Law, Justice & Power

“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, which viewed law as “the command of sovereign, backed by sanction”.              Upon a cursory analysis of the history and evolution of legal systems, we can say with certitude that this concept of law remains universally and eternally valid from a realistic point of view. We have had  bizarre and barbaric laws; we have seen laws for promoting faith and ideology; so also laws for furthering the whims, caprices and preferences of the ruler. Yes, many of such laws were revolting to common sense and morally abhorrent; nonetheless, they were laws. They were obeyed, and violations were punished, and had the authority of power. So we have to arrive at a conclusion that law is essentially crystallization of power.

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, we had the concept of dharma, a supreme canon for justice and goodness, and the rulers were subservient to dharma. Thus, the concepts of justice and goodness were viewed as emanating from a superhuman power, and the man-made laws were supposed to be in tandem with them. It can be seen that even in such perspectives, it is the presence of power which gave validity to them, i.e of a superhuman divine power. So, the supreme law was seen as the embodiement of the will of God, who is more powerful than the rulers of earth. Thus, the said principles also had to take resort to the concept of power, a supreme power, to attain validity and recognition of law, thereby further cementing the position that law is the crystallization of power. 

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.