" Rethinking Theory: The Question of Distributive Justice in Jurisprudence "

Abstract

In recent years, there has been a growing debate on the nature of Jurisprudence. Conventionally understood as the theory and philosophy of law, Jurisprudence in the modern era, has had to deal with issues manating from the more 'earthy' realms of political obligation and discourses on the 'nature of the state'. The great diversity of legal systems we see around the world, themselves pose a complex challenge when it comes to defining the 'province' of Jurisprudence. This paper seeks to examine certain basic questions like-What is the best legal system we can possibly hope for? Will these systems safeguard the basic rights of marginalized communities in conditions where there is an aggressive display of 'majoritarian will'? In order to answer these questions this paper will be looking at the contributions of various legal theorists, in particular those of Ronald Dworkin and John Rawls. Dworkin posits the idea of 'entrenching' certain rights, so that these rights are not undermined or destroyed through legislative prejudices. Rawls who in some senses represents the best traditions of the 'welfare liberals, elaborates on the idea of 'justice as fairness' and notions of distributive justice. The moot questions are —can these models be prescribed in the Indian context? Or is there a prospect of an indigenous theory which broadens the horizons of Jurisprudence?