In a lecture at Harvard Law School last week, Amartya Sen spoke about the “idea of justice,” a topic developed further in his forthcoming book.
He began by outlining two approaches that Enlightenment thinkers had adopted towards understanding justice. The first approach, which he called “Transcendental Justice,” adopted by classical writers like Hobbes and Rousseau and developed by contemporary thinkers like Rawls, Nozick and Dworkin, focuses on distinguishing between the just and the unjust and creating institutions that would ensure a just society. The second approach, which he characterized as a comparative approach to justice, espoused by thinkers as diverse as Adam Smith, Jeremy Bentham, Condorcet, Mary Wollstonecraft and Karl Marx focuses on the actual realization of justice in society by evaluating social injustices in a comparative setting. The primary concern of the “transcendentalists” is the creation of institutions that would ensure a perfectly just society, whereas that of the “comparativists” is to ensure improvements in society by removing specific injustices. For the comparativists, the idea of justice is not about achieving a perfectly just society, but to produce as just a society as is possible given the circumstances. Noting that there exists a strong bias in contemporary political philosophy towards “transcendental justice,” Sen’s book attempts to develop the idea of comparative justice.
Borrowing from an ancient Sanskrit text, Sen explained the contrast between the two approaches to justice as the difference between “niti” and “nyaya.” “Niti,” translated as “organizational propriety and correctness,” refers to the institutions that should be created in order to have a just society. “Nyaya” on the other hand, translated as “a comprehensive idea of realized justice,” is inescapably linked to the world and the lives of the people. Sen stated that the idea of justice in Holy Roman Emperor Ferdinand I’s claim that justice ought to be done even though the world may perish, is that of “niti.” However, justice done at the expense of a catastrophe in which the world may perish does not result in “nyaya.”
Sen stressed that his idea of justice is not merely consequentialist. In fact, his idea of justice encompasses a comprehensive way of looking at both processes and outcomes. He illustrated this by referencing the famous debate between Krishna and Arjuna in the Bhagvad Gita, a holy Hindu text. Arjuna, a renowned warrior, hesitates on the brink of battle even though he is on the side of good and justice because he does not want to kill his cousins who are on the other side. Krishna encourages Arjuna to do his duty regardless of the consequences. This debate is often characterized as a debate between the deontological and consequentialist positions with Krishna representing the former and Arjuna the latter. However, Sen argued that Arjuna is not a mere consequentialist, in that he is not just concerned about the fact that many people will be killed in the battle that he is hesitating to engage in but also that he will be killing people for whom he has some affection.
Shifting focus to theories of global justice, Sen argued that when people across the world agitate for global justice, they are neither clamoring for minimal humanitarianism nor for a perfectly just society. They are seeking the removal of some outrageously unjust facts or rules in the national or global society. For instance, those seeking reform of patent laws to make drugs easily available to the poor and the needy are targeting the injustice of people dying for want of necessary medications while drug companies make huge profits. Their action is calibrated to achieve a narrow goal. It is not anticipated that the removal of this injustice will result in the creation of a perfectly just society.
I found the talk fascinating not merely because of Prof Sen’s forceful argument for a theory of comparative justice but also for the breadth of literature, including diverse western political thinkers and ancient Sanskrit texts, that he drew upon to explicate it. In particular, I thought his references to the Bhagvad Gita for making a philosophical argument and his interpretation of those references were quite novel.
A full report of the talk can be accessed at this link: http://media.www.hlrecord.org/media/storage/paper609/news/2008/09/25/News/Sen-Argues.For.Theory.Of.Comparative.Justice-3451308.shtml
Congratulations on a post which is concerned about political philosophy and thus also about its controversial legal sibling! Sen’s arguments are indeed interesting. In some recent preliminary explorations I found quite a number of interesting ideas on the nature of law in Ancient Indian Philosophy. The parallels drawn by Sen are very close to those used by natural law thinkers. The concept of niti is similar to the idea of cosmic order advocated by St. Thomas Aquinas. Sen has highlighted its normative component which is interesting.The concept of Nyaya seems very close to the idea of practical reason which has been the primary concern of both natural lawyers and analytical legal positivists. Though there are many in the western world who have tread this path, a number of them have decided to give up the academic explorations and denounce the material world!
Dear All:
(My response is based on reading the posting–his illustration–and not the entire speech.)
Read these posts regarding Sen and his speech on Justice. I have been doing some reading on this lately, and wish to differ: about the ancient Indian philosophical position on Niti and Nayaya–being utilized by Sen for his umbrella Justice. Hindu Justice flows from recognizing the role of Dharma being ‘organically’ connected with the emerging concept of state—according to ancient Hindu Law.
This notion is utilitarian, and no less consequentialist because Niti, viz. nothing but the authority of the religious texts: presuppose good vs evil. And Nyaya, which is nothing but assessing virtues of law as laid down. It is law like, (positive law–debatable).
His notion of ‘comparative justice’ fails to be justified by using this illustration. The example is restating the notion of Hindu Dharma; i.e., ‘it is a lion’s duty to kill.’ Hindu theology only tells one to follow their Dharma and that is the coaxing Arjuna received from Krishna. What he meant of not killing is only confusion about what his Dharma was. Unlike, the earlier epic, where Rama (incarnate of Vishnu) lived the Dharmic life without needing to be reminded of his Dharma. So, the self-regulating code of Dharma seems to be by then in place where people had to be reminded and told their Dharma–Niti to Nyaya. So, the creation of the institution of punishment and state for enforcing Nyaya.
It is hard to believe how this is not any less consequential, and ‘comprehensive’ as he claims it to be. Probably his theory may be stronger, but his reliance on this weakens his theory.
Agree with Pritam’s point here, about the comparison of Niti and Nyaya, i.e, with Divine Order and Law respectively.
Very nice summary..I need to understand the difference between and Sen and Rawls for an exam and being hard pressed for time, it was indeed fortunate that I landed on your blog. Thankyou for posting this!
Really helpful! Thanks 🙂