Lex Witness with Prof. Dr. K. Parameswaran is delighted to commence a special initiative via a series of articles on the ‘Nature of Legal Discipline’ through theories and research approaches leading to integral dimensions of law. This as an introduction is first of eight parts. Follow this section for the subsequent articles in times to come.
Legal discipline is unique among all academic disciplines. Its legal knowledge has highest complexity when compared to other fields of knowledge. Subjects, other than law, from Arts, Humanities and Social Sciences (even Pure or Natural Sciences) have their own understanding on the nature of legal discipline when they are required to interrelate with law. Individual and collective life, national and international life, personal and public life, State, polity and Government, trade, commerce and management, justice and equality, religion and culture, freedom and liberty, flora and fauna, natural and juridical life and, everything that breathes life or impacts life (animate and inanimate) are taken under the wings of legal knowledge and its discipline. Laws and its legal systems study all these aspects and elements of life in order to protect as well as enhance them towards order and development. Thus, law as a discipline of knowledge integrates all other disciplines.
As a consequence of all kinds of aforementioned dimensions that hold life in planetary existence, modern world, nation-states and social collectivity, an overarching role is given to the function of law and nature of legal discipline. A rank of high status is invariably accorded to legal discipline when compared with other disciplines. The very nature of law and its discipline is such that, it ‘observes, receives and integrates’ knowledge from all fields of study when they seek protection and enhancement of their right of knowledge and their benefits to life in society. All aspects of knowledge need law at least once in their lifetime or, whenever they need protection and enhancement of their own identity as well as their relationship with others, they need only law. In the end, we see nothing can avoid interacting, or none can shun away from relating with an incomparable being called law. This being of law is omnipresent in existence. It pervades everything, from birth to death. It comes out like shadow that follows or light that radiates, when necessary. None ephemeral in kind, ever-ready to protect and energetic to infuse life and vitality, the being of law saturates each and every aspect of our daily life of everyone towards a cause that brings fulfilment to life.
Though law does not create or deal directly all the time with essential or core knowledge of other disciplines, its indispensable task is to embrace theory and practice of their knowledge, go around it, protect and enhance its character, category, consolidation and domain of existence. Without law, knowledge of all disciplines might get stranded at times losing their sense of direction. Law and its legal knowledge is a collection of signage that directs knowledge of other disciplines to reach their respective destinations. This capacity of direction, protection and enhancement of knowledge of all disciplines gives disciplinary superiority to the very nature of legal discipline. This gives law an advantage of pre-eminence in the presence of other disciplines, as only law is capable of interrelation with all aspects of knowledge at a time from every discipline and, yet remains as a sole discipline of its own kind. This incontestable status can be studied and analyzed through theories and research approaches, which explain the nature of legal discipline. With the emerging trend of law and justice in the globalizing world through internationalization, where cross sectoral knowledge pollinates from every direction, the nature of legal discipline exceeds sometimes the traditional jurisprudential contours. This has necessitated a study to analyze the merits and demerits of various theories and research approaches on the nature of legal discipline and their interrelationship with other disciplines of knowledge. It remains to be seen, what is there in store for the future of legal discipline in order to tackle all the perils and challenges of modern life when existing knowledge in law requires a new direction. A new dimension to the study on the nature of legal discipline becomes imminent. This new dimension must be integral in nature accommodating all the earlier approaches of legal studies, cancelling their limitations of approaches and yet move forward towards bringing a real and substantive justice in daily life of everyone and everything concerned. Especially, when all aspects and elements of human life around the world tend to become compulsorily inclusive, there is no option left to scholars of law and other disciplines except to look for a new and common door.
Jurisprudence and legal philosophy offer various theories on the nature of legal discipline. Legal theories formulate the nature of legal discipline in formal ways by characterizing their understanding as prescribed positions and statements on the nature of law with their set of social situation and circumstance. Legal theory is a supposition or a collection of ideas that claims to explain a phenomenon that law is interested to take hold of. These theories are based on principles, ideas, ideals and values, special or general, but independent of the thing to be explained. They stand on their own merit of arguments that cannot be cancelled merely by comparisons. A legal theory can give a set of legal principles by which the understanding and practice of law gets its foundation. Legal theories are a useful source of legal communication and indispensable information with the society at large, as they get formed only through society and from collection of individuals who comprise the society. Hence, society and law reflect each other’s positions and requirements. They provide a state of discourse by which legal values are analyzed, which contributes to the development of legal order in the society. In the end, legal theories tend to negotiate practical forms to law and legal values which are made applicable in daily life. For example, a tangible action of human rights in a court of law comes from one of the core theories of law namely ‘ius naturale’ – the natural law theory of rights. In this way, legal theories become indispensable to understand the core nature of legal discipline and its practice. Among many theories on law explaining its aims, functions and contributions, three theories stand tall and comprehensive. They are ‘naturalists’, ‘positivists’ and ‘realists’, which are helpful for the present exploration on the study of the nature of legal discipline. All these theories show divergent trends to understand the basis of law, its scope, values and contributions to social collectivity. Each and every theory has its own merits and demerits, concerns and challenges. All theories have contributed to the growth and development of legal systems in the society. They differ in their conditions as they originate from different legal systems, traditions and social situations. Nature of legal discipline varies according to time, context and place with which these three theories are placed.
Research approaches to study the nature of law and legal discipline are multifarious. They depend upon the intention, process and conclusion made in the study. It can be said, in one way, all legal theories are products of legal research or can be made through legal research. They both reinforce each other. In any legal research that is done, we extract first, ‘information’ in order to make ‘interrelation’ next, which then leads to ‘inference’. This ‘inference’ culminates to ‘identification’ of the actual or original ‘intention’ of the law, which finally shows the ‘implementation’ status of its fulfilment. These five ‘I’s of research (information-interrelation-inference identification- implementation) result in presenting the research output to the concerned authority or agency by which legal policy is either reframed or newly shaped. Each of these phases (five ‘I’s) contain various steps and stages inside their process which a legal researcher fulfills while carrying the noble tasks of research. These are basic elements, which constitute research on any kind of knowledge. However, in the context of law, three basic research approaches can be identified by which all aspects of legal research can be undertaken to explain the nature of legal discipline. They are ‘independent’, ‘interdependent’ and finally ‘equilibrial’ research approaches. These research approaches and their assertions show varieties of rich colours, which paint the nature of legal discipline in an open canvas that encompasses indispensable realities of all kinds, stages, levels and layers of society.
The aforementioned three theories and approaches on the nature of legal discipline show diverse identities and purposes to law, its aims and functions towards individual and collective social growth. However, a diligent thinker sees something very crucial emerging from the scene. At a certain level, in the middle of understanding a legal theory or during the course of legal research, one comes to see that legal knowledge and, knowledge from other subjects freely interact and intermingle. It brings a momentary and an apparent uncertainty as to how, what and where to characterize the knowledge in relation to its discipline. This in turn gives rise to some intellectual curiosity, making scholars across different disciplinary fields of study debate the primacy of knowledge in the nature of legal discipline. In short, the whole debate revolves around the following questions: ‘is legal knowledge pre-eminent over knowledge of other disciplines?’ Or ‘is legal knowledge dependent on knowledge from other disciplines?’ Or ‘is legal knowledge pervasive and common to bring equilibrium in understanding both the independent and interdependent approaches of knowledge that oppose each other?’ These questions provoke debates and become critical especially when a research problem shows complications that are difficult to unravel at a superficial level to fix its disciplinary characterization of knowledge. Consequently, it compels researchers (be they from any discipline of knowledge) to dig deeper in order to discover another source of knowledge to know whether unity, multiplicity and harmony of knowledge of several disciplines can collaborate and coexist? This core problem remains to be solved. The mystery of the source of knowledge ought to be revealed to benefit law and legal studies especially when the nature of legal discipline is such that its legal knowledge, as seen above, ‘observes, receives and integrates’ knowledge from all fields of study towards direction, protection and enhancement of their disciplines.
This gives an interesting turn to the nature of legal discipline and makes the discipline of law a subject of highly adventurous study riddled with complex theories and difficult research propositions. What then is the true nature of legal discipline or what it ought to be? In short, is the nature of legal discipline through its theories – ‘naturalist’, ‘positivist’ and ‘realist’ in tendency? Or, is the nature of legal discipline through its research – ‘independent’, ‘interdependent’ and ‘equilibrial’ in approach? Do all these three theories and approaches serve their aims and purposes for which law as a discipline exists? Or is there a need for a new approach to legal discipline especially when problems and challenges of the current globalizing world necessitate a new dimension to law and its order? The current eight-part series will explore whether we will get a new twist to the nature of legal discipline.
(Nature of Legal Discipline: Part II –Natural Theory)
To be concluded in Eight Parts
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