On National Law Day, a look at how law is a living reality shaped by the changes and aspirations of a dynamic society.
By Srashta Vani Kolli
“When the Law ceases to reflect the realities of Life, it is the Law that will Change”
Law, unlike many aspects of the society, is dynamic in nature and tends to outgrow the constraints and impositions of the system in place. Law and society are related to each other. Nothing in the functionality of the system can be explained without either of them. Society can transform into chaos in the absence of law.
Law also needs to be changed according to the changes the society faces, because without the necessary changes law cannot keep pace with the ever-growing society.
Law is the command of the Sovereign and State, it is not just a rule or regulation to be obeyed or a guideline to be followed; it sets forwards the principles a society stands by and the way it identifies itself as. Law is used to denote rules of conduct emanated from and enforced by the state. A society consists of a group of people, different individually but all together they form a network of coordinating people sharing multiple beliefs on issues concerning public attention. Since men are social creatures, social change means human change. To change society is to change man.
Discussions of law are often divided between two very different perspectives — “external” and “internal” points of view. Prominent law and society scholars adopt a similar distinction when they call for an “outside” instead of an “inside” perspective on law. This internal – doctrinal perspective has some similarity to the “legal formalism” and “conceptualism” that progressives and legal realists have been denouncing since the turn of the century. One of the most important characteristics of the formalism of late nineteenth century is the Classical Legal Thought that was the way in which it was represented as it’s closed; the internal point of view was “neutral, natural and necessary.” The Law and Society movement arose as an extension of legal realism’s effort to criticize the dominant internal point of view in Classical Legal Thought for having produced a “heaven of legal concepts” unrelated to the real world.
The Law and Society perspective, like much of Legal Realism, treats law not as a closed system with an internal logic all of its own but as the product of various external influences, like power, history, social, economic and cultural influences. When Oliver.W.Holmes proclaimed that “the life of law has not been logic; it has been experience,” he was attacking an exclusively internal perspective that produced false certainty by confusing legal reasoning with mathematical or geometrical reasoning.
Many law and society literature provide examples of legal change and evolution. For instance, the changing social custom produced the “silent” revolution in divorce law. Among the most important subjects involving legal change are the effects of the regulatory, welfare and bureaucratic State on the formation and application of law. Social norms are the unwritten rules of acceptable behaviour that change over time, such as people’s attitude towards divorce (Triple Talaq), adoption, legalisation of prostitution, to name a few.
But sometimes the norms clash with formal laws and the result is counterproductive for everyone involved. Duelling, for example, was outlawed in France in 1626, yet the practice continued long afterward. In fact, even though the government tried to vigorously enforce the ban, duels took place at high rates – estimates suggest that more than 10,000 duels took place resulting in more than 4,000 deaths in the last 30 years of King Louis XIV’s reign, which ended in 1715.
While the laws that conflict with norms are likely to go unenforced, laws that influence behaviour can change norms over time. Norms become self-reinforcing, since it is much easier to live in a society where people’s behaviours are predictable and people understand what is expected of them. The downside is that such conformity can make them even difficult to change or rewrite. The two possible ways to successfully change norms are the dramatic and highly visible efforts to change behaviours spearheaded by leaders like Mahatma Gandhi or Martin Luther King, or gradual changes in laws over long periods of time like taxation laws or property laws for Hindu women.
The extent to which law is influenced by the society in which it operates is evident through the examination of legal principles, Case laws, legislation, journals, articles, media reports, treaties and other documents. Society’s influence on law is a combination of the following aspects – moral conscience, cultural and political dominance with economic influences.
There is no question that the laws in a democratic society reflect that society’s values. Independent India was founded upon certain values reflected in the Constitution, including the freedoms to practice one’s religion, speak one’s mind, and the latest inclusion to be secure from unwarranted intrusions into our privacy.
In theory, the laws created within a society reflect the needs and values of that society and will work for the best interests of the citizens, but laws can also strongly influence the society that created them. Law, at its very foundation, is conceived and derived from values. These values are such as inform and underpin a rational and fair expectation of how power should be organised, exercised and controlled at a private and public level. These values find their expression not only in the formal law, but also in societal expectations, behaviour and actions which, in time, also come to be reflected or incorporated within the law, but which, in any event, do not require formal legal expression for society to understand their correctness or importance.
One part of the balance between rules and values is the ability of less particularly expressed principle to accommodate changes in values in society, without the need to change rules. Conceptions of legal liability and what is right and just to be vindicated by law change with time and with changes in society. This balance is essential to meet the challenge of the need for stability with the inevitability of change. Generally expressed principles are likely to capture such changes without the need for re-expression of particular rules. This helps vindicate the necessity for historical continuity.
This same process of balancing values and rules, and same need to recognise and consider the inhering place and influence of values, attends many other concepts within private law, including the fiduciary relationship, doctrine of penalties, and the nature of insurance.
We should accept that any system of law worthy of being called just must be founded on fundamental values. Part of that acceptance is the recognition that sometimes rules can only be expressed by reference to values or general concepts and cannot be unless incoherence is to be courted or reduced to concrete, in-abstract propositions. We live with this every day; we are familiar and comfortable with rules that lack case-specific precision, but which have meaningful content, and which provide for acceptable, if contestable, application; for example, the common sense and evaluative conclusion of causation; the requirement of subjective and objective honesty; the requirement of a reasonable time for conduct in all the circumstances in various situations such as contract; the expectation of a reasonable response to risk created by one’s own conduct when concepts of duty of care are examined. Essential to our being comfortable with these rules expressed by reference to values or general concepts is the existence of a stable contextual framework and a relevantly organised body of values both explicit and implicit for the resolution of the question.
The human beauty of the law does not come from the sounds of tongues, talking of grand ideas, so often making them seem physical, limited and prosaic by superficial language, taxonomical arrangement and metallic repetition. Rather, it is in the daily application of life that the dignity of the individual, the mercy of the soul, and fairness as part of the human condition inform the exercise of lawful power. In life’s small, selfish and mundane intersections, these values assume a daily modesty in expression, and in context. But that modesty in expression and in context reaches back towards essential humanity and towards the echoing inflection of the infinity of law. The human beauty of the law does not come from grand expression, but from modest application to the humans in question, to the conflicts in resolution, to the pages of the lives of people – in fairness required, in dignity expressed and accepted, and in mercy given.
This is the human beauty of the law.
Law and society form the parallel concepts of the same realms of justice to frame a conditional segment of a framework to the legal system that supports the values and customs that the society stands upon and reflects the same.
It is the people of the society that assume the values and principles and they are also the same individuals that frame the laws of a democratic country. It is thus the responsibility of each individual in the society to adapt, reform and change laws that are compatible to the changing society and make laws that reflect the society that is today!
(The author is a student of School of Legal Studies – Reva University, Bengaluru, and can be reached at [email protected])