhney was an
aftermath of the controversial recommendations of the Mandal
imbroglio which had led to caste tensions, ethnic dissensions and
wide-spjead violence in Hindu society. Moreover, the Mandal
Commission recommendations became contentious legal and
political issue which Prime Minister V.P. Singh also used as a clock
to increase his vote-bank amongst Socially and Educationally
Backward Classes (SEBCs) by espousing social justice to weaker
sections of society. Indeed the Mandal Commission
recommendations had rocked the nation, the Government of V.P.
Singh and the Parliament and their constitutionality even did not go
unchallenged in the Supreme Court wherein a battery of best legal
brains and great legal luminaries fought legal and constitutional
battles culminating in what is known as Indra Smvhney,205 case (the
Mandal case)—an acme on social justice.
The Mandal Commission—A Background
The need for a commission to investigate the condition of backward

classes is set forth in Article 340 of the Constitution. The First
Backward Classes Commission (Kelkar Commission) was appointed
on January 29, 1953 to investigate the condition of socially and

Page 344
educationally backward classes within the territory of India. The

Commission submitted its report on March 30,1955. Its
recommendations were not accepted by the Government for a
variety of reasons including inconsistencies in the collection of date,
dissensions amongst its members coupled with dissent of the
Chairman himself. It was during the Prime Minister Morarji Desai that
the Second Backward Classes Commission was appointed by
President Neelam Sanjiv Reddy on March 21, 1979 with B.P.
Mandal M.P. as its Chairman—the Commission popularly known as
the Mandal Commission. The terms of reference of the said
Commission inter-alia were:
(i) to determine the criteria for defining the socially and

educationally backward classes;
(ii) to recommend steps to be taken for the advancement of

socially and educationally backward classes of citizens so
identified; and
(iii) to examine its desirability of making provision for the

reservation of appointments or posts in favour of such
backward classes which are not adequately represented in
public services of the Union or State etc.
The Commission finally submitted its report on December 31, 1980.

Of course Mandal Commission was mainly moved by the
consideration of achieving social justice for a multiple undulating
society like ours. It identified as many as 1743 castes as socially and
educationally backward constituting 52 percent of the population.
Accordingly it recommended reservation of 27 per cent Government
jobs for SEBCs. However, Prime Minister Indira Gandhi did not
implement the Mandal Commission recommendations as its date
were based on 1931 census besides apprehending social turmoil
and the report remained shelved over 10 years until Prime Minister
V.P. Singh of the Janata Dal national Front took a gigantic leap

Page 345
towards implementation of Mandal recommendations. He

bemoaned,206 ‗What I want to convey is that treating unequals as
equals is the greatest injustice. And the correction of this injustice is
very important.......Let us forget that the poor are begging for some
crumbs. They have suffered it for thousands of years. They are now
fighting. Now they are fighting for their honour as a human being.‘
Office Memorandums—Challenged
Accordingly V.P. Singh issued Office Memorandum on August 13,

1990 implementing one part of Mandal recommendations, namely,
establishing a job reservation quota of 27 per cent for Central
Government jobs for Socially and Educationally Backward classes
(SEBCs). This triggered a major political explosion in India including
self-immolation by forward caste youths. Writ petitions were filed in
the Supreme Court questioning the legality of the said Memorandum
along with applications for staying the operation of the Memorandum
which was stayed by the Court. In the meantime National Front
Government collapsed due to defections and in 1991 General
Elections the Congress led by P.V. Narsimha Rao Government
came to power in the Centre. The Narsimha Rao Government with
immediate effect decided to amend the Office Memorandum of
August 13, 1990 and issued another Office Memorandum of
September 25,1991 which modified the earlier Memorandum mainly
as below:
(i) Preference to poorer to SEBCs (OBCs)—The

Memorandum introduced economic criterion while granting
reservation to poorer sections of the SEBCs in 27 per cent
quota as allotted by Mandal Commission.
(ii) The backward class candidates recruited on the basis of

merit in open competition along with general candidates

Page 346
are not to be adjusted against the quota of 27% reserved

for them.
(iii) Reservation of 10 percent quota for other economically

backward sections of the people who are not covered by
any of the existing schemes of reservation.
The aforesaid writ petitions were heard in the first instance by a

Constitution Bench presided over by the then Chief Justice
Ranganath Mishra who after hearing them for sometime referred
them to a Special Bench of 9-Judges to finally settle the
constitutional position relating to reservation. The 9-Judges
Constitution Bench of the Supreme Court was sharply divided over
the correctness of the Mandal Commission report. While the majority
did not express any opinion on the correctness or adequacy of
Mandal report the minority of three judges Mr. Justice T.K.
Thommen, Kuldip Singh and R.M. Sahai held Mandal report as
unconstitutional and recommended for the appointment of another
Commission for identifying the SEBCs of citizens. These judges
accordingly held the two Office Memorandums unconstitutional.
Mandal Dispute—Supreme Court
However, 6 of the majority of the judges consisting of M.H. Kania

C.J., M.N. Venkatachaliah, S. Ratnavel Pandian, A.M. Ahmadi, P.B.
Sawant, B.P. Jeevan Reddy J.J. concurred through separate
judgements and upheld the decision of the Union Government to
reserve 27 percent of the government jobs for SEBCs with some
modification.
(1) The Court interpreted the various facets and aspects of Article 16
(4) and held as valid the Office Memorandum of August 13,1990
reserving 27% of Central Government jobs to SEBCs subject to the
creamy layer‘ or to exclusion of such socially advanced persons of
the backwards ‗the creamy layer or top layers or the forward among

Page 347
the backwards depending upon the means test. After excluding them
alone, would the class be a compact class.
(2) The Court observed that reservation is not anti-meritarian but at

the same time the judges admitted,207 that the very idea of
reservation implies of a less meritorious person. At the same time,
we recognise that this much cost has to be paid if constitutional
promise of social justice is to be redeemed.‘ It stipulated, 208 that sub-
classification of backward classes into more backward and backward
for purposes of Article 16 (4) can be done. The object of the clause
is to provide a preference in favour of more backward among the
‗socially and educationally backward class.‘
(3) The Court further held that said reservation is only confined to
initial appointment and not promotion. It remarked,209 ‗.....At the initial
stage of recruitment reservation can be made in favour of backward
class of citizens but once they enter the service efficiency of
administration demands that those members too compete with
others and earn promotion like all others.......Crutches cannot be
provided throughout one‘s career. That would not be in the interest
of efficiency of administration nor in the larger interest of the nation.‘
(4) As to the limit of reservation the Court held that reservations

contemplated in clause (4) of Article 16 should not exceed 50%. The
plea that reservation in favour of backward class should be more
than 50% because of the population of backward classes is more
than 50% is not tenable. Clause (4) of Article 16 speaks of adequate
representation and not proportionate representation and adequate
representation cannot be read as proportionate representation.
However, the carry forward rule of unfilled reserve vacancies is not
per se unconstitutional provided such rule does not result in breach
of 50% rule.

Page 348
(5) The Court struck down 10% reservation or the posts in favour of
‗other economically backward sections of the people who are not
covered by any of the existing schemes of reservation‘ made by the
Office Memorandum of 1991. It declared such a reservation
inconsistent with guarantee of equal opportunity held out by clause
(1) of Article 16.
(6) According to the Apex Court there are certain services and posts
which it may not be advisable to apply the rule of reservation in
matters of super specialities in medicine engineering and other
courses in physical sciences, in defence services, professors, pilots,
scientists, technicians in space and nuclear application.
The Apex Court with considerable toil and trouble have finally settled
the notion of social justice in respect of job reservation which has
been a recurring problem since the very inception of the
Constitution. Through decision-making process and judicial self
restraint the judges have been successful in deciding delicate and
emotional questions steep in controversy truly in the national spirit
and the mandate of the Constitution. However the Executive through
its willy and nilly decision has once against tampered with Indra
Sawhney wherein the Apex Court had ruled out reservation in
promotion. The Constitution (77th Amendment) Act, 1995 has been
passed hurriedly to allow reservation in promotion for SCs and STs
leaving out the SEBCs. Such an amendment is not without political
considerations which the OBCs may also demand in future. This
leaves a gray area for the politicians making reservation a political
ploy to perpetuate caste-politics and use caste to increase their vote
bank,210 to remain in power.In short, Indra Sawhney reads like the
Bible on social justice and social equality. It is both history and story
of contemporary Indian conspectus of social justice. It takes a
copricon perspective peeping back to hoary past at our gory
traditions and looks ahead to 21st century where all citizens are

Page 349
blessed with essential human dignity, equality, social justice etc.

where goals and values of the Preamble are not more theoretical
rhetorics but are the cementing beams of a just nation took a difficult
challenging juristic just task of interpreting a cluster of old and new
values over which there was a clash in Hindu society. It tried to
project and protect with great care and clarity new values of
freedom, justice and human dignity overtruncated values of past
centuries. Interpreting the constitutional provision such as Articles
14, 15, 16, 17, 38, 46, 338 and 340 designed to redress the
centuries of old pent up grievances of the weaker sections the Court
was expounding modern constitutional jurisprudence in defence of
rights of the weak with no more tears, sweat and blood. Thus,
declares,211 Justice S.R. Pandian: ‗No one can be permitted to
invoke the Constitution either as a sword for an offence or as a
shield for anticipatory defence, in the sense no one under the guise
of interpreting the Constitution can cause irrevertible injustice and
irredeemable inequalities to any section of the people or can protect
those unethically claiming unquestionable dynastic monopoly over
constitutional benefits. Therefore, the Judges who are entrusted with
the task of fostering an advanced social policy in terms of the
constitutional mandates cannot afford to sit in ivory towers keeping
Olympian unnoticed and uncaring of the storms and stresses that
affect the society. It may be a journey of thousand miles in achieving
equality of status and of opportunity yet it must begin with a single
step. So let the socially backward people take their first step in that
endeavour and march on and on. When new societal conditions and
factual situations demand the Judges to speak, without professing
the tradition of judicial lock-jaw, must, speak out—so I speak.
13.5 SUMMARY

Page 350
Social Justice is the conscience of our Constitution; the State is the

promoter of economic justice, the foundation faith which sustains the
Constitution and the country.....
In this unit we have discussed the role of judicial process in Indian
Judiciary as an instrument of social ordering. We have also analyzed
selected cases of the Supreme Court where the judicial process can
be seen as influenced by theories of justice.
 S.P. Gupta v. Union of India, AIR 1982 SC 149.

 Maneka Gandhi v. Union of India, 1978 SC 597.
 Mohinder Singh v. Chief Election Cominr., AIR 1978 SC 851
at 870.
 Ibid., at 873.
 Ibid., 876.
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
 AIR 1978 SC 659.
 R.D. Shetty v. International Airport Authority, AIR 1987 SC
1628; Kasturi Lal v. State of] & K, AIR 1987 SC 1992; R.S.
Dass v. Union of India, AIR 1987 SC 850 at 858; Ashok Kuinar
Yadav v. State of Haryana, AIR 1987 SC 454 at 468;
Sheonandan Paswan v. State of Biliar, AIR 1987 SC 877;
Vaidyanatli Malmpatra v. State of Orissa, AIR 1989 SC 2218;
Neelima Mishtra v. Harinder Knur, AIR 1990, SC 1402; Delhi
Transport Corpn. v. D.T.C. Mazdoor (Congress), AIR 1991 SC
101; D.V. Bakshi v. Union of India, (1993) 3 SCC 663; O.K.
Yadav v. f.M.A. Industries, (1993) 3 SCC 258; Union of India
v. W.N. Chadlm, AIR 1993 SC 1843; Union of India v. V.P.
Setlii, AIR 1994 SC 1261; Premium Granites v. State of Tamil
Nadu, AIR 1994 SC 1233; Khedat Mazdoor Cltetna Sangh v.
State ofMP, AIR 1995 SC 31; M.f. Sivani v. State of
Karnataka, AIR 1995 SC‘l770; Lawyers Initiative Through RS

Page 351
Bains v. State of Punjab, AIR 1996 P & H 1; Kammalapati

Bralunmarao v. State of Karnataka, AIR 1996 Kar 37;
Wariyam Singh v. State ofU.P., AIR 1996 SC 305; }.N.
Banavalikar v. Municipal Corpn. Delhi, AIR 1996 SC 326;
Union of India v. M/s. Jesus Sales Corprn. AIR 1996 SC 1508;
Baburao Vishwananth Mathpati v. State, AIR 1996 Bom 228;
State Bank of Pntinhi v. S.K. Sltarma, AIR 1996 SC 1669.
 Ragliunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267
at 1305; R.C. Poudyal v. Union of India, AIR 1993 SC 1804,
R.K. Jain v. Union of India, AIR 1993 SC 1769.
 State of Karnataka v. Ranganath Reddy, AIR 1978 SC 215 at
234.
 Golak Nath v. State of Punjab, AIR 1967 SC 1643.
 Maneka Gandhi v. Union of India, AIR 1978 SC 597; D.S.
Nakara v. Union of India, AIR 1983 SC 130; Bandtma Mukti
Morcha v. Union of India, AIR 1984 SC 802; Vincent v. Union
of India, AIR 1987 SC 990; A.R. Antulay v. R.S. Naik, AIR
1992 SC 1872, Unni Krislman v. State of A.P., AIR 1993 SC
2178; State of Maharashtra v. Manubliai P. Vashi, AIR 1996
SC 1.
 International Conference on Interpreting South African Bill of
Rights, AIR Journal, Section 145 at 146, Oct. 1993.
 Kashyap Sublmsli C. Human Rights and Parliament 94
Metropolitan Book Co New Delhi 1978.
 Knmeshwnr v. State of Bihar, AIR 1951 Pat 91; State of West
Bengal v. Subodli Capal, AIR 1954 SC 92, Dwarkadas v.
Sliolapur Spinning & Weaving Co, AIR 1954 SC 119; Saghir
Ahmed v. State of U,P, , AIR 1954 SC 728, State of West
Bengal v. Beta Banerjee, AIR 1954 SC 170; State of Gujarat
v. Slwnti Lal, AIR 1965 SC 1017; R.C. Cooper v. Union of
India, AIR 1970 SC 564.
 Krishna Iyer VR, Law and the People 172-173 Peoples
Publishing House 1972 see also Iyer, Krishna V.R. Some Half

Page 352
Hidden Aspects of Indian Social Justice 80-81 Eastern Book

Co. 1979.
 Golak Nath v. State of Punjab, AIR 1967 SC 1643.
 Ibid., para 53.
 R.C. Cooper v. Union of India, AIR 1970 SC 564.
 Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
 Austin, Granville, the Indian Constitution Cornerstone of a
Nation, 164 1st Indian ed. 1972.
 Per Hidayatullah J. (as then he was) in Colak Nath.
 D.G. Mahajan v. State of Maharashtra, AIR 1977 SC 915 at
934.
 State of Kerala v. N.M. Thomas, AIR 1976 SC 690.
 Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 at
1806-7.
 Municipal Council Ratlam v. Vardiclwnd, AIR 1980 SC 1622;
ABSK v. Union of India, AIR 1981 SC 298; U.S. Nakara v.
Union of India, AIR 1983 SC 130; K.C. Vasanth Kumar v.
State of Karnataka, AIR 1985 SC 1495; Olga Tellis v. Bombay
Municipal Coloration, AIR 1986 SC 567; Unni Krislman J.P. v.
State of A.P., AIR 1993 SC 2178; State of Karnataka v. Appa
Bull ‗nynle, AIR 1993 SC 1126; Consumer Edu., Research
Centre v. Union of India. AIH-1J95 SC 922.
 State of Haryana v. Darshana Devi AIR 1979 SC 855;
Women‘s Resource Centre v. Commissioner of Police, AIR
1990 SC 513.
 Bishan Devi v. Sirbakash Singh, AIR 1979 SC 1862; State of
Karnataka v. Appa Balu Ingale, AIR 1993 SC.
 State of Kerala v. Tliomas. AIR 1976 SC 490.
 Consumer Education & Research Centre v. Union of India,
AIR 1995 SC 923 at 938.
 Articles 14,15,16,17,38,39,39A, 41,43A, 46,332 and 340.
 AIR 1951 SC 226.
Page 353
 Balaji v. State of Mysore, AIR 1963 SC 469.

 Devadasan v. Union of India, AIR 1964 SC 179.
 State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
 ABSK(Sangh) Raihoay v. Union of India, AIR 1981 SC 298.
 ABSK (Sangh) Railway v. Union of India, AIR 1981 SC 298
 Ibid.
 K.C. Vasanth Kumar v. State of Karnataka, AIR 1985 SC,
1495.
 K.C. Vasanth Kumar v. State ofKarnataka, AIR 1985 S.C.
1495 at 1529.
 Ibid.
 Indra Sawlmey v. Union of India, AIR 1993 SC 447.
 Indra Snwlmey v. Union cf India, AIR 1993 SC 447 at 514.
 Infra Sawhney v. Union of India, AIR 1993 SC 447 at 575.
 Ibid., 577-78.
 Ibid., 573.
 e.g. Ashoka Kumar Thakur v. State of Bihar, (1995) 2 SCC
403 The Supreme Court quashing economic criteria laid down
by Bihar and U.P. Govt. for identifying ‗Creamy layers‘
amongst OBCs.
 Indra Sawhney v. Union of India, AIR 1993 SC 477 at 593.
1. Discuss the role of judicial process in Indian Judiciary as an

instrument of social ordering?
2. Discuss and analyze selected cases of the Supreme Court
where the judicial process can be; seen as influenced by
theories of justice?

Page 354

Unit 2.law and Justice-Long But Important Make Notes Points

Uploaded by

Copyright:

Available Formats

Unit 2.law and Justice-Long But Important Make Notes Points

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Unit 2.law and Justice-Long But Important Make Notes Points

Uploaded by

Copyright:

Available Formats

JUDICIAL PROCESS LM-107

Subject: JUDICIAL PROCESS

Block-IV-Relation between Law and Justice

10.3 What is the Relation between law and Justice?

10.4. Equivalence theories of law and justice

10.5 Justice as positive law of stronger class

10.7 SUGGESTED READINGS/REFERENCE MATERIAL

10.8 SELF ASSESSMENT QUESTIONS

UTTARAKHAND OPEN UNIVERSITY

After reading this unit you will be able to:

 Discuss what is the Relation between law and Justice?

10.3 What is the Relation between law and Justice?

The system of law is a set of rules of conduct of any organized

UTTARAKHAND OPEN UNIVERSITY

anger, fuelled by newspaper reports. Jaymee Bowen (Child B) has

UTTARAKHAND OPEN UNIVERSITY

The Liberal-Natural rights view of justice is measured according to

UTTARAKHAND OPEN UNIVERSITY

Most people would agree that most of the system of distribution

UTTARAKHAND OPEN UNIVERSITY

preservation of natural resources)? What is the moral standing of

10.4. Equivalence theories of law and justice

This chapter provides a summary review of the theories influencing

UTTARAKHAND OPEN UNIVERSITY

systematically disadvantage subordinated groups. Claims of

UTTARAKHAND OPEN UNIVERSITY

UTTARAKHAND OPEN UNIVERSITY

people wherein praxis constituted the very process of history itself

foundational for cultural revolution (Gramsci 1971). One of Gramsci's

10.6 Justice as positive law of stronger class

The foundational work defining a liberation theology praxis came

UTTARAKHAND OPEN UNIVERSITY

on praxis. Liberation theology begins with the premise that all

Using methodologies such as Gutierrez's and Baro's, liberationists

is regarded as a social, historical fact, the absence of brotherhood

dialogue. There are three aspects to this process in the theoretical

by reclaiming our past, by experiencing the present and by

(Smith 2001).Thick description is an ethnographic research method

engagement of politically conscious persons; and (3) praxis

reinforcing subjugation, exploitation and other social

researchers and educators using engaged methodologies found in

a community with a popular identity such as "the movement" as

oneself means to be oneself, to be master of oneself, to distinguish

evidenced in their individual articulations and actions in and out of

Utilitarianism as a theory of justice is based on a principle of utility,

UTTARAKHAND OPEN UNIVERSITY

In this unit we have discussed about the concept of Equivalence

10.10 SUGGESTED READINGS/REFERENCE MATERIAL

Baro, Ignacio-Martin. 1994. Writings for a liberation psychology.

Baym, Nina. 1995. The emperor redressed: Critiquing critical theory.

Boff, Leonardo and Clodovis Boff. 2001. A concise history of

Boyce, Mary. 2003 Teaching critically as an act of praxis and

Brookfield, Stephen. 1995. Becoming a critically reflective teacher.

Fine, Michelle. 1994. Working the hyphens: Reinventing self and

Fraser, Nancy. 1997. Justice interruptus: Critical reflections on the

UTTARAKHAND OPEN UNIVERSITY

Freire, Paulo. 1970. Pedagogy of the oppressed. New York:

Freire, Paulo and Antonio Faundez. 1989. Learning to question: A