In continuation to the eight part special series on Nature of Legal Discipline with Prof. Dr. K. Parameswaran, Lex Witness brings to you the fourth part of the series which lays down special focus on the Real Theory of Law and related aspects. Follow this section for the subsequent parts of the series.
Real theory of law explains that law and its order are (must be) a product of ‘felt necessities of time’ that emerge from changing requirements of a society. It is neither naturalist’s immanent, immutable, invisible, moral and imperative order by self-existence nor positivist’s command of legislative sovereign arising out of the will of social collectivity towards constitutional authority, which gives legitimacy to aims, purposes, functions and achievements of law. Realists explain how law is made and remade and, how and why it should achieve its purpose in and through society. In this, realists resist classical approaches that study law from purely formal or scientific methods whereby law is shown as something that is clear, constant, consistent and complete in logic and sense. Realists reject top down model of authority of law in making, application and assessment of outcome and utility of law and legal systems to society. The making, application and outcome of law and its legal systems emerge more from bottom up pyramid of society which State must take note of. In this way, real law derives as well as innovates real rights which are in facts a bundle of social needs collected from ground realities towards practical and life supportive justice. A direct corollary of real law gives real and substantial justice, manifest and actual justice which form social basis for relationships between law and life in society. A sociological approach to jurisprudence of law and, what comes from law and legal systems as benefits to society, give one kind of predictive understanding to the function, structure and system of law according to realist theory.
Theories of real law, its justice and rights show phases of structured development only in the last century of our modern world though its spirit is often claimed to have existed in different forms in various legal traditions across world. With two World Wars, proliferation of international organizations, decolonization process, telecommunication and transportation, international trade and commerce, science and technology, development of arts, literature and culture, individual and sectional assertions of culture and belief, mass migration and many world-surprising events changed the course of human thinking to another level. Both from individualist’s and universalist’s points of view, a serious thinking prospered to a great extent as to what must govern human behaviour individually and collectively, nationally and internationally and how they must assist in getting the maximum good and justice to everyone. What was once a stiff and stark approach in the development of law and legal systems changed to flexible and alternative approaches in human thinking with principles like maximum good and greater utility. As a result of this, social and legal obligations changed their interrelationships. ‘What is law’, ‘how legal systems operate’ and ‘what benefits society has to get from law’ cannot be just decided only by those who already reside in the power portals Constitutionalised by the law of the land. Law and legal system must come down to every level and strata of the society in the continuous flux of time, not just once in a while or periodically but uninterruptedly as one single process that starts from both ends. Spirit and system of law must be one integral part and parcel of the spirit and system of society. It must emerge from below to inform ‘what law is to be made’ and also assess and account ‘how legal systems must function’. Heterogeneous complexities of society with maximum divergence in individual variables and liberties need this approach of bottom-up emergence, presentation and valuation of law and legal system. In one way, what society wants, law and legal systems must not only give and protect but also carry and implement the voices of the society in shaping and reshaping the evolution and implementation of law. In one way, sociological interpretation of law and not mere legal interpretation of society becomes a backbone to know ‘what law is to be born, how it is to be grown and how it has to serve’– claim realists. This according to realists changes the very character of law making it socially realistic, dynamically evolving from bottom-up authority, social will and common good to fulfil invariably heterogeneous requirements. Various strata and their requirements of the society act as spokes and felt necessities of time act as axis of a wheel in the progressive movement of law in society.
In real law, change of law comes from change in social requirements as seen in some initial forms of the positive theory of law. Real justice according to real law is largely social in time, space and dimension. This bilateral relationship between law and society is dynamic in realist’s law rather than transcendentally idealistic (natural) law or sovereignly and constitutionally commanded (positive) law. However, realists who oppose natural and positive schools, must reason their opposition in terms of social relevance, common good and practical utility (social justice). Failing which realist school of law and legal system can lead to anarchy and social disorder. With law and justice in a globalising world, real law theories, its justice and rights explain how law, legal system and its functions help individual and collective justice while augmenting the national and international growth percolating at all levels (inside-out and outside-in) in the society of peoples without discrimination to race, culture, country, gender, sex, caste, class and other conflicting issues. Organs of the State, their authorities and the law of the Constitution must proclaim that their duty, sense and spirit of service to society is to elevate (real) law and legal system to a justice-oriented, society-driven, time-relevant and utilitarian awareness. In this partnership between law and life, society and its felt necessities of time become master and, law and its agencies of legal systems, their servants. With this, one can appreciate that when society evolves continuously with an ‘undying evolutionary spirit’ that is secret and hidden, its external agents (human individual and collective awareness) that carry and express this spirit must decide the course and elements of law, its benefits and utility. Constitutional authorities backed by the will of the Sovereign and social collectivity undertake these legal services as their primordial duties. In this way, real theory becomes one of the best ways to counter the deadlock or misunderstanding between law and life, law and society, Constitution and people. Its role is not just limited to avoiding these problems rather making law, life and society as one single, dynamic, smooth and pragmatic spirit and system with ideal and substantive benefits to enrich goals of life and society.
With progressive developments in every sector of life across all nations and with differing legal jurisdictions, competitions and conflicts, one wonders what would be the significance of the real theory of law for our current times. There are four major ways in which one can see that the real theory of law can significantly come to our rescue for solving the problems of current existence. Firstly, knowledge of interdisciplinary understanding comes as a result of the aim and function of real theory of law where interface between law and life that exists at all levels becomes indispensable. When society takes part in the making and unmaking of law through its expressions of felt necessities of time, its assessment of the utility of law to society, it then waits for interface-knowledge to unlock, which society and its people share with legal systems in order to open the common door that connects law with reality of life. Secondly, alternative justice delivery system develops as against strict and rigid system of justice-delivery unless the judge takes the role of a realist. Cumbersome procedures can weigh down the force and vitality of a substantive right. Real theories give rise to flexible interpretations to theory and practice of law. Thirdly, real theories when properly applied narrow down the gap between public and private law domains. A point comes to show the disappearance of rigid borders between pure canons of public and private law, their rights and procedures. A judge can come to know how best the ascertainment of rights and obligations between parties, balance of convenience in handling legal issues and socially desirable consequences can be adopted practically to the benefit of parties as well as law and legal systems. Fourthly, real theory does not strictly distinguish between national and international laws in one way. A realist judge gives the best justice by incorporating and interpreting law and justice from legal traditions and systems even outside existing jurisdiction, unless it is detrimental to do so as per the Constitutional wisdom of the realist judge in a court of law. Thus, jurisdictional borders can not become a barrier to justice for parties when a realist court could see light outside its august legal edifice. In this way, percolation of international law into national law through fundamental or natural rights of the Constitution becomes easy in addition to legislative and executive actions. This in turn helps solidarity of legal unity across world irrespective of synthetic legal borders. This door opens new legal landscapes of future age for which real theory is the key.
There are three important dimensions of a real theory which one witnesses in any general life of a realist court, judge and legal system. Firstly, judiciary becomes dynamic. When life and society ought to function in the way Constitution is developed by agents of life and society, it is judiciary which comes to rescue in deciding whether the action of Government (Sovereign Will and State) and Legislative (Parliament) acts in consonance with the spirit and principles of the Constitution. For example, provisions of the Indian Constitution such as Articles: 13(2), 32, 131-136, 143, 146 and 226 give judge a scope to wear the robe of a realist gown. These provisions can do what naturalist and positivist judge cannot do and suffer from limitations inherent in their respective schools of thought. Secondly, Constitutional law gains supremacy. When we see how judiciary becomes dynamic in the aforementioned dimension, it only shows that judiciary takes the role to empower Constitution as its custodian through sociological interpretations of law and justice. The conflict among three organs of the State becomes redundant as a realist court or judge is bothered only to deepen the impact of Constitution in the society and not insist in augmenting the professional power of a judge. Realist theory empowers judicial wisdom. Judge is given the noble duty to open eyes of legal wisdom that bestows the largest and noblest social vision. A realist court or judge corrects law in order to benefit society and connect law with life. This realist power is Constitutional in nature and judicial in service and non-personal in the office of a judge. When true realism and dynamism of court and judge are in place, Constitutional law becomes supreme. Each and every thought, deed and action of a judge in the realist court of law become matchless only to match with every layer and level of society towards ultimate justice. Thirdly, law becomes lifesupportive. Spirit of human expression and their real requirements (social, national, international, individual and collective) get clothed in legal fabric of a legal system which then protects society from cold winds of liberty-less suppression and hot regimentations of unconcerned sovereign towards mute society. Society and its people can live in the protection of legal warmth if realist theory is practised.
There are innumerable circumstances to show how real theory of law works and can grow to provide ultimate justice and legalism to society and its future. Practice of realist school can fulfil the noble aims and functions of law and legal system, law as philosophy and science with greatest benefits and good to society (individual and collective), nation and world at large. The best example that can be given here is Article 21 of the Indian Constitution. The jurisprudence that emerged out of Article 21 is one of the finest, broadest, longest, capacious and copious legal and juristic illustrations of the practice of Indian realist theory of law. All judges who contributed to Article 21 of the Indian Constitution since her emergence till date are realist in their heart, judicial personality and profession without getting lost in the din of legalistic hullabaloo of explanations and pedantry over Constitutional understanding of tripartite system of State Organs. The case-law digest of Article 21 is a case of legal light over light on what a court and judge can do if realism is applied. All cases of fundamental and human rights, role of public interest litigation and court’s thirst for complete justice are realist’s mirror to show Legislature and Executive where and how they have missed serving the Constitution. At this juncture all that is required for a realist court and judge is sheer power of legal creativity and innovation in interpretation and interconnection of legal and social issues. The ongoing academic movement of interdisciplinary knowledge (law with nonlaw) can provide bright scholarship to realist school if the primary disciplinary knowledge (both law and non-law) is well grounded, independently first and interdependently next. This phase can give common denominators from both disciplines (law and non-law) which can be identified for interdisciplinary interface. With this law can very well engage scholars of interdisciplinary knowledge like psychology, history, economics, management, science, literature, religion, medicine, culture, morality, ethics, sociology, politics, philosophy, environment, international relations, arts, education, spirituality and finally consciousness-studies.
There are many advantages in real theory of law because of its powerful and penetrating interface of law and life that bring benefits not fully envisioned during the making of law. This brings serious concerns to protect the advantages at every turn and movement, as the interface between law and life remains invisible till it brings the utility and good patent in life. There are four concerns that legal researchers of realist school must keep in mind. Firstly, the theory and practice of ‘interpretation by harmonious construction’ must be kept as vigil in a realist court by a judge who works for the society (we the people). This harmonious interpretation balances the aim of law and legal systems with the disciplinary restraint brought through interface between law and ever growing life. Secondly, a realist judge must bring pragmatic justice as it gives a live force to law and society. Such pragmatic justice restrains over-ambitious and hyper idealistic judicial over-reach. Thirdly, judge and the court must know where activism is genuine and where it is unrestrained. Preamble and principles of the Indian Constitution, Objective Clauses of Acts and Statutes are legal microscopes to identify judicial over-reach. Fourthly and finally, a realist judge must always think and work that it is only under the light of the Constitution with its supremacy that law and life can get justiciable guidance. Ultimately, the evolutionary spirit of law and life moves the power of judicial creativity which makes realist theory of law possible if done without subversion to process of making, interpreting and implementing law.
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