Amartya Sen’s The Idea of Justice (2009) presents a profound critique of traditional theories of justice, especially those rooted in Western jurisprudence. Unlike John Rawls’ A Theory of Justice, which prioritises institutional structures and ideal conceptions (what Sen calls niti), Sen shifts the emphasis to nyaya—the actual realisation of justice in the lived experiences of individuals. Drawing from Indian philosophical traditions and global Enlightenment ideas, Sen advocates for a comparative, reason-based approach that focuses on reducing injustice in the real world rather than designing utopian, perfect systems.
This article explores the concepts of niti and nyaya, Sen’s critique of transcendental institutionalism, the role of public reasoning, and the implications of his theory for law and justice in practice.
Understanding Niti and Nyaya: Ancient Roots, Contemporary Relevance
Niti: Principles and Institutions
The term niti refers to rules, institutions, and organisational frameworks that guide justice. It is akin to normative procedural justice—emphasising how laws and policies are created and implemented.
- Example: A Constitution that guarantees equality before the law is a part of niti.
- Niti is about just arrangements, much like what Rawls advocates in his theory of justice as fairness.
Nyaya: Realised Justice
In contrast, nyaya concerns the actual experience of justice—whether individuals in society actually live just lives. It focuses on outcomes, not just rules.
- Nyaya aligns with the consequentialist view of justice.
- It highlights the social realisation of justice, including how people are treated and the fairness of outcomes, regardless of the formal structures.
Illustration: A policy may be niti-compliant, like equal access to schools, but if a child is denied education due to caste discrimination, nyaya is violated.
Sen’s adoption of niti and nyaya from Kautilya’s Arthashastra and other classical Indian texts brings a culturally rooted perspective into modern jurisprudence.
Critique of Transcendental Institutionalism
Sen critiques the dominant approach in Western liberal theories of justice, especially that of Rawls, as being too idealistic and institution-centric. He calls this “transcendental institutionalism”, which seeks to define a perfectly just society and then evaluates institutions based on that ideal.
Limitations According to Sen
- It ignores comparative injustices that persist in the real world.
- It places ideal theory above practical action, focusing more on what justice is rather than what removes injustice.
- It avoids direct engagement with actual injustices, such as hunger, poverty, or gender discrimination, which require urgent attention.
Sen’s Rebuttal: Instead of waiting for perfect justice, societies should aim to reduce manifest injustices. Justice must be assessed comparatively and pragmatically, not realistically.
Comparative Justice: A Realistic Framework
Sen proposes a comparative theory of justice, inspired by thinkers like Adam Smith, Condorcet, Mary Wollstonecraft, Karl Marx, and John Stuart Mill, who emphasised reason and public debate rather than transcendental ideals.
Key Features of the Comparative Approach
Plural Groundings: Justice can be based on multiple values—liberty, equity, utility, etc.—not just one dominant principle.
Reasoned Agreement: Focuses on issues where people can reach agreement through public reasoning.
Reduction of Injustice: The goal is to reduce observable injustice, not to perfect an abstract system.
Example: We don’t need a perfect global system to see that denying vaccines to poor countries during a pandemic is unjust.
This approach makes Sen’s theory of justice more action-oriented, democratic, and inclusive.
Role of Public Reason and Democracy
Sen places public reasoning at the core of justice. It is through dialogue, dissent, and debate that societies can determine what is unjust and how to address it.
Democracy as a Process
- For Sen, democracy is not just electoral—it is the ongoing engagement of citizens in public discourse, which helps shape fair policies.
- He draws from the Indian tradition of open debate, including Buddhist councils and Ashokan edicts, to show that public reasoning is deeply rooted in Indian culture.
- Justice, then, is not what philosophers or judges dictate but what emerges from collective deliberation.
“Justice is ultimately connected with the way people’s lives go, and not merely with the nature of the institutions surrounding them.” — Amartya Sen
Justice and Capability: A Human-Centric View
Sen’s capability approach, developed earlier with Martha Nussbaum, ties directly into his theory of justice. Justice must be judged by people’s actual capabilities—what they are able to do and be.
Capabilities Over Resources
- A just society does not just ensure equal resources but ensures that people can live a life they value.
- It moves beyond mere formal equality to substantive justice.
Illustration: Two students given the same book (resource) may not achieve the same outcome if one has visual impairment (capability constraint).
Sen’s justice demands attention to real-life barriers, such as discrimination, disability, or poverty, and focuses on empowering individuals.
Implications for Legal Jurisprudence
1. Procedural vs. Substantive Justice
Sen’s framework prompts jurists to question whether procedural legality always ensures justice. For example, the Constitution of India upholds due process, but courts must often examine whether the application of a rule aligns with constitutional morality (Nyaya).
Case in Point: In Navtej Singh Johar v. Union of India (2018), the Supreme Court struck down Section 377 of IPC not because it was procedurally flawed, but because it substantively violated human dignity and autonomy.
2. Comparative Justice
Sen introduces the idea that societies can be ranked comparatively in terms of justice, without identifying a perfectly just society. This comparative model is highly relevant in international human rights law and comparative constitutional law.
Example: Whether a developing country is more just in terms of women’s rights or minority protections than another is a meaningful inquiry, even if both are imperfect.
3. Democracy and Public Reasoning
Justice, for Sen, cannot be top-down. It must involve public reasoning, a process where people discuss, deliberate, and scrutinise laws. This democratic discourse is essential for realising Nyaya.
Jurisprudential Implication: Judges must not only interpret the law but also facilitate constitutional dialogues, as seen in Justice Chandrachud’s opinions on individual dignity and participative democracy.
Illustrations from Indian Legal System
1. Vishaka Guidelines (1997)
Before statutory protection from sexual harassment at the workplace was available under the POSH Act, 2013, the Supreme Court issued guidelines in Vishaka v. State of Rajasthan to fill the legislative vacuum. Though institutions (Niti) failed, the Court delivered Nyaya by addressing real injustice.
2. Aadhaar Verdict (2018)
In K.S. Puttaswamy v. Union of India, the Supreme Court upheld Aadhaar’s constitutionality but also stressed proportionality and minimal invasion of privacy. This balance between state interest (institutional logic) and individual liberty (experiential justice) reflects the Niti-Nyaya dialectic.
Conclusion
Amartya Sen’s contribution to legal theory lies in shifting the focus from perfect justice to the elimination of manifest injustice. The Niti–Nyaya distinction not only enriches jurisprudence with Indic philosophical depth but also provides a practical lens for evaluating the justice of laws, policies, and judicial decisions.
In an increasingly unequal and fractured world, Sen’s framework invites lawyers, judges, and policymakers to move beyond institutional rectitude and work towards justice as lived experience. As we navigate the complexities of legal interpretation and enforcement, the idea of Nyaya stands as a moral compass in our collective pursuit of justice.
References
- Amartya Sen and ‘The Idea of Justice’, Available Here
- Niti, Nyaya, and Niyat: Through the Lens of Everyday Justice, Available Here
- Rawls’s Theory of Justice Through Amartya Sen’s Idea, Available Here