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.

Law, Literature and Reasonings of Right(s)

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.

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[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

Credence about Market, Law, and Democratic Life

Many Indian students of law have tried to discover central features of the law received from Common Law (Baxi- 1986; Karst, Ghai, & Baxi- 21 Cardozo L. Rev. 1183, 2000; Baxi- 2002; Parekh- Baxi ed. 1986; Bilgrami-2014). It is cast in the language of rights justified by the so called progressive/liberal philosophy, which forms essential condition for working of a system of market. The most important features of this phenomenon of law are: one, it is pregnant with an enormous quantity of coercion and force (Kelsen-1946), two, it essentially carries away it’s subjects from themselves. The latter point very often eludes our capacity of comprehension (See, the concept of structures of Derrida, Bradley-2008).  The issue can be understood with imageries of the structure and character of law re-constructed on the basis of substance of the rules under Article 21 of the Constitution of India and Section 378 of the Indian Penal Code. Every person has right to life, ‘life with dignity’. It is taken to be perfectly legitimate and expected from every one that one may be dying for lack of food or medicine yet she must abide by prescriptions of rules in the Penal Code. This structure goes two steps ahead and convinces her neighbor(s) to continue to be happy in plenty (Cf. Derridean ‘Animal’- Critical Inquiry, Vol. 28, No. 2, Winter, 2002)). The annihilation of social character of sources of wellbeing, then, presupposes the total destruction of charismatic appeal transcendental in the traditional conception of law and institutions, for its subjects. Commodification of resources can serve hardly purposes determined, in the absence of a ‘resource’ market comes into existence in human beings themselves (Agamben-1998, Polanyi-1944). Freedom of will and freedom of action as ends are forgotten way back, human beings are denied even entitlements originating in natural animal instincts. The consequent rise of state and state sovereignty rationalized through idea of liberty then translate into unilateral liberty of Bentham (Bowring-1843, Vol. I) of the person to submit to the authority and power of the sovereign and its subordinate symbols (Agamben-1998). Our dying person has necessarily to renounce his freedom of will and action and to submit to the standards of the Penal Code. The entire structure works towards accomplishing, what we can appropriately call, the animalization of human race. Private tyrannies are established using the very state law (private-public dichotomy) as an essential outcome/end of the structure to be mediated conveniently. The tyrannies are operated by the powers and dogmatic rationality co-inhabiting in oligarchies in the so called free market.

When law, legal institutions or as the case may be, idea of state is developed on strength of or drawn from liberal foundations of natural, claim, entitlement, merit or deserts basis of right, the structure has achieved its formative completion. But the structure keeps transforming the fundamental categories of the law: equality, institution of property, and state etc., that are never complete yet directions of progress are determinate. Instances of general classifications of right into negative and positive or of belonging to different generations, moves the structure and the dichotomy from lower to higher level of the ends of oligarchism. For example, if a notion of right to the basic need, water is traced and found to be in natural principle, so is the western economic doctrines and notions of liberty of the bourgeoise and of modern neo-liberal institutions such as multinational corporations or the theory of invisible hands in the capitalist free market (Nozick-1971).

The conception of law, we are trying to challenge, shares unique relationships, if we venture to discover, with the modern state. Both, in one way or other, is believed to be begetter of the other, simultaneously becomes the owner and the owned for the other. Such characterizations would have baffled modern great sociologists such as Weber or Ehrlich (i.e. Weber-1930; Nelken-Theoretical Inquiries in Law 9.2 (2008). It is, thus, sufficiently revealed, that seminal sociological as well as philosophical studies of law hitherto have not been able to realize that the ‘structures’ and ends operate quite above law, legal categories, and the institution of state is not integral parts of the former.  Bureaucracy, the most vicious creation of human beings (Chomsky-1977) is not to be seen parts/limbs of state but that of structure along with the market oligarchism. Specific form of democracy practiced, in liberal states are, hence, instrumentalist links of the structure by which it manipulates units (law, institutions, rights etc., through ‘governance’).

 Contractorization of governance both, government posts and public services are merely intended by the structure at, what Spivak calls, proletarianization of population (Landry & MacLean-1996) progressively reduce democracy which are found to be inimical to the survival and smooth functioning of the system. An idea, contrary to the general constructed public belief, but pivotal to the process is that the frequency of interface between law and individuals has geometrically increased in last three decades (the point still awaits an extensive investigation). The increased ubiquity of this interface is exemplified by new phenomenon of multiplicity of non-legislative/sovereign laws. By-laws, rules regulation, by virtue of secrecy inherent in their making and undemocratic character of existence and implementation, go well with the designs of the market oligarchy. The credence that we are living in a freer society and governed by a democratic legal system, need to be re-examined so that our belief does not rest on dogmatic faith(s) but is rationally supported!

When we think of dogmatism and rationality in the above context, the most important section of that structure is the judicial system. The entire object of the enforcement machinery can be summed up as programmatic attempts to infuse humanization into the appearance of the structure. It is a fact that court system (including legal advocacy), in India, survives not on the fact that it delivers justice in disputes brought before it but on the psychic fear of harassment and injustices potentially present for every prospective seekers of legal remedy. Innovative institutional processes, for example, public interest litigation or legal aids, uniquely integrated to this part of the structure as charity was the greatest project for re-cultivating civility about the judicial system. In some way, humanization efforts save the structure from reaching its breaking points. The great souls (Iyer & Bhagwati JJ.) who brought specific tools (PIL, Legal Aid services) were certainly disasters for India as system and a people.

The cultivated civility which the humanization project produces also brings an all-encompassing attitude of uncritical loyalty to the parts as well as towards the structure in its entirety. I think, this is the very first and last reason which have so far kept decapacitated the whole set of legal academic from undertaking and producing alternative reading/understanding of the Constitution, law or democracy. We do not have academic works providing Commonsensical reading of the Constitution. The major works written within the Common Law tradition of scholarship (Seervai 1991-96; Basu-2017; Shukla-2016; Jain-2014; Austin-1966, 2004 etc.,) fall under either of the following three categories: ‘encyclopedic’ inhibiting development of critical reflection and capacity building (i.e. Basu, Shukla); ‘legalistic/technological’  on the working of the court system sunning empiricism and facts (Seervai); and the last ‘romanticizational’(i.e. Austin- 1966 & 2004)  capitalizing and feeding upon the beauty and sublime (see Ch: Retrospect, Hipple Jr. ed. 1957) sentiments/desires of people. Popularity of these works owes much to the imageries of thought in which we describe the so called fundamental concepts in Constitution, law or of democracy. Kant would add, ‘the categories to which we refer and the inferences by which we interpret them. The imageries, concepts, referents, and inferences of interpretations present swanky (exclusionary) ‘prism of semiotics’ obscuring/inhibiting alternatives. Semantics and epistemology or methods and things falling in such categories cannot form points of reference (Chanchal-Sml L. Rev. 2018). The calamitous justices added to the swankiness of the ‘prism of concepts’ by devising lenses of PIL, Legal Aid and Services. It could be described to be attempt to regenerate and prevent the judicial system from nose diving crash. Since then the new images of judicial process have generated and constructed its own referents/prism.  

The programmatic imagination would require, I think, alternative epistemic categories constructed upon the genius and cultural foundations, a semantics that can transcend the swanky prisms of law, market, and courts. ‘For constitutions are always in the nature of organic (evolutionary in historical sense) growth’ (Aggarwal-1944). But above all a semiotic structure that does not feed upon but leads to lessening the gaps between ideals/norms and fact, actions/conduct. Such a programmatic project has potential to rescue scholarship from what, we may call-an analogy of Ravana- the mythical king of ancient Sri Lanka, ‘Ravanic disorder’. (according to mythology Ravana had knowledge of what is good conduct, just, and virtuous yet he remained enslaved to his own habitude). Market, law and so called constitutional democracy envisions and establish illusionary life & world visions in a double sense. Which the life of Ravana symbolizes.   The project, by its nature must involve reconstruction of Indian ancient institutions and normative categories in their evolutionary sense/course, were it left uninterrupted by the Western academic violence. It was the academic attack that almost finished Indigenous administrative, legal and constitutional system. Otherwise, the ancient systems had survived with vitality all other kind of violence over thousands of years of their existence. 

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

Truth and Knowledge: A spiral sphere of Illusion to Truth

History of knowledge lies in aspirations of mankind to unravel the beautiful harmonious set up of natural kingdom. Life and sustainability owe much to this quest of mankind; started with myth to divine rules, and later science brings its shadow over primordial understandings. Though, all knowledge is human’s knowledge (Kant), but there must be a huge world of knowledge to which mankind has not ever imagined to reach there. Empiricism, though brings Newtonian certainty and verifiability of a hypothesis, but even a keen observer has his own limitations to ascertain the truth, he might be caught in illusion like prior understanding vis-à-vis Earth and Sun. Enlightenment values transformed the world, and brought Marx, Darwin, Freud, and Einstein into the same place. Notion such as, theory of two worlds were considered as a daydream of Plato, even his disciple Aristotle thought that his teacher has looked up this world into different direction what it seems after empirical observation. Man, instead of born with innate ideas, is born with innate reason. But what happens with this reason once religious animosity and exclusion brings lots of bloodshed and homicide; Man appears as brutish, nasty, short (Hobbes). Leviathan take cares after every subject and State becomes a form of ultimate reason (Hegel); a hypothetical social contract which brings democracy at work (Rousseaeu). In a battle between majority and minority utilitarian garbs its place in policy making to its executions (Bentham). Rule of law and democracy were impossible idea to work unless minimum guarantee of rights is fixed (Dworkin). Lockean inalienable rights proposition coupled with idea off written constitution (Madison) do brings certainty in life of Man. But what next? When today’s knowledge becomes ignorance of tomorrow; in a post-truth world, realpolitik becomes a tool of narcissism and xenophobia, and Machiavellian classical dictum suggests; “it is better to be feared than loved but not despised” (The Prince). Idea of justice has failed to replace ‘might is right.’ No Rawlsian difference principle has a place in a society living, in fact, behind the veil of ignorance ‘forever.’ Sadly but true, Darwinian ‘survival of the fittest’ rule is at its work, i.e., the more you wield the power the more you are a reasonable being. But I believe this naturalism must not continue. The very idea of State is related to justice with all irrespective caste, creed, race, or language. That text of justice would be an empty slogan unless every common is out of that platonic cave; ignorance is no more bliss in a democracy. The very existence of good life depends upon empowerment of every being from lower to middle and upper strata. More we invest in human resources better we’ll produce for tomorrow. Role of a State must be pro-active to insulate civic virtues among its citizens (Aristotle). Virtue of civic ethics can never dwell behind mythology; it will come out with logic and experience. In a post truth world GANDHI is looking to come back with an idea; be true to yourself; all knowledge is within you.

Posted by : Mrityunjay Kumar Singh

Assistant Professor, Campus Law Centre,University of Delhi