Saturday, May 27, 2017

The law as a schoolboy sees it

It is difficult to define the law, not because scholars haven’t tried but because at its inception, it is divided and subdivided into various streams and disciplines that resist easy categorisation. The best way to explain what it is, consequently, would be to extract the essence of all those variants: a tough task, some contend. I confess I know little about the subject, tutored as I have been in it, but I do know that the history behind it, as with the history behind every other ideal which has governed human society, is rooted in the philosophies of those who tried to explain it.

The law is based fundamentally on the divide between ideal and reality. After Socrates’ murder and the destruction of Athens, his student Plato saw in justice the remedy for his country’s ills. He contended that justice was an ideal, an equivalent of or approximation to which was possible in human society. He valued order over anarchy, a key motif in Western jurisprudence. In equating it with the human soul, moreover, Plato restored it to the human and the secular, away from the divine.

From there, it evolved through the proponents of natural law (who contended that it was the secular expression of divine ordinances) right down to important thinkers such as Jeremy Bentham (who contended that justice was the dissemination of the maximum possible happiness among the most number of people), Thomas Hobbes (who contended that law and order were best served by a necessary autocrat), John Locke (who sanctified the right to property), and Rousseau (who formulated the social contract, or the implied consent of the people to be governed by their representatives).

The cornerstone of the Western philosophy of law, from Plato to Rousseau, is its fixation with property. European political power was rooted in land, in turn rooted in patriarchy: essentially, the father owned the land and he had the right to give away what he owned. This was reflected in the king or queen, who had what was referred to as the divine right to rule because of his or her right to the property of the realm. Locke’s legal philosophy boiled down to a variant thereof: human society was an Eden before human beings began clamouring for land. It was property, in other words, which necessitated some form of order.

The 19th and 20th centuries were centuries of revolution, reaction, and counterreaction. The roots of the law (in property) were challenged by a new set of thinkers, from the Marxists to the Anarchists. For the former, the law was a means of oppressing the people, while for the latter, it was a fiction created to uphold the myth of order. Both of them considered it as expendable, or at best necessary to the attainment of their perfect societies. Marx in particular, with his copious writings on the subject, argued that the end of law was the beginning of Marxist society, with its removal of property qualifications.

Because these were extremist tenets, they couldn’t survive for long: Anarchism died away a failed experiment, while Marxism survived only in a few backward societies. Their impact on the larger legal landscape of the West, however, can’t be discounted. The first inkling of this came about with the feminist movement. The second inkling came about with the Civil Rights Movement. Both these imbibed the crux of Marxist jurisprudence (rejecting hereditary power and class barriers) while doing away with its political edge. In other words, the legal experience of the 20th century was based on how inequalities shielded even by the law could be rejected by resorting to the law.

The best summing up of the law was made, not by a philosopher, but by a poet: William Blake. “One law for the lion and ox is oppression.” In other words, with its obsessive commitment to equality (best symbolised by the image of a blindfolded Lady Justice), it equates one to the other without preferring either: a point that has been pondered on by the fathers of the Civil Rights Movement, who envisioned a legal system which would go beyond neutrality and would privilege equity (with its preference for the downtrodden) over equality. Whether or not this has been affirmed, one thing is certain: that the law continues to evolve, within and without, often questioning itself and repudiating its own stances on diverse issues like race, religion, poverty, life, liberty, and the pursuit of happiness.

In one word, therefore, the law is dynamic.

Written for: Daily Mirror EDUCATION, May 18 2017