A Critical Review on ‘The Idea of Justice’ by Amartya Sen: A Contemporary Development in Jurisprudence

Globally respected and acclaimed Nobel laureate, Amartya Sen wrote on justice issues in his remarkable theoretical classic The Idea of Justice (Harvard University Press, 2009) and this work is now widely acknowledged to have had an immense significance in the development of contemporary jurisprudence. By taking considerable help from Indian philosophical ideas, this venerable professor of economics contributes to the justice theory and assertively challenges western hegemony in the development of legal philosophy. Idea of Justice, therefore, deserves a critical study.

The dominant view of the contemporary jurisprudence on justice is much influenced by a thought presented by famous political thinker John Rawls (1921-2002). In his view, justice or fairness can be achieved by letting people choose their conception of justice after placing them behind a hypothetical veil where they have no idea about their self-identities in the world and in that situation all would opt for equality. This is how Rawls prescribes to remove biasness with which Sen agrees. However, Sen departs from Rawls’s ideas in several aspects. One of the major departures is that unlike Rawls, Sen’s idea of justice refrains from revealing how a perfectly just society can be made; rather looks to remove manifest injustice prevailing in the society.

The theory claims that human reason can differentiate between justice and injustice through a realization process. Democracy, where public reasoning plays the central role is essential for this realization process. Sen adopts the idea of ‘nyaya’ (Sanskrit: “Judgment” or “Method”) from the Indian philosophy for explaining how the process works (p. 20). ‘Nyaya’ based system prioritizes human lives where we determine justness of an act by seeing its overall consequence, as opposed to mechanically following some institutions or rules which is analogous to the Indian concept  of ‘niti’ (Sangskrit: “Rule”). In ‘nyaya’ based system, the main task is to prevent ‘matsanyaya’, i.e. big fish eating small fish, which is a manifest injustice.

Let me clarify the process by outlining what is not within the scope of the theory. Unlike Rawls, Sen knows that even behind the veil, people might not be able to find a uniform solution because of plurality of impartial arguments. Sen poses an example of a likely problem with the connotation of distributive justice where three children argue for the ownership of a single flute. Their arguments are based on the grounds that one knows how to play it, another is very poor and has no other toy, and the third one has made the flute. These arguments respectively represents utilitarian, economic egalitarian and in Sen’s language ‘nonsense libertarian’ (p. 13). To Sen, it is not possible to reasonably reject any argument here and that makes it impossible to find a single principle for a perfectly just society. That is why, he abstains himself from giving solutions to reasonably unsolvable problems.

Part I of the book deals with the demands of justice, such as, objectivity and impartiality in reasoning. Sen begins the part believing that intelligence should be utilized for making the world a better place. Then he relies on Rawls in his ‘Justice as Fairness’ theory as it strives to avoid biasness while evaluating the justness of the conditions of the society. For that, objectivity requires judgments of reasonable persons. This concurs with the assumption that human beings are capable of reasoning beyond the narrow boundaries of self-interest.

Part II of the book deals with forms of reasoning. One of the limitations of public reasoning is that it is influenced by various societal conditions in a given time like superstitions, which Sen terms as ‘positional limitation.’ This shortcoming can be overcome by acknowledging worldwide duty to neighbours in a global perspective of justice. Plurality of conflicting reasoning is another vital problem. This can be solved to a certain extent by reasonably rejecting some alternatives. Beyond these limitations, as Sen thinks, reasoning can be an efficient tool for reducing injustice relying on the assumption that any power creates some obligation to do so.

Part III of the book deals with materials of justice. Sen emphasizes that equality of freedom where it offers ‘comprehensive opportunity’ to achieve something is necessary. Freedom has to be ensured to a person, not only in providing opportunity to choose to do something, but also freedom from any consequences which restrict such liberty. But, even if every person is given equal opportunity it might not be sufficient to address the situation of everyone without prejudice which underscores the importance of addressing the capability aspect of freedom. Capability does not equate to advantage, it includes obligation of individuals and ultimately aims at enhancement of the well-being of people.

Part IV of the book focuses on public reasoning and democracy. Sen proves that, democracy in the form of public participation has always been a global idea and not merely a western product. The theory presented by him requires global public reasoning as opposed to mere domestic ballot politics. Free and well functioning media is essential for democracy and free flow of information facilitates public reasoning and protects voices of the neglected portion in such a democracy. Human rights ought to play a dual role of ethical standard and legal entitlement because it envisages the idea of imperfect obligation, meaning duty to others and calls for the realization of economic and social rights for all.

However, the theory still has some issues to address. It can be accepted that human reason does not always incline to self-interests but it remains doubtful as to how long this may function as an obligation. Moreover, Sen naively tries to explain how positional limitation can be overcome by globalizing public reasoning, considering it to be an instant effect of its surroundings. But reducing positional limitation is scarcely possible in cases of nature influences and extremist ideologies. Again, the solution Sen provides for bad reasoning is good reasoning. Sen could have explained how he determines goodness or badness of some reasoning, especially in cases where plurality of political interpretation of facts largely confuse public as arguments can be made in line with philosophers such as Friedrich Nietzsche (1844-1900) that there are no facts, but interpretations and our preset morality is responsible for our stands.

The theory stands for removing manifest injustice and instead of providing criteria of manifest injustice, it leaves the room for reasoning the essential conditions of which he describes. Slavery, gender discrimination, artificial famine, war etc. are instances of manifest injustice according to Sen and it gives the impression that institutional evil such as, perpetual economic inequality as a necessary tool of capitalism is beyond its scope to combat. But this issue deserves more attention in a theory of justice because if slavery was an institutional form of oppression in feudal societies, why is it that the necessary evils of capitalism should not be dealt with?

Linguistic deconstruction is a distinguishable feature of the book. Sen shows the courage to use the pronoun ‘she’ to indicate general third person, though nowhere he mentions any reason for this feminist stance. Juxtaposition of plenty of oriental instances in contrast to western ones placed in the work suggests Sen’s intent to challenge western hegemony in the intellectual arena. But his compromising attitude towards status quo and maintaining a reformist attitude within the feasible limits contradicts with that spirit. For facilitating global democracy and protecting freedom of speech, the work ultimately depends on the United Nations and NGOs though the power structure of these organizations often reflects western bias. Therefore, the biggest challenge it brings with it is how to save the world from the hegemony of powerful countries.

The Idea of Justice is an excellent endeavour to see the notion of justice in the light of oriental philosophy and discourse. Considering the work as a commencement of a new era of eastern contribution, the above-mentioned unanswered issues definitely necessitates more work on the field to be initiated.

Citations:

Tashmia Sabera, “A Critical Review on ‘The Idea of Justice’ by Amartya Sen: A Contemporary Development in Jurisprudence” (DHLR Blog, 30 May 2015) http://www.dhakalawreview.org/blog/2015/05/the-idea-of-justice-851

Tashmia Sabera Member since May 30, 2015

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Tashmia Sabera is an editor who occasionally directs stage drama. Her team won the Best Memorial Award in the 9th National Henry Dunant Memorial Moot Court Competition. Tashmia completed her LLB from University of Dhaka and is currently pursuing an LLM from the same university. She was a participant of the 15th Human Rights Summer School organized by ELCOP. She can be reached at [email protected].

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