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Published : January 27, 2017 | Author : ATUL ALEXANDER
Category : Miscellaneous | Total Views : 416 | Rating :

  
ATUL ALEXANDER
LL.M,International Law and Organisations, JRF
 

Delimitation and Drawbacks of Legal Philosophy

All men are idealistic and striving a tinge beyond the attainment of physical satisfaction and perfection. In this regard law could play a navigating role in contributing towards achieving ‘good life’, the success of a social system depends on its ability to direct the surplus energies which are not absorbed by economic or sexual pursuit into socially desirable channels.

Only a society which has set-up a working system for primary satisfaction can direct activities which could embellish material and spiritual world. Rudolf Von Jhering in his popular work ‘Law as means to an End’ gives an account of law as a element in the sphere of security for individual in maintain certain basic conditions of life. Another major role played by law is in the promotion of peace which precluding the physical satisfaction surpasses the realms of socially realizable goals.

The past history of mankind demonstrates clearly thus far that law has been successful in curbing fighting within the organizing group. Psychology of human beings is not so structured to make endless condition of social struggle, hence the creation of institutions to promote peace and harmony. Thus, emerged the ‘peaceful politics’, i.e. law as an instrument for rationale distribution and limitation of power in the society. But certain inherent defects are apparent like serious weakness in enforcement and International friction. Sigmund Freud the famous psychology gives a account in terms of volition understanding i.e. social and creative impulse which is matched by death instinct, and the outlet of human desire is aggression and destruction. Enrich Fromm states: human nature is not primary and appetite, but comes to the fore only in frustrating circumstances. Bronislaw Malinowski prefers an economical abstraction pointing out that war happens because they are economically and politically profitable. Moral struggle to the bitter end must be inevitable fate of mankind. The impression of dharma in the Indian context dishes out a solution through various texts like the Vyavahara Dharmasastra, Mahabharatha which enjoys lends a crystallized angle to the purpose and object of law and war with regard to respect for people and insulate man against sin, which is founded on the principle of finding solution to the problem of human instinct, which is influenced by anger, passion, enmity and infatuation.

The nature and purpose of law is to adjust the Interests, which could be on the basis of Individual versus Individual or Individual versus State. Hence, arosse the clash between Individual and Social Interest. Law evinces conservatism like precedents of the past binding decisions, which has stifled freedom, security and predictability. The society changes as a rapid pace in fact faster than law, law in fact adjusts to the society. The problem of ‘time lag’ in law may manifest itself on various levels of legal system. On the other side of the coin the legislature procedure is often slow and cumbersome fetter with dissent. General rules aversion expressed by Plato, is rooted in the normative arrangement. Normative arrangement could not do Justice to human relations because of their infinite variety and complexities. Law more often than not causes hardship, which although indispensible social institution therefore equity comes to the picture. Norms are designed and formulated to forestall anomie hence the inexorable need for law.

Reference:
1. Jurisprudence: The Philosophy and Method of the Law, Edgar Bodenheimer.
2. The Cocept of Law, H.L.A HART.
3. Law as a Means to an End, Rudolf Von Ihering.
4. Rama Jois, Dharma: The Global Ethics.
5. Civilization and it's Discontents, Sigmund Freud.




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