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