Tag: #jurisprudence

Morality in Rule of Law

                                                            (Photo: Thought and action)

Rule of Law is the fundamental principle which ensures good governance as well as individual rights and liberties. It says no one is above the law and every person living in a particular society is subject to the law of that society. All other notions associated with the rule of law must also be considered alongside it. It is a mechanism that encourage the equality of all citizens before the law. It also secures a non-arbitrary form of government, and specifically prevents the arbitrary use of power. In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one including the most highly placed official is above the law.

Moralityis a concept that distinguishes right from wrong. It also talks about conduct that is considered acceptable or unacceptable in a particular society. The source of morality is usually considered to be natural law and God’s instructions through sacred documents.

Morals provide a basis for the development of law by virtue of justice, equity, good faith, and conscience. Morality plays an important role in making of law and its interpretation. Morals are an intrinsic part of the laws. In the ancient time morals and laws were considered as one and the same. In the current period though law and morality have several distinctions yet the same are not completely different or distinct. A relationship can be established between morality and law on three grounds: –

1)     morals as the basis of law

2)      morals as test of positive law

3)      morals as the end of law.

According to Stammer “jurisprudence depends much upon moral ideas as just law has a need of ethical doctrine for its complete realization. Positive law and just law correspond to positive morality and rationally grounded ethics. There’s no difference and if any, it is only the difference of manner in which the desire for justice present itself”.

H.L.A Hart believes that there are several relations between law and morals. He was of the view that a legal system must exhibit some specific conformity with morality or justice or must rest on a widely diffused conviction that there is a moral obligation to obey it.

Ronald Dworkin has argued that both laws and constitutions are unavoidably rooted in political and moral principles. The law is not derived logically from accepted true moral principles. Rather, it is established by legislatures that come to agreement on public rules that are shaped by a political consensus about right and wrong.

Rule of law prioritizes the supremacy of law whereas morality prioritizes the moral values and consciences of the subjects of the state. For instance, a man is under no duty to help a beggar or the distressed and can neglect his sick and old parents without the fear of any legal or penal consequences, but morality does not allow a person to do so as it amounted to undesirable conduct condemned by morals and ethics. There is a close relation between the rule of law and morality.  Morality complements the rule of law. But it is a casual relationship, as laws are not made out of moral principles, rather, they are established and shaped by a “legal consensus of right and wrong”. Even though morality is ultimately involved in making and modifying the law, it is never legally binding and does not have constitutional value.  Laws have a marginal origin from the morals and ethics derived in the society which initially monitored the conduct of people, but morality solely cannot be the basis on which law has been derived. An acceptable statement is that both morality as well as rule of law have adapted to the development of society. Sometimes what seems right from the morality point of view may be contrary when viewed from the point of rule of law.  For instance, when a person tries to feed a needy person, by means of theft solely for the purpose of feeding that needy person, morally the act may be justified yet the same may not be the case under rule of law. Because under the concept of rule of law, a person has committed. Therefore, morality has a marginal presence in rule of law whereas it is highly contradictory of the same.

Morality in Rule of Law with reference to H.L.A. Hart theory

Professor Herbert Lionel Adolphus Hart (H.L.A. Hart) is an influential legal professor. Hart revolutionized the methods of jurisprudence and the philosophy of law. He authored ‘The Concept of Law’ and made major contributions to political philosophy. Law can be analyzed in terms of rules which is largely based on Hart’s theory of law. According to him, rules are concerned not with what happens but with what is to be done. Rules are imperative or prescriptive rather than indicative or descriptive. Rules have a certain independence or self-legitimating character. Rules are different from commands. Commands normally call for one unique performance whereas rules have a general application and demands repeated activity. According to Hart, ‘Law consists of rules which are of broad application and non-optional character, but which are at the same time amenable to formalization, legislation and adjudication. According to Hart the law consists of primary and secondary rules. Primary rules are duty imposing rules on the citizens and have a legal sanction. Secondary rules are power conferring laws that describe how laws should be recognized, adjudicated or changed. Hart says these rules form the heart of the legal system.

Hart’s version of natural law is empirical. His position is based on a theory of human nature which believes in certain truisms. For example, Hart believes that one truism of human nature is that the overwhelming majority of human beings wish to survive. It means they would rather live than die. If one wish to survive, it is imperative that a society be developed which will help ensure survival. Hart believes there are five features of the human condition which sometimes work against survival, and the legal system must take these into account.  Hart believes that: –

  •      there is the feature of human vulnerability.
  • .     there is the Hobbesian notion of approximate equality.
  • .      human beings possess at best a limited altruism.
  • .      the concept of limited resources governs our actions.
  • .     the idea of limited understanding and strength of will is important to any society.
     Conclusion
    The fundamental principle which ensures good governance as well as individual rights and liberties is the rule of law under which no one is above the law and every person living in a particular society is subject to the law of that society.  Morality, on the other hand, is concept that distinguishes right from wrong and may refer to conduct that is considered acceptable or unacceptable in a particular society.  Coercion and sanction may be important considerations but not the basic elements to make law work. The law is meant to facilitate. It is mechanism that resolves conflicts of interest among individuals. This idea of law brings us to the concept of rule of law which aims to treat every individual equally, irrespective of social status. Under the rule of law, individuals are protected from the element of coercion. Another element of the rule of law is equality, which is often confused with generality. Laws are based on generality and bind everyone, not any singular group. But equality here means that every individual is subject to the same law and procedures and has the same rights. A close relation exists between the rule of law and morality, since morality complements the rule of law. But it should still be considered a casual relationship, as laws are not made out of moral principles, rather, they are established and shaped by a “legal consensus of right and wrong”. 

Classification of Law in Jurisprudence

International Law and Municipal Law

Law maybbe broadly divided into two classes: international law and municipal law. Whatever the objections raised against the claim of international law to be called international law, it is now recognised that international law is not only law but also a very important branch of law.

International law is divided into two classes: public international law and private international law. public international law is that body of rules which governs the conduct and relations of the States with each other. by private international law we mean those rules and principles according to which cases having foreign element are decided. if a contract is made between an Indian and a Pakistani which is to be performed in Sri Lanka, the rules and principles on which the rights and liabilities of the parties depend are to be determined by private international law. Critics point out that the term private international law is not correct. The adjective “international” is wrongly given to it as it does not possess any characteristics of international law. Private international law applies to individuals and not to States. Moreover, the rules and principles of private international law vary from State to State and there is no uniformity. Private international law is enforced by municipal courts which apply municipal law and not international law. In order to avoid controversy, it is suggested that private international law be called Conflict of Laws and should be treated as a branch of municipal private law.

Municipal Law

Municipal law is the law applied within a State. It can be divide into two classes: public law and private law. Public law determines and regulates the organisation and functioning of the State and determines the relation of the State with its subjects.

Public law is divided ito three classes: constitutional law, administrative law and criminal law. Constitutional law determines the nature of the State and the structure of the government. It is superior to the ordinary law of the land. Constitutional law is written in India and the Unites States but it is unwritten in England. The modern tendency is to have written constitutons.

Administrative law deals with the structure, powers and functions of the organisation of administration, the limits of their powers, the methods and procedures followed by them and the methods by which their powers are controlled including the legal remedies available to persons whose rights have been infringed.

Criminal law defines offences and prescribes punishments for them. It not only orevent crimes but also punishes the offenders. Criminal law is necessary for the maintenance of law and order and peace within State. In criminal cases, it is the State which initiates proceedings against the wrongdoers. The State is always a party in criminal cases.

Private law regulates and governs the relations of citizens with one another. The parties are private individuals and the State decides the disputes among the people. There is great difficulty in classifying private law. A general classifiactionof private law is the law of persons, the law of property, the law of obligations, the conflict of laws, contaracts, quasi-contracts and tort.

Critics point out many defects in the above classification o laws. Many of the classes of laws do not exist in many legal systems of the world. Those branches f law which have recently been developed cannot be put under any classification. The result is that the classification given abone is neither universal nor exhaustive. Many jurists have attempted classifications on different principles. New branches of law are growing and developing rapidly in different parts of the world and provision has to be made for them in any classification of laws. Industrial law and commercial law are such subjects.

HUMAN RIGHTS JURISPRUDENCE ‘THE INDIAN CONCEPT’

INTRODUCTION

A right is not a claim or demand but something which is not wrong. Natural Rights Theory as propounded by John Locke calls rights as pre-political which were available to man in his state of nature. These three human rights of life, liberty and estate were ensured to individuals by virtue of the ethical code of mutuality and moral order. The effort to safeguard, protect and promote basic Human Rights continues in every generation in every civilization. New rights arise from the roots of the old. Today we have broadened the field of Human Rights thought and action to new areas and population. The development of Human Rights and then recognition and protection is done with the support of Jurisprudence.

WHAT ARE HUMAN RIGHTS?

“The core of human rights discourse is that it is a right to which only human beings are entitled, which gives meaning to the essence of humanity, and without which humanity necessarily loses those special attributes that make it human”. Ajomo had earlier defined human rights in similar terms inter alia: “human rights are inherent in man; they arise from the very nature of man as a social animal. They are those rights which all human beings enjoy by virtue of their humanity”.

According to Joel Feinberg, “Human Rights as moral rights held equally by all human beings, unconditionally and unalterably” For Feinberg Human Rights are moral claims based on primary human needs.[1]

 Human rights are those liberties, immunities and assistance by which, through accepted contemporary values, all human beings should be able to demand the rights in the society which they live.

Human Rights are inherent rights which are made for protection, safeguard and development of humans all over the world and these rights cannot be waived off on someone’s will or whim. As said by some American Attorney, “If you remove them from any human being, he will become less than human. They are part of the very nature of a human being, and attach to all human beings everywhere in all societies, just as much as do his arms and legs.”

Human Rights are also defined as moral rights which every human being ought to have every time and everywhere which contrasts a being as moral and rational than the other. In other words, idea of human rights familiarize with morality and rationality but can be said as limitation or challenge to this definition, are new born, infants, juvenile, lunatics. These humans have rights but they lack sense of morality and rationality.

WHAT IS JURISPRUDENCE?

Jurisprudence originated from the Latin word ‘Juris-prudentia’, whereby ‘juris’ means law and ‘prudentia’ means skill or knowledge. Therefore, jurisprudence is skill or knowledge of law and its application. It covers the whole body of legal principles in the world. It deals with those relations of human and society which are regulated by law. It is a normative evaluation of basic legal values and ideas which impart validity and recognition to legal system.

 It is conceptional analysis between law and socio-political society, which provides significance to the legal system. Rapid changes in this progressive society has given birth to new issues and dynamic law, has lead to evolution of jurisprudence. In other words, evolution of society brings changes in the law to tackle the problems through pragmatic approach has given rise to functional jurisprudence i.e. law and justice.

Professor Gray defined, “Jurisprudence more or less in the same manner. He opined that jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in these rules.”

HUMAN RIGHTS JURISPRUDENCE

Human rights are described as inalienable, fundamental, God-given etc. the basic purpose is that these rights are not created by constitution and other codes or any supreme authority but they have to declare and preserve those rights. This can be also said as human rights can exist as shared norms or human moralities which are supported and protected by strong reasons or as legal rights of a person.

Incidentally, human right generate from the realistic insight of ancient and medieval humanism. In the classical literature of
Prehistoric Greece from 5th century B.C. we come across a striking expression of the belief in the power exercised by the gods on human community which was based on law. According to the Ancient Greece writers, the god establishes a law which stand above the duties and prohibitions imposed by the rules of the community.

In Roman law there was dissimilarity between national law (jus civile) and the common law to all nations (Jus gentium). ‘Jus natural’ was the law of nature which is fixed and unchallengeable, higher to all human laws derived from the dictates of right reason.

In middle ages, a number of Acts were enacted to show the superiority of Human Rights. The principle of the Habeas Corpus Acts latent in the 39th clause of Magna Carta was acknowledged already in 1188 by Alfonso IX. Charters of liberty are steps towards the realization and implementation of Human Rights. Magna Carta of 1215, Petition of Rights of 1628; Habeas corpus Act of 1679, Bill of Rights of 1689 are some of such steps taken in England.

THE INDIAN CONTEXT

According to D.D. Basu, “Human Rights as those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of the human family, irrespective of any other consideration”[2]

Development of jurisprudence and legal theory in India owes as much to ancient hindu legal thinkers as it owes to western jurists and legal philosophers. The ancient Indian legal thinkers expounded their own indigenous legal system which was based on sound principles of reasoning and human wellbeing and excelled in many respects from other legal systems of the world. Commenting on ancient Indian jurisprudence, Mayne observed:

“Indian law has the oldest pedigree of any known system of jurisprudence, and even now it shows no sign of decrepitude. At this day it governs races of men, extending from Kashmir to Capecomorin, who agree in nothing else except their submission to it.”

ANCIENT HUMAN RIGHTS JURIPRUDENCE

The positive law embodies certain values which holds universal validity, like Dharma (righteousness), Artha (wealth), Kama (desires), Moksha (salvation) were expounded by ancient Indian philosophers and thinkers years ago with a view to establish a cordial social order by striking a balance between inner and outer, spiritual and material aspect of life.

“Dharmasastras” and the “Arthasastras” and other legal treatises of the history have revealed an incredible system, which regulates the duties of Kings, judges, subjects and judicial as well as legal procedures. The ancient concept of Dharma enabled citizens to inculcate sense of discipline in conducting themselves in society. The message is “Dharma” as the absolute value, which fastens kings and citizens, men and women.

Human rights achieve meaning only when there is an independent judiciary to enforce rights. The administration of justice always remained separate from the executive; it is as a rule independent in structure and spirit. It was the Hindu judicial system that first realized and acknowledged the significance of the separation of the judiciary from the executive and gave this fundamental principle a realistic shape and form. The case of Anathapindika v. Jeta descript in the monastic rules of vinaya pitaka,’ is an unblemished demonstration of this principle. According to it, a Prince and a private citizen submitted their cases before court of law and the court decided against the Prince. The Prince accepted the decision as a matter of course and as binding on him. The evolution of the principle of separation of the judiciary from the executive was largely the result of the Hindu conception of law as binding on the sovereign.

As Nagendra Singh remarks, “The individual in ancient India existed as a citizen of the State and in that capacity he had both rights and obligations. These rights and duties have largely been expressed in terms of duties (Dharma) – duties to oneself, to one’s family, to other fellowmen, to the society and the world at large. The basis of ancient human rights jurisprudence was Dharma – the ideal of ancient Indian legal theory was the establishment of socio-legal order free from traces of conflicts, exploitations and miseries. Such a law of “Dharma” was a model for the universal legal order.”[3]

MODERN HUMAN RIGHTS JURIPRUDENCE

With the progress of Indian Society, Constitution of India came into force on 26th January 1950 with 395 Articles and 8 Schedules which is one of the most elaborate fundamental laws ever adopted. The Preamble to the Constitution declares India to be a Sovereign, Socialist, Secular and Democratic Republic. The term ‘democratic’ signifies that the Government gets its authority from the spirit of the people. It gives a feeling that they all are equal “irrespective of the  race, religion, language, sex and culture.” The Preamble to the Constitution pledges justice, social, economic and political, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and fraternity assuring the dignity of the individual and the unity and integrity of the nation to ail its citizens. With this evolution citizens are also expected to be self restrained and self disciplined and also conscious about their rights and duties.

The Indian Constitution in its Chapter Third envisaged seven fundamental rights with several Directive Principles for the establishment of a welfare polity in India. The 44th Amendment reduced them to six and accepted right to property as a mere legal (not fundamental) right of the citizen.

Similarly, several directives have been accepted as fundamental in the governance of the country. The rights to information, primary education and pollution free environment have come on the periphery of fundamental rights. As democracy matures in India, the judiciary is increasingly insisting on the development of human rights jurisprudence and the legal implementation of social legislation for the attainment of human rights in India.

Protection of Human Rights Act, 1993 there are certain legislations which directly or indirectly protect the Human Rights and Fundamental Freedoms of mankind in multidimensional approach. All these are in accordance with the mandate of Human Rights instruments as well as in accordance with the Constitutional provisions.

The Indian Constitution is a document rich in human rights jurisprudence. This is an elaborate charter on human rights ever framed by any State in the world. Part 3 of the Indian Constitution may be characterized as the ‘Magna Carta’ of India. The Judiciary in India plays a significant role in protecting human rights. The Indian Courts have now become the courts of the poor and the struggling masses and left open their portals to the poor, the ignorant, the illiterates, the downtrodden, the have-nots, the handicapped and the half-hungry, half-naked countrymen.

CONCLUSION

The concept of Human Rights Jurisprudence in India is prevalent from the ancient time and continues. There are certain legislations, which directly or indirectly protect the Human Rights and Fundamental Freedoms of humankind in multidimensional approach. All these are in accordance with the consent of Human Rights instruments as well as in accordance with the Constitutional Provisions.

[1] Joel Feinberg, “Social Philosophy”, 1973, Prentice Hall, N.J p. 85

[2] D.D Basu, “Human Rights in Constitutional Law”, 1994, Prentice Hall, Delhi, p. 5

[3] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) Pg.79.