Department of Humanities and Social Sciences
Justice and the Philosophy of Jurisprudence
Dr.. Priyedarshi Jetli
March 1, 2018 (Thursday) at 0300 PM
Venue: Conference Room 1
The most popular and the most widely read work in the history of Western philosophy is Plato’s Republic. The Republic is also often a required reading in courses in political science, literature, history, economics and law. Whereas those outside of philosophy see the significance of the text, as suggested by the title, to be a prescription of an ideal society which would be a just society, philosophers and Plato scholars, on the other hand, see it as a text on individual ethics, that is, on what makes a person good and just and what is the good life. The question posed at the beginning of the Republic is “what is justice in an individual?” In order to answer this question, Plato claims that the state is an enlargement of the individual, so that if we can first understand what is justice in the macro level of the state then by analogy we can understand what it is at the micro level of the individual. Though concepts of justice have been developed in the history of philosophy, in the development of ethics within philosophy the individual has held primacy over the social. It is also widely accepted among philosophers that the ethical has primacy over the legal, that is, laws and jurisprudence are based on ethics or morality.
I present a perspective that is contrary to the traditional philosophical stream. In thinking about “justice” it is the social that should have primacy over the individual and laws and jurisprudence are to be based not on individual ethics but on the notion of “social welfare.”
I synthesize two different concepts of “universal jurisprudence” of von Pufendorf (1632– 1694) and Leibniz (1646–1716). von Pufendorf incorporated some elements of the Hobbesian view of human nature and anticipated Rousseau’s social contract theory to a great extent. Hence, his perspective was in the liberal tradition based on universal human rights such as that of life, liberty and speech; coupled with some notion of egalitarianism. The judiciary then becomes the vehicle through which these rights and equality must be continually sustained. Leibniz’s universal jurisprudence was forward looking rather than historical. He suggested legal reforms with the practical goal of European peace and harmony in mind. Whereas von Pufendorf presents a negative principle of jurisprudence in which the practical aim of the judiciary is to protect universal human rights; in Leibniz we find an affirmative principle as the duty of the judiciary is to proactively pursue day to day measures to bring about fraternity, harmony and social justice.
The Indian constitution promotes affirmative action to overcome historical structural inequalities as declared in the preamble: ‘[...] JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual [...]’1. I argue that a negative principle of universal jurisprudence is expressed in the constitution to protect individuals against any type of discrimination on the basis of their caste, creed or religion; but there is also a positive principle of universal jurisprudence that provides the judiciary the power to implement proactive measures to promote the preamble ideals through day to day comprehensive affirmative action.
Brief Bio-sketch of the speaker
Prof. Jetli completed his PhD in Philosophy in 1987 from Indiana University. He taught at University of Delhi from 1993 to 2006 and at University of Mumbai from 2006 to 2013. He was visiting faculty in institutes such as TISS and JNU. He is interested in Ancient Greek Philosophy, Philosophy of Mathematics, History of Logic; and Philosophy of Law. He is currently working on a book on judicial Affirmative Action decisions in India since Independence. His publications include co-authored (with Monica Prabhakar) book Logic (Pearson, 2012), ‘Relations in Plato’s Phaedo’ (1998), ‘The Completion of the emergence of modern logic from Boole’s The Mathematical Analysis of Logic to Frege’s Begriffsschrift’ (2011), ‘Abduction and model based reasoning in Plato’s Meno’ (2014) and ‘Abduction and model based reasoning in Plato’s Republic’ (2016).