Since evolution there existed a system of natural justice on earth, more so with primates who possessed an inclination towards fairness and sharing. Of these primates the Human race with their added value of community and intelligence created justice systems based on their lifestyle, challenges, needs and times.
Justice as a concept is driven by values and principles chosen by a political dispensation. Chosen values and principles accepted as internal structure of constitutionally governed societies are the result of fruition to make good in future based on experience of past. Civilization in transition therefore also has to move within space and time to stand up with the challenges. Combining a system of justice within the objective view of the world has been in the perspective of the human race from the dawn of civilization till now. Difficulty in reconciling the ideas of justice with time gave rise to fundamental questions relating to the polity and relation of sovereign and subjects. Courts in constitutional democracy gave a very practical idea of justice, in practice how the Constitution should be read with the time. Still, debate occupies the space about the nature of law in response to the character and practical importance of the legal issues. In American context, originalism and pragmatism occupied central theme to serve constitutional norms, though often permeated at level, even to evoke political discourses; those issues also played a vital role in developing the constitutional jurisprudence in other jurisdictions as well. Modern society faces questions that did not occur to makers of the Constitution. These questions are related to both on the substance of justice and process of justice. This article is an attempt to unravel the evolution of these contentious debates.
Every law and enquiry on the law is in pursuit of justice. The civilisation was the result of fear of mutual hurt. The human race has chosen a system to govern themselves for the sake of some good. Throughout history, various theories have been attempted to define justice. Dialogue in "The Republic" written in 380 BC by Plato was to capture the essence of a just society. It discusses the meaning of justice and its nature. Plato's concept of justice was founded on ethics, righteousness and morality of subjects and stronger government. For Aristotle, justice is a kind of state of character which makes people disposed to do what is just and makes them act justly and wish for what is just (Book V Nichomachean Ethics). The concepts like distributive justice, distribution of wealth in accordance with one's merit and worth and corrective justice, to set right the imbalances in distribution system, originates from the thoughts on justice by Aristotle. Ancient texts in our own traditions also attempted to define justice in different forms by distinguishing Dharma and Adharma. Dharma, as an expression, embodies the concept of justice and as a principle to sustain the universe through righteous conduct covering all aspects of life. Justice Dr M. Rama Jois in his book Raja Dharma says the entire concept of the rule of law is incorporated in Dharma. If people act according to Dharma, it protects all to sustain an orderly society. Greek philosophers engaged in logical reasoning to evolve justice in a just society and in contrast, Dharma, developed as a spiritual concept to attain salvation or moksha. Semitic religions have a different approach to the concept of justice.
In Biblical sense justice is engrossed in "Love". In Psalm 9:7-9, justice is described as "God's character". "The LORD reigns forever; he has established his throne for judgment. He will judge the world in righteousness; he will govern the peoples with justice. The LORD is a refuge for the oppressed, a stronghold in times of trouble".
In Islam, justice originates in compassion and mercy of God and fairness of believers in dealing worldly affairs. The Qur'anic verses in Chapter 57:25 says: "We sent Our Messengers with clear signs and sent down with them the Book and the Measure to establish justice among the people". In Chapter 4 and 5 certain verses of Qur'an refer to equality of justice to be observed among relatives, friends, allies and enemies. Qur'an puts as follows: "O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor..." (Chapter 4:135). In Chapter 5:8, Qur'an says as follows "Oh you who have believed; Be steadfast witnesses for Allah in fair dealing, and let not hatred/malice of any people provoke you from deviating justice, act justly that is nearer to your piety".
The emergence of the modern state is the result of the rejection of theocratic states in Europe at the end of the 16th century. Fall of Roman Empire initiated social unrest in Europe. Two peace treaties known as Westphalia treaties of peace in the year 1648 brought peace in early Roman Empire ending 30 years of war. Rise of modern nation-state associated with Westphalia treaty gave authority to nations to govern the subjects based on sovereign power disregarding the divine rights of kings. Two treaties of Government written by John Locke in 1680s were to combat the divine right of kings. Many nation-states inspired by the political theories, developed during this period, found legitimacy of power in philosophy developed in such views—Justice in such theory contained in natural law and natural rights. Humanist and rational ideas differentiated justice and injustice. Immanuel Kant in the groundwork for the Metaphysics of Morals (1785) argues that morality rests on human reason and not principles of utility or law of nature. Jeremy Bentham and JS Mill propounded principles of utility as a basis of law. According to them, utility understands what promotes pleasure and prevents pain. The rejection of religious knowledge was essentially to create an order of justice based on theories of knowledge. Today, almost all the written Constitutions in democratic countries source legitimacy of authority to legislate from these ideals. Though rational ideals and secular common sense are endorsed in modern Constitution, the same logic extended protection to religious knowledge and practice in the form of liberty. Our societies, evolved through religious values, have not shed its fabric of divine moral authority. Laws of secular state are still articulate ideals of justice on the moral authority. This gives rise to tensions between values and practice of society in secular state and rational ideals of Constitution.
Globalization redefined the concept of nation-state that emerged in the 17th century. The liberalization of market reshaped the world economy through various multilateral and bilateral engagements entered by nation-states. An interactive approach built relations focusing on market interest. Exchange of goods, capital, services, labour, etc. is defined through interactive regimes. Flattening of the world is unstoppable. Rise of modern states as economic super power focusing on market interests shaped the policies of internal and external governance of country. Policy route than legislation have become a normal norm of governance. Constitution has economics for distribution of assets and service. These policies define common good on economic terms. The concept of distribution of economic wealth, assets and services as understood in Constitution has rules to reflect up on such policies. Lack of jurisprudence on constitutional economics fails us in justice delivery.
Constitution propose to establish a well ordered society based on ideals. Globalization presupposes the acceptance of dictated super norms of extra sovereign body. Market economy dynamics is based on frame work of non-ideal theories of Constitution. These framework, essentially based on bilateral or multilateral agreements, are entered by states. Balancing the interest of the State and aspiration of justice based on constitutional ideals also throws up contentious debate within the judicial process as to scope of judicial review of political judgments.
Theories of global justice have become a phenomenon and cannot be easily ignored. Global justice focuses on people than the state. It draws inspiration from globalization. In the introductory part of "The law of people", John Rawls argues law of peoples; he means "a particular political conception of right and justice that applies to the principles and norms of international law and practice." He further defines the term society of peoples "to mean all those peoples who follow the ideals and principles of the law of people in their mutual relations." Commenting on the concept of global justice conceived by John Rawls, in an article titled "The Law of Peoples and Global Justice: Beyond the Liberal Nationalism of John Rawls" By Marek Hru Bec (human affairs 20,135 -150, 2010) wrote "to summarise, leaving all the problems of his theory aside now, Rawl's concerned with international justice, which in his ideal scenario achieved by establishing the harmonious existence of the people in the society of people under the law of peoples. This law is designed to implement the political dimension of justice with the aid of two pillars, firstly selected basic human rights and secondly a version of tolerance and intercultural recognition of particular differences of well-ordered societies."
Nikola Tesla said "Man, like the universe, is a machine, nothing enters our minds or determine our actions which is not directly or indirectly a response to stimuli beating up on our sense organs without". The advent of technological revolution and the use of the algorithm in technology will shift the focus of human relations from interpersonal to- 'machine to human' and 'machine to machine'. Two big things happening around the world are the use of big data and an exponential capability of the computational power of the computer. Thinking and acting rationally and humanly were in the exclusive domain of human. That monopoly is withering away, and the machine is challenging that concept. Artificial intelligence is the newest in the field of science and technology. In the perspective of justice, one would witness a shift of authority from human to machine.
Technocracy is not a mere buzz word coined to ascribe a new normal. Technocracy opens up extraordinary set of challenges to the very idea of justice conecieved under the Constitution. Technocratic approach to governance will give rise to new class of society based on digital divide. Yuvan Harari in his book "21 Lessons for the 21st century" cautions about the emergence of irrelevant class. These classes become irrelevant not because they are unfit to do any job but for the reason that skills and experience they gained became redundant on automation. Similarly, Michael Sandel in his book "The Tyranny of Merit" narrates the impact of technocratic approach to governance. According to him, many public questions as matters of technical expertise is beyond the reach of ordinary citizen which produce a sense of disempowerment. The essence of democracy rests on informed society. Deepest divide on automation, exclusion of information to digital illiterate, dissemination of information as an opportunity for self serving interest through the digital platform really matters in democratically governed societies. These issues will bind our courts in next generation justice dispensation.
Law, as in ideal, was conceived to determine relationships among people to secure an orderly society. The algorithm in technology would become a factor to put unprecedented pressure on humanity. Humanity has to search for the alternative model on the substance of justice as the idea of justice followed currently is likely to turn obsolete. Next-generation of debate among political and legal philosophers would be around character and type of justice to combat issues related to human interests, be political, social, cultural, etc., arising out of penetration of machines. The very idea of law is to define proprietary of human action. Machine will redefine the idea of law and ultimately focus on justice. Concept justice in substance shifted its authority throughout history from logic to divinity and after that to natural law and humanist ideals. A big shift to the authority of algorithm is awaited. The technological challenge is likely to spoil or erase the concept of justice rooted in natural law ideals. Same also could impact the authority of the sovereign. Aspiration for global justice will lay the foundation to accelerate new dimension of justice supported by algorithm. Will humankind arrive at a consensus to face the challenges is a big question.
Process of justice is the key in the administration of justice. The legitimacy of the process will guarantee substantive justice as an outcome. King was the fountainhead as lawgiver and justice provider. Legitimacy of his authority traced to divine. God's appointment made him monarch. Belief in monarch was belief in God. Legitimacy of the process of justice therefore could not be questioned. Montesquieu believed that virtue is not the principle of a monarchical government (The Spirit of Laws 1750). His idea of constitutional government with three separate branches is to legitimate the process of justice on rational choices. He might have been influenced by Locke and other philosophers of his time to lay foundation of modern constitutional democratic government.
Administration of justice in constitutional democracy was built on institutional foundation. Emergence of courts as an institution with person trained in virtues and expertise reflected the court as an independent authority. Organizational propriety became decisive to determine the virtue of the institution of justice.
Institutional structure of court in order to cater its image of independence had no option but to device procedure for a fair outcome. Adherence to procedure resulted in overtaking procedural justice over substantive justice. This dilemma gave rise to criticism and popular dissatisfaction with administration of justice. Roscoe Pound's speech in American Bar Association titled as "The causes of popular dissatisfaction with the administration of justice" believed to have given birth to practice of modern mediation. His criticism in speech was that the judges in Anglo-American jurisprudence act like umpire in sport strictly following the rules of game unmindful for outcome of justice in the process. His speech is popularly known as sporting theory of justice.
Mediation and other ADR methods focus on substance of justice through the process without any barriers of procedure. Procedural justice ensures notion of independence and neutrality which is integral to institutional virtue. Absence of institutional virtues in administration of justice in ADR is likely to affect the outcome in the process and may dent the ultimate justice delivery. Idea of justice is not only concerned and related about what emerges through the process but also equally concerned about the proprietary of the process.
Views are personal.
(Author is a sitting Judge at the High Court of Kerala)