Spectacle of Law

“The World, the race, the Soul in the space and time the universe All bound as is befitting each and all surely going somewhere” —Walt Whitman

In his thought provoking work “The Changing law” Lord Denning poses the question as to why a majority of people abide by the law and answers it himself. A great majority of people abide by the law not because it would otherwise penalise them but because obedience to it is a thing which they think they ought to do. Obedience to the law is due to the realisation that it is a moral obligation to maintain order and an understanding that if the law were to be disobeyed, social order would collapse and every member of the society would suffer. But apart from that apprehension, most of the people obey the law because it is not merely a piece of engineering by which the community is kept running in an orderly manner but because it is concerned with justice and therefore with morality. Law would not be concerned with justice unless its contents have a moral element. Consequently if the people are to feel a moral obligation to act in accordance with the law, the law must be such as will equate with what a majority of the right-minded people feel to be right, fair and equitable, that is, what they regard as justice.

But justice is not the mere product of reason nor of intellect. It is the product of the spirit, of what the upright and the fair-minded people in the society think and feel is good and fair. And the law is not just an instrument with which conflicts between man and man are resolved. Such a result can be brought about even by guns.

The object of law is to decide such conflicts fairly and rationally and it is just as much of the essence that it should win the respect, the approbation of the community and satisfy its sense of justice. Justice, therefore, is not something which is tangible, external or that which can be seen but it is inner, belonging to and touching the spirit of the society. For, ultimately all law begins and ends with the man in the street. His needs and his faith reach the judge and the legislator and it is those needs and the faith which heighten their sense of responsibility. The judge and the legislator have to attend to his needs and bring their expert technique to bear upon his notions of justice and values. Thus it is only when the law equates itself with the general notion of justice held by the Society that it creates faith, the faith of doing all things and acting in accordance with the law. That faith can only be born if the law caters to the needs of the community and functions consistently with its sense of values, law, therefore, cannot be something which is made by some sovereign will but is in the words of Dean Found something that is found, expressing: reason arid adjusting itself to the wants of society,

What then is law? To understand the juristic concept of law, one has to appreciate the distinction which Dean Pound has evolved between law and the laws. Primarily speaking, laws are made for policing, for keeping order and for maintaining peace. They deal with local conditions and situations as they arise from day to day and are regional in character, made by some political authority and are, therefore, in the nature of regulations. Their function is to regulate and prescribe as to what should be done and what should not be done. On the other hand, law is a body of ideals, of principles and precepts for the adjustment of relations of human beings, needed to achieve justice. To quote Judge Cardozo it is “experience developed by reason and corrected by further experience” and its task is the attainment of full and equal justice to all. It is discovered, and not made, discovered by the application of reason to experience and modified continually as the process of development of society goes on. It does not deal with local conditions and local or regional situations but with universal conditions and situations and seeks to deal with them in universal rather than in local terms. Indeed, it deals with life and governs life. And, since life is not static, its very essence being change and growth, law itself cannot be static. Its very vitality lies in development modulated by experience and patterned by reason. Since it is reason which modulates its growth, law is philosophy. The task of the philosophy of law consequently is the exposition of the ideal element in law, of law as guided in its growth by ideals and principles.

The development of such a juristic concept of law has been mainly governed by two fundamental concepts, one an ethical and the other a political one. From the ethical concept we have an idea of law as being a reasoned adjustment of relations among human beings, ordering their con duct and behaviour in life in accordance with certain accepted notions; from the other is developed the idea of rules imposed by a sovereign political authority. The one gives law, the other gives the rules of law or laws. In England and America owing to their peculiar history and the political and industrial revolutions in the seventeenth and the eighteenth centuries, the jurists gave eminence to the idea of sovereignty of self-governing peoples and, therefore, to thinking in terms of laws handed and Imposed by the sovereign. In Europe, on the other hand, with the universal Roman Empire and the Roman Church, the concept of law stressed on the universal and the ethical rather than the political aspect.

It is Interesting to grasp how these two currents of juristic thought grew in their different environments. Aristotle in Politics quotes Hippodamus as formula ting and classifying legal actions recognised in his days. It is in him, that is from the middle of the fifth century before Christ, that we have the first gleanings of formulative thinking of law, the birth of Jurisprudence. According to Hippodamus, there existed in his time three subjects of legal action, to recover penalty for in suit, injury to person or property and for homicide. The object of imposing penalty was to buy off the vengeance which the relations of the injured man might otherwise take. Thus law had not gone further than a systematized policing by Imposition of fines, with a view to prevent violence and fight between kin groups and to maintain peace. A further advance is reached when we come to the fourth century before Christ when Plato and Aristotle are no longer concerned with mere policing and penalties to buy off private vendatta and to obviate private wars but of an Ideal city state, an ideal Athens or an ideal Sparta, Gradually, the canvas of thinking of law widened when by the mediaeval ages the ideal of city State gave way to an universal State ruled by universal rules working along and in close association with the universal Church. But with the growth of national States and the break up of the Roman Empire, the concept of a universal State governed by an universal law lost much of Its meaning. During the seventeenth and the eighteenth centuries, largely on account of political revolutions, first in England and then in America, there came about an insistence upon the individual as the true and the focal concern of both legal and political philosophy. Emphasis on the rights of on individual became the dominant political and philosophical dogma of the nineteenth century. The watchwords were equality and security. Equality both as an economic and legal concept meant equal operation of the rules of law and equal opportunity to exercise one’s faculties. Security meant that every one was to be secured in his rights against aggression by others. The characteristic features of this stage of the growth of law were the sanctity of property and contract and the Inflexible insistence on individual rights. Soon however reaction set in against this overemphasis on property rights and other rights of individuals.

With the rapid development of transport, the emergence of fast aeroplanes, and intercontinental telephones and wireless, distances were fact annihilated. Commercial transactions crossed political boundaries; finance took wider and wider fields, industries which until now were content to operate in the local regions spread themselves into multiple centers and the world became more and more united and close-knit commercially and industrially. The cult of localism of law had of necessity to give place to uniform Commercial laws and customs. The emphasis began to shift first imperceptibly but later on openly from individual rights to a code of human rights. The most manifest indications of this new development are to be found in the adoption in most of the civilized nations of restrictions on the abusive exercise of rights of property, on the absolute freedom of the right of contract, of the requirement of standard clauses and standard contracts, the adoption of penal liability without guilt and mens rea in statutes such as Factories Acts and in the increasing tendency to recognize the right to work coupled with the recognition of groups and associations as legal entities such as trade unions on the one hand and federations of trades and industries on the other. These changes portend a stage of juristic growth which the school of Dean Pound has called “the socialization of law”.

The school which believes in the socialization of law treats law not as an isolated system but seeks to unite jurisprudence with the other social sciences through some form of social philosophy. It gives emphasis not so much to abstract principles as to the actual functioning of judicial processes. It regards law as a social institution underlining the finding of law by experience and conscious law-making. It lays stress upon the social purposes which law subserves rather than upon mere general principles. Employing a pragmatic method of investigation, it looks upon legal institutions and principles functionally and from the strict point of view of utility. The jurist of today insists upon the study of the social effects of legal institutions and legal doctrines, upon the study of the ways and means wherewith to make legal doctrines effective in action upon society, upon a philosophical study of the ideals and goals to be reached and of what social effects the doctrines of law have produced in the past and are likely to produce in the future.

The juristic emphasis is thus not on rights but on interests, claims, demands and social and economic pressures engendered by an increasingly crowded and neighbouring world. As Frankfurter said “Rights can never be absolute even in a free and democratic Constitution and that one kind of liberty may cancel and destroy another and that stronger even than the love of liberty is the passion for something different in name and yet at its core the same, the passion of equality”. The end of law is, therefore, social equality and its efficacy to satisfy the increasing pressures from sections of society whose expectations and hopes for a better standard of living have been fostered as a result of scientific and technological inventions In the modern world. Law has come to be tested with the touchstone of social utility and its adaptability to serve social norms and needs as they arise from time to time.

The emphasis has thus moved from the individual and his rights to security of the society as a whole, and to the fulfilment of the felt necessities of life of all, as revealed by experience from time to time. The law, therefore, cannot remain still nor can it be a mere assemblage of syllogisms as In mathematics. Its very life consists in continuous change, modification and readaptation as the needs of society vary. The law-maker of to-day has to think of the objective which the law is to subserve. The goal and not the origin of law is the problem of the new jurisprudence. The law, therefore, is not made, as was accepted in the 19th century, by a sovereign authority but is designed from experience, from the urgent and critical needs of social welfare, from the patterns of current morality and from the prevalent notions of justice and fair play. Deduced in this way law is an evolutionary growth giving expression to the current concepts of morality which develop from age to age, depending upon forces, social, political and economic existent at different stages in the life of society and the needs of such society engendered by those forces. Law and these forces are so interwoven together that it would be Impossible to divorce one from the other if one were to comprehend law not arbitrarily but as a functional and purposeful instrument of social utility. The law-maker who promulgates law and the judge who propounds it has to regard it as purposeful, to keep its doctrine underlined and upto-date and not to allow them to rust and to get obsolete. Both have to maintain them so that the Law and its doctrine correspond to the current standards or what Judge Cardozo calls “mores” by continual restatement and readaptation and by giving them a fresh content as the standards go on varying. For the currents of life continually shift; they sometimes expand and often shrink. The result is that the prevalent principles can at best charter our present location and our present bearings. But the inn that gives refuge and protection to the traveller for the night is not the journey’s end. Like him, law must be ready for to-morrow, must anticipate the needs, the objectives and the purposes as also the dangers of the community of tomorrow. It must look ahead, it must have the vitality and the strength to bear the changes.

Author Name: Hon'ble Justice J. M. Shelat