“One reason can
be always met with another reason. Power settles everything”- Albert Camus
Law is commonly understood as a set of rules and
regulations intended for ensuring public order and advancing justice, which
receive general obedience and recognition from the society. The rule of law is
supposed to promote a just social order, as the law is the embodiment of wisdom
and reason, and is loathe to arbitrariness and whims. Anything done on the
basis of reason and logic, sans any malice and bias, is supposed to generate
greatest happiness for greatest numbers, and hence pursuing the course of law
will promote justice.
This is the simple conceptual edifice upon which the
superstructure of law and justice is built in society. Law is crystallized
reason, or logic, and is hence solemn and inviolable. However, to have a deeper
grasp, it is necessary to understand what reason or logic is. ‘Reason’ is
something which evades an exact definition. Yet, at the risk of rendering it
too simplistic and superficial, it can be defined as the capacity to identify
the nexus between cause and effect, and the ability to foresee consequences of
one’s action and to avoid acts entailing unpleasant consequences and pursue
those ensuring pleasant outcomes. It necessarily implies avoidance of harm and
injury to others. According to Plato, reason is the drive to reach the ultimate
truth and the idea of good. The spirited elements consisting of emotional
drives such as anger, ambition, passion, greed, pride, aggression which are
present in the human nature, and the sensual drive of bodily appetites, can be
self-destructive for a person and can wreak havoc in the general social order,
if pursued without restraint and balance. Reason is also the ability to harmonize
the spirited elements and bodily appetites in an appropriate manner enabling a
person to have a holistic and content life with satiation of bodily appetites
and emotional needs. Reason, which appeals to the rational element of human
nature, enables a person to grasp eternal and universal truths, and any
activity emanating out of reason will promote happiness and peace, without
causing harm or injury to anyone, and will result in creating a just social
order. Therefore, law, which is regarded as the crystallization of reason, is
afforded solemnity, as it has the potential to promote justice and happiness
for all.
Well, one would wish things were as simple and lucid
in reality. We humans are complex beings, with several paradoxes and
inscrutabilities, which render the whole process of reason muddled and
incoherent. Reason is capable of being pursued only in exercise of one’s
thought process involving the rational element of human nature. However, the
rational element often gets subdued by the drives of spirited elements of human
nature, or by the urges of bodily appetites, and the result of such a skewed
thought process may not be always reasonable. However, the agents of such
thought process do not always realize that, and the result seems the most
reasonable to them. Thus, we will have a complicated situation wherein each
person, in exercise of their inchoate and rigged thought pattern, arrives at
their own reasonable results. The sense
of pride, which is so characteristic of human nature, persuades a person to
think his results as the most reasonable to the exclusion of all other
possibilities. Therefore, we witness recurring instances of people warring over
their own reasons. There are also other
instances wherein strong beliefs, prejudices and sets of values integrate
themselves into a complex web of totality , resulting in the formation of
ideology, and in a world view actuated by ideology, anything in conformity with
the ideology would be deemed reasonable, and anything in negation thereof would
be unreasonable.
Hence, it can be seen that the general concept of law
as crystallization of logic, or embodiment of reason, may not be always
universally and eternally valid in a practical sense, as we come across many
situations wherein law do not emanate from pure reason, but from reason
corrupted and tainted by beliefs and ideologies. Nonetheless, the validity of
law does not get eroded on that count, and the brooding presence of law is
easily perceptible everywhere at anytime. Therefore, a different approach is
called for to grasp the phenomenon of law to understand it in a descriptive
sense, rather than a normative sense. At this juncture, Albert Camus’ quote
“One reason can be met with another reason; power settles everything”, assumes
relevance. Yes, we are arriving at the
classical legal positivist position expounded by Austin
An understanding of the phenomenon of law and justice
would be totally incomplete without appreciating the dynamics of power. An
entity wielding power has no disability, and can create corresponding liability
on its subservient entities. Power is either usurped on conferred. Autocrats
and dictators usurp power through use of force and coercion and they use the
device of law to consolidate power. Law is used for incapacitating the
opponents and to instill fear and owe in the subjects to ensure allegiance.
However, in most of the modern states, power is conferred on the ruler through
democratic means. In such circumstances, law is often used to pamper the
majority, and to cater to the majoritarian sentiments, so as to ensure the continued
support of the electoral base. Those with political and economic clout, through
their intense lobbying, will get policies and laws enacted in their favor, to
suit their interests. Thus, even in a democratic set-up, it is the ones with
the power who get their will enforced through the legislative medium.
Invariably, law becomes the reflection of the will of the powerful.
Laws thus enacted, which serve as mere tools to
further the interests of the powerful and nothing more, may be laws in the
descriptive sense as they are promulgated with authority and have certainty and
enforceability. They may also be reasonable in that they are decreed with some
specific intent in mind, i.e to safeguard the interests of the powerful, and
might act as effective tools to achieve such intent as well. However, in a
normative sense they will not be proper laws if they fail to create a just
social order with greatest happiness for greatest number.
Now, we are treading the fault lines between the
natural lawyers and legal positivists. The incorporation of unascertainable
abstract concepts like justice and reasonableness to determine the validity of
posited laws has been subjected to abject criticism by the legal positivist.
According to them, suffice it would if law is enacted with authority, backed by
valid power, with receipt of general compliance from the subjects, and the
breaches are met with sufficient sanctions. However, if law is merely remaining
as a crystallization of power, without any ethical content, and without any
considerations for justice, it would transform into a tool for oppression and
exploitation, and would be a failure from an idealistic perspective.
However, the criticism that the concept of justice is
abstract and unascertainable, and hence the introduction of the same to test
the validity of law would create confusion and ambiguity, will have to be met
first. Perhaps, the concept of justice may evade an exact definition.
Nevertheless, the idea of justice and goodness is inherent in every human being
and is easily perceptible for anyone, notwithstanding the linguistic
limitations in affording a lucid definition to the same with exactitude.
Jurists like St.Thomas Acquinas preferred to term it as lex divina, law ordained by divinity and stated that man made law
would not be valid if not in conformity with divine law. Even in ancient India
A reference to the Greek thinkers may be apposite at
this point, as they had addressed the concepts of justice and goodness in a
rational manner, without constraining to invoke divine sources of power. Plato
presented a dualistic theory of reality; there is an aspect of physical
reality, which constantly undergoes changes, like its physical nature and
relationship with things. But there is a conceptual aspect of reality as well,
which is immutable and eternal, and justice, morality and goodness etc are
parts of that aspect of reality. They are very much inherent and intrinsic in
the natural order of things. According to Plato, any kind of being is just and
excellent insofar as it functions according to its nature, form and essence. Moral
ideals do not consist in going against or negating one’s nature, but rather in
fulfilling one’s nature, in realizing one’s capacities and powers as a human
being. Happiness is the highest virtue, and it consists in fulfillment of his
functions as a man, in the activity of soul in accordance with virtue. Justice
is giving each man his due; i.e enabling each person to act in a manner
fulfilling his nature, form and essence, and thereby attain happiness and
peace.
Power is conferred on the State to use the resources
to create a free and fair society which is conducive for every man to pursue
his nature to actualize his essence and thereby to attain happiness and
satisfaction of the highest order. Such a social order would be just and fair,
and every person would be able to experience noble happiness in such a scheme. Power
is to enact laws to aid the course of justice, and not merely to suit the
interest of the powerful lobby. Such ethically corrupt and unjust laws will not
stand the test to time, and will not command continued obedience from the
people. Thus, proper laws will have to promote justice, which is essentially
the creation of social conditions wherein people can attain happiness and
satisfaction through actualization of their essence. Laws must be there to
prevent violence, quell external aggression, and to restrain people from
causing tangible, manifest and concrete harm and injury to others. Laws should
not act as vehicles of ideologies and beliefs, as they fall short of being
reasonable in such situations. To
conclude, valid law is the proper exercise of conferred power, emanating from
pure reason, with the intention of promotion of greatest good for the greatest
numbers.
Epilogue :- Not until philosophers become kings, or kings
become philosophers, with the same person uniting within himself knowledge and
power, would a society based upon justice be possible – Plato, The Republic.
