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 concluding article, Part II, discloses the ‘integral dimension of law’ that exists between Law and History.
Methodological and epistemological concerns are many in legal research when law and history are studied together for any purpose. We studied four elements in our previous column of Part I on interrelationship between law and history. One, understanding socio-cultural and political timeframes of past helps State Executive and Legislature to navigate probable future course of legal action through analysis on the basis of events of past and present. Two, considering law as a domain of psychological knowledge, it acts as powerful tool to re-create positive human history as history of law explains stages of psychological developments of society. Three, consensus, conscious-will, consent and cooperation between State and society are complimentary dimensions impacting State governance and social developments. Four, efficiency of legal rules as real, compliable and justiciable social norms without diluting or conflicting individual rights and collective policies depend on these aforementioned three elements. Interdisciplinary research at the initial level usually gives two sets of results exclusively applicable in respective domains; law and history. However, when research of this interdisciplinary kind is to impact social harmony and cultural balance that law and legal systems have to tackle among competing claims from complexity, heterogeneity, subjective dimensions and changing social needs, serious concerns come that can be dealt only through integral dimension of law between law and history.
Though study of past is mystical, it is also troublesome considering the intangibility of perception of past, which leads to lose ends in understanding. This is especially clear when subjective human behavior, individual and collective of a society is taken for understanding behavioral compliance to law whose time-frame is already over. When it comes to justice, courts and judges have elevated time element for legal remedies to an exalted position. Some legal maxims that guide legal interpretations in relation to time element can be found in custom like; when there is no law applicable to social situation, custom of place and time will have legal force (consuetudo pro lege servatur), usual customs followed acquire force of law (mos pro lege), absence of positive international treaty law in force makes customs in international law play legal role (jus gentium and Article 38(1)b of ICJ Statute), custom of place is to be observed (consuetudo loci observanda est), contemporaneous exposition is best and most powerful in law (contemporanea expositio est optima et fortissima in lege) or simply, best interpreter of law is custom (optima legum interpres est consuetudo). Or from another spectrum of time; law of necessity is law of time of the present (lex necessitatis est lex temporis, instantis), law not valid in beginning does not become valid by time (quod ab initio non-valet, in tractu temporis non convalescit), what is first is more true; and what is prior in time is stronger in law (quod prius est verius est; et quod prius est tempore potius est jure), he who is prior in time is stronger in right (qui prior est tempore potior est jure), for the time being (pro tempore) and finally; laws sometimes sleep, but never die (dormiunt leges aliquando, nunquam moriuntur). Through all these postulates, time-element in law is well understood. However, one important dimension that operates all these postulates is reason which can strike at the root of all these maxims and interpretations. It is known that; when reason of law is at an end, law itself ends (cessante ratione legis, cessat ipsa lex). Reason alone can bridge timeframes of past and present towards future. Reason as a product of thought culminates from human experience in social life. And, this reason must serve justice whose timeless value is unity, diversity, liberty, equality and fraternity applicable in all times. One can study Amendment power under Article 368 of Part XX of Indian Constitution in this context to understand law and history in practical and reasonable terms.
In understanding the human behavior towards capability of legal behavior, psychology is vital. History of law is a psychology of society and as a result, law as psychological knowledge can be a powerful tool to re-create positive human history. A major concern that haunts researchers here is case-study of past social behavior of a time-frame that explains causes of inability in performance of legal obligations. One must be careful here, to see how far a past-cause is continuing in present or be a factor for future. When human nature changes over a course of time due to various reasons, understanding past is no doubt a starter, however, neither causes nor social circumstances are rigid or fixed but volatile in fact. Individual and collective socio-psychological behavior too must be distinguished with micro and macro analysis. Legal researchers and State must understand this stand and positively shape constructive social circumstances to motivate legal behavior. Here, State becomes a positivist for deep psychological change. One can study Preamble of Indian Constitution as basic structure and Directive Principles of State Policy under Articles 36- 51 of Part IV of Indian Constitution in this context to understand law and history in practical and behavioral terms.
It must be understood that State as political entity is nothing but social and institutional polity. What State decides must exactly be what society wants or what society wants ought to be reflected in every deed of State. Distance between State and society though seen as a period of timepoints of suffrage in democracy and election, it is actually a psychological thread between what society feels as its wants and how State has to see to its performance to social satisfaction. This relationship between creation of State functioning and social needs shows an interval of time and dimension of space only from external points of view. In its internal relationship it is has deep psychological roots and intrinsic legal properties. Study of law and history becomes a tool to tap this live thread that is continuing its relation from time-frame and psychological point to another. Fundamental Duties under Part IVA of the Indian Constitution can explain this dimension of social psychology between State and society, law and history.
Legal rules are formed out of Constitutional processes. However, the contents of legal rules range from Natural to Positive to Real laws. In Indian Constitution, one can observe different sources of laws. Preamble, Directive Principles of State Policy and Fundamental Duties are fully Natural; Fundamental Rights are derived from Natural sources but adopted in Positive enactments but interpreted in Real theories for social utility. Rest of the provisions of the Indian Constitution are largely Positive in content and Real in application with Natural laws hovering as bedrock of Constitutional ethos. In one way, all the three sources like Natural, Positive and Real are spread across everywhere in Indian Constitution with their contextual and practical application in varying degrees of three sources. Here, one can research all four elements embedded in three kinds of sources in the Indian Constitution across all provisions making integration between law and history all the more indispensable and interesting. Follow the next series introducing integral dimensions between law, science and technology.
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