CHAPTER NINETEEN
LAW
Significance of
law
The
nature and all its phenomena are manifestations of the underlying principle or
the law. Nothing can come into being or sustain itself without submitting itself
to the authority of law. Again, the natural law may not be eternal but it is
lasting. For example, water is the manifestation of the underlying physical law
H2O, that is, water cannot come into existence or sustain itself unless two
atoms of hydrogen and one atom of oxygen combine together. Like everything else
law of water (H2O) is subject to change but it will last for a very long time
until water is replaced by something else. Maybe it is more appropriate to say
that the natural law does not change; it simply becomes inapplicable.
It is because H2O is the only way
of bringing water into being. As long as water is required, this law will remain
operative but when water no longer remains a necessity, this law will become
inoperative.
Natural law is a systematic and
binding force. That electric charges will be negative and positive, are a part
of a spontaneous plan which seeks realization through union (electrovalence),
and thus acts as the agent of evolution. Therefore, basically, law has a
constructive role. If it were not true, formation of stars and planets and their
regulated conduct would not be possible. However, it becomes destructive when it
is misused. For example, positive and negative charges attract but similar
charges repel; attraction is constructive but repulsion is destructive.
Significance of free will
However, natural law wields
complete command over inorganic things only. Its application to organisms
becomes partial. This is especially true in relation to man. For instance, the
physical integrity and working of my organs, despite being subject to the same
physical laws as any other molecular structure such as water or wind, obey the
command of my free will and the natural law cannot tell them what to do. Perhaps
it is not an exaggeration to say that the main difference between the inorganic
and organic is that the former do not possess free will but the latter are
endowed with it. Thus life starts with the emergence of free will. It follows
that man is man when he can act according to his own volition, and his way of
life is not forced on him. This is the essence of individuality.
It looks to me that free will is
the most precious diamond that every thief wants to steal; it is the most tasty
flesh that every carnivore aspires to dig his teeth into and this is the most
beautiful damsel that everybody loves to seduce. Man's free will is the emblem
of his freedom but the law of opposites demands that this human virtue must be
balanced with the vice of servitude so that he should learn to appreciate the
extreme magnificence of this value and devote his entire life to its defence.
Urge of dominance and free will
As free will is man's highest
virtue, the urge of dominance is his lowest vice. Dominance is nothing but
usurping other people's liberties for depriving them of their free will with a
view to telling them to choose from what is prescribed for them. I described the
predator of free will as a "gubernator" in my book "Taxation and
Liberty". Briefly, a gubernator is the person infested with the craze of
dominating people for determining their way of life through sheer brute force or
ravishing stratagems of religious, economic or social colouring.
Human potential
At birth a human baby is altricial,
that is, it is so helpless that it has to be fed and provided with every care
yet it has the potential of greatness. This piece of flesh is capable of
becoming a part of God but its way of achieving this goal is hindered by
innumerable hurdles which are horrisonant, horrendous and hideous.
Divine law and man
Religion is the greatest of all the
barriers. The dawn of free will attracts a whole host of messengers and messiahs
the same way as the beauty of flowers attracts bees, a lighted lamp attracts
moths or tropical forest attracts rain. Some of them call themselves God or the
incarnation of God, some of them style themselves as the Son of God and others
assume the title of messenger and claim that they have been sent by God with His
message which urgently seeks to regulate their lives with the Divine Law. They
insist that man's salvation depends upon God's pleasure: if people please the
Almighty, He will bless them with heaven and if they displease Him, He will
throw them into a flaming hell. All scriptures show that God is desperate for
man's submission and His delight and dejection solely depend upon man's attitude
towards Him. If God is so readily prone to fits of persecution and pacification,
then He certainly lacks perseity, i.e. independent existence Such an unstable
being cannot be God. Again, as free will is man's greatest virtue, by
suppressing it with His own law which is unchangeable and immortal, God
ridicules His own principles of creation. Is it logical to elect someone as
governor and expect of him to serve like a menial?
Finally, if God wanted to subject
man to a divine code, He would not have given man free will. Since man is not
man without free will, there exists a direct and sharp antithesis between man
and the divine law. It is no good saying that God wants to guide man for his own
good because the God whose own delight and dejection depend upon man's conduct,
is an interested party. Man to be man, must be free to choose his own laws. This
is how the truth is; the so-called divine law is just an innovation of the
gubernators who want to be worshipped by the fellow-beings and command their
lives even from the grave by laying down what their followers should shun and
what they should stick to. What a compulsion this urge of dominance is! It is
certainly man's lowest instinct.
It is amazing how a man, who like
any other man, eats, drinks, sleeps, needs sex, becomes ill, and feels sad or
glad according to circumstances, claims to be God and promises eternity to those
who obey his code which he delivers as the divine law! We should look into
the nature of divine law with reference to Judaism.
Divine law and Jews
It appears that long before the
Greek who invented the concept of rational law, Moses, the great Jewish leader,
formally presented the idea of divine law. For eternally binding the Jews over
to his will, he laid down some 625 laws in the name of Yahwe who was projected
as their originator. Despite the fact that they are over 3000 years old and do
not conform to the spirit of our time, they are still binding on the Jews with
the original vigour and fervour; they are immortal, and cannot be modified or
replaced. Therefore, Jews have to live at the same cultural level to conform to
these laws as they did thirty centuries ago!
The great Moses succeeded in
convincing the Jews that sovereignty lies in the Torah or the divine law and not
in him, though he was capable of writing these laws for having the courtly
Egyptian background, well versed in nomography. Though Jews claim that their law
is based on the principle of partnership between God and man, it is not borne
out by the Pentateuch. In fact, Jewish law is founded on servitude: God is the
master and man is the slave; the former is the object of worship and the latter
is the worshipper. Yahwe is a jealous God and the rise and fall and mirth and
misery of the Jews depend upon His whim. This is the reason that man has all the
duties and no intrinsic rights. Any right that man may have, are contingent on
the pleasure of God.
Philosopy of "no right and
all duty"
The philosophy "no right and
all duty" which has been pursued in our time to enhance the cause of
dictatorship, suited the Jews who had rendered most servile services to the
Pharaohs as abject slaves. The Jewish God whose instruments of suppression such
as court, soldiers and secular might could not be seen, was more acceptable than
Pharaoh for being the lesser terror. Yahwe's image represented only the threat
of punishment whereas Pharaoh's persecution was real, and they knew exactly what
it meant. Therefore, this situation carried a glimmer of hope and freedom, which
meant a good deal to the people whose every bone had been creaking under the
most agonising burden of slavery. They were quite happy to enter a covenant or
contract with Yahwe to keep His commandments and numerous other laws to escape
the Egyptian bondage suffused with despair and hard labour. It resulted in a
theocracy which, in theory, is the impersonal government of God based on His
immortal and unchangeable laws but in fact, it is run by the theocrats whose
interpretations, even when totally opposed to the spirit and wording of the
scriptures, constitute the divine law. This government of God is said to have
lasted from the date of Exodus in the 13th Century B.C. to 1037 B.C. when Saul
was annointed as the King of Israel.
Rabbi was the chief beneficiary of
theocracy. He ruled his flock with a very hard stick indeed, but as stick and
carrot go together even in a repressive regime, slowlY and gradually, he
instilled the Jewish mind with the elation of racial Superiority which
eventually deprived them of their faculty of social adjustment. This is the
reason that they have stood aloof and isolated in every society and attracted
all sorts of abuse and opprobrium irrespective of deserving it. The holocaust of
the twentieth century is a repetition of the horrors at a higher scale which
they have incessantly faced throughout centuries. The divine law is the fountain
of this infamy, and as long as they keep practicing it, they will continue to
suffer.
Even when a theocrat is elected, he
is not answerable to people. He secures the rank of infallibility and no matter
what he does, becomes a matter between him and God whose laws he apparently
promulgates and enforces, though actually, he aggrandises himself. Pope attained
this position for centuries and could propose and depose monarchs throughout the
Christendom. For four centuries he roasted mankind in the hell of crusades to
glorify the laws of God!
Purpose of divine law
The entire purpose of the divine
law is to deprive man of his free will through a process of brainwashing carried
out by an imaginary system of pain and pleasure, called hell and heaven.
Marxist law
Divine law is not the only source
of autocracy. Secular law can be equally dictatorial when it is used as the tool
of realising a particular ideology. Take Marxism for instance, its appeal is
based on a similar doctrine of greed and deception as used by certain religions
through promises of a paradise. It advocates the creation of a permanent
situation when "to each according to his needs" becomes the rule of
life without any reference to his economic contributions. Such a state of
affairs may apply to a community of monks but has no relevance to real life. The
audacity of this doctrine is stilted by the Marxist concept of value which
treats labour as the sole factor of production, and declares profit as the
capitalistic exploitation. Thus he activates his theory of social strife to
perpetuate a state of insanity infested with class-hatred. Morality has no place
in a Marxist society because it cannot be regulated without the severest grip of
the law. The Marxist state is the one that is deterministic and where law
assumes the role of morality!
Severity of law is the fountain of
dictatorship and despotism. A severe law, in fact, is not a law; it is a wolf in
lamb's clothing; it is a transvestite, i.e. a perverted man dressed up as a
woman. Such a "law" does not concern itself with justice or fairness
but serves as a means to an end. A Marxist state is a dictatorship of the
proletariats and is held together by severe laws the same way as body of a
victim is bound to the cross by cruel and convulsive nails. It is amazing how
Marxists claim that law is needed to eliminate the capitalists but when
classless society has been ushered in, law itself withers away! In fact, far
more severe laws are required to keep the society classless, against human
nature which is based on diversity and requires that people will be tall and
short, pretty and ugly, intelligent and dull, healthy and sick, old and young,
rich and poor . . . This truth is fully borne out by what is happening in the
Soviet Union these days. The moment the severity of law has been eased, though
slightly, the Marxist state has begun to crumble. Why? Because the Russian way
of life is more regulated by law and less by morality.
Sociological interpretations of
law
Sociological interpretations of law
also deserve mention. Bentham thought that the purpose of law is to maximise
individual happiness and minimise pain. But how? Say, through a welfare state
which seeks to redistribute wealth under the pretext of relieving discomforts of
poverty. People resent parting with their hard-earned wealth under the force of
rapacious tax laws which serve as the tool of this purpose. Such laws are
extremely harsh and dishonest. On the one hand, they discourage wealth-producers
to engage in rewarding entrepreneurial projects and force them to become
tax-dodgers, thus dissipating their moral strength, and on the other hand, they
rear a wolfish class of civil servants whose ravenous habits and insatiable
hunger for tax-gathering excel the imaginary monsters reputed for their
malpractice, malacia and malevolence. This type of law may maximise happiness of
the greatest numbers through plunder for a few decades but thereafter the
"free for all" attitudes lead to the destruction of economic and moral
foundations of the society, minimising their pleasures.
Rule of duty
Leon Duguit held that social
solidarity and interdependence is the most important fact of society. To achieve
this aim, the human activity should be completely directed towards it.
Therefore, people owe duties to promote this purpose, and no one has any right
except the right to do one's duty within the social organism.
Free will and responsibility
This collectivistic approach is
based on the total denial of individuality. Thus it is dictatorial and
unnnatural. Man's conduct is natural only when it is based on free will.
However, it is negation of free will when a purpose is deliberately chosen to
achieve an evil end or promote mischief. At animalic level free will may mean
selfish individual choice but at human stage free will denotes choosing with
responsibility based on moral conscience. Once a person has acted sincerely and
honestly, there is nothing more that he can do.
Again, it is mischievious to claim
that man has no rights but duties only. The truth is, as I shall discuss later,
right precedes duty: no right, no duty.
Rudolf Von Jhering thought that law
was determined by purpose. He laughed at the "jurisprudence of
concepts" which seek mechanical application of rules at the expense of
social purposes. To him, the immediate purpose of law is the protection and
coordination of interests. Thus the ultimate good of society depends upon
securing of individual interests.
No, law is not determined by
purpose because it is not like flour which may be shaped as cake or pastry to
gratify the taste of a buyer. Since it is law which determines the
identity of everything, its role is fundamental and not superficial. Neither can
it be the coordinator and protector of interests which vary so much from person
to person and class to class that they become contradictory, repulsive and
inimical. Law has its intrinsic value.
There are many more theorists, and
schools of law which could be mentioned but I think that I have devoted
sufficient space to explain problems of legality.
Legal philosophy
Law is not a set of arbitrary
rules. Before I can describe what law is, I must state that law is the concern
of jurisprudence or the legal philosophy which covers many issues such as the
nature of law, its purpose, the means to achieve that purpose, its growth and
modification, its relationship with morality, the methods of bringing it about
and the conduct of the legislator, interpreter and enforcer.
In a book like this, it is not
possible to cover the whole range of jurisprudential issues. Therefore, I shall
restrict this discussion to the following points:
a. Morality and Law;
b. Nature of Law; and
c. Purpose of Law
Morality and law
a. Morality means behaviour based
on one's choice, free from compulsion or deliberate instigation. A moral deed is
always rooted, directly or indirectly, in the distinction of good and bad, right
and wrong, true and false. This fact is borne out by the languages of the
primitive cultures which have words to this effect. Intention is usually
a part of morality though most of our behaviour is subject to the unconscious,
or force of habits, that is, we do things without deliberate planning. For
example, we drive without being conscious of the motor car controls and even the
destination.
Instinctive behaviour
Behaviour is expressive of the way
we do things, and "the way" implies those factors which motivate or
inhibit us to act, as well as the level of action. At birth our behaviour is
instinctive, that is, animates genetically inherit a code of behaviour according
to their specific level, i.e. it is governed by the fact what species they
belong to: a lion's cubs behave differently from lambs. The fact that many of
the activities of a species are peculiar to itself and are sufficiently constant
shows that animals are endowed with an innate code which guides their lives: the
preycatching methods of wolves, web-spinning activities of spiders and burrowing
habits of marine worms, are some examples of the mechanical or fixed behaviour.
However, it is only the basic behaviour which is subject to the innate code. Its
obvious purpose is to enable the species to survive. Without such guidance the
species is subject to a haphazard conduct which is another description of chaos
and thus a guarantee of extinction. The purpose of the innate code or law is to
ensure life through a systematic behaviour. However, a stereotyped behaviour
though guarantees life, is against the evolutionary principle i.e. the tendency
of self-improvement. This is the reason that much of the instinctive behaviour
is modifiable, and the ability to modify one's behaviour increases in proportion
to the extension of the evolutionary ladder. The greater ability to modify
behaviour gives a species higher adaptability which may enable it to escape the
pressures of natural selection.
Law and instinctive behaviour
Environment exercises a deep
influence on life: even in the womb or egg it is as much exposed to
environmental changes as it is after birth or hatching. Obviously, at this
stage, it is wrong to label such behaviour as morality because it is more
dictated by the innate code and less by free will i.e. the individual choice of
action. However, it does show paramountcy of law at the primitive level. It
equally applies to man. Since instinctive behaviour is not guided by conscience,
it is ignorance-prone and leads to customary law which is more mechanical and
less rational; its value depends upon the quality of customs it perpetuates.
Nature of customary law
Customs which assume the role of
customary law are plural in essence because they spring from society, and not
private or individual living. They indicate social attitudes relative to one
another, emphasising mutual rights and duties based on general expectations. Of
course, these customs may be influenced by the geographical conditions of the
land, social circumstances such as poverty and plentitude, political traditions,
religious doctrines, and so on. Customary laws are spontaneous; they accrete
from long association which is based on understanding and not on a written
constitution or an intellectual debate. Thus customary law becomes sacrosanct,
incapable of modification and irrational. It is regressive and retards the
progress of its practitioners. Its hallucinatory effects force people to follow
a mechanical behaviour-pattern adopted by their ancestors over the centuries.
People cease to be governed by considerations of right and wrong, and their
veracity and falsehood come to be based on the mere fact that they have been
held so by their fathers, grandfathers and great grandfathers. Caste system of
the Indian subcontinent is an example in point. Such behaviour is soimewhat
mechanised and is more representative of legality than morality. A customary law
can be harsher than a formal law. The Indian customary law of Sati which
required live cremation of the Hindu widows, points to this fact.
Distinctive factors of law and
morality
From the above discussion, emerge
the following points:
1. Law is a reality and expression
of nature. The instinctive behaviour shows that man is born with an innate code
which is the initial guarantee of survival. Therefore, law cannot wither away.
2. Law promotes mechanical
behaviour. Its paramountcy is more relative to the primitive social conditions
and less to an advanced society. Thus, the society smothered with the abundance
of law is not socially advanced though technically and industrially it may have
the capacity to reach the moon and beyond.
The basic moral rule
Moral law is not written, yet it is
grounded in human nature because we know it is good to speak the truth, keep
promises, defend honour and liberty, seek justice, help the helpless, attend to
the poor and the needy. On the contrary, we know it is bad to lie, steal,
murder, rape, mislead, torture, trangress and tantalise. It is our instinct of
survival which teaches us what is good or bad, or at least what is desirable and
what is undesirable and thus we come to know the basic moral rule: "Do not
do to others what you don't want to be done to yourself".
Moral law as natural law
Since moral law springs from within
one's self, it can be equated with natural law. Though we have the ability to
know the moral or natural law, instinctively, we lack the strength to practice
it owing to the operation of the ego which initially believes that one's self is
the centre of the universe, and therefore, all that promotes self-interest is
fine. In fact, this is a denial of other people's rights and one's own social
obligations. As the mist of this self-deception is evaporated by the harsh rays
of reality, the ego begins to learn that living is a mutual affair and the dream
of happiness cannot be realised without recognising one's own obligations to
other members of the society. However, the dawn of this realisation does not
prove effective for enforcing people's rights and obligations voluntarily. Why?
Because morality is basically an internal affair and cannot be completely
subjected to external standards. Therefore, we cannot measure the sincerity of
one's motives. Secondly, the standards of morality vary considerably with
different people leading to hypocrisy. Thirdly, it is natural for man to err
through misunderstanding, misinterpretation, inadvertence or sheer wickedness.
In a society which may consist of thousands or millions of people, the chances
of misdemeanours are bound to multiply considerably creating chaotic conditions,
inimical to social harmony. Therefore, we need objective standards of fairness
enforceable by a body of rules known as the law. It clearly shows that there is
no antagonism between morality and law when the latter seeks to enforce the
purpose of the former. When law contradicts morality, then its existence becomes
questionable. Again, assuming that we can find an infallible set of laws, it
will still be nothing more than something written on paper in golden ink because
its excellence and degradation depend upon the moral plateau of those who make,
interpret and enforce law. Therefore, we can conclude that:
1. Morality is the natural law for
mankind but not forceful enough to regulate human conduct on its own. It is
because man is not a robot but a free agent and thus liable to error and
misconduct. Moral law needs reinforcement from the formal law.
2. Moral law is subjective but
formal law is objective and thus a code of written rules enforceable by
coercion.
3. One does not cancel out the
other. There is a natural reciprocity between the two and their relationship is
akin to that of the mind and the body.
Nature of law
b. Having discussed the
relationship between morality and law, now we ought to ponder over the nature of
law.
Since law seeks to realise the
moral desiderata such as justice, peace, security, rules of law cannot be laid
down arbitrarily. If it were so, law would degenerate into a tool of oppression
for being the means of securing the end. Unfortunately, this is the
international reality and practice of law today. It has happened because the
state has become the manifestation of the gubernatorial will, that is, it seeks
to enforce the will of the dominant who possess the burning desire to rule by
hook or by crook, and through a golden mask of hypocrisy and misinterpretation
equate their own will with the will of the people!
Existing version of law
What is then the nature of law? It
is not possible to define it immediately. I may first describe its existing
version:
What is meant by law is the
positive law, that is, law as it is, and not as it ought to be. As a general
rule, making of law is considered a Derogative of the legislator though in
common law countries a bold judge through his power of interpretation, may
change the meaning of the existing law, by making it more severe or may even
create an alternative law. Though diluting the spirit of harsh law is not
unknown, judges being an integral part of the government, usually stiffen the
laws passed by their political masters.
The most unfortunate part of
law-making is its servitude to the purpose of the law-maker, who without an
exception is a politician or his appointee, and thus mainly interested in his
own power and prestige. This type of law-making though pays a lot of
lip-reverence to the underlying principles of nomography, actually contradicts
them in practice because respect for law-making and realisation of self-interest
are not friendly fellows but naturally opposed to each other. A good example of
this fact is Britain where legislation is guided by the political interests of
the party-in-power and not by the national needs. Just look at their tax laws:
they hoisted the flag of impositions as high as it was possible; Income Tax rose
to 98~o, and it was in addition to numerous other taxes including back door
taxation such as back duty. Knowing full well that Britain is a nation of
traders, and traders do not undertake high ventures without anticipation of
profit, they made profit a dirty word, thus strangling the entrepreneurial zeal
of the nation which had made Britain great. Small wonder that now Britain has
become a debtor nation and about to lose her identity in the European Economic
Community. This is an example of the hidden antagonism between law-making for
self-interest and national need. Yet politicians preach that ordinary folks
should respect the rule of law though they themselves have no reverence for it.
The law of convenience that enables politicians to realise their dreams at the
expense of lawfulness is not law but command of the ruler to the ruled; the
latter must obey it or perish.
Ingredients of legality
To give law the form of legality,
jurists have suggested that it must have at least five ingredients: firstly, it
must conform to the basic set of jurisprudential rules instead of being subject
to the whim of the law-makers. Secondly, it must be promulgated for everyone to
know that such and such law exists to regulate certain things. Thirdly, law must
be couched in a language which ordinary people can understand, i.e. it must be
clear and free from ambiguity. Fourthly, law must be prospective in operation,
that is, law must not seek legitimising the illegitimate precedents of the past;
it is a characteristic of the divine law: Pope legitimised bastardy and foreign
aggressions; it was also a trait of the Nazi law-making. A retrospective law is
a devilish phenomenon. Fifthly, the government and all its agencies must show
respect for the law by upholding the dignity of the enacted rules. In addition
to these five conditions of enactment, the interpretative attitudes of judges
and enforcing powers of civil servants, are equally significant in deciding what
is being labelled as "law" is really law and not a capricious command
of the powerful to the powerless. Having written extensively on this subject in
"Taxation and Liberty", I don't think it necessary to prolong this
discussion.
Reality of law
Now, I may express my own views on
the subject. I shall state them briefly because I have already dealt with them
fully in "Taxation and Liberty". I am describing them here only
because without their mention, no matter how skeletal this discussion will look
nonesensical.
Like customary law, the substantive
law also seeks to define the mutual rights and obligations of a person in
relation to others. As customs come into being spontaniously, law is naturally
embedded in the nature of man. Therefore, to be genuine, law is not law unless
it conforms to human nature. What is human nature? I have defined it as the
"tendency of self-improvement" though I have occasionally referred to
it as the "urge of self-improvement" to denote the individual
intensity in this respect. Since humanity is founded on the principle of free
will, self-improvement must be based on personal choice and not dictation. Thus
self-improvement in regard to myself, is what I think is improvement, and not
what I am forced to believe in.
Life and free will
Life beams with free will. The
moons and stars despite their sparkling majesty are inferior to a sparrow
because every bit of their motion is determined, but a sparrow being endowed
with free will, has the choice to fly or rest. It means that life is all about
personal choice. When one can exercise free will, one is really alive but when
free will is checked one's life becomes a process of breathing through
servility.
Free will and responsibility
In one's imagination one can choose
what one desires but in real life free will becomes restricted and this
restriction is imposed by moral sense which determines one's social relations
with other persons. It is based on the principle: "Do not do to others what
you don't want to be done to yourself".
It fosters the feeling of
reciprocity, which on the one hand, leads to social cohesion, and on the other,
turns free will into a mechanism of choosing with responsibility. Thus sadistic
deeds cannot rank as extensions of the free will, but qualify as acts of
ignorance and insanity. As long as restriction comes from within, a person
remains free but when it is imposed from without, he becomes less than free.
Again, free will implies the
ability to choose and not the ability to achieve. Wishing to hire an elephant
for carrying two tonnes of cement is an act of free will but wishing to be
physically as strong as an elephant to carry two tonnes of cement is not free
will, but a fantasy.
Free will and ego
The role of free will in relation
to ego is that of an advisor. Whether or not it will accept the advice, depends
upon its sense of survival, desire of fulfillment and cultural development. The
physical stability of a person is yet another factor: brain's choice of action
cannot be carried out by sickly tissues and organs. This is the reason that a
sick or senile person behaves like a child, and therefore, cannot consider the
choice offered by free will.
Determinism
Perhaps, the most misunderstood
point in this context is the role of determinism. To believe that one's actions,
station in life, sickness and health, wife and children, friends and foes, etc.,
all are predestined, demonstrates that one lacks sense of responsibility, and
the moral strength that goes with it.
Determinism refers to the
organisation of an entity and not its exact potential which may be subject to
tremendous variations. I could have been born as a monkey but it was determined
for me to come into being as a man. I cannot fly because man has no wings but I
have the choice to invent an aircraft and fly to the moon and beyond. Again, the
combination of neurons as a brain is an act of determinism but its choice of
thinking, feeling and acting is almost unlimited. It clearly shows that
determinism leads to free will, and the situations when determinism acts as a
brake on free will, imply necessary safeguards against chaos and
disorganization. For instance, a human baby has no choice of birth: the parents
can be black or white; society can be progressive or regressive; religion can be
theistic or atheistic. Again, one's physical environment and genetic endowments
are not a matter of choice but predestined. If everyone was to be born according
to one's choice, everyone would choose the best state of birth and thus life
would become a process of uniformity and exactitude. This would expunge the
principle of diversity. As we all know, diversity or variation is the essence of
evolution and the spice of life; the existence itself would not be possible
without it. Thus what we refer to as determinism is not really determinism but
the principle of organization which inevitably leads to diversity. For example,
man is an organization of cells which is a form of determinism, yet no two
persons are exactly identical, and civilization itself is the exposition of
human taste for diversification. It means that determinism is the fountain of
diversity or free will because choice (free will) has no meaning unless there
are alternatives to choose from, and this is exactly what diversity is. It
explains the reality of determinism.
Protection of Individuality
In view of the significance of this
point, I must repeat that diversity is life, and life is diversity but diversity
has no value without free will. If I cannot choose between various things they
have no meaning to me. In fact, the right to choose implies man's fundamental
right to differ and be different. This happens to be the basis of individuality
which becomes coextensive with free will. Thus, it is the nature of law to
protect individuality by promoting free will. It achieves this end by laying
down rules of conduct which clearly state the mutual rights and obligations of
people, as well as duties of the state towards them.
Natural issues
Once again, free will establishes
man's right to differ and be different. In fact this right is embedded in man's
nature, and is further reinforced by the existence of natural issues. What is a
natural issue?
Among other things,
"issue" means "point in dispute", and "dispute"
means "to make subject of argument, to call in question". Study of
psychology shows that man is disputatious by nature. This is the reason that no
ethical value can be clearly defined, or hold universally accepted meaning.
Assuming such a meaning does exist, it is always subject to variation and
opposite interpretations. It is because of man's disputatious nature that every
argument has a counter-argument. Thus, "to argue" is an extension of
"to differ", which is grounded in free will. This is why that life is
a series of contradictions such as beliefs and disbeliefs, attractions and
aversions, persuasions and dissuations, inclinations and disinclinations, hopes
and disappointments, assurances and uncertainties. This array of opposites is
rooted in human nature which motivates behaviour from different points of view
and in contradictory circumstances.
Natural law
Law becomes natural law when it
protects and promotes the entity of something to which it applies. The physical
law of the universe is called natural law because it protects and promotes the
entity of everything through the principle of precision and flexibility. Thus,
the law that reflects the disputatious tendency of man in its constitution and
protects and promotes free will by giving everybody the right to differ and be
different, ranks as natural law for man. In other words, natural law is the law
which conforms to the nature of a species and works in complete harmony The law
that confronts the nature of the species to mould it against its will, is not
the law of it but a system of coercion which is bound to paralyse its entity
instead of promoting and protecting it. Thus, the law for a fox is not the
natural law for a lion because it does not take into consideration the natural
characteristics of the lion.
At lower level, man is motivated by
selfish considerations but as the tendency Of self-improvement takes effect, his
ego rises in stature through attainment of Cultural potency, and he develops a
moral sense which demarcates his relationship with fellow-beings voluntarily,
i.e. by choice. It is a fact that our behaviour is less affected by the law and
more by our moral sense. Not many people know the dimensions and complexities of
the law to be able to practice it but most of us know what is right and what is
wrong. Thus our life is governed by the moral law, and if the positive law (the
state law) conforms to the moral law, it qualifies as the natural law, otherwise
it is just a coercive system of rules designed to enforce the will of the
dominant.
What is a Natural Issue?
To rank as natural law, the
positive law must take account of natural issues which are manifestations of
free will. A natural issue is the point about which people honestly dispute. For
example, "desire" is a natural issue because people have always argued
whether desires should be gratified or renounced; religion is also a natural
issue because people believe in a certain religion to the exclusion of others;
democracy also qualifies as an issue because people have held commendatory and
condemnatory opinions about it. Thus a natural issue Is the naturally disputed
point of major social, religious, economic or international importance and
capable of becoming a source of intense discord and strife. The modern conflict
between capitalism and communism (marxism) results from the economic issue, that
is, who should own wealth - individuals or the state (erroneously identified
with society).
Again, an issue is natural when it
spontaneously arouses different emotions and contradictory opinions. Its source
is not bigotry and ignorance but people's innate tendency to see, feel and think
differently. Without this in-built psychological differential, free will is
bound to become inoperative because if everyone saw, felt and thought exactly
the same way, everyone would act similarly. Thus mankind will rank as a race of
robots for lack of diversity. Room for uniformity in real life is very limited,
indeed.
The law must take into
consideration the existence of natural issues and prescribe the means to solve
disputes and mitigate their effects. Each issue has peculiarities of its own.
Having discussed many of them in "Taxation and Liberty", I shall skip
their repetition here.
Change of Law
It is obvious that the law which
takes account of natural issues, is grounded in rational principles of the
underlying science of law-making known as jurisprudence and cannot be changed at
will by the law-makers. It is especially so when the positive law ranks as
natural law. One cannot imagine natural lay; changing under ordinary
circumstances. It changes only to cope with a catastrophe or when conditions
have changed so grossly that they cannot be given a new order without a change
in the law.
Constitutional principles
The ability to make and change the
law at will is called ``legalism,' i.e. the dictatorship of law. To curb this
practice, law must be rooted in the constitutional principles of law-making.
Constitutional principles are like the original rules ol a club or partnership.
If the club or partnership wants to enact further rules, that must conform to
the spirit of the original ones. Again, if any of the original i.e.
constitutional, rules Is to be abrogated, it cannot be done by the sheer
authority of the chairman; it must involve the entire membership which is also
required to observe definite procedures. A national constitution is rooted in
the history, customs and general manners of its people. It expresses the
national temperament and social values which are determined over a period of
time by national accords and discords, emanating from natural issues peculiar to
the society. Unless laws conform to the national peculiarities, they are a form
of legalism, and a threat to civil liberties. The English or Common Law which
gives opportunity to a true judge to condemn an unconstitutional piece of
legislation, represents the once free spirit of the British people.
Illegal law
The law, by its nature is the
protector and promoter of a nation's liberty, and is rooted in the national
temperament and social values. Standard of reference is always the people in
relation to their traditions, cultural attitudes and historical precedents, and
not the judicial decisions. The law which can be changed to suit administrative
convenience, legitimise the illegitimacies of the past or to secure an
ideological dream at the expense of moral and national values, lacks legality
and does not deserve respect of the law-abiding people.
Purpose of law
c. Now we come to the last point
i.e. the purpose of law. Let me say rightaway that law has an intrinsic purpose,
that is, maintenance of peace and security through dispensation of natural
justice i.e. justice for all, the poor and the rich the low and the high, the
black and the white, the Christian and the Moslem The biased law is not law but
the tool of the dominants' desire. Therefore, law cannot have an extraneous
purpose such as the introduction of an ideology, e.g. socialism, Islam or
Judaism. Law is the stabilising factor between individual and individual, the
same way as bond (the pattern of laying) is between brick and brick. While
during an emergency, which is a period of short duration, everything is subject
to change, and the law is no exception, under normal circumstances the law
cannot be subordinated to an extraneous purpose. Solution of economic
disparities is not a problem of the law but of the state. How? I shall answer
this question in another chapter. Here it suffices to say that the law that is
the protagonist of a particular ideology becomes the antagonist of all the
doctrines that people may hold to the contrary. Thus it is sectarian and
divisive and cannot serve its true purpose which is harmony and happiness. It is
an ambassador of strife and misery, and cannot qualify as natural law.
The greatest right
Law is the guardian of people's
rights, and the greatest individual right is the right to be free. It means that
man has the right to think, speak and act as he likes provided he does not harm
others. Nobody's opinion should be repressed just because it offends someone
else's dogma. Harm must mean actual harm and not a hypothetical one.
The right to be free is the most
significant social element for being the exponent of free will, which is the
fountain of life. If the state is doctrinarian i.e. addicted to a dogma such as
Marxism, socialism or a religious concept, it cannot allow people the freedom of
speech and action and is inclined to pass sectarian laws directly or indirectly
to supress people's free will. Dogmatic laws are regressive because they force
citizens to do what they don't like. The fall of the Soviet Union owing to
Marxism and the decline of Britain through socialism which raised taxation to
98%, are some of the examples. Care of the society, as I shall explain later, is
the fundamental duty of the state and not a superimposed social dogma, and care
means care of everybody, the poor and the rich, the high and the low. This is
what "equality at law" means, and this is what the law must practice.
Law and Liberty
Accepting authority of the law
means giving an undertaking to the state that one will discard certain ways of
acting and adopt the prescribed mode of behaviour. This submission apparently
restricts individual freedom, but this is not the case. The voluntary loss of
freedom is, in fact, a sound investment in liberty. As it is not possible for an
apprentice to become a craftsman without devoting several years of hardwork to
his trade, or for a capitalist to make profit without staking his assets and
energies at his business venture, it is not likely for a citizen to preserve his
ideal of liberty without sacrificing a bit of his freedom, initially. This
initial loss of liberty is like the seed which a farmer loses into the field
that he ploughs with the hope of reaping a harvest many times over. If the law
does not promote the operation of free will, it is a wolf in lamb's clothing, a
whore dressed up as a bride or a predator looking as a priest.
With the freedom of belief, speech
and action, goes the freedom from fear of arbitrary arrest, freedom from fear of
mob rule, freedom from fear of losing life and limb and freedom from fear of
molestation by the government itself in the form of police and civil servants.
This type of freedom is possible only when the law is rational and equitable,
and not the tool of dominance in the hands of rulers who want to present their
atrocities as acts of humanity and their fiascos as feats of patriotism.
Freedom from hunger, illness and
ignorance
Very closely connected with these
freedoms is the freedom from fear of hunger, the freedom from fear of
helplessness brought about by illness or age and the freedom from fear of
ignorance engendered by lack of means to educate oneself. Zany though it may
seem, these three freedoms are not the basic concern of the law, but of the
state. How? I shall explain this point at a later stage though I must mention
that the law does have a role to play in it but it is of secondary nature.
Inimical to all these freedoms is
the injustice which arises not only from the deliberately vicious acts of
fellow-beings but through misunderstanding, misinterpretation, lack of
communication and trust, or quite accidently. In this context, it is most
important that the government sets an example of fairness the government that
raises taxation to 98% is a thief and cannot hide its act of pillage under the
golden cloak of welfare. Its image of Robinhoodism turns into Ganghis Khan
because by unjust laws it gives diabolical powers to the tax officials who
resort to deceit, deviation and dishonesty through exaggerated assessments for
depredating the taxpayers.
What is Law?
A partisan government is not
capable of governing people fairly because it passes laws which patronise one
section of the population and penalise the other. It possesses a split
personality because it favours certain groups to frighten the others for
dividing them into fanatical sections who love class hatred more than anything
else. Once a goverment is elected, it must discard its bigoted views and serve
the community as a whole. Therefore, the law must ensure that no political party
is elected on a divisive and unjust manifesto. Thus law can't be anything but a
set of judicious principles which seeks to establish order by enhancing social
harmony through dispensation of natural justice. And it must be realised that
natural justice is neutral justice: it does not take into consideration the
conditions connected with colour or creed, poverty or plentitude, lofty or low
birth.
Essence of Law
Harmony is the essence of the law
because this is the key to Godhead. People used to discord, division and
disharmony as the way of life, develop distasteful tempers and habits leading to
conditions not conducive to the birth of soul.
Right and duty
When considering the purpose of
law, it is improper to ignore the relationship between rights and duties.
Unfortunately, jurists have given overwhelming preponderance to duty over right.
I have no doubt about the mischievousness of the assertion that people have no
rights except the right to do duty. The truth is certainly the other way around.
Why? It is because free will or the right to choose is the foundation of
humanity. Without the sense of choice, man becomes a very low animal or more
accurately an inanimate object because only the lifeless things lack the power
to choose. On this basis alone, right precedes duty because free will or the
right to choose stands at the root of humanity itself.
Secondly, though duty is a moral
concept, it is usually projected as a command of the powerful to the powerless.
A command can be just or unjust, vicious or righteous. Man surely has the right
to choose between a good and a bad command. Thus the concept of duty depends
upon the right to choose.
Thirdly, it is right which creates
duty. When a baby is born, it is born with rights only, net the right to be fed,
clothed, sheltered and protected. If parents have done their Job well, the baby
when it grows up, feels obliged towards its parents, and oves them. Of course,
parents develop their rights through performance of their duties, yet right
precedes duty because the parents, as children, had their rights first.
Finally, duty cannot be laid down
by law or through fear. Such a duty is not really a duty but a command or an act
of blackmail. Duty is duty only when
Is ased on the exercise of free
will as devotion or reciprocity: it must come from within as a fair return for
something received, performed, cherished or anticipated. Its fountain is
reverence or expectation, and not fear. However, there is one exception: an
individual's rights precede duties but the state has no right except the right
to do duty. It is its sense of dutifulness and the actual performance of duties
which give it certain rights.
Tolerance
The most important function of the
law is to ensure the rule of free will, that is, people's right to differ but
they must differ in a civilised manner so that everyone should have some respect
for other people's views or at least tolerate them. It means that everyone has
the right to be a Christian, Moslem, Hindu or an atheist but this right carries
the integral duty of tolerance towards others. This principle must be enshrined
into the body of law, otherwise it cannot promote the cause of justice and
freedom.
I think that I have said enough
about jurisprudence or legal philosophy except that morality though concerns
action, opinion plays a great part in it. Therefore, moral law is unwritten but
to the contrary, the positive law is a written code of enacted rules. Therefore,
there must be an authoritative body to make, promulgate and enforce the law.
Such a body is called the state. We should now examine its constitution and
role.
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