Where are our legal philosophers? - The Hindu

See - Where are our legal philosophers? - The Hindu


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In recent times, when our most fundamental understanding of concepts of law and its interplay with perceptions of justice, morality, humanism, freedom, honour and virtue are being questioned with fierce candour in the media and every conceivable public space, legal philosophy is all we have to guide our path. Sadly, a country that once based its laws on the commentaries of legal philosophers has allowed that tribe to become almost extinct.

In a society that seeks to rest its foundations in justice, a legal philosopher performs three essential functions. First, he expounds the relationship between law, justice and other concepts so fundamental to explain the nature of human existence in society. Second, he critically examines existing legal philosophies. Third, he examines decisions of courts and legislations from the point of philosophic principles.

Propounding legal principles

Through the centuries, many legal philosophers left their indelible mark on shaping institutions of governance. Many of the systems of governance and rule of law as are familiar today have been developed by applying principles expounded by legal philosophers. To Aristotle, justice was all about “giving every person his due” and the purpose of law was to develop a just society that made this possible. Kautilya’s Arthashastra postulated that the king was the fountainhead of justice but with the limitation that even he was obliged to rule according to the Dharmashastras. William Blackstone, through his book, Commentaries on the Laws of England, guided the growth and development of English law in no small measure; John Austin popularised the theory that law was command of the sovereign made credible by threats of punishment for its disobedience. The horrors of the World Wars galvanised dialogue on a new wave of legal philosophy that recognised the existence of some inalienable rights in every individual that could not be eliminated even by state-made laws. One could also discern their application in the famous Nuremberg trials where the defence of the Nazi officers — that they could not be punished because everything they did was in execution of valid legal commands — found no acceptance. The path-breaking work of several legal philosophers of that time had their impact in the promulgation of certain important international documents and treaties like the Charter of the United Nations, Universal Declaration of Human Rights, European Convention on Human Rights and the 1959 Declaration of Delhi on the rule of law.

This leads us to perceive the second function of a legal philosopher, to examine the validity of claims put forth by other legal philosophers. Take the theories of Lon Fuller in The Morality of Law. In this work Fuller creates a fictional King Rex who fails in the exercise of his lawmaking powers because (a) the laws do not have universal application, with the result that every case gets decided on an ad hoc basis; (b) his subjects remain ignorant of the rules he makes; (c) his law-making is an abuse of authority as he constantly keeps making retrospective legislation; (d) his rules suffer from lack of clarity; (e) his rules contradict each other; (f) his rules are subject to such frequent changes with the result that they give little time for subjects to adjust their actions; (g) he fails to ensure that the rules as administered are rules that have been enacted. Fuller claimed that a just king in his administration of justice avoids completely the debacles of King Rex’s system. Initially applauded, latter-day critics dissented from his views, pointing at apartheid rule in South Africa which was, applying Fuller’s prescriptions, undoubtedly effective but still far from being just.

Legal philosophy and court verdicts

The third function of a legal philosopher is to examine closely judicial pronouncements and legislations from philosophical perspectives. For instance, in India, a legal philosopher would have possibly raised the following questions about the National Judicial Appointments Commission judgment: If the Constitution of India is the social contract between the state and the citizen, through which provision of this social contract has the citizen vested “primacy” in the judiciary to select judges? If the source is not to be found in the written Constitution but in the “basic structure” doctrine, then is that doctrine a supplementary social contract that can be traced to a source other than the will of the people? If so, what is this source and what are its contours? Can Parliament bring in a legislation exhaustively declaring the “basic structure” on the plea that it needs guidance to its legislative exercise? Would that legislation itself be likely to be struck down as offending the principle of “basic structure”?

Or take the recent decision of the Supreme Court which holds that a wife demanding that her husband be separated from his parents is a ground for divorce. A legal philosopher would ask: Can this observation of the court be treated as a general norm? Is a wife to be treated as a means by the husband and/or his family to achieve their “cultural aspirations”, or is she to be recognised as an individual deserving mutual respect and dignity? A legal philosopher may even expand the scope of his inquiry to ask, is any human being entitled to treat another human being, or even our sentient fellow creatures and environment, as merely a means to their happiness and well-being, or is the dignity and mutual respect of the entities we interact with to be the prime focus of a just and law-abiding society? The questions are perplexing and a quest to find answers can be daunting… but where are our legal philosophers to question and to seek?

N.L. Rajah is a senior advocate of the Madras High Court.

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