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Sen invents a wholly new connotation for two Sanskrit words- niti (policy/ethics/ counsel) and nyaya (justice/ law/ epistemological criterion for valid inference) whereby niti is made to stand for designing good institutions, working out feasible, consistent and efficient means of enforcing laws or policies (which is in line with the accepted Indic meaning) BUT ALSO the sort of things Rawls and Nozick were doing by considering what ideal Justice or ideal Fairness might look like. The problem here is that though the ancient Hindus had a lot of Gods they never postulated a God like Nozick's 'Judge Hercules' who has the power of omniscience and can make sure that the Law is always interpreted correctly such that its fabric suffers no rent or tear. This is because the ancient Hindus and Jews and Christians and Muslims and so on- though no doubt very backwards technologically- weren't utterly stupid. They realized a Judge Hercules was a logical impossibility. Rawl's 'veil of ignorance' is even sillier- indeed, one might say it is refuted by Borges's story 'the lottery in Babylon'. The sort of assumptions Rawls borrowed from Welfare Econ, especially from Sen himself- technical stuff about 'monotonicity'- i.e. artificial assumptions about people's preferences- have been refuted empirically at every possible level. There really is no sense in continuing to tilt at this Windmill which only exists in the fairyland of Academia.
Sen's own example of the flute- who should it belong to the guy who can play it, the guy who made it, or the guy who has nothing- is equally stupid since the question only arises if someone has the power to dispose of the flute without fear of retribution. This story is not about justice or fairness, it is about power and the fact that power carries a higher hedonic voltage (so to speak) when it has a greater menu of choice. The Queen of England is the head of State just as the President of the U.S. is a head of state. Her menu of choice is restricted to whatever her elected Head of Govt suggests. In comparison, the U.S. president has a larger menu of choice, though still subject to Legislative and Judicial constraints and, moreover, carries a higher countervailing risk of being removed from office (by impeachment).
Every English speaking thinker of the last 250 years has understood the need to very closely scrutinize and prune back, not arbitrarily expand, the menu of choice confronting the wielder of power. Thus, had Sen said Niti is good because it is concerns things like improving policy and implementation- better mechanism design, more efficiency, transparency, accountability, better evaluation of outcomes, more experimenting and empirical research- then he would be reflecting current thinking and showing us ways to go forward. However by saying Niti is actually about what Rawls and Nozick and their Marxist equivalents were doing, Sen distorts history. No great religion has ever been so stupid as to assume that men could have omniscience. Furthermore, in the case of Moses and al Khidr, or the story of Pinchas and the 'halachah vein morin kein' involved in his action, or the story of Krishna and Arjuna (which Sen mentions) what is clearly being shown is that omniscience and human action don't mix. Assuming the one can never yield positive results in the other. There is a hiatus, a barzakh (in Islam) between them.
Moving on to Nyaya, Sen says it means actual realized Justice. I suppose it can do, in the Indian context, but only back in the Golden Age when all sentient beings had minds unclouded by the forces of delusion and thus everybody behaved justly and so there was absolutely no need for any actual Judges. Sen does not discuss the Hindu concepts which are relevant- vyavahara, acara or even the Dharma doctrine described in the Mahabharata- because all are rooted in the notion that agents have only partial information, imperfect control over policy instruments (expert archers are constantly shooting a Holy Man by accident) little
 


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