NTRODUCTION

Relation between law and Justice

The system of law is a set of rules of conduct of any organized society that are enforced by threat of
punishment if they are violated. Justice is the concept of moral rightness based on ethics, rationality,
law, natural law, fairness, religion and/or equity. Justice is the result of the fair and proper
administration of law. It is the quality of being just; in conformity to truth and reality in expressing
opinions and in conduct; honesty; fidelity; impartiality or just treatment; fair representation of facts
respecting merit or demerit.

Distributive justice

Thomas Aquinas said that a just law was one that served the common good, distributed burdens
fairly, promoted religion, and was within the lawmaker's authority. However, what are ―the
common good‖ and a "fair distribution of burdens‖ and what is the position of religious values in a
secular legal system? Later philosophers have developed the concept of Distributive Justice has
produced other theories of justice.

Utilitarianism

Utilitarianism as a theory of justice is based on a principle of utility, approving every action that
increases human happiness (by increasing pleasure and/or decreasing pain, those being the two
"sovereign masters" of man) and disapproving every action that diminishes it. A utilitarian view is
that justice should seek to create the greatest happiness of the greatest number. A law is just if it
results in a net gain in happiness, even at the expense of minorities. The problem here is that
minorities may not form part of the "greater number". This is a particular problem in a pluralist
society. Utilitarianism still plays a major part in the democratic decision-making process; R v
Cambridge Heath Authority ex parte B [1995] CA the Court of Appeal upheld the hospital‘s decision.
Medical advice that Jaymee had only a 2.5 per cent chance of survival was basically that the £75,000
it would cost to carry on her treatment would be wasted and could be put to better use for others.
An anonymous benefactor stepped in and paid for Jaymee to receive the treatment privately, she
died 16 months later. T S Eliot famously remarked, ―Human kind cannot take very much reality

Harm principle

Jeremy Bentham and John Stuart Mill believed that the law should not interfere with private actions
unless they caused harm to others.

JS Mill writing in ―On Liberty‖ said that private acts of immorality increase the pleasure of those
who indulge in them and cause little pain to others. Their net effect is to increase the sum of human
happiness and laws prohibiting them would be unjust.

The idea that wealth should be distributed evenly denies the possibility that individuals will be
stimulated to improve their own income and thereby increasing the wealth available to all. The
theory that we all live in a society from which we draw benefits and to which we contribute is called
the ―social contract‖.

Liberal-Natural Rights theories

The Liberal-Natural rights view of justice is measured according to the extent minorities and the
most vulnerable are protected. It uses a notion of natural rights, the minimum rights to which all are
entitled.
What are these ‗basic rights‘?

Rawls' hypothesis of the ‗original position‘ (see below) gives some guidance on what these basic
rights are. It can be argued that this simply returns us to the statement that what is just, is what is
fair‘?

Libertarian-market theories

The libertarian-market view holds that any interference in market distribution of benefits and
burdens is an unjust restriction on individual freedom, and that justice should only allow limited
intervention to prevent unjust enrichment, by which they mean basically theft and fraud and
exploitation. ‗What is justice?‘ is as much a political question as a legal or philosophical one.

Equivalence theories of law and justice

This chapter provides a summary review of the theories influencing the work for social justice. It is a
reflection on the theories and people who have actively worked for social justice, reform,
transformation, emancipation and revolution in and out of the academy. There are three important
commonalities shared by social justice activists in the social sciences and education: (1) education
and research are not neutral; (2) society can be transformed by the engagement of politically
conscious persons; and (3) praxis connects liberatory education with social transformation.Social
Justice Theoreticians generally focus their research and pedagogical efforts toward the ways in
which class, race, gender, sexual orientations and systems of power influence our conceptions of
knowledge, the knowing subject, and practices of inquiry and justification. One common aim of
engaged inquiry identifies ways in which dominant conceptions and practices of knowledge
systematically disadvantage subordinated groups. Claims of objectivity consistently benefit specific
power holder interests. Engaged educators strive to reform these conceptions and practices so that
they serve the interests of social justice and social equality.

Dominant knowledge practices disadvantage subordinate groups by (1) excluding them from inquiry,

(2) denying them epistemic authority,

(3) denigrating their cognitive styles and modes of knowledge,

(4) producing theories that represent them as inferior, deviant, or significant only in the ways they
serve elite interests,

(5) producing theories of social phenomena that render their activities and interests, or power
relations, invisible, and

(6) producing knowledge (science and technology) that is damaging at worst and not useful at best
for people in subordinate positions, thus reinforcing subjugation, exploitation and other social
hierarchies.One of the basic problems that social justice theoreticians pose and expose is the
manner in which the academy in the USA is a foundational site for the maintenance of social and
economic inequalities. That universities were developed historically excluding women, the
indigenous, Africans, and the poor is historical fact. In, Notes Toward an Understanding of
Revolutionary Politics Today, James Petras says that intellectuals, including academics, are sharply
divided across generations between those who have in many ways embraced, however critically,
‗neo-liberalism" or have prostrated themselves before "the most successful ideology in world
history" and its "coherent and systematic vision" and those who have been actively writing,
struggling and building alternatives (Petras 2001).Gramsci offered a theoretical paradigm combining
the social world and the economic world. He stressed the complexity of social formations as a
plurality of conflicts. Politics was assigned a constitutive role in direct relation to ideology as a key
prerequisite for political action in so far as it served to ‗cement and unify' a "social bloc'. Without
this consciousness, there was no action (Martin 2002). One of the most important and the most
complex concepts that Gramsci analyzed, is "hegemony". The concept of hegemony is crucial to
Gramsci's theories and to understanding the critique in this study. By ‗ideological hegemony'
Gramsci means the process whereby a dominant class contrives to retain political power by
manipulating public opinion, creating what Gramsci refers to as the ‗popular consensus' (Boyce
2003). Through its exploitation of religion, education and elements of popular national culture a
ruling class can impose its world-view and have it come to be accepted as common sense (Boyce
2003). So total is the ‗hegemony' established by bourgeois society over mind and spirit that it is
almost never perceived as such at all. It strikes the mind as ‗normality' (reification) (Boyce 2003). To
counter this Gramsci proposes an ideological struggle as a vital element in political struggles. In such
hegemonic struggles for the minds and hearts of the people, intellectuals clearly have a vital role
(Boyce 2003). Gramsci taught that the key index for analyzing a social formation was the interaction
of economic relations with cultural, political and ideological practices or the ‗historical bloc'. As
such, the interconnections between state and economy and society were viewed processionally, as a
mutually determined whole (Martin 2002).

Justice as positive law of stronger class

The increasing disparity between rich and poor along with increasing global control
through overt and covert wars in Latin America led to dialogues in the Catholic
church about faith, transformation and liberation. The Second Vatican Council
produced a theological atmosphere characterized by creativity influenced by the
times (decolonization, independence struggles, and a proliferation of socialist
ideologies, Marxism and revolutionary and liberation theorists post WWII) (Boff and
Clodovis 2001).This creative theological atmosphere could be seen at work among
both Catholic and Protestant thinkers with the emergence of the group Church and
Society in Latin America (ISAL) taking a prominent role. There were frequent
meetings between Catholic theologians such as Gustavo Gutiérrez, Segundo Galilea,
Juan Luis Segundo, Lucio Gera, to name a few. This movement led to intensified
reflections on the relationship between faith and poverty and the gospel and social
justice. In Brazil, between 1959 and 1964, the Catholic Left produced a series of basic
texts on the need for a Christian ideal of history, linked to popular action, with a
methodology that foreshadowed that of liberation theology. They urged personal
engagement in the world, backed up by studies of social and liberal sciences, and
illustrated by the universal principles of Christianity. (Boff and Clodovis 2001)
The foundational work defining a liberation theology praxis came from Gustavo
Gutiérrez who described theology as critical reflection on praxis. Liberation theology
begins with the premise that all theology is biased-that is, particular theologies
reflect the economic and social classes of those who developed them. Accordingly,
the traditional theology predominant in North America and Europe is said to
"perpetuate the interests of white, North American/European, capitalist males." This
theology allegedly "supports and legitimates a political and economic system-
democratic capitalism-which is responsible for exploiting and impoverishing the Third
World" (Gutierrez 1971). Liberation theologians say theology must start with a "view
from below"-that is, with the sufferings of the oppressed. Within this broad
framework, different liberation theologians have developed distinctive
methodologies for "doing" theology (Boff and Clodovis 2001).Gutierrez rejects the
idea that theology is a systematic collection of timeless and culture-transcending
truths that remains static for all generations. He views theology as a fluid process, a
dynamic and ongoing movement of human beings providing insights into knowledge,
humanity, and history. Emphasizing that theology is not just to be learned, it is to be
done he says that "praxis" is the starting point for theology. Praxis involves
revolutionary action on behalf of the poor and oppressed-and out of this, theological
perceptions will continually emerge. The theologian must therefore be immersed in
the struggle for transforming society and proclaim the message from that point. In
the theological process, then, praxis must always be the first stage; theology is the
second stage. Theologians are not to be mere theoreticians, but practitioners who
participate in the ongoing struggle to liberate the oppressed (Gutierrez 1971). In this
context, all social justice praxis must be immersed in the struggle for transforming
society as revolutionary action on behalf of the poor and oppressed.
Education and Liberation
Brazilian educator Paulo Freire also understood poverty from first hand experience
and was influenced by Liberationist methodologies in Latin America. His life and work
as an educator was full of hope in spite of poverty, imprisonment, and exile. He was
a world leader in the struggle for the liberation of the poor and a great teacher to
many who are teaching using the model he developed. Paulo Freire worked to instill
the strengths and skills necessary for men and women living in poverty to overcome
their sense of powerlessness to act in their own behalf.Freire believed that freedom
through critical literacy necessitates carefully conceived ethnographic research of a
given community, and this means, again, becoming one with the people. That is, the
ethnographer must learn to "respect the reality" of the people in order to minimize
the distance between the people and him or herself so as to be positioned to
effectively work in their reality. He gave practical instructions for educational praxis
with his insistence that dialogue involves respect (Olson 1992).Freire observed and
experienced intense repression and oppression in Latin America (Brazil, Chile, and
Nicaragua).
Critical Theory
Critical theorists claim that Gramsci's notion of hegemony is fundamental for critical
research (Kincheloe and McLaren 2000). Gramsci understood that dominant power is
exercised by physical force and through social psychological attempts to win people's
consent through cultural institutions like schools (Kincheloe and McLaren 2000).
Criticalists claim that the formation of hegemony cannot be separate from the
production of ideology, a highly articulated world view, master narrative, discursive
regime, or organizing scheme for collective symbolic production (Kincheloe and
McLaren 2000).Criticalists claim that hegemony's subordinates, employed as
gatekeepers, developed a set of tacit rules about what can and cannot be said, who
can and cannot speak and who must listen, whose social constructions are valid and
whose are erroneous and unimportant (Kincheloe and McLaren 2000).