Theoretical (substantive) ideas of justice vs procedural justice dispensed by courts of law. Part- 1

The last few decades of the the twentieth century and the first one and half of the twenty first century have seen various different societies teeming with discourse that has at its centre the idea of justice. Justice, even among the more developed nations is now being talked off as social or collective justice especially after the the intervention of Rawlsian and Multicultural notions finding their way into the vocabulary of mainstream liberalism. A caveat here that needs to be inserted. While most political discourse in different countries is talking about social justice, the content of that changes from region to region or to put it better, context to context. In this process expressions like Civil Society have undergone a complete change which can be very confusing for some who have grown up with the idea that Civil Society is a smaller body within the larger society but has some distinguishing features that make it stand above the rest of society. John Locke the philosopher had held that Civil Society consisted of people who were more rational than others, the demonstration of which was possible by the fact that they held a certain amount of property that the less rational did not hold. He wanted to entrust the process of governance to this Civil Society. Hegel, saw Civil Society as a body of people whom he called the Korporation and these people had greater understanding of things in society and were imminently people who could understand the moment when the infinite Geist realized itself through the means of the finite geist which is the human being. This Korporation has often been translated into English as Bureaucracy and it explains why Hegel had so much faith in it. Karl Marx was dismissive about Civil Society which he thought was a construct of the bourgeois society in its attempt to exploit the proletariat.

However it now seems that Civil Society is the body of people who do no belong to any of the institutions of government; the latter now having acquired the identity of a political society. All matters pertaining to governance and that includes justice has now been placed in this complex relationship between civil and political societies. While the demand for it arises in the civil society, the dispensation of it is the work of the political society of which the judiciary is also a part. It is this gap between the demand and dispensation of it that characterizes the problems that justice as a term faces. The demand is based in principles that are substantive and the dispensation is based mainly by the following of procedures. A very critical point that can be brought in as an example is the recent controversy surrounding the the Art 377 of the Indian Constitution. This article sees both homosexuality and sodomy as criminal while Civil Society want its complete abrogation since this is archaic and has no place in a society that has veered around to the acceptance of the LGBT rights. However, the Supreme Court went by the word of the law and and upheld the article and its existence. This is just one of many such cases and there are even more complicated cases with deeper repercussions for the society.

In fact, it can be argued that the division of political society and civil society itself is deliberate and has an agenda that hides behind this chicanery of words. Sometimes it makes sense to look at the State and its organs and institutions as just that. The same would be true of society. Society makes complete sense without it having to be prefixed with civil.  It is not unreasonable to believe that society in itself is a construct that includes civility and unless there is a necessity for exclusion of people like Locke did, there is no need to prefix it with Civil. Usually such prefixes in them suggest a deeper agenda which can in itself be a subject of deeper research. The creation of the term political society itself can be seen as an attempt to bring in the State and its institutions and the people who man them into ambit of activism. Political Society activism can be seen as acceptable while State activism is difficult to accept.

Justice as a term or a concept can be seen or actually should be seen as a part of this complex process of political society activism versus civil society activism. Very often since both are activisms it is difficult to distinguish the difference between the two.  A prime example of this is the movement for the separation of Telangana from Andhra Pradesh, where the primary activists for the cause were members of the political society while some sections of the so called civil societies such as students were incorporated into it. The reasons for the students becoming a part of the agitation had very little to do with the activism of political society members. While the former were hoping for employment in the new State, the latter were simply looking for power and the perks that would come with that. The dissonance became clear a year after the formation of the State and it shows that the State has shown very little interest in the solution to the problem of unemployment of people. While the agitation was on, everybody was fighting for social justice but after the realization of the goal of a new State only one section i.e., the political society’s ambitions have found fructification while that of the students has remained unfulfilled with no time table being set for the fulfilment of their objective.

The judiciary in taking up or disregarding cases does so by looking at the provisions of the constitution and the various acts and sections contained therein. It was Thomas Jefferson who said that the validity of a constitution would be for about 20 years, because the aspirations of the people cannot remain the same forever. But in the operationalizing of constitutionalism this factor is rarely taken into consideration. In the United States of America, the judiciary in most States in the early years gave the power of inserting, re-writing and editing of provisions and even creating precedents through these actions. However, over a period of time as the Union became stronger these powers were withdrawn from the judiciary gradually and change in law became a matter of public policy which could be carried out only by the legislature sometimes in conjunction with the executive. The judiciary in the USA and in most parts of the democratic world became an institution of judicial review with its powers curtailed only to interpreting the provisions of the constitution and judging if the actions of the legislature violated any of the existing provisions of law. The judiciary therefore became an arbiter and nothing more.

The problematic concerning justice lies in this emasculation of the judiciary by the other two organs of the government as also in the appropriation of activism from civil society by political society (meaning politicians with agendas of their own which have nothing to do with the rest of the people).  The philosophers and legalists have a certain idea of justice (there are many such views ranging from Hobbes’ idea that justice is what one perceives it to be to Rawls’ idea that there is a necessity for historical handicapping of those who were denied access to primary social goods) but this is usually for consumption of students and researchers in educational institutions such as universities and specialized institutions of research.