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

Baffling Structure of Academia: A case against Certificatory Sovereignty

Life was vibrantly alive when we as the human animal had less tendency to ponder upon structure or institutions but to run after "bio-energy", like a "noble savage" (Rousseau, A discourse upon the origin of inequality) used to travel after many a uncertain truths, without thinking about velocity, mass, or gravitation. Life was difficult and, of course every difficult thing was life. It was a brave new world, conceptualized through the classical European philosophical tradition which converted "Human" into Citizen, if I may add further, "Human Resources". Then the epistemological convergence of "Nature", which was conceptualized in Oriental tradition as sacred; an organic life, into "natural resources" (Aqeel Bilgrami, Secularism, Identity, and Disenchantment), that was a strategic move to master, not only nature as the natural resources, but to fellow humans as the object to be exploited. This convergence was the degradation of Life, from ferociousness to mastery or expertise (Rousseau, The First Discourse), whereby "others" lost the very subjectivity, the voice, and was reduced into mere subalternatity (Antonio Gramci, Prison Notebook).

Slavery was the outcome of this way of thinking, similarly bureaucracy was encouraged, to sustain and to maintain various hegemonic structures, encompassing Feudalism, Capitalism, and Neo-Liberalism. Life was moving into no direction, but trapped in  "State of indistiction between hope and despair" (Georgio Agamben, Homo Sacer). However, certifications flourished everywhere to certify all the academic and moral intellects, even though, apparently missing or visible at first reading (by love or suspicion). Life in a modern society is "bare life" (Georgio Agamben, Homo Sacer) without ornamental certificatory Sovereignty. Academic Structure is proudly staring at everyone whoever is asking for its accessibility. After all certificates are here to be materialized and life is here to be realized.

Posted by: Mrityunjay Kumar Singh
Research Scholar, Faculty of Law, University of Delhi.

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

LATHICHARGE CULTURE IN A POST MODERN INDIA ; A CONSERVATIVE DISPLACEMENT FROM CITIZENSHIP TO SUBJECT

Lathicharge culture has its origin from British, nay brutish colon (See, Shashi Tharoor, An Era of Darkness), a culture nurtured for the sake of oppression and terrorization, to divide and rule. Violence, as a means behoves to those pre-civilizational era where law and language had no role to play, in fact, 'might' was the sole instrument for the survival amidst conflict ridden state of nature. Very essence of modern day civilization lies in politics of right, politics of justice, and politics of good governance, but unfortunately politics of violence and counter-violence has become a norm of the day in public space. In Greek civilization, division between Oikos and Polis (private and public space) was meant to ensure a public space,  governed by freedom of speech and persuasion in solving various conflicting interests, however a private space was preserved where slaves, and animals were subjugated by violence. Public space ensured  public participation and voluntary exercise of freedom of choices for common welfare. To the contrary, in modern day civilization, private and public space has almost obliterated; consequently, Gandhian method, i.e., Civil obedience is being frequently used to coerce authorities for unethical demands, at the same time, administrators behave like a divine king, ready to inflict injury if someone has a louder voice to raise; most of the people are abusive towards foreign ideas; the large majorities are guided by reflective judgments over determinant judgments (See, Kant, Critique of Judgment), looking every case in perspective of urge and disgust; a bureaucratic culture, inherited from Englishmen, has destroyed a sense of community we Indians had in ancient India (See, Gandhi, Hind Swaraj). It was an era of expropriation (See, Weber's inquiry on Indian Society, See also, Marc Galanter, The Displacement of Traditional Law in Modern India) of fraternal spirit Indians were known for; unfortunately, modern day politics in India is more or less replica of formalisation, rationalisation, and bureaucratization (See, R M Unger, Law in Modern Society) what Englishmen invented in the leaderships of Hobbes, Bentham, Austin, and of course, Macaulay.

BHU administration has done exactly what is being carried on by most of the authorities, in modern India. Why to blame a few political parties; this shame is on us; when will we (Government, or citizens) behave like a mature democracy where freedom of speech is invaluable and nonnegotiable over instinctive and prejudiced violence? Stop abusive cultures and behave like a civilized being, otherwise no flight on Moon or Mars will escape you from commonly observed animal fate (Might is right)!

Posted by Mrityunjay Kumar Singh

Assistant Professor, University of Delhi

A CONFESSION OF A LYNCHING MAN

My dear fellow citizens, I'm a lynching man. I have no individual identity, in fact, I'm searching it under the disguise of mob. Yes! I'm a lynching Man; who knows how to try a case on the street. Believe me! I'm a blood thirsty judge, who kills innocence for the sake of dogma. I know, however, that the basic foundation of human civilization lies in scientific knowledge, but my faith does not allow me to search the truth. For me, the grammar of knowledge is an instrument of coward; I develop hysteria, an environment of suspicion and terror; this makes me powerful like a Leviathan. My trial is, of course, not for justice, because I don't want to expose myself as a weak fellow. For that purpose, one needs to read moral prescriptions and laws, which I hate doing. I convict a person before the completion of trial. Tell me, Isn't it an example of speedy trial? People fear what they don't know, in a way, I'm a merchant of darkness, who knows how to play with emotions. Ironically, a bright side of emotion makes me a beautiful human being, to the contrary, the dark side of it gives me strengths and motivation to terrorize somebody who doesn't conform to my dogmatic belief. Victim asks me for pardon, but I choose to remain like a king who never retracts from earlier conviction. After all, I'm a lynching man; who is a witness of many a bill of attenders. Now, I'm the law, and I'm the Court, and mind it, I'm not in search of validity or efficacy of law, as long as, I can terrorize anybody by brute powers. I don't, of course, forget to show my gratitude towards mob; those, who are emotional fools, make my day; they're my real source of strength. Because, as long as a society forgets to heed humanism, and accepts dogma as a guiding principle, a merchant of darkness like me will easily bath in blood of innocence. Yes! I confess, I'm a lynching man; a son of lynching Republic.


Posted By: Mrityunjay Kr. Singh (Research Scholar, Faculty of Law, University of Delhi)

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A FICTITIOUS DIALOGUE BETWEEN IMMANUEL KANT AND DAVID HUME

Immanuel Kant, who in search of his God, meets a friend, who claims, ‘I have experienced so many earthly Gods, but don’t know if you’re dazzled by an idea which is incomprehensible to be grasped through my experience. I guess, you are carrying a burden of dogmatic myths, which has no place under the realm of human knowledge.’

Kant- I don’t think if God as an idea could be believed by a person who floats in a river of materiality. I can understand your limitations my friend- your eyesight is too weak to be trusted.

Hume- Oh I see! Perhaps I’m too little to understand an idea which is mystically obscured, and far away from any sort of explanations. But, I don’t think if you have any explanation about God my dear friend?

Kant- Look, every idea can’t be explained in terms of cause and effect. Can you explain the birth of universe by your experience? You can’t go beyond certain time and space to unravel any such knowledge. Does it mean the very birth of Universe is un-explainable?

Hume- Of course, it’s explainable, but that explanation shall be far away from an objective truth. Suppose that somebody says, ‘I had a dream last night, whereas a person of white colour was flying in the sky and he made a prophecy about my death.’ You will conclude certain outlines, certain features of your God in your imaginations. It is nothing but a complex idea, consisting of some information which are already known hitherto through various myths. I can safely say that construction of God, for me, is a complex idea which can’t be accepted until I have experienced it in my sensorial world.

Kant- I don’t believe every phenomenon can be explained by a tool of causality and effect. There are certain things which are end in itself. And those things are incomprehensible to sensuality. That’s why I think all knowledge are human’s knowledge. Your knowledge about a dog is not necessarily truthful for a dog who has his own way of life. In a way, your sensorial world is like a frog in a well, happy and proud about his knowledge. Look beyond your senses, perhaps intuition will guide you towards the pure reason. Only when you could reach nearer the truth.

Hume- Thank you for your suggestions my dear friend. But, your idea of intuition is nothing but appears as certain conjectures which entails certain misleading effects. As far as pure reason is concerned I know only a human reason which guides me to travel adjacent to my passions and desires. I know only these two sovereigns which are two great friends of Mankind. Of course, vilifications of these two friends, by all rationalists, won’t be able to decimate the very utility of them, for they play a vital role in inventions and discoveries for the Mankind in order to make their life better.

Kant- I’m amazed the way you have composed a romantic song for your two friends who are credited for the enslavement of our reason. It is passion which tends us prone to an animal instinct, though, we’re not governed by passions and desires. We have mastered our nature by pure reason. We’re no ordinary animal who is committed to flames. We’re the masters of this universe, because we have an inherent capacity to master our nature.

Hume- You sound like a child who thinks his father is the best person in the world; he is different from all other persons, though he is as fallible as any other else. How do you find a man different from an animal when we hear a man kills others for the sake of amassing wealth, ravishes a girl out of lust, and loots a poor to become a rich man. Where does his reason wander when he looses a moral sense, as a human being, and a sense of wonder? I think, at least an animal, even though kills other animals, not for amassing wealth but for his preservation, security and necessity of food. They don’t have an ego problem, however we live and die for the sham glory; which doesn’t exist at all. Tell me, if other animals are not better than us in a way you look human nature?

Kant- I agree that sometimes animal appears better than us. But who is at fault? Do we not know what is just and unjust, unlike an animal? But, our ethics are overshadowed by passions and desires; I guess we enter into a territory where God fears to tread.

Hume- Your accusations against my friends are out of the place. Don’t you think if passions and desires are as natural as the very birth of this Universe? Then, why don’t you blame your God for sinister creations?

Kant- God does not create anything which yields disastrous consequences for Mankind. Passions and desires are the product of human imaginations. God has given us a faculty of reasoning to differentiate between what is just, good and what is evil? However, your desires appear to be offender of moral laws which are nowhere but within us.

Hume- My experience exemplifies a different story dear friend. Mankind, though claims about superiority of moral laws over the law of physics. But, all such moral laws are governed by various religious verses. These religious scriptures are the father of all the religious conflicts. It appears that you prefer a reign of religious dogmas over historic truth; abstractions over materiality; blind faith over reason.

Kant- I don’t prefer a conflict oriented world over harmony. My understandings of moral laws are transcendental in nature. These are categorical imperatives which are governed by one of the most fundamental principles of humanity which is, Man is not a means but an end itself. If a Man is an end in itself where is the place of other instrumentalities?

Hume- I argue my case with this appeal to you and to all philosophers; ‘Let us thoroughly sensible of the weakness, blindness, and narrow limits of human reason; let us duly consider its uncertainty and endless contrarieties, even in the subjects of common life and practice.’ The existence of any being can only be proved by arguments from its cause or its effect; and these arguments are founded entirely on experience.’

Kant- But, I think you’re avoiding my questions. I can take it as if you don’t have answers about a world which is seldom experience by a Man, unless faith sails in a river of uncertainty. ‘I have to deny knowledge in order to make a room for faith.’ However, you want to fly over a kingdom of heaven with the help of skilled knights, though you don’t have faith in the existence of the kingdom of heaven itself.

Hume- I have experienced my friend that only science can lead us towards light. Faith is blind; an anatomy of darkness whereas humankind is reduced to parasitic dependencia. Only knowledge can bring back light in platonic cave.

Kant- I think, the purpose of philosophy is not to uncover knowledge but to bring wisdom into play. There were so many wise people in Greece, however it was Socrates who had that wisdom and the love for the truth.

Hume- You’re too abstract to be grasped by the commoners. Your ideas shall receive an end in post enlightenment era.

Kant- But, whenever humanity will be in danger due to excessive worship of materialistic science, it’s faith in harmony, which will lead human kingdom from disenchantment to the peace. I’ll meet you that day once again when your materialistic kingdom shall be replaced by a harmonious spiritual human kingdom.

Posted By: Mrityunjay Kr. Singh (Research Scholar, Faculty of Law, University of Delhi)

JUNGLE KA RAJA: A FOLKLORE OF AN ANIMATED SOCIETY

Speculative reason carries a burden of legitimacy, of past, of present, and of course, of future. Legitimacy and justifications are the outcome of artificial intelligence- rationale (logic) and causation are not necessarily two sufficient methods, comprehensible enough to depict the truth. If an ultimate object of epistemology is not to unravel the truth but to paint some blurred imaginations, mankind will be homeless in the ‘state of society’ instead of in the ‘state of nature.’ In fact, state of society, though coined by philosophers to dissect the very empire of Mankind from animal kingdom, is a sham term, more or less created to legitimize all the sins a man commits in the name of shared values, you name it; a nation or call it a state, but a transition from tribal society to aristocratic, and a liberal order is a story of movement from harmony to conflict, from transcendentalism to instrumentalities, from equality to hierarchy, from customary belief to formal bureaucratic laws.

Bureaucracy is a replica of social order; telling not much a different story; when custom was defining factor for a society, privileges were predetermined under the guise of societal hierarchal structure, in a way state reinforces that old structure, in the form of bureaucracy, as if old wine is packed in a new bottle. At least, custom is nothing but a reflection of human colony, organically evolves, in folklores, in mutual transactions, and in societal inter-relationships, however, a bureaucratic law is an imposition, backed by command, duty, and sanction, devoid of any sort of internalization by cognitive minds. Interestingly, obedience to the bureaucratic laws could not survive if it depended solely on even the most enlightened calculus of efficiencies by private group of individuals. For there is always the chance that the advantages to be gained by any given party in disobeying the law or subverting the legal order itself outweigh the risks of loss (R M Unger, Law in Modern Society, P. 129). 

For millennia, men viewed nature and society as expressions of a sacred order, self-subsisting if not self-generating, and independent of the human will. According to this outlook, the test of wisdom was the capacity to apprehend harmony of the world and to submit to it (Id. at 130). It is only within a relatively recent compass of history that a truly different form of existence and of consciousness appeared. The new vision was inspired by the discovery that order could and indeed had to be devised rather than just accepted ready-made (Ibid). Hobbesian rhetoric of positivism, influenced by Machiavellian lust of power, changed the very definition of nature, tend it prone to power, and only power. It is apt to remember Shakespeare when he writes: “What a piece of work is a man: how noble in reason; how infinite in faculty; in form and moving how express and admirable; in action how like an angel; in apprehension how like a god; the beauty of the world, the paragon of animals (Shakespeare, Hamlet, 1604). 

People distinguished society from nature. They began to treat the latter as something to tamper with in their own interests and the former as an artifact of their own efforts…It brought conventional and contingent character of every form of social hierarchy so that the exercise of power had to be justified in new and more explicit ways (Unger, Law in Modern Society, 131).

Rousseau asks, “if the origin of the inequality among Mankind; and whether such Inequality is authorized by the Law of Nature” (Rousseau, The Origin of Inequality, P. 2)?  He asks, “The first man, who, after enclosing a piece of ground, took it into his head to say, “This is mine," and found people simple enough to believe him, was the true founder of civil society. How many crimes, how many wars, how many murders, how many misfortunes and horrors, would that man have saved” (Id. at 18)? By saying, nature has a rule of might is right, and state has right is might, man claims his upper hand for righteousness and justice are concerned, however, private interest, which works on the methodology of conflicts, relegates human species to the state of war and conflict which turned nothing but a costly affair. The hyphenation of conflict vis-à-vis utility, nay efficiency had created anomic situations, resulted into fragmentation of natural bond of all the habitants on this planet. Our folklores, which gives a place to Lion as a king of jungle, bring despondency in form of structural vices, because the mightiest has the power to rule, and a weaker species withers away (Charles Darwin, Origin of Species). We turn our head towards a rule centric life to ensure order over chaos, though rule turns to be too insignificant to deliver justice to a weak, and overall society suffers heavily when law is manipulated for the sake of promotion and protection of an individual interest. Such bureaucratic laws, later on developed as a legal order, are legitimized through hope, and by fear to ensure docility before rule, though better interests are served for those who creates a market of hope.

The crisis of social order and the failure of attempts to resolve it throw men into a condition that may revive in a higher form a predicament faced by certain nonhuman primates. Levi-Strauss once suggested that the behaviour of these animals has lost the unreflective determinism of instinct without acquiring the conscious determination of conduct by learned rules; the genetic program is silent where the cultural one has not yet begun to speak. Hence, their acts seem without rhyme or reason, presenting to the observer the image of a restless bafflement forever incapable of hitting upon an order of group relations that would allow them to ascend the evolutionary order (R M Unger, Law in Modern Society, P. 132-133).This statement is no less relevant for an autonomous man whose rationale choice is as illusory as will-o-the wisp, baffling forever, without a goal of collective excellence. Unger rightly writes, “Whenever the certainties of interactional law begin to dissolve, human beings seem relegated to the situation of the nonhuman primates-denied the experience of an unreflective order, they are powerless to create another (Ibid.). The true welfare of Mankind lies neither in Darwinism, nor in individual positivism, but in collectivism-where life receives weight and direction from an order that precedes the human will.

Posted By: Mrityunjay Kr. Singh (Research Scholar, Faculty of Law, University of Delhi)