Philosophy of Law
Philosophy has always been a powerful instrument in the armoury of law. Jurisprudence, in its specific sense, is the theory or philosophy of law, that is to say, its fundamental principles and conceptions rather than its practical and concrete details. Jurisprudence is, therefore, a branch of philosophy and the insight that philosophers have brought to its tasks is its most valuable capital. The primary object of jurisprudence in its metaphysical aspect, is to understand the purpose of law in a community. As Roscoe Pound put it, it is on the one hand an understanding of the precariousness of social structure and on the other the significance of law as a sustaining factor.
Right from the early times to the days of the sociologists of our times, philosophy of law has taken a leading role in the study of human institutions. Two objectives have mainly determined the philosophical thinking about ‘law,
- the general security and
- a certain ordering of human action which would eliminate friction between one member and the other or others in society and thus restraining individual witness and assuring a firm and a stable social order.
But as society changes from time to time and place to place new adjustments and compromises have to be made in the details of the social order. Lest these changes might, weaken or prove inimical -to the prime object of general security, the philosophers sought to construct theories of law and of law making and sought to formulate concepts as to a perfect law which would stand stead fast for ever. Thus the philosophy of law is an attempt to give a rational account of the law of a particular time and a particular place and to make it applicable generally. A surer basis of authority resting on something more solid than the mere human will or the power of those who govern was required.
Such a basis would also enable deducing some fundamental and universal principle of social order.
In attempting to deduce such a universal principle as a basis for moulding the social order the first question that philosophy was faced with was : “What is law?” In an attempt to answer this question, Aristotle distinguished a universal from a special law. Whereas a Special law, he said, consists of a written enactment by which men are governed, the universal law consists of those unwritten rules which are recognised among all men and is conformable to Nature. Similarly, Cicero described law as right reason, an agreement with nature, diffused among all men, unchanging and everlasting. This distinction between a special law and a universal law, with the generality or application and immutability of the latter is also to be found in Justinian. According to him, Natural Law which is being observed in all nations, being established by divine Providence, remains for ever settled and immutable but that law which each State has established itself is often changed either by legislation or by the tacit consent of the people. This distinction between the natural law and the civil or positive law has had considerable significance in the history of juristic thought; for the natural law from which were deduced natural rights was in later days held to be having sufficient sanctity to render, void a human law which was repugnant to it.
Right from the ancient times, philosophers have gone on with attempts to discover the true principle of law. “What is Law? asked Socrates to Plato. Plato answered “What kind of laws do you mean? And Socrates replied by inquiring whether there was any difference between law and law on the very point of being law or whether gold differs from gold on the point of being gold. Socrates then concluded that law sought to be the discovery of reality; in other words, the true reality with respect to the administration of a State. In thus holding that law seeks to be the discovery of reality, Plato was defining the true sphere of law in his general philosophical view of the world. In his distinction between the concept of universal law and the positive enactment of a State, he prepared a way for the later, day speculation of natural law and the perception of the element of the ideal in law-making. Thus, from the early times philosophers tried to find an immutable principle with which to hold and measure the validity of a positive or a municipal enactment.
But whereas in Western Polity there was a governing authority, a ruler or a council, and a distinction was drawn between the law of nature and a positive enactment, no such governing authority and no such distinction between the law of nature and a positive law existed in Hindu Jurisprudence. Nevertheless the growth of juristic thought in India and in the West has been to a certain extent at least on common lines.
In Hindu Jurisprudence, philosophical speculation played perhaps a greater and a more significant role than in the western system of law. It was the philosophers and thinkers who pronounced the law and it was they, who, in terms of Plato, though long before him, ascertained the true reality in the administration of a State. The king always played a secondary role, for, he never claimed to be the law maker. Detailed rules were laid down for his guidance; his duty was in the first place to uphold and in the second place to administer the law and he was as much subject to it as any one of his subjects. Both Manu and Gautama emphasised that one of the principal duties of a king was the administration of justice according to the local usage and the codes written by jurisconsults.
But law and ethics could not be differentiated as in the West, for, the early thinkers among, the Aryans always laid emphasis on the supremacy of the inward life over things external. Philosophical thinking considered the life of an individual and of society as one integral whole and not compartmentally. The emphasis therefore was more on duties and obligations rather than on rights. No distinction was therefore observed between law, ethics and religion. Law was a branch of and was included in the comprehensive term DHARMA. The best law was that which promoted DHARMA. Consequently there is no Sanskrit term for a positive or civil law. Dharma meant the aggregate ot duties and obligations, religious, moral, social and legal.
Though the emphasis was on the inward life of an individual, there was nevertheless a stress also on general security of the society. Whereas the Western thinkers found the immutable law in nature, that is reason, the Aryans found the same immutable law, the law eternal and unchangeable in the Shrutis and the Smritis, THE HEARD and THE REMEMBERED, which contained principles based on nature, that is reason. Ancient custom, besides these codes, was regarded as a just foundation of several laws and for reasons of principle and justice. Manu, Gautama and Narada, all stress the efficacy of custom. The Smritikaras generally used for custom the expressions ACHARA, SADACHARA and SHISHTACHARA, meaning practices of good and wise men, involving clearly the element of reasonableness. In the history of Hindu law creative periods succeed one after another but it was the post Smriti period which saw the Hindu jurisprudence in the zenith of progress and assimilation. If the productive period of Dharmashastras was the golden age of Hindu Law, the Post-Smriti period was the period of critical inquiry, expansion and consolidation. Thus in Hindu polity the efficacy of both law and custom depended upon its appeal to reason.
As in India, so in the West, the jurisconsults contributed considerably towards the growth of the philosophy of law. During the Greek period law was still in its infant state. Law and ethics were still undifferentiated and there was consequently considerable identification of the legal and the moral. But by the time we reach Cicero, there had already arisen a class of professional lawyers and we find jurisprudence in its exclusive secular field. Cicero describes four principal forms of law; Statutes, Resolutions ot the Senate, edicts of the Magistrates and the writings of the jurisconsults. The last was the point of growth and continued to be the most important form of law until it was codified and assimilated in the Institutes of Justinian. These jurisconsults had no legislative power and therefore their authority, as in the case of Smritikars of India, lay in the intrinsic reasonableness and the appeal they made to reason and sense of justice. If a proposition was accepted as law it was because it was just by nature, that is, reason. To the early thinkers, nature did not mean that which it means to us. To them it meant the perfect and the ideal. Hence the natural law was that which expressed perfectly the idea of law.
Scientific legal development began in mediaeval Europe, especially through the universities. Following an era of anarchy, men earnestly desired peace, order and organization. They therefore called for philosophy to bolster up authority. The need was to rationalise men’s desires and to govern them by fixed rules. The breakdown of feudalism, the rise of commerce, the era of discovery, colonisation, together with the rise of nations, called for national law, unified within national domain. People demanded coditication of customary laws. For the time being, commentators, shaped the law for their own nations out of Roman materials, for a static society, emphasising authority because authority had saved the society and its institutions from destruction and anarchy. They forgot the individual, in fact, neglected him, because of the political philosophy then prevalent, that the individual lived his highest life in the life of another, whose greatness was the greatness of those whom he served. This theory had the germs of the divine right of kings which ultimately ended in the struggle between the rulers and the ruled, culminating in the killing of Charles the Stuart and the Cromwellian revolution in England and the subsequent convulsions all over Europe.
‘During the 16th and the 17th centuries, conditions, changed and the old order was no longer suited to those new conditions. The legal theories propounded for mediaeval societies were no longer adoptable to the wants of an active, shifting and legally interdependent society, impatient or the over-riding authority, because that authority stood in the way of the wants and desires of these new societies, zealously individualistic in outlook. The main principle now was that the highest good lay in free individual self-assertion. The new society, no longer founded on kinship and clans, conceived itself as an aggregate of individuals, based, on competitive self-assertion. It resented the yoke of the strict law.
A period of legal development resulted : Philosophy once more took control of the new situation. New concepts. were evolved which did not strictly grow and arise out or the law. As in the early times, law and morals were again identified in juristic thinking. The theory that all basic law was declaratory of the natural law and got its authority from the rules of natural law, held sway. But the original concept of natural law consisting of certain immutable principles, was not quite adequate. The theory which the philosophers now propounded was not of the natural law, that is to say, that which is law is right, but of natural rights, rights inherent in men, and to which the basic or civil law must give effect. Under the influence of this theory, the jurist worked out the legal rights of an individual.
The 17th and the 18th centuries saw attempts, to fix immutable parts of law and to lay out legal charts for all time by means of codification of laws on the continent and the development of equity under Lord Kenyon and Lord Eldon in England which became almost as fixed as the law itself.
In the 19th century, particularly in England and America, the jurists turned’ to the utilitarian, analytical theory of which Bentham and his group were the authors. The standard of law-making was that which made for the great total of individual happiness. As it was assumed that the maximum free self-assertion of an individual was the maximum of human happiness, the jurist and the legislature both emphasised individual liberty and the rights of air individual.
Towards the end of the 19th century, the utilitarian and the LAISSES-FAIRE doctrinaire gave way to a new sociological thinking which Dicey in his LAW AND OPINION called Collectivism. The doctrine of utility of Bentham and his followers with its emphasis on the individual as against, society, gave place to social utility. The central fact in human existence was no more the self-assertion of an individual but the social interdependence of groups with similarity of interest and dependent upon division of labour. Society ceased to be the aggregate of individuals out consisted of groups of individuals based on identity of Interest, each group not self-sufficient in itself but depending upon each other, so balanced that the groups together made one harmonious society. This new social order, built on these theories, made new demands and pressed upon the lawmaker new desires, new expectations and new ambitions.
Jurisprudence, therefore, is again in a stage of transition which demands fresh approach to theories of law, of which the aim must be the achievement of justice between one group and the other and yet keeping the whole together to safeguard what the Greeks considered the general security if and the ordering of human action in society.
Society, however, is as inconstant and uncertain as the sea. To the early thinkers it was something static and therefore the Platonic idea of societorial stability being the reality of law, was sufficient. But as society grew wider and more complex, adjustments and compromises have had to be made from time to time in order to fix the relationship amongst its, members, demanding a particular behaviour at a given time and place so as to be in accord with the structure of that society, jurisprudence therefore could never rest content with the simple theory that the end of law is merely the maintenance of order.
During early times, the first and the simplest idea was that law existed in order to keep peace in a given society. This is the conception of what may be called the stage of primitive law. It puts satisfaction of social wants and general security as the purpose of the legal order.
The Greek philosophers came to conceive of the general security in broader terms and to think of the need of the legal order as the preservative of the social STATUS QUO. Consequently, they thought of law as a device to keep man in his appointed groove in society and thus prevent friction with his fellowmen. The best virtue was therefore knowing the limits which nature fixed for human conduct and keeping within them. Correspondingly, the unwise vice was wilful transgression of the socially-appointed bounds. We find this idea fully developed in Plato. Of course, the classification existing in his time was not proper; in his ideal Republic, men were to be re-classified and everyone assigned to the class for which he was best fitted. Aristotle likewise assarted that justice has a condition in which each kept within his appointed sphere.
The Roman lawyers turned this Greek philosophical concept into a juristic theory. The three precepts reduced in the Institutes of Justinian are (1) to live honourably, (2) to conform to the conventions of the social order, and (3) to respect the personality of others, in other words, not to interfere with those interests and powers of action, conceded to others in the social order. Stability was to be secured by rigidly keeping everyone to his trade or calling and his descendants were to follow them therein. Thus, the harmony of society and the social order was not to be disturbed by individual ambition.
In the middle ages, this legal order was once more thought of as an orderly maintenance of the social STATUS QUO. This conception answered to the needs of the mediaeval society in which men had found relief from anarchy and violence in relations of service and protection, and the social organisation which divided men in terms of such relations and required them to be held to their functions.
But with the disintegration of feudal soolal order and the growing importance of the individual in society, engaged in discoveries, trade and colonisation, securing the claim of individuals to assert themselves freely in the new fields of human activity, became a more pressing social want. Accordingly, the end and purpose of law became the making possible the maximum individual fret assertion.
Whereas the Greeks thought of limiting men’s activities, so as to keep each in his own groove and thus avoid friction, the 16th century jurist held that men’s activities were naturally limited. Therefore, ail men must have freedom of will and ability to direct themselves to conscious needs. Law therefore did not exist to maintain the STATUS QUO, it existed to maintain the natural equality. This natural equality was conceived as an ideal equality in opportunity to do things and this passed into a concept of free individual self-assertion as the thing to be sought and of the legal order as existing to make possible the maximum thereof. This idea took form in the 17th century and persisted in the next two centuries. Law, as the instrument of securing natural equality, became the instrument of securing natural rights.
In the 19th century, this mode of thought took a philosophical turn. The social problem was to reconcile conflicting free wills. Kant rationalised law as a system of principles or universal rules to be applied to human action. Hegel rationalised law as a set of principles whereby the idea of liberty would realise in human experience. Bentham rationalised law as a body of rules laid down by the authority of the State, whereby maximum happiness was secured to each individual. The end of law was to secure the greatest possible self-assertion of the individual, to let man do freely consistently with a corresponding free doing by his fellowman.
By the end of the 19th century, the law began to move in another direction, though the traditional lawyers continued to insist upon the rights of the individual and his right of free and untrammelled assertion except in so far as not to be inconsistent with or in violation of the same rights of others.
Restrictions began to be placed on the right of ownership of property and to do with such property as the owner liked, by laws which prevented such untrammelled use so as not to endanger public health or safety. The power to make contract began to be circumscribes where industrial conditions made freedom of contract defeat rather than advance individual human life. Restrictions in employing child and feminine labour, restrictions on hours of work etc., fell within the field of law-making. Similar were the rules imposing educational and other qualifications, being conditions precedent for following certain vocations or professions. These and other restrictions began to be introduced as it was clearly felt that the system of promoting the maximum of individual self-assertion had come to produce more friction than it relieved, and to further rather than limit waste of human endeavour.
In the beginning of this century, a new way of thinking emerged. The jurist began to think in terms of human wants, desires and expectations, rather than of human or conscious wills. The end of law was no longer to harmonise the wills but to harmonise the satisfaction of wants. Whereas the 19th century preferred general security the 2oth century prefers the individual moral and social life, extending the field of law’s effectiveness, thworing a new burden upon it to devise ways by which is the fruits of life there would be a proportionate and just sharing, without upsetting or without it being inimical to the primary need of general security. Law thus became its social lostitution to satisfy social wants”, the claims and demands and expectations involved in the existence of a civilised society.
A disturbing thought must enter into the mind of each conscicutious person interested in law and its administration.
Today for the first time, the traditional law, with the instance upon the individual and his right of self-assortion, his unique place in society as recognised by law filds itself arrayed against the cry of society itself. For the first time, instead of securing for them what they most prize, people seem to find in the concept of law something that continually seems to stand between there and what they desire. It cannot be denied that there is a certain degree of dissatisfaction with the traditional legal system. Commissions and Boards of Inquiry with summary powers are called for and the Courts of law are illustrated.
This may perhaps be due to impatience against a thorough search for the truth and the precise ascertainment of facts and strict justice. The feeling is, when everybody can learn all facts in ten minutes from a morning newspaper, why should a Court of law take six months to reach a fragment of them? The too world-wars, the movement far independence, the resurgence of new problems of reconstruction of society, the opportunity for their solution for the first time in our own way have left in their asks feelings of frustration and an agitational posture of mind which resent against the restrictions of the rule of law though inevitably indespensable in a democracy. But this is not a full explanation. It is said that this dis-satisfaction has a basis and is, to some extent, not without justification.
The traditional law exhibits too much respect for the individual and for the entrenched position in which our legal and political history has placed him, and consequently, too little respect for the needs of society, when the needs of society come in conflict with the individual, to be in touch with the present spirit. The right of an individual to contract as he pleases, his right to carry so a business as he pleases and to hold his property, are doctrines which, owing to historical facts, we have imbibed from the common law. So long as they remain as the foundations of law, they have to be upheld by Courts of law, often, at the expense of the right of society which demands not only equality of opportunity but equality to share the fruits of its efforts. Cicero said truly, “we are the slaves of the law that we may be free”.
The new concept of social order and sociological thinking regard an isolated individual as a mere abstraction and not as the centre of the universe. Liberty is looked for, not through him but through society. As Roscoe Pound said, we are not so much concerned with the liberty of each individual limited only by the like liberties of all, as of the welfare of the individual achieved through the welfare of the whole, whereby liberty of a higher and a wider content is ensured to him. The complaint is that the traditional law is concerned not with the social righteousness but with the rights of the individual. Under it, the individual gets so much fairplay; while the society gets very little.
If a new road were to be made through the grounds of a private person, it might be extensively beneficial to the public, but the law permits no man or set of men to do this without the consent of the owner or without paying compensation to him. When recently the legislatures in different States decided to do away with the system of zamindari, it was the traditional law which came in the way by insisting that howsoever beneficial such a project may be to the society in general, the proprietary and the other rights of the individual owners cannot be deprived of without either their consent or without compensation.
Here is a clear case of conflict between the predominate section of society and the traditional law which manes the society impatient against law and its insistence upon the sanctity of the rights of an individual. Until there was the conflict between the ruler and the ruled, this feature of the traditional law and the traditional legal system were popular. But today, men have changed their views as to the relative importance of the individual and of society. An isolated individual is no longer taken as the focal point of the universe. The need has become urgent to alter the traditional law and to shift the insistence from the rights of an individual to social righteousness. In order that this resentment against law may disappear, the jurist will have to find out a better balanced and a deeper compromise between the individual and the society and between the rights of the individual and the needs of society. It would be a new function for the jurists to fulfil. From ancient times, they have fulfilled their mission by changing, altering and moulding concepts of law and its purposes as society and its functions have from time to time changed. Modification implies growth. It is in fact, the very life of the law.
Author Name: Hon'ble Mr. Justice J. M. Shelat
