Justice & Law as the basis of the State

Justice is the basis of the State[1]

Let justice be done though the heavens fall - “Fiat justitia ruat caelum”-The maxim which transcends boundaries - manifests & signifies the belief that justice must be realized notwithstanding the consequences.

Justice is a term that defies any universally acceptable definition, and is best explained than defined. Justice may mean different things to different People, for eg. A utilitarianist, libertarian & an economic egalitarianist may have different & totally irreconcilable/ inconsistent notions of Justice, and each may have justifications for the view they hold, such is the depth of the subject. But notwithstanding the confusion prevailing over the exact domain of justice, the fact that it has been kept at a high pedestal & its importance is unrivalled – a bare perusal of historical texts from across the breadth of the world would reveal that justice ought to be done even if the same is at the risk of the world perishing (Ferdinand I – Holy Roman Emporer). 

Justice at the risk of over-simplification can be put as Balancing of Conflicting Interests in the Society having regard to the demands of Fairness, Liberty & Equality. John Rawls who is known for his contributions to liberal political philosophy - saw Justice as “fairness” satisfying the requirements of Liberty & Equality. Though the work of John Rawls in his “Theory of Justice” is incomparable & has have had a profound influence on the subject of Justice. It was fraught with one glaring omission that is how to reduce injustice in the world. Identification of a hypothetical "perfectly just society’ was the main theme of his work.

If we take ‘Balancing of Conflicting Interests in Society’ as Justice. The question that logically arises is – who is to balance & harmonize the conflicting forces of individual interest with societal interest?or in other words Who is to ensure that Justice is done?

In Modern societal milieu the State is entrusted with the task of such harmonization.State simply put, is an institution to ensure communities do function effectively & smoothly and is also entrusted with the task of maintaining and enforcing rules which guarantee happiness and security of its members and most importantly the administration of Justice. State to be properly called so has to satisfy the requirements of having a definite geographical territory, a sovereign existence, lawful government & a population to govern.  Since the very origin of State – Justice was kept in high regard and important for the orderly functioning of the Society.  Hindu Philosophical thought made its contribution in the form of inextricably linked concepts of ‘Niti’ & ‘Nyaya’ the former idea relates to establishment of just organisations/institutions  established to ensure ‘Nyaya’ (Justice) was done even-handedly.  As times developed the importance of doing justice got further strengthened with the development of the notion of welfare state, which enjoined upon the state not only to prevent injustice – but to promote justice through affirmative means. State had to ensure that justice was done though the heavens fall “Fiat Justia ruat caleum”, and this was achieved by this central authority named State by ensuring obedience to its diktat by the community at large.  But how the institution of State came about merits some consideration.

What exactly led to the establishment of this modern notion of state – has been a bone of contention among many a thinkers. Different theories have been propounded which trace the origin of State. Proponents of the Divine theory – premised on Roman/Hindu Philosophy purport that State is established and governed by God himself or by some other superhuman power. God may rule the state directly or indirectly under some ruler i.e the King - the deputy of God on earth. This theory which is as old as the notion of state itself manifests in the great Epic ‘Mahabharata’ too, which says that prior to the advent of kingship it was a golden era, but moral degeneration of man led to large-scale injustice & hence necessitated god’s intervention directly in the administration of communities.  This theory was later deliberately misconstrued by the Kings as their divine Right to Rule and as a disguise to let their oppressive rules perpetuate. This theory has been more or less confined to Academic Discussions and is largely disregarded. A more acceptable theory known as the Social Contract theory was extended by the likes of Hobbes, Locke & Rousseau – who asserted that the early men lived in a State of a barbarism, chaos & anarchy. Early Indian Legal theorists have termed it disparagingly as the Matsyanyaya – which meant “Justice in the world of Fish” where the big fish devoured the small. The likes of Many advocated the avoidance of a situation of  Matsynyaya, if a big fish could devour a small fish at will, that was a glaring violation of Justice.Man found himself in the throes of constant struggle for survival, which led people of this prepolitical era to enter into a voluntary agreement to create a political association. Further impetus to this idea was given by the Man’s newfound inclination with the Right to Private Property. Being a rational animal endowed with forethought man discovered that the only way to escape from the then brutish pattern of life was to appoint some one to rule over them. Though the leading exponents of this theory differed in their conceptions of the nature of the Social Contract- the underlying premise was the same – Man needed Justice in his dealings – and State was to provide him just that.

Hence this institution called ‘State’ was created to administer Justice in the Society. Though the form & structure of this institution different greatly among people of Different civilizations & Races and was equal only in the sense that all were motivated to emancipate men of their brutish life, to introduce orderliness, to ensure that everyone got what they deserved – and most importantly to establish a rule of law – not of men. 

With the sophistication of the idea of Justice – King’s whims & fancies were replaced gradually by an elaborate system of legal rules. Law was set & enforced within organised political society called State. Right since the times of Magna Carta – it was recognised that Men by the very virtue of being human possessed some inalienable rights – called the Human Rights. With the growth of democracies these rights were concretised by many countries in their constitutions to ensure better compliance. It was with time recognised that the biggest threat posed to the rights of the man, did not come from his fellow beings but the institution that was entrusted to protect them, in response to which In England the Rule of Law developed - the spirit of which is best signified in the lines “Howsoever high you may be – the law is above you” this aimed at even-handedness of law by state vis-à-vis its subjects.

Among the States, the ones who have adopted democracy as the means of governance - have been at the forefront & perhaps most successful at ensuring justice because they allow the participation of the common man in the way the State is run. These states also have an elaborate system of Fundamental Rights with an independent judiciary as the final arbiter. But all is not rosy as it is a fact commonly known that denial of justice is in a majority of cases committed due to State excesses – particularly in our country. Justice was indeed the raison d’etre of the State. But how far the same has been achieved is quite debatable.  That is because we have a democracy which exists only at the surface. Lack of even minimal protection from crime, malnutrition deaths, almost no health care for the large chunk of the population, lack of education opportunities to the underprivileged children & our ruinous justice system – are all gross denials of Justice, anything but democratic and too ironic for a country which championed the sophisticated ideas of ‘Niti’ & ‘Nyaya’ in a way unparalleled throughout History. 

Hence in view of the above – It is the need of the hour that the States & more importantly the people at the helm of governance – are reminded of their bounden duty to uphold justice, the silver lining being that in a democratic setup as ours, with all its fallacies, nobody is in a better position to do that than the people themselves, who are - but the masters of their own fate.

[1] Bharat Chugh – Advocate Supreme Court of India