Friday 30 November 2018

Mentality of Law: Legal Research Paradigms-Conclusions



Mentality of Law:
Legal Research Paradigms-Conclusions

It is the common belief, agreeably, that no research is complete. Therefore, nor the research discourse, on a chosen subject, is amenable to a conclusion. Reasons are diverse. Social problems are never simple. There are, of a research problem, aspects which are manifest. It also partakes areas latent. The latter may be product of failure of human cognitive movements and achievements hitherto. Or alternatively, can be results of the designs of human language and marvel construction of methods and methodology of knowledge creation.
On the other hand, except the paradigm of study, the social research, enquiry conditions are uncontrolled because the system, institutions or the unit of the society which is comprised in the investigation problem, is beyond the control of the researcher. In contrast, scientific (natural) experiments are conducted in a controlled laboratory conditions, results of which may be tested and repeatedly reproduced. Yet this credence of scientific studies has come under challenge from time and again.[1] The disciplines of Quantum Physics/Mechanics, has now challenged the fundamental scientific theories and concepts of traditional natural sciences, in terms of their claim to truth. In a sense, then, both the kinds of investigative exercises have come to be centered, for their acceptability, on the criterion or idea of validity rather than truthfulness of the findings or conclusion.
After all these said, one may remember the task of formulating conclusion. Spivak observes:
And if the assumption of responsibility for one's discourse leads to the conclusion that all conclusions are genuinely provisional and therefore inconclusive, that all origins are similarly unoriginal, that responsibility itself must cohabit with frivolity, this need not be cause for gloom.[2]
Thoughts of Man & Minds of Community
Acceptability and validity of propositions produced are felicitated, within the community, by the conditions determined through the information available in the community. This statement appears to be abstract. We need to clarify it a little. Let’s say, a person is apart being a member of the ‘kingdom of the animals’ (to use Hume), is a bundle of information, experiences, and perceptions etc., . majority of it is poured into her by the culture, history, traditions etc., in which she finds herself. Millions of instances of such information are accumulated from the moment the human person is borne. Collectively, then, the community is a storehouse of sum-total of such experiences. The intuitive idea is that, it is the individual who have to manage that volume of information, the society has no similar cognitive capacities. Rules, legal philosophy and propositions accompanied with other social norms are involved in managing experiences and information. The exercise, in the contemporary times, is monopolized by the modern state and state law.
These ideas are sufficient to drive the point that determinations of sociological and anthropological understanding of institutions, concepts, and norms existent in the past is crucial. Thus, nature of perhaps all legal research is destined, within this paradigm, to be exploratory in possible future and actual past.
Minds of Liberal Law

The greatest problem with the liberal legal philosophy of seventeenth- and eighteenth-century modernism is that they deny this crucial connection. And a system of law and legal institutions are invented in the abstract.
The subject of state, state law and authority, in the twenty first century, can no longer be seen, as part of the mere problem of political obligation. The paradigmatic of such an approach pushes away the crucial anthropological elements producing imageries of a system in which the human being is reduced to and fitted into a machine driven by its own sub-system: a particular system of market.
The modern law derives its substance from a specific structure of language and ‘literary crafts’. Almost in every instance, it is cast in the language of modern rights (or its cognates: i.e., duties, liabilities etc.,). The latter carries away law from the features and characteristics which forms the unique peculiarities and properties the literature affords (Hindi or English). In literature, the meaning and consequently substance of a piece is not determined by the structure of that language. Individual as an enormous bundle of information and experience different from every other, is free to interact with and interpret the literary writing. Exactly, opposite is true for modern liberal law. Law, legal education and lawyering prepares the ground for every person to artificially disown his self-perception in the sense explained above.
Meaning to every piece of literary crafts in law; called ‘positive rule’ is supplied by the immutable theoretical constructs of the Western legal philosophy. The production of this cognitive capacity is so strong and complete that categories of law and legal concepts have same or similar meaning and substance throughout the entire spectrum of the so-called contemporary civilizations. Thus, rights or human rights discourse, is able to bring diverse cultures, histories, and people, formally, on the same page. It is in this sense that 'comparativism' in all discourses, including law, appears to be fascinating.
The system of market at the global level could not have been achieved in the absence of production of a situation of dis-remembrance of historical actualities of person, institutions and the society. On the other hands, conceptual categories in rights have in no instance been conceived to be self-content and complete. As a result, different elements of it continue to grow. Thus, every day new aspects of a specific right are born through court judgements or state policy decisions; or more often de-facto demand is generated by the market. The civil society too come as a participant in the rights formative interactions. People rejoice, professionals celebrate, and Governments claim pride in them!!
Intuitive idea is that, completeness to the concept of a particular rights’ notion, its construct(s) or to its aspect can never be supplied by mere philosophic discourse and theoretical analysis. Self- contentedness into it can only be ensured by acknowledging the fact and recognizing necessities of human existence, where the human person, bundle of experiences and society as store house do not lose their actual self-imageries. For instance, one may very well produce problems such as access to (safe) drinking water or primary education, a vast majority of population suffers in the South.


[1]     See generally, Thomas S. Kuhn, The Structure of Scientific Revolutions (1962, 2012).
[2]     Gayatri Chakravarti Spivak’ translator’ Preface to Jacques Derrida’s Of Grammatology xiii (1974, 1997).

Posted By: Chanchal Kumar Singh, Assistant Professor of Law, HPNLU Shimla



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Mentality of Law: Legal Research Paradigms-Conclusions

Mentality of Law: Legal Research Paradigms-Conclusions It is the common belief, agreeably, that no research is complete. T...