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. This introductory article, Part I, discloses the ‘integral dimension of law’ that exists between Law and History.
Law is adventure of futurism. History is explorer of past. History presents past in the present. Law presents future in the present. Both are viewed from and reflected in the present. Interrelationship between them is continuous chronicle of the two ends of time; –past and future with present at the center balancing as well as harmonizing conflicts of social existence across two time-frames. Thus, neither law nor history can avoid interacting with each other. Four elements predominate this interrelationship in my opinion. They are social time, human behavior, State’s governance and legal rules.
Time has many meanings across academic disciplines. One common feature among all of them is dimension of continuity, no matter, time is perceived as objective or subjective, dependent or independent in the nature of existence. Legal research requires time-element when origin, stability and predictability of legal regulations are to be studied. For example, pushed by ghastly Nirbhaya incident, the Indian State (Legislature, Executive & Judiciary) and its society traveled back in time to trace glaring gaps in IPC 1860, Indian Evidence Act 1872, Cr. P.C 1973, etc. This inquiry into past resulted in new Criminal Law (Amendment) Act 2013, for our future. What happened in this study? By studying these three Acts and their operations through legal institutions and processes, socio-cultural and political history of the past is once again re-discovered. State and its three Organs studied context and specificity of those three Acts and compared them with existing equivalent setting to chalk out new ways of tackling problems of crime. Thus, to navigate probable future course of legal action, analysis of socio-cultural and political time-frames (past and present) becomes indispensable. This in turn involves digging, deconstructing and deciphering records of legal elements like interpretation in courts, execution by governments, compliance levels, stages of trial, evidence, punishment, control mechanism etc. This comparative empirical study between past and present gives quantifiable understanding for future. This time element in legal research contributes in the development of legal history with predominant epistemological methodology that is positivist and realist in nature and treatment.
Human behavior is a subject of habits developed over a period of time. If law wants to regulate individual and collective human actions in any society, it has to study human behavior. The psychology of human behavior and effective social (individual and collective) adherences to laws in any time-frame poses an interesting dimension to law and history. Laws are accepted norms that have gained confidence in human nature that are desiring and capable of social performance. Those laws are sandwiched between ideality and reality; between what one is and what one wants to be or ought to be. Study of law and history in human behavioral context explains possibilities of gap between capability and actuality of performance. Experiments by sociologists on conditioning behavior explain how less weak individuals are molded by social group of strong individuals thereby pointing to how social behavior is gregarious or contagious subject of observation and influence. Environmental laws which are created to protect and preserve damaged and destroyed human habitat are good examples of this behavior that explains what one has done to environment to what one wants to do with it henceforth. All principles of environmental laws developed through treaties, protocols, declarations, frameworks and action-plans are collective normative human behavior to preserve environment imposed on those who created environmental degradation. It is a change of behavior that is set in motion with the aid of environmental legal remedies between polluter pays and precautionary principles. Seeing global warming and climate change of our current planetary crisis, legal researchers can understand ruthless human behavior of those who had a head-start to grow and develop in the age of industrialization leaving rest of undeveloped States to suffer common and shared pain. Though inter-generational and intra-generational equity principles look like social and economic principles, they are actually psychological principles to dynamically impact human behavior to result in collective conscience and compliance. Individual behavior affects collective social justice. Thus, history of law is a psychology of society and as a result, law as psychology can be a powerful tool to re-create positive human history.
One cannot avoid law and history and its interrelationships if one wants to study nature and success of State’s governance. Consensus, conscious-will, consent and cooperation from both State and society are essential conditions of governance. Interrelationship between listening capacity of Sovereign and pro-active will of society explains State’s governance. Study of law and history explain these dimensions especially when State has a positive law of Constitution, functional structure of legal institutions and remedial processes which are modern legal requirements and standards of a reasonable State. Statistical, empirical and quantitative measurements from these dimensions in turn augment State’s governance and overall health of legal system and justice manifestation. Law and social transformation that come from Article 40 of the Indian Constitution that reads as “Organization of village panchayats–The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government” is a wonderful example of State’s governance through social cooperation. In India, the history of unique interrelationship between State and society towards collective progress known as panchayat-raj is an important chapter in the legal history of the world. If this is a solution to our current crises, State must look for these holistic methods of governance.
When social time, human behavior and State’s governance are understood in proper context as shown above, it automatically results in efficient and effective making of legal rules that are real, compliable and justiciable without diluting or conflicting individual rights and collective policies. Ideal elements of norm making and their transformation into law-making such as core awareness, free collectivity, freedom of exercise, fairness and equity of processes, means justifying ends etc., become easy when we adopt all the four elements of this interrelationship. For example, international law, its community and relations in their core understanding has come to this point of reflection when they understand the enormity of crisis of globalizing world and the need to address them.
There are many concerns that need to be looked into while applying the elements of social time, human behavior, State’s governance and legal rules in this study of interrelationship between law and history. What are they and how do we resolve them? Follow the next series for the concluding part of integral dimensions between law and history.
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