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What is law?
The law is what holds the society together. It is a dynamic science constantly mutating. Administration of law comprises pragmatism, economics and many varieties of critical social theory. It is a formal discipline to aid the accused, consultant, advocate and Judges, but does not have answer for many unsolved issues like feminism, euthanasia, death sentence, etc. But it is still a landmaid of science. The rights and duties are meant to reduce scope for discretion.
Ambrose in a cynical definition of a lawyer describes him as one “skilled in circumvention of law”.
It is a live science
Law is a live impersonal science constantly in need of change in ever changing environment. Its force of law was illustrated by Emile Zola in his classic call for justice in the words “J’accuse” addressing military Judges, where an innocent Jewish Officer was condemned unlawfully prompted by racial prejudice. Focus is on similar justice for a wrongly accused black for rape of a white woman in the famous novel “To Kill a Mockingbird” by Harper Lee is another classic instance. Tamil classic Silapathikaram narrates the fight for justice by a widow against the wrong sentence of death inflicted on her innocent husband by Pandya King. In yet another story in Tamil, a cow sounds a call for justice on loss of its calf due to rash driving of a prince. Mythology are replete with stories of supremacy of law.
Law and Religion
The history of law emanates as a mandate from religion from the earlier tribal societies till today’s organised religions. Religion has always played a major role as was found in US when some one questioned air force dress regulations as coming against the faith of Sikhs with the rules themselves later changed to accommodate the complainant. Sikh wearing kirpan or Muslim wearing a hood over the head is an on-going exercise yet to be resolved one way or the other. An Article in South California Law Review 60 (1987):1579 by two Professors Frederick Mark Gedicks and Roger Hendrix noted the impact of religion in following words:
“When the law must deal with religion, it must use a language and a process steeped in objectivity, rationality, and empiricism to describe and evaluate experiences which are subjective, irrational, and unobservable. A religious language of faith, belief, and divine judgment seems out of place in the legal system…… To the religious person, it is more accurate and far more meaningful to describe religion as “spiritual” rather than “subjective” or “irrational”. It is inevitable then that law will systematically devalue the religious experience. Legal language and process currently are incapable of capturing and conveying the essential meaning and significance of religion.”
An attempt to interpret religious doctrines by a secularist would be suspect, while it is unlikely that a religious solution will satisfy both litigating parties in matters of civil dispute. Protection of human dignity should be the primary concern in application of law. Adoption of cost benefit analysis for every measure is the only route to simplification of our laws.
Is there a hope for law?
A recent study shows that a lawyer well grounded in law by himself can render justice either in the practice of law or render judgement as a Judge. The practitioners of law are expected to articulate and evaluate the material and institutional settings that make some people to suffer and some others more comfortable within society. The historical inequalities do not die of its own accord. Law should be able to render justice irrespective of the prevailing prejudices. The law has little humanity either for females or for minorities notwithstanding some minor concessions which are paraded but hardly ever practised.
Eradication of violence is a primary task of law. State is a veritable monster, a leviathan often symbolizing evil according to Thomas Hobbes with the life of the people “nasty, brutish and short”. Violence prompted by law is inseparable from the rule of law itself. The privilege for some at the expense of others is what law ensures today. Law by themselves do not solve problems. Even Trade Union Laws are not free from abuse. Law texts are mindless and are often interpreted in a mechanical manner.
It was the thinkers who could cross the limitations which law places on them from Copernicus and Galileo who undertook to challenge the beliefs of the Church and Karl Marx, Darwin, Freud and numerous others who left their imprint in sands of time. The need for change
People are losing faith in law even as brought out in one of Shakespeare’s play, where people raised in one voice “the first thing we do, let us kill all lawyers”.
Post-modernism prevailing at present seeks significant changes as understood by some authors like Austin John and Thomas R. Kearns. In law, legal theory and jurisprudence are rarely stable. The rule of law is the “deciding normalcy of bureaucratic abstractions with sympathetic privilege for some voices and silence for others”. The law by and large continues to be academic, biased, irrational exposing indeterminacy of legal doctrines with rhetorical devices used by Judges to mark indeterminacy.
The modern critiques would consider law as not a problem of logic, but of ethics. The judgements by and large today are no more than rationalizations of the desires of Judges themselves or the social interest they represent. Jerome Frank in Law and Modern Mind argues that the decisions in most case are “worked out backward from conclusions tentatively formed in advance.” Yntema would describe the law today in following words: “of the many things which have been said after an emotive experience in which principles and logic play a secondary part”. While recognised needs for law is individualism and altruism, there is profound fear of unwelcome backlash for the society. Jurisprudence is lacking in our statutes and rules leaving out better choice by acceptance of illusions. Back to the attention of jurisprudence is the prime necessity today.
What is to be done? Justice V.R. Krishna Iyer in his address on National Institute of Advance Studies on 18th January, 2016 has this to say :
“Judges decide according to the law of the land. On being appointed, Judges in India take an oath to decide without fear or favour, affection or ill will and to uphold the Constitution and the laws. But that does not result in every Judge thinking alike, ending in an assembly line of judgments. There are several reasons for this. Human nature is not monochromatic, it has shades which bring differences. Judges come from different background, upbringing, education and life experiences and they are no identical. Philip Hamurger speaks of the conundrum of private judicial knowledge. These have an influence on the decisions too. The Judge’s philosophy and ideology also work on the way he decides. According to Posner, Kelsen’s concept of law allows the space for bringing ideology and social science, and has a deep affinity to Schumpeter’s concept of democracy.”
India like some other countries have Law Commission constantly watching the need for reform. Most of its recommendations are yet to be considered and much less implemented. Government needs to be advised to ensure that this useful device becomes more functional.
Lord Denning’s last book “ The Closing Chapter” gives an interesting story of law versus liberty, a mass raid taking away twelve van loads of documents from Rossminster group was challenged before the House of Lords in Express Newspapers Ltd. v. Mcshane (1980) AC 672 though no particular offence was specified for this action. All the same, this military styled operation was upheld with a dissenting judgement of Lord Salmon who considered it as a matter of constitutional importance seriously affecting individual liberty. Lord Diplock was critical of the deafness of the Government to such abuse of law by prerogative orders. It was four years later no action was found necessary consequent on search as seized records did not warrant any criminal proceedings. But the Attorney General in a weak bid to justify the patently illegal action told the House of Parliament tax, interest and penalty action will be taken if and when the necessity of the same turns out during investigation. The law is helpless against the high-handed action of the unscrupulous Government as lamented by Lord Denning. All powers not only corrupt, but make a mockery of law and democracy.
Rule of Law Index : India ranks 66th
India’s rank is 66th out of 113 countries in the 2016 Rule of Law Index. Justice J.S. Khehar, Chief Justice of India appeals for the formulation of policies and guidelines to lift India’s ranking. Necessary steps need to be taken to make justice accessible to all particularly the children, women and historically oppressed sections of society for whom justice is still a dream.
It is the duty of a State to ensure justice to all. The judiciary has also the responsibility to ensure that the voiceless and the vulnerable are not denied justice by any omission and commission, the Chief Justice said.
Let us reach out to victims
Under the present judicial system, the entire focus of legal aid is on providing legal assistance to the accused. It needs to be changed and rights of victims should also be given due recognition. The Year 2017 may be recognized as a ‘Year of the Victims’, the CJI said.
Despite the 70 years of independence and the polity of the country continuing to remain as democratic, the use of rule of law has not reached the desired level to all the citizens. The balanced discharge of justice by its administrators in between the accused and aggrieved with overall awareness of legal aid among the citizens alone will raise country’s rank of Rule of Law Index.
