The present article intends to understand the linkages between the concept of justice and environmental justice. The concept of environmental justice has been as complex as the concept of justice itself. In order to provide jurisprudential perspective of environmental justice the present discussion has been broadly divided into following heads :
1. The Concept of Justice as the Main philosophical Foundation of the Concept of Environmental Justice.
2. Philosophical and Theoretical Framework of the Environmental Justice.
3. Relationship between Mainstream Environmental Movement (Sustainability Movement) and Environmental Justice Movement (Social Justice Movement in Environment)
4. Historical Perspective of the Environmental Justice Movements
5. Definition and Principles of the Environmental Justice.
6. Bhopal Mass Disaster and Environmental Justice in India.
1. The Concept of Justice As the Main Philosophical Foundation of the Concept of Environmental Justice :
The concept of environmental justice has been closely linked with the concept or theories of justice. Any discussion on the concept of environmental justice, therefore, requires a brief discussion on the concept of justice.
“What is justice?” asked Socrates in Plato’s Republic, and ever since, this has been one of the leading questions of philosophy and all social thinking.1 Prof. John Rawls, one of the influential political philosopher of the twentieth century, has beautifully highlighted the importance of the concept of justice. He writes :
“Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are out weighted by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising”.2
The debate relating to the concept of justice has been philosophical in nature but on the same time it has also been used to solve concrete problems of different era of history. Highlighting the theoretical and practical importance of justice Prof. Solomon and Murphy have said :
“On the one hand, the question “What is justice?” is an invitation to the most abstract sort of philosophical speculation. What is the good society? What makes a government legitimate? What kind of creatures does God, or Nature, intend us to be? What is our essential relationship to our fellow human beings, and what obligations do we have to one another? Where did these obligations come from? On the other hand, the question of justice focuses our attention on the concrete problems of our times. A theory of justice has the extremely difficult task of bridging the abyss between the abstract and the eminently practical. No theory of justice can long remain on the luxurious level of philosophical speculation without diving down into the particularities of social life but no attempt to solve the problems of daily politics can long sustain itself without reaching up to the heights of philosophy, struggling as Socrates struggled to come to grips with the definition of justice, with its essential nature and justification”.3
The concept of justice has been, indeed, a baffling concept. Philosophers, political thinkers and jurists do not agree on a single definition/concept of justice. Realising this difficulty Prof. R.W.M. Dias has rightly said, “the quest for justice has been as challenging as the quest for the Holy Grail, and as elusive. To some this is because justice is a will-o’- the - wisp, to others because it is too vast to be encompassed by one mind.4 Similarly, Prof. Edgar Bodenheimer, while writing a chapter entitled ‘The Quest For Justice’, has pointed out ‘versatile’ nature of justice which ultimately aims for a ‘good society’. He says :
“Justice has a protean face, capable of change, readily assuming different shapes, and endowed with highly variable features. When we look deeply into this face, trying to unravel the secrets hidden behind its outward appearance, bewilderment is apt to befall us. On the theoretical level of philosophy, many diverse and discrepant views of ‘true” justice, often claiming absolute validity, have been set forth by thinkers and jurists in the course of the centuries. On the pragmatic level of societal orders, many different approaches have been taken towards solving the problem of the “good society”.5
Philosophers, political thinkers and jurists have confronted with the problem of offering a precise definition of the term ‘justice’ on account of following three difficulties :
First, the term ‘justice’ is assigned different meanings by different people at different times and different places. Not only this, its implications vary from man to man on account on their varying interpretations.
Second, the idea of justice is a dynamic affair. As such, its implications change with the passage of time. Thus, what was justice in the past may be injustice in the present and vice versa; it is also possible that the justice of today becomes the injustice of tomorrow and vice versa.
Third, a further difficulty arises in reconciling the abstract notions of justice with its practical manifestations. For instance, one may talk of the divine justice or moral justice, but it will not be conformable to any set of empirical standards and, for this reason, not capable of practical application.6
Justice connotes different things for different people. The meaning of justice also depends on our view of society and its various aspects as also where do we find ourselves in the society. For a man of law, justice means the judgement pronounced by a judge; for a man of religion, justice means a set of morals and values; for a poor, justice means abolition of poverty, for a worker, justice means adequate wages and better working conditions, for a subaltern, justice means absence of outrages committed on him; for a feminist, justice would include abolition of male domination over female and last but not the least for an environmentalist, justice means prevention and control of pollution, protection of environment and respect for natural environment etc.
The history of the concept of justice is about two thousand and five hundred years old. During this long period great saints, philosophers, thinkers and jurists have propounded various theories in different disciplines of learning such as philosophy, ethics, religion, politics, economics and law etc. The concept of environmental justice has linkages with the various theories of justice. In order to understand these linkages between justice and environmental justice, hereinafter, an effort has been made to briefly present various theories or views relating to the concept of justice.
1.1 Philosophical Theories of Justice
The theories relating to the word ‘justice’ has been different in different times. First of all, we may take up the philosophical interpretation finding its place in the ancient scriptures as well as in the affirmations of the early philosophers. For instance, justice in Indian ancient tradition has been identified with the concept of ‘Dharma’ (righteousness or righteous way of life). Dr. U.C. Sarkar refers to four senses in which the term ‘Dharma’ may be used : (1) It means religion in the category of theology. (2) it means virtue as opposed to vice in the category of ethics. (3) It means law in the category of jurisprudence. (4) it means duty in the category of actions.7 According to Hindu jurisprudence, ‘Dharmanaya’, meaning equity and justice, is given precedence over ‘Dharma’ meaning law, whenever there is any conflict between the two.8
With the sophists of ancient Greece, justice mean interest of the stronger social groups which impose their will on the other groups. As against this, Plato in Republic, emphasized on the ‘moral and ethical elevement’ of justice by saying that it means performing one’s duties with all abilities and capacities towards the social whole. Aristotle highlights the ‘distributive’ aspects of justice and holds the view that justice means equal share to the equals and unequal share to the unequals. It may be pointed out that both Plato and Aristotle propounded the ‘philosophical conception’ of justice. Subsequently, this philosophical conception of justice was mixed up with the ‘natural idea’ of justice developed first by the Stoics and then followed by the Roman lawyers. After that justice assumed a religious complexion when Christianity became the official religion of the Roman empire.
1.2 Natural Law Theories of Justice
The natural theory of justice may be understood as an extension of the philosophical theory, it treated justice as an ideal of absolute value whereby the right order could be established. What the Stoics meant by nature was that the ruling principle in the universe was ‘reason’. Their idea of living ‘in agreement with nature’ was, therefore, fundamentally a canon of living according to the norm which man ought to realize. This idea was borrowed by the Roman lawyers who took justice as an ultimate end. The distinctive contribution of the Roman lawyers, however, lies in their integration of the idea of ‘natural justice’ with the positive law of the State with the result that jus civile (civil law) and jus gentium (law of nations), as they called it, were insisted upon to be in conformity with the law of nature.
The idea of natural justice was mixed up with the divine sanction with the advent of Christianity. What the Stoics and Romans meant by ‘nature’ became ‘God’ to the Church Fathers. The result was that religious canons became handy instruments to distinguish between the justice and unjust. St. Augustine linked up the idea of justice with the precepts of the Christian religion. St Thomas Aquinas ruled that in case the civil law was contrary to natural law, it was not binding on the ‘conscience of the ruled’. In this religious context the “nature is not a source of justice which is distinct from religion and from ethics : it is rather a combination and fusion of religion and ethics”.9
1.3 The Role of Justice During Reformation and the Renaissance to the Nineteenth Century10
According to Prof. R.W.M. Dias after the disintegration of Holy Roman Empire, independent national states emerged in Europe, individuals wished to free themselves from the church and feudal system and rising commercial middle class wanted freedom to preserve its trade. The individuals therefore found that a powerful sovereign was their best guarantee against interference, and the need was to foster the power of the sovereign.
Machiavelli advocated that the state and its sovereign have to be supreme and subject to no external control. Again Thomas Hobbes, in Leviathan, justified absolute sovereign power by postulating an imaginary ‘social contract’ between ruler and ruled. In this way natural law theory had come to support power of the sovereign. Actually Hobbes lived through the Civil War in England, so his preoccupation was with stable and secure government. However, subsequently, under the guise of ‘sovereignty of states’, the Europe saw the Thirty Years War. In order to restraint states’ unbridled pursuit of selfish policies Hugo Grotius, preached a body of duties based on natural law, known later as ‘international law’.
In the municipal sphere, individual, also faced tyranny of sovereign and it gave rise to the domestic struggle for immunity from the abuse of the sovereign power. In support of this movement the natural law doctrine of social contract was refurbished by John Lock who also advocated for natural right to own property. John Lock championed the revolution of 1688-1689, and idea that positive law might thus be overborne by natural law sustained the American colonies in their successful defiance of the British Parliament in the fateful years 1775-1781. Another way of controlling governmental power was put forward by the French Philosopher Montesquieu who propounded ‘doctrine of separation of power’ of the state. In France the continuing need to protect the individual against an oppressive monarchy found expression in the Rousseau’s ‘Theory of general will’ in which aforesaid theory of social contract underwent yet another revision. The idea of general will has given the birth to the institution of democracy. Rousseau’s theory was utilized as the philosophy of the French Revolution, 1789.
1.4 Socialist Theories of Justice : Marxist, Anarchist, Democratic Socialist
If socialism, in its essence, means, as it really is, not a very favourable attitude towards capitalism, all of them are the socialists : the anarchists, for example condemn capitalism as a charter of economic exploitation; the Marxists provide a severe critique of capitalist mode of production; the democratic socialists see, in capitalism, the worst form of moral degradation. If socialism is the political philosophy of the working class or a doctrine that claims to fight for the cause of the workers, then all of them-the anarchists, the Marxists and the democratic socialists-are socialists. If socialism, regards exploitation as the consequence of uneven distribution of social wealth, then all of them can, and in fact should have, claim to be socialists. If socialism means justice for the worker, the poor, the lowly, the downtrodden, then all are, indeed, socialists.11
1.5 Libertarian Justice : Hayek, Rawls and Nozick
The libertarian justice generally stands opposite to socialist view of justice. It is individualistic and follows the notion of liberty. In economic term, it demands : “no more redistribution”; in political terms, it asks for a minimal state; in social terms, it admits the claims of inequality. Prominent philosophers of libertarian justice are F.A. Hayek (The Constitution of Liberty, 1960), John Rawls (A Theory of Justice, 1972) and Robert Nozick (Anarchy, State and Utopia, 1974).
1.6 Rawls on Justice – A Redistributionist Plea for Justified Inequality
One of the most interesting modern attempts to defend principles of justice is found in John Rawls’s ATheory of Justice (1972), as now reformulated in Political Liberalism (1993). One cannot think about justice, one commentator observed, without talking a position in Rawls’s Theory of Justice.12
In Political Liberalism, Rawls postulates a four-stage sequence whereby the two principles of justice (‘liberty’ and ‘equality’) are incorporated into the institutions and policies of a constitutional democracy.
The first stage is the “original position”, followed by constitutional, legislative and judicial stages.
At the constitutional stage, the general structure of government and the political process are embodied in the constitution. So are the equal basic liberties of the first principle of justice. The second principle of justice is not, however, on Rawls’s view, a constitutional sine qua non for a constitutional democracy. It is his view that the history of successful constitutions suggests that principles to regulate economic and social inequalities, and other distributive principles, are generally not suitable as constitutional restriction. Rawls is, of course, referring largely to the American experience.
The second principle of justice is incorporated only at the legislative stage, and then only insofar as it is accepted by citizens. Rawls thus has a dualist conception of constitutional democracy, with what the “People” will initially as a “higher law” than what subsequently emanates from legislative bodies.
At the judicial stage, this dualism is protected by the courts, one role of which is to protect the higher law against challenges and encroachments by ordinary legislation. Rawls is thus committed to the institutions of judicial review as a necessary feature of a constitutional democracy.13
Though John Rawls has been generally characterized as libertarian but his theory of justice significantly differs from others philosophers, like Hayek and Nozick, of libertarian tradition. The publication of Rawls’ book : A Theory of Justice (1972) created a stir in the world of great liberal theorists of the West who took it as an outstanding work on social and political theory in the second half of the twentieth century.
The outstanding features of the Rawls’ theory is that here the argument of utilitarianism as given by Bentham is apparently rejected but really modified so as to be in harmony with the idealism of Kant. The basic flaw of the theory of utilitarianism is that it threatens to oppress some members of the society (e.g. even poorest, vulnerable, subaltern) in the interest of the greatest good of the greatest number. Rawls, unlike Hayek or Nozick, gives equal emphasis on ‘equality’ along with ‘liberty’. His theory of justice is known as ‘distributive’ through which he wants to provide ‘greatest benefit’ to the ‘least advantaged’.14
Rawls’ theory of justice has also been utilized for advancing the goal of environmental justice under which the idea of distribution has been a key element.
1.7 Subaltern and Feminist Theories of Justice
The dictionary meaning of subaltern is subordinate ‘lower in rank’, particularly ‘below the rank of captain’. In social science, it would, broadly speaking, mean an individual or a group standing lower in the social pyramid: the poor, the lowly, the downtrodden, in short, the weaker sections of society. In broad sense, subaltern would include the tillers, the tribals, the agricultural labourers, the scavengers, the leather workers, in Gandhiji’s terminology, ‘the Harijan’, the Dalits, the weakest of the weak.
It is interesting to note differences between the Marxian notion of opposing classes at different stages of history and the subaltern groupings. Whereas in the Marxian thesis, these antagonistic classes are economically determined groups, in the subaltern connotation, the groupings are socially and culturally determined as well.15
The feminist philosophy, including its political theory, speaks of man’s domination of woman as a curse inflicted on her by a socially-structured-male society. What is actually a natural sex-inequality is made a social gender inequality. The base on which lies feminism is the idea of equality. Feminism abhors inequality between man and woman, and conversely demands equality as the very core of society. Because woman is regarded unequal to man, she is made to suffer throughout her life: her subordination, powerlessness and oppression are the consequences of male dominance. Justice, in feminist perspective, demands escapism from woman’s internalization of female gender, and the low self-esteem, apathy and sense of helplessness that goes with it. The feminists do not regard law to be neutral in disputes between man and woman; the idea of justice is, by its very nature, male-structured. The feminist perspective on justice means, among others, elimination of all male domination, equality of rights, bridging the public and the private spheres, and creation of society, culture and politics in new, rather non-patriarchal forms.16
2. Philosophical and Theoretical Framework of Environmental Justice
The concept of environmental justice has been closely linked with the new tide in global environmentalism. Concept of environmental justice has emerged as a new version of justice and it has been linked, in many ways, with the earlier versions of justice such as philosophical, religious, ethical, social, economic and political justice.17
Hereinafter, we have attempted to present the theoretical framework of environmental justice under the following two broader heads.
188.8.131.52 Environment Justice Under Ancient Indian Tradition.
According to Professor O.P. Dwivedi, the relationship between human beings and nature attracted the seers of the Vedic period in a manner incomparable to any other religious and cultural traditions. The Vedic seers acknowledged that the material causes of this creation happened to be the Panch Mahabhutas (Five Great Elements); traditionally they are enumerated in the following order as earth, air, space, water and light-fire. These five Mahabhutas are cosmic elements which create, nurture, and sustain all forms of life thus they play an important role in preserving and sustaining the environment18.
The Atharva Veda (about 2000 BC) is perhaps the first of its kind of scripture in any spiritual tradition where the respect to the earth has been propounded. The Prithvi Sukta maintains that attributes of earth (such as its firmness, purity and fertility) are for everyone, and no one group or nation has special authority over them. It has been said that human greed and exploitative tendencies have been the main cause of environmental destruction.
According to Hindu scriptures, people must not demand or command domination over other creatures. Eco-spirituality and eco-care require that the entire universe is seen as an extended family, with all living beings in this universe as members of the household. This concept, also known as Vasudhav Kutumbakam (Vasudha means earth; Kutumba means extended family), refers to all human beings as well as other creatures living on earth as members of the same extended family. Only by considering the entire universe as a part of our extended family, we can (individually and collectively) develop the necessary maturity and respect for all other living beings.
From the above discussion, it may be said that people of India have a rich religious, social and cultural heritage of environmental justice. However, it is an irony that despite of this rich heritage India has been considered as one of most polluted nation. It appears that we the people of India have forgotten their rich ancient religious, ethical and cultural environmental traditions. Similarly we have not performed our duties relating to the environment as envisaged in the Constitution of India. Consequently, our natural as well as human environment have been badly polluted and degraded and we have also experienced one of the worst industrial disaster known as Bhopal mass disaster.
2.2 Environment Justice Under Modern Environmental Movements/Tradition
Global environmentalism arises from social conflicts on environmental entitlements, on the burden of pollution, on the sharing of uncertain environmental risks and on the loss of access to natural resources and environmental services. The modern or contemporary global environmental movements, which have given birth to the different versions of environmental justice, grow in reaction to economic growth. Different versions of environmental justice are result of different clusters of environmental movements. These environmental movements have different level of relationship with environmental sciences, feminism, state power, religion, business interests, and other social movements. Prof. Joan Martinez-Alier separates three main intertwined clusters in environmental movement.19 The ‘cult of wilderness’, ‘the gospel of eco-efficiency’ and the ‘environmentalism of the poor’, which are as channels of a single river, branches of a big tree, or varieties of the same crop. Hereinafter, effort has been made to present the main currents of environmentalism or main clusters in the environmental movement.