Law is a normative value to help society live in collectivity and harmony. For law to be a supreme regulator of all, it must become integral in theory and practice. An integral dimension of law helps State, society and legal systems to balance and harmonize competing claims arising out of complexity and heterogeneity of life and changing needs. Professor Dr. K. Parameswaran outlines his integral theory of law in this series of articles by showing how law must integrate knowledge from other disciplines; bring them under what law wants from them. “…Thus, when law becomes integral, it opens practical and yet unfailing solutions to assist peace, progress, prosperity and protection of all, for our current times and future age…” – author claims. In this concluding article, Part III, author explains the ‘integral dimension of law’ that exists between Law and Ethics.
We must look into the definition of ethics in order to understand how an individual and, his or her role in collective life is to be understood and related with. In this, law and justice as a system which deals with all kinds of complex interrelationships between individuals and collectives come to play a serious role under the Indian Constitution which promises to bring nobler ideals and values of justice, equality, liberty and fraternity to everyone. If law is a value system, ethics is its efficient tool. Morality–its overarching principle or value from where ethics flow is to guide human actions. Ethics is an internal psychological propeller to push ideals and values into real actions under any legal system. Ethics holds a stage of pre-legality. Morality holds a stage of pre-ethicality. As a result of this understanding–morality, ethics and law and their interrelationships, ethics becomes an intermediate catalyst and censor to guide human actions. If ethics is accepted as compliable behavior, legislators can make them into law as habits are already formed to guide thoughts and actions. By this, ethics is something more than what is generally discussed as objectivity-subjectivity narratives on ethics. Ethics become real and substantial to lead a moral into an action compliable under law. Ethics is subtle and hence play an invisible silver inner-lining giving hope to connect the ideal with real. Let us consider here some of the greatest thinkers who explained ethics and why it is to be practiced.
“It is noble voluntarily to do what is good and right. The true sign of man’s nobility is the fact that, instead of being driven about like a cloud before the wind, he stands firm and can do, and in fact does, what he deems proper”, says Mahatma Gandhi. Immanuel Kant said, “In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so”. “I do not believe in immortality of the individual, and I consider ethics to be an exclusively human concern with no superhuman authority behind it”, says Albert Einstein.
“History shows that where ethics and economics come in conflict, victory is always with economics. Vested interests have never been known to have willingly divested themselves unless there was sufficient force to compel them”, explains B. R. Ambedkar. “All sciences are now under the obligation to prepare the ground for the future task of the philosopher, which is to solve the problem of value, to determine the true hierarchy of values”, said Friedrich Nietzsche. All these definitions on ethics explain the role of ethics to individual and social life. Whereas, a definition given by Sri Aurobindo on ethics is something interesting that is suitable for law and justice as a whole. He explains not only what we must imply by the term ‘ethics’ but also how, where and why ethics shall take us ultimately to a greater awareness of what life is all about, its purpose and function. He gives a true and profound meaning to ethics which we must consider here for our integral dimension of law. He says – “An act of justice, truth, love, compassion, purity, sacrifice becomes then the faultless expression, the natural out flowering of our soul of justice, our soul of truth, our soul of love and compassion, our soul of purity or sacrifice.
And before the greatness of its imperative mandate to the outer nature, the vital being and the practical reason and surface seeking intelligence must and do bow down as before something greater than themselves, something that belongs directly to the divine and the infinite”. By this definition Sri Aurobindo shows us a direction as to how to use and apply ethics towards a greater-knowing, greater-doing and greater-flowering in life, both individually and collectively. This can ultimately fulfill life as a whole from external to the inner, from individual to universal life. An advocate under the Indian Constitution or advocacy of a greater cause in any society must understand this greater-knowing, greaterdoing and greater-flowering. This greater dimension can be explained in legal ethicsthrough a four-fold approach to advocacy that can very well fit into Section 35 of the Indian Advocate’s Act, 1961 which explains the (mis)conduct of an advocate in legal profession.
Quadrant model of ethics is ‘clientele-careconcern- change’. This four-fold approach is what ethics in legal profession in all its forms must consider both in theory and practice. This quadrant model of ethics based on integral dimension of law is best suited to enhance justice-advocacy under The Indian Advocates Act of 1961 for which advocates take oath to serve Indian Constitution, nation and society. This fourfold approach is a step by step process that brings for an advocate a reflective thinking and meaningful action from an individual level to finally collective, wholistic and integral level.
Let us see this quadrant model of ethics through an example. A man commits an offence under law. How do we approach this issue from the point of view of clientele-care-concern-change? Clientele advocacy is the first and foremost form of practical advocacy where lawyering for client’s cause’ is taken into consideration. It is on a preliminary level where advocate argues in the court of law to protect hisclient. He is not bothered by what offence his client has committed in society. He looks at the client and deals with it accordingly as clientele. He is also not bothered by why his client has committed an offence of that kind.
He is only worried how to rescue him from the wrath of punishment, how to present this occurrence of offence as a product of situation or circumstance ora mutual contribution of both the parties – offender and victim. Offender also gets a chance to prove innocence in case of wrong allegation. It is State’s responsibility of legal and executive policy from the department of home affairs to prevent offences taking place. By this, clientele advocacy takes life, world and interrelationships from the point of view of pragmatism and realism and holds ‘ought’ and ‘normative reasoning’ as something moral and cannot be imposed, as such impositions have no value to complexity of human nature and social life in which claims for social and economic life are in a constant competition resulting in pull and push of social forces and hence these complexities are the causes of an offence. It can only be wished or expected that people do not commit any offence, but there shall not be any guarantee in the state of Nature that offence cannot be committed. It lends its credence to realism devoid of idealism. Demerit of this approach is that it is not victim or offence-centered rather offenderoriented with arguments on the instigating causes of the offence.
A second stage or phase of advocacy is such that care is taken not only to abide by law to protect an offender but also to keep in mind, protection ofsocial situations from such offence-occurrences. It has an initial level of victim-perspective in legal arguments. It must be borne in mind that law is a product of society and hence, social causes need to be studied. Thus, advocacy of this stage brings broader analysis and not just mere legal arguments. It has sociological studies and psychological understandings of the causes of offences. This kind of advocacy of care helps for the foundation of a value-abiding society.
A third stage or phase of advocacy is such that concerns are expressed as to why offences happen in spite of knowing where the causes are. What is the obligation of the State here and why it has failed to perform in the prevention of offence? Thus, this advocacy reiterates to the State-systems the role of law, its aim and function to society. It brings State into the discussion, its machinery of legal system that State executive ought to be concerned with. It also gives scope to judiciary to relook and amend the existing law, its loop holes and insufficiencies. Active suggestions and support are given to the State to curb the menace of offence. These suggestions flow from legal knowledge; both theory and practice and takes their application in real-time context and circumstance of any offence. Take for example; offence of rape or bribery. It brings issues relating to gender disparity and greed to amaze wealth, need for educational values about gender recognition and noble motives to profession, role of self-defense to women and protection to whistleblowers of corrupt practices.
This is the fourth and final stage of advocacy where advocacy gets into dynamic mode of action to address the causes of an offence. From arguments (clientele) to analysis (care), and giving suggestions (concern), advocacy here gets down to action (cause). It not only in theory reiterates the value and outcome of law and its systems, it daringly attempts to work and achieve the aim of law, legal systems, State and its tripartite structure oforgans and restores the state of Nature where offence-less situation and circumstances thrive for the benefit of all – justice, equality, liberty and fraternity.
In general, a law student who finishes his or her graduation must be interested in getting into legal career of his or her own interest. It is legitimate that he or she uses the legal knowledge acquired to the benefit of a career with which legal graduation is completed. However, it must be borne in mind that legal education is boarder and has noble goals. What starts as an aim to serve clientele should not stop there. The party-clientele (first stage through plaintiff or respondent) for an advocate sees the importance and relevance of deeper values of knowledge in social care (second stage). In this knowledge is expanded and new inputs are added in the legal knowledge which enhances justice. In the third stage (concern), whole society becomes a client for advocacy to a larger group and greater action.
As law is a product of many forces in the society, society must be included if law has to serve the purpose of justice. Finally, in the fourth stage (cause), mere legal advocacy becomes insufficient if the action is not undertaken to support the State and its legal systems in the actual realization of the goals of law and justice. Through these four-stages or four-fold approach to advocacy, an advocate before a State, justice and legal systems becomes a part of State, justice and legal systems through enhancement, application and realization of legal knowledge to its end. Advocate comes to know that he has a role to society and State and for that he has a role to himself in his own life and in the life of his legal practice.
Advocate has to reach what Sri Aurobindo has explained – “An act of justice, truth, love, compassion, purity, sacrifice becomes then the faultless expression, the natural outflowering of our soul of justice, our soul of truth, our soul of love and compassion, our soul of purity or sacrifice. And before the greatness of its imperative mandate to the outer nature, the vital being and the practical reason and surface seeking intelligence must and do bow down as before something greater than themselves, something that belongs directly to the divine and the infinite.” Follow next series on integral dimension of law between law and management
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
