SCOPE AND APPLICATION

Scope and application of interdependent approach to legal research is effective when the three elements (empiricism, positive law leanings and deductive reasoning) as shown in the Prologue of Part VI (July issue), are properly studied, experimented and tested as cause-effect, principle practice, value-variable with an effective backing of State’s Will and its organization of tripartite system of legislature, executive and judiciary for implementation. Though judiciary helps law and executive through juristic interpretations, undemonstrative activism and right to complete justice (Article 142 of the Indian Constitution) about the reality of law and its applications through legal systems, legislature and executive get the maximum knowledge share from interdependent research approach. In fact, what the Law Commission of India or Law Commissions or Committee on Legal Reforms across the world for legal reformation do, is what exactly the interdependent research and report on the performance of cause and effect, principle and practice, value and variable interrelationships do. A dedicated website for the Law Commission of India outlines the following while explaining its role, though non-binding in character, reads as; “Law Reform has been a continuing process particularly during the last 300 years or more in Indian history…. However, since the third decade of the nineteenth century, Law Commissions were constituted by the Government from time to time and were empowered to recommend legislative reforms with a view to clarify, consolidate and codify particular branches of law where the Government felt the necessity for it”. Till date 262 Reports out of 20 Law Commissions from 1955-2015 (21st Law Commission has commenced its function) with 1000s of pages explain how effective or redundant the laws are with suggestions and recommendations.

It is pertinent to note that in a latest interim report of the Law Commission of India numbered 248, dated 12 September 2014 and titled “Obsolete Laws: Warranting Immediate Repeal” that wanted to know the value and utility of laws that have gone outdated, long in disuse or been superseded by other Acts and Statutes, it reads in page 48 – “In today’s times when national economies are increasingly becoming globally ‘interdependent’ and ‘interconnected’, ignoring to recognize the above symbiotic linkages between law and economy can prove very costly to the nation. As the economy gets liberalised and modernised encompassing phenomenal changes brought in almost every walk of life the need for laws to keep pace with changes thus occurring become fundamental requirement lest there should appear legal gaps, inconsistencies and contradictions causing serious impediments to the processes of ‘growth’ and of ‘development’. To conclude, it may not be out of place to remember what one of eminent scholar of jurisprudence Puchta long ago had to say: “Law grows with the growth and strengthens with the strength of people……..” We wonder whether ‘law’ in our system is growing and gaining strength or in many respects, say for example in case of obsolete, irrelevant and are archaic laws remaining on the statute books still remain muddled and outmoded. There is urgent need to ensure that laws and legal structures keep pace and are reflective and responsive to growing needs and challenges of the time. Commission hopes that the suggestions and recommendations made in the report constitute a step in that march of law”. These statements made in this valuable interim report are extremely significant in inter-connecting and interrelating society with ideals, values with variables, principles with practices that are interdependent in nature. In short, these reports help laws to achieve their noble goals though its critical lines of legal thought and suggestions are only advisory. Still, none can deny how they set a tone by which social needs get their vocal strength to reach the doors of the Parliament or sanctuary of justice in the Court of law.

Another example of interdependent legal research with empiricism, positive law leanings and deductive reasoning that can be given is Article 13 (1) a,b,c, of the Charter of UNO, which reads; “The General Assembly shall initiate studies and make recommendations for the purpose of: a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification; b) promoting international co-operation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. c) The further responsibilities, functions and powers of the General Assembly with respect to matters mentioned in paragraph 1 (b) above are set forth in Chapters IX and X”. It will not be out of sight and relevance to read what the United Nations has to say about the role of international law commission. It reads – ‘The drafters of article 13(1)(a) of the Charter of the United Nations, at the San Francisco Conference, in 1945, considered a proposal to make an explicit reference to “revision” of existing international rules, but opted for the words “progressive development” since “juxtaposed as they were with codification, they implied modifications of as well as additions to existing rules” so as to “establish a nice balance between stability and change, whereas ‘revision’ would lay too much emphasis on change”. During the process of drafting the Statute, the Committee of Seventeen recognized that the tasks that were to be entrusted to the Commission would vary in nature: some might involve the drafting of a convention on a subject which had not yet been regulated by international law or in regard to which the law had not yet been highly developed or formulated in the practice of States; while other tasks might involve the more precise formulation and systematization of the law in areas where there had been extensive State practice, precedent and doctrine. The former type of task was labeled, “for convenience of reference”, as “progressive development” and the latter “codification”.

‘The Statute contemplates the progressive development of international law through the preparation of draft conventions (Article 15), but envisages two further possible conclusions to its work when the Commission’s task is one of codification: (a) simple publication of its report; and (b) a resolution of the General Assembly, taking note of or adopting the report (article 23, paragraph 1). The Statute also lays down the specific steps to be taken by the Commission in the course of its work on progressive development (Articles 16 and 17) and on codification (Articles 18 to 23). Notwithstanding the distinction drawn between the two concepts, the Committee of Seventeen recognized that they were not mutually exclusive, as, for example, in cases where the formulation and systematization of the existing law may lead to the conclusion that some new rule should be suggested for adoption by States. This insight has been borne out by practice. The Commission has indicated that the distinctions drawn in its Statute between the two processes have proved unworkable and could be eliminated in any review of the Statute. Instead, the Commission has proceeded on the basis of a composite idea of codification and progressive development. It has developed a consolidated procedure to its methods of work and applied that method in a flexible manner making adjustments that the specific features of the topic concerned or other circumstances demand’. It is simple and easy to understand what these Articles intend and demand. Otherwise stated, these provisions of international law not only shows interdependent approach (empiricist positivist- deductive) rather warrants it and also enhances interdisciplinary methods of knowledge. State’s ratification through legislative support, executive action of the government and finally judicial interpretations show how interconnectedness form part of grand scheme of social justice both at the level of domestic municipality as well as nternationality.

When researcher gathers inputs from fields (data-based empirical) for inter-relational exercise he or she goes (ought to) very close to both ideality and actuality of legal norms. This brings State which is a creation of society, and legislature whose duty is to legislate what the society has accepted as norm capable of legal compliance, a close relationship between State’s Will, actual social needs and their capability of performance. These working elements namely observation (collection of data from fields) to connect and move around values (from objectivity to subjectivity), positive rights (legalised norms) and deductive reasoning which form part of interdependent approach to legal research are creative tools of law and social transformation that every serious researcher would be interested in. The holism that holds law, legal knowledge and its superior stature as supreme protector and sole refuge for every sphere of knowledge gives legal discipline a place so high that no discipline of knowledge can avoid recognising it or shun getting benefits from it. Law is like what gravity as a natural phenomenon to things that we see in earth. All things are brought towards law and consumed by power of legal knowledge. It makes the gamut of law a place so deep, intelligibly vast, symphonically accommodative and compassionately protective commanding a relevance and reverence from every section of human society and every aspect of human being. No human thought and conduct can avoid being justifiably trespassed by legal rules! If only legal system which operates legal rules of law understands this feature – thereby, meaning the call for social compliance to law by every section and sphere of society, the Preamble of the Indian Constitution would become a simple report-card of collective achievement and national growth. The interdependency between ideality and actuality, empiricism of objectivity-subjectivity and reasoned connection between induction and deduction are verily the matured members of the family of legal thoughts and knowledge, research and action. Can anything more be said of what constitutes the power of law and legal discipline among all disciplines of knowledge than in these outlines of thoughts?