A Theme Introduced National Jurisprudence Foreword to the Future

Jurisprudence is simply organised knowladge of law. But what is law ? What are its principles ? Is it an art or science or both ? Is its philosophy of universal validity, a sort of Sanatana dharma, or are there time space variables ? Is there a capitalist legal system, a socialist legality and democratic rule of law? What do we mean by Anglo-Saxon jurisprudence, American Jurisprudence, European legal institutions a ad Indian law ? Are there an old jurisprudence and a new jurisprudence, the sociological, teleological, Austinian and Hart Schools ? Many more mean-ingful questions can be multiplied and some answer for each can be found briefly or partially in the miscellany of legal ideas and macro collection of juridical and allied thoughts and fasts 'National Jurisprudence' — authored by a widely read Judge with social insight—Shri Justice Masodkar.  Why then this title ? You will find the answer in the last chapter. Shri Masodkar is overwhelmed by his erudition —but the product is a reference book. Any jurispru-dential point in doubt will take you to these pages and something useful would have been said on it there. While he seeks to unfurl a large canvas, more or less global in space and pre-historic to modern in time, his focus is on India as his book moves up to a crescendo. He strikes a nationalist note and evolves a national jurisprudence. In one sense this is not a book but a judicial panorama.  Analytical positivism which had its roots in a theory of private rights, developed and enforced against the background doctrine of the 19th century metaphysical individualism and hedonist utilitarianism was found to offer too narrow a foundation for a dynamic theory of law which, under contemporary conditions of social change, especially in developing countries which have thrown off the colonial yoke only in the recent past, demands rapid socialisation of ownership and means of production in order to ensure that economic and human resources are harnessed under organised community control and supervision so as to subserve the greatest common good of the society. Though Dean Pound's Sociological jurisprudence and the theory of interests developed by him have greatly assisted in fostering in the mind of contemporary jurists a perspective oriented awareness of the limitations of Austinian jurisprudence, burgeoning legal theory, which is sensitive to the multi-faceted lego-social problems of poverty and want in the developing and under developed nations of the world, is very much the need of today. The author's projection of the need for a truly functional jurisprudence which is related to the problems of the present is thus both topical and timely. His examination of the various schools of jurisprudence is likewise intended to focus attention on the relationship of law, legal institutions and concepts and our own notion of legality to the broader socio-economic Context which serves as the raison d'etre of much of the social legislation of today.  Law as a profound sociological truth, drawing its life-breath from the Spirit and genius of the Indian people and from its intimite association with our ancient and evolving culture, became a casualty of British rule. Alien laws and institutions of justice were thrust upon the nation to suit the scheme of colonial domination and exploitation. The author graphically portrays this cultural invasion upon and supplanting of local institutions of justice at pp. 55, 56 and 102 of his book. The theme of the book 'national jurisprudence' has thus its genesis in the sordid history of British rule in India.  The title of the book is prefixed 'national' because in spirit it is Indian. To be Indian, you have to be cosmopolitan and that is why the book also has an encyclopaedic reach and eclectic selectivity. After a wide-ranging survey Shri Justice Masodkar climaxes towards the Tryst with Dastiny where politics mixes with law, spirituality with secularism. Whether it is wise to be all-inclusive is a question, but can we see in perspective our own jurisprudence without the cosmic canvas being spread out? The author having made a big sweep, winds up with the complaint 'topic is vast and time is short' and agrees that a deeper probe must be undertaken. He is right. The jurist, humanist and nationalist in Shri Masodkar blend in the last pages to vindicate the title :  "We have undertaken to reconstruct under the Constitution a responsive, sensitive democracy, where want and exploitation shall be banished, where poverty and politics of richas and exploitation would for ever be abandoned, where everyone would breathe free abundance and live a life of respect and dignity. Law and its philosophy has to find levers for achieving such state. Careful studies of all matters like the basic Concepts of Bight, Duty, Obligations, Property and possession, Freedom and Liberty as well as crime and penology, and needs of these legal doctrines in our own context, it appears, indicate the way. Like all cultural ventures let us begin to mould our responses by our own original stimulants. That itself will evolve the shape of our 'National Jurisprudence' relevant to our life and related to our needs."  Law is a definition of class relations. Professor Laski, in his Grammar of Politics, has explained what every Marxian and modern student must know :  "Law, for the student of politics, is built upon the general social environment. It expresses what are held to be the necessary social relations of a State at some given period. The organ by which it is declared to be law is, for politics, incomparably less important than the forces which made that organ act in the particular way."  Regrettably, our legal education planted by British colonialism has regarded jurisprudence as a theory of analytical positivism. Austin expounded this theory to validate the emerging capitalist-industrialist economic order and monarchical political system. Since then, times have changed in the world, conditions have altered in India, the residence of power having shifted from the Raj to Republic. Marx has male an impact on world economics and world laws, the sociological theory has gained popularity through Dean Pound, and India herself has been looking towards the left, inscribing in her Constitution the imperatives of Independence — Viz., social and economic justice. The sovereign is above the law for Austin, but is subject to the law, if authoritarianism is not to find philosophical justification and the rule of law in its wider sweep is to ensure freedom. Austin for us should now be made a memory and our law schools must teach a new jurisprudence where Law and Poverty, Law and Development, and Law and Distributive Justice figure importantly. To this new era of Jurisprudence, Shri Ma-sodkar's book is a useful Introduction.  The importance of this crucial switch in the orientation of our jural studies cannot be over rated. Says Laski :  "Jurisprudence is the eye of the law. It gives the law its insight into the envirements of which it is the expression. It relates she Law to the spirit of the time, and the richer the jurisprudence of a given system in a given age, the nearer will be the law of that system to the needs of its time. The poverty of English jurisprudence since Austin is the measure of the inadequacy of our law to laeafc the swift changes of our social sitution. We should not have had reactionary decisions like those in the Free Church of Scotland case, or the Osborne case, if our lawyers bed beem trained to watch the juristic significance of the judgments they make."  We cannot but hurry to abolish the poverty of our jurisprudence.  Justice Masodkar's book, I hope, will be the-precursor of further separate studies, ventures which will help Indian Law find its personality and banish colonial longings and lingerings. It is time we evolve a systems which imbibes the best from our past and adopts the finest from foreign strands to weave a fabric which brings into action oar new values and welds our vast, varied and cul-turally pluralist community into an advanced nation wheeling forward on a dynamic and modern rule of law truly swadeshi at heart and representing the best available cultural synthesis of nationalist and universalist ideas of justice and socially relevant in its value system. This book is a beginning;

Author Name: Hon’ble Justice V R Krishna Iyer