In continuation to the eight-part special series on Nature of Legal Discipline with Prof. Dr. K. Parameswaran, Lex Witness brings to you the eighth part of the series which lays down special focus on the Integral Approach to Legal Research and related aspects. This is the concluding part on this series of columns on legal philosophy, academics and research.
We analysed nature of legal discipline from various angles in last seven columns. Theories of natural law, positive law and real law, doctrinal and empirical methodologies in law, and, independent, interdependent and equilibria approaches to legal research explained from these columns show a magnificent nature, that law as an academic discipline is endowed with. We saw how law and its legal systems in society act like an axis of giant wheel propelling the whole movement and giving every aspect, layer and strata of society their due share of participation in progress and development of society, at all levels. We also saw advantages and limitations inherent in legal theories, research approaches to law and, practical implementations through legal systems. At this juncture one wonders whether the existing nature of legal discipline with all its capacities and tools as demonstrated, has fully achieved the noble goals it fixed for society and human collectively. When one aim of law and its legal systems is regulation of development and order, it shows, how it has continuous and innumerable tasks of gigantic proportions to ascertain constantly evolving rights, obligations and duties of all, including animate and inanimate things and beings of life in society and universe.
Law and its legal systems have a duty to serve society by allowing progress and protecting it with order and stability. In spite of this noble objective, we observe in our daily life, unfortunate scenes of inequality and injustice, suppressed freedoms and restrictive liberties, discrimination and lop-sided growth, which torment human aspiration towards peace and well-being, progress and sustainability, prosperity and stability. In the end, human relationships are disturbed, safety and security of everyday life are put at risk, conflicts arise between personal and professional life, national and international battles emerge, the bond between man and ecosystem gets frustrated, and, the core, common and universal values that can potentially uplift us from this confusing state of affairs of globalizing world are found ridiculed. Seeing this, one asks; can the dream of ideal human life ever come true for our current society? If it is to be true, then can that goal be achieved without any disturbance to rights and obligations of others or be done by positively affirming everyone’s freedom and liberty? Such doubts create fear on future of humanity. And still, law as a discipline cannot avoid its duty in serving a ‘normative standard and value’ for creating an ideal community. Law by nature is a problem-solver and hence, it provides tools to handle those problems. Hence, what should be the attitude of legal discipline in tackling painful issues that are not yet fully resolved by existing legal theories, methodologies and research approaches? The author proposes a new theory of law, a fresh methodological approach and an innovative research tool to solve problems. It is the ‘integral theory, methodology and approach to legal research’ put together as integral dimensions of law. What is this ‘integral approach’ to the nature of legal discipline, its law and legal systems? What are its theories and how do they work? This integral approach refers to many aspects on the study and application of legal discipline. However, three major aspects are; one, expanding the existing range of legal reasoning and logic in comprehending issues dealt by law with integral knowledge of life as a whole; two, transcending into a wider disciplinary characterisation of law; and, three, dynamizing the inter-relational and complementary understanding and activity between State and society. This can be seen as new expansion, transcendence and dynamization of the nature of legal discipline.
Legal reasoning and logic (LRL) is a complex process. It is analytical when it deals with legal values and operational in legal systems. It is done in phases to arrive at legal conclusions followed by legal solutions to problems of human life, society, Mother Nature, earth and universe as a whole. LRL follows many theories, models and ways for doing this. It is operational when it deals with an issue, rule, fact, analysis and conclusion through legal system and, analytical when it deals with deductive, inductive and lateral reasoning of legal values. It is top-down and bottom-up in approach between State and society in law and social transformation. It is doctrinal when it deals with pure analysis of legal values and empirical, while operationalising them in legal systems. It deals with natural, positive and real laws, and also with independent, inter-dependent and equilibiral approaches to legal research. Despite this complexity of its processes, current approach of LRL is inadequate owing to new enrichment of life and fresh explosion of knowledge through science and technology, advancements in psychology and, grip and grasp of reality of all forms of life, in addition to unfortunate inequalities and injustices that still occur. Disciplines of Natural, Formal and Applied Sciences have contributed their new knowledge to life-enrichment and organisation of its multi-tiered realities. In short, awareness of ‘the-all’ that constitutes life, independently, inter-dependently and in equilibrium, animate and inanimate things and beings of life have revealed multiple angles to every problem than before which law and legal system struggles to solve. The ongoing advent of this continuous stream of new life knowledge at every level has opened real-time possibilities to actualise what Constitutional Law ultimately wants; justice, equality, liberty and fraternity for all in true sense. Today academia across world conducts investigations through multi-disciplinarily, inter-disciplinarily, cross-disciplinarily and trans-disciplinarily researches to each and every detail of life. A question arises here; are existing legal theories, methodologies and approaches to legal research that give LRL, sufficient to offer complete or great, wide, deeper or holistic legal solutions to problems of life? Should not law and justice focus on an all-pervasive order and inclusive-development with justice, but without piece-meal approach, short-term benefits and discrimination? Is the present legal knowledge and its LRL facing a blind alley? If yes, then certainly the current situation displays a need for new (integral) approach to legal discipline, its theories and research methods.
Let us examine the issue of Genetically Modified (GM) crops raised in previous column and see how integral theory of law and approach to legal research looks at GM issues that shows conflicts among law, science, technology, economics, human rights and biodiversity. When proponents of GM issue argue that GM crops are made for food security, insect-resistance or enhancement of nutritional and shelf-value of crops, vegetables, fruits and cereals; integral theory of law and its legal approach works to find out actual causes of food insecurity, insect-prone or diminution of nutritional and shelf values of plants kingdom. Integral theory favours acting upon causes to erase problems. It tells LRL to catch hold of cause of action to effectively counter ill-effects which GM science wants to work without going into the root cause of sad state of vegetal affairs. An inquiry under integral research questions would be; why have current flora and fauna gone risky and scarce to human consumption in the first place? How did this imbalance happen or, who and what caused it? If human greed and self-aggrandisement is the answer, then why is it so destructive to the extent it frustrates basic human bonding with bio-diversity and planetary co-existence which are vital for survival? What would be more justiciable? To tamper bio-diversity and ecosystem or to transform human-approach and thinking to life as a whole? Integral theory cures the root cause and, feels appropriate to change human ‘thinking’ which then results in change of LRL, if not accept a guilt for the offence of destruction and punishment if any.
Integral theory of law also argues; if mankind can tinker genes to impact vegetal kingdom to satisfy human consumption through GM science, why not fund research to alter, tamper or enrich genes of human body itself to counter or adapt to ongoing ill-effects from biodiversity? Why not think of immunising and insulating human body to be robust to sustain attacks? This might look irrational for an existing mental make-up and mind of man. Equally so, can human societies alter biodiversity and ecosystem which it has not created? Do we own Mother Nature, biodiversity and ecosystem so as to alter them? Can we amend, modify or dismember what we have not created? Which aspect of prudence (juris, legislative, executive) or self-containing thinking reason permit this reasoning and logic? Is this legal, lawful and justiciable act of human mind on Nature in any sense of pure reasoning and logic? If, yes, does this mean, the whole reality of planetary existence is (legally) centred only on man and his needs without any relationship to Nature and all forms of life? This also shows human societies think and create laws to hold only man as a ‘legal’ person accorded with protection, and, not other ‘forms of beings’ present in ecosystem that are worthy of legal protection. Even recognition of animal-rights is only partial at present and it is not known when Nature-rights and their protection would become complete. Fortunately, or call it the course-correction of Nature, current easygoing or existentialist philosophies of life with mindless industrialization, unsustainable urbanization, deforestation, biodiversity-disrespect, capitalization of first opportunities and survival of the fittest have made us think of this serious impasse; a deadly suffocation that we all suffer now. Human mind seems to be slowly waking to realise this situation we all are in; a self-trap devoid of thinking, reason and awareness of what constitutes life. And yet, integral theory accepts that we cannot go back and become what we were 1000s of years before. So, we must find a new approach that is futuristic. And not yet another tinkering that works as substitutes perpetuating old methods of human greed and poor empathy on surroundings. Higher awareness must dawn in human mind to impact LRL. Thus, integral theory of law makes LRL deep, pervasive, knowledgeable and dynamically prudent in mitigation of problems. It shows prevention of an injury is the best justice in remedy, not economic compensation or modular interference on Nature when we ought to be its conscientious trustees for all the benefits we enjoy. And this effort for mitigation is through foreknowledge in thought-process (legal insight or intuition) by understanding causes of a problem and preventing any fresh act of harm. When laws are made in a binary inter-relationship between State and society, it is this wisdom, maturity, respect and trust that society bestows on State, the respective Constitutional duties, legal authority and welfare-services.
Foreseeability, insight, mitigation, intuition, awareness, prudence, care, diligence and a wherewithal to research, know, see, understand, legislate and implement all these for the good, healthy, predictable, stable and sustainable life for everyone and everything in universe is what law and legal system, must think of, locally as well as globally. Else State and society loses the sanctity of this inter-relational Constitutional companionship and legal presence and, the purity of its purpose goes aimless and alloyed.
Integral theory of law makes laws that are inclusive and all-comprehensive by understanding the integral knowledge that comes from oneness and unity of life at all levels, which coexist with diversity, multiplicity and freedom of existence without comparison and compromise. It makes State (Legislature, Executive and Judiciary) and its operational legal systems to find out inter-relational understanding, underlying causes and core meaning. It authoritatively assists in unearthing holistic perspectives and information and not disjointed and divisive treatment of life in bits and pieces. It makes integral LRL to think for humanity and planetary coexistence as a whole to enjoy peace, progress and prosperity, order, stability and development with justice and positive affirmation of values that allows complementary rights as well as duties for one and all. And certainly not provincial, self-centric or town-centred approach that brings conservative jurisdictional myopia. Integral approach allows independent, interdependent and equilibrial approach to co-exist with harmony as well as diversity and also digs knowledge that underlies these three approaches. It gives true solutions to problems of disorder, lop-sided development, inequality and injustice. It adds value to the noble (normative) goals of law and its legal system.
It has become customary to identify law as a discipline under Social Sciences or Humanities or view it as a Professional Science. All these pose serious problems according to me, as nature of legal discipline viewed under integral theory and approach to legal research transcends these specific disciplinary characterizations. Social science is a study of society, culture, belief, attitude, faith, human behaviour, social relationships and institutions, etc. An early 17th century study under enlightenment philosophy–social sciences, brought scientific approach to understand social problems with a rigorous methodology like case studies through samples for assessment of whole. Psychology, History, Economics, Education, Languages, Polity, Anthropology, and Culture studies etc., hold their respective roles to dissect social problems from their perspectives. All these subjects have a goal, scope, limitation and a method of study, application and problem solving. So also, Humanities that study human nature, its arts, expressions, critical thoughts, self-awareness, principle of beauty, truth, suffering, life, death, etc. Professional Science involves a specific knowledge and training of skills to benefit society at large with socially accepted code of ethics and behavior in practicing a profession. Where does legal discipline fit into these?
Legal analysis of any social issue or GM crops as mentioned before shows how law (ought to) transcends more than one discipline, or inter-relates with more than two disciplines or even all disciplines known so far in order to enter a zone of unified (integral) knowledge to understand the inter-connections of knowledge to solve problems by knowing actual causes at a deeper level. In this, law enters into other forms of Sciences (Natural, Formal or Applied) as well. Empirical results from Social Sciences, Humanities and other Sciences assist law to give better legal solutions at an operational level. Still, to characterize legal discipline under Social Sciences or Humanities or Professional Science is to reduce the (integral) potential of a vast territory of legal knowledge into confined boundaries and serious limitations. For, legal knowledge by its intrinsic nature (can) brings meaning, relation, value, direction, guidance and finally gives legal protection to knowledge from all academic disciplines. It (can) connects and brings convergences of different knowledge and protects their independent, interdependent and equilibrial or newly-found intellectual friendships. In true legal knowledge and legal studies, a legal mind (can) ‘thinks simultaneously’ of more than one discipline or all disciplines at a time affecting an issue that law wants to solve. And yet gives all disciplines their due space without bringing admixture.
Let us take cases of rape or bank robbery, civil liberties or abuse of power, property dispute or tax evasion or corporate fraud or agreements violating public policy. Are these problems to be dealt by law and its legal systems as only between victims and guilty? Current legal system that thinks only in this way sees and deals with victim and offender alone and not with the causes that create a space for these offences, violations of rights and inflicting of injuries. Otherwise, why one individual becomes an offender, and another a victim? What are the antecedents, the preceding sequences of facts and circumstances that made one violate rights of others? When two people are in same socio-economic situation, why one becomes a victim, other an offender and still others law-abiding? What and who vitiates these occurrences of offences? The present understanding of law as a discipline of Social Sciences if taken in this way, only perpetuates punishments of criminals. All disciplines under Social Sciences do not have a chance to unify all streams of Social Sciences knowledge within a single discipline nor can think of legal regulation individually or collectively which is exclusively a province of legal discipline. Each of the cases of offences involve one or the other or all aspects of Social Sciences or Humanities. Integral theory of law allows associative researches among their subjects first, synthesizes all of their knowledge next, and tackles cases at each and every level, individually as well as collectively in the end for final legal outcome. In this way, knowledge from Social Sciences too get fulfilment in seeing their knowledge being put into action and real-time benefits through law and legal systems. Else they remain as abstract concepts. Thus, integral theory of law brings unification of knowledge from different sources, acceptance of underlying causes, revelation and recognition of oneness and unity of knowledge. In short, I hold that integral theory makes nature of legal discipline a Unique Science by transcending Social Sciences and Humanities disciplines and, yet containing them, directing their research and motivating them to assist and share their findings with law. This new theory of law gives an assured space that is reserved for future legal research if law wants to be a true problem-solver and not just problem thinker.
What is the role of a State and its three organs with society in the realm of law? The existing pattern of interrelationship between these two social agents has outlived its purposes. Mere making of legal rules and executing them with a threat of sanction cannot handle complex problems which legal systems are struggling to solve. The current nature of legal discipline is punitive and retributive where punishments deal with offenders more and not much with present or future victims. Victims need victim-less state of life in society and not just the State authorizing powerful punishments dealing with offenders.
Punishments might avenge victim’s emotion towards offender for violation of rights, but this emotional satisfaction cannot heal wounds that are deep, physical, psychological and social. Emotional reprisals are more a negative gratification than a positive fulfilment where State should have seen that crimes could not have not taken place. Thus, State has a very serious legal responsibility. Similarly, economic compensations can give monetary relief as long as society and victim believe in monetary compensation. Integral theory of law suggests law to be therapeutic in nature through foreknowledge (integral knowledge) that mitigates offences by removing causes of offences. It is State’s duty, a Constitutional necessity and life-imperative of a society to see crime-free situation. When rape takes place, State and society ought to concentrate on gender-discrimination or any other causes of rape in addition to punishments and economic compensations which are largely subordinate to the main issue of crime. Government and its institutions must analyze the existing state of social nature to know what has created this space for physical and psychological disrespect of women and those causes must be erased to prevent the occurrences of crimes. With advancements in psychology and psychiatry, one wonders whether deterrence has any real effect on crime reduction as they are not directly co relational nor quantifiable with potential offenders. If deterrence reduces crimes, logically society should be crimeless by now. Again, deterrence might prevent physical occurrence of a crime (actus reus) but it has no connection to remove intention (men’s rea) of the crime, which precipitates crime. In this context there are arguments that State must legitimize sex activities to prevent rape. Integral theory of law holds this argument shallow by all means. By legitimizing a crime, can we erase the intention to a crime; the disrespect to a woman, a being in existence? It is as good as saying; if murder is legitimized, there will not be any crime of homicide. An integral law researcher also wonders; is there a difference between murder and rape as both have same perverse intentions? A same rape victim and rape-guilty may not see another same situation for this grave offence. But these offences keep happening between new set of people in new circumstances with yet another novel approach precipitating the offence. Hence, State must concentrate on causes of rape more than (in addition to) punishing a rape-offender which is only a subsidiary issue in preventing injustice of rape. Even monetary compensation for rape-victims is only a shallow attempt, and not any conferment of justice. In fact, it buries the State’s duty of finding out and arresting causes of rape and allows a cash kitty to silence cause and allow another rape in another place and time. Integral theory of law holds, crime is not a mental or moral notion or social concept that can be changed by putting a counter mental and moral notion or opposing social concepts. Crime is an evil that destroys the spirit and life of a person whose existence is protected by inalienable rights evolved from Nature, from reality and existence that State and laws have adopted for social life with an unconditional promise of protection. Similarly, this understanding holds true for all all-civil wrongs and obligations. State and society must take a dynamic role in discovering an integral knowledge arising out of all realities of life and society. This educative role is part of State justice, a duty it has towards society for having taken its birth from social collectivity with a promise of protection. If legal education and its academics understand this new role of integral approach to legal research, integral theory of law can to usher a new future for all through new community of law graduates equipped with integral knowledge. Society too must be active in giving its share to State as their social collectivity is busy in developments and whose needs are addressed through State and its instrumentalities. As long as society exists, State exists, no matter we see it as a moving fiction of enlivened by social needs and realties
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