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Published : April 06, 2011 | Author : sumanbhattamishra
Category : Miscellaneous | Total Views : 4071 | Unrated

  
sumanbhattamishra
Suman Dash Bhattamishra LL.M[Human Rights] National Law School of India University,Bangalore
 

Dimensions Of Law As A Systematic Device

In a world of dark deception, appearances often sway Reason. Truth lies behind several facades of illusion and images are lost in the crowd of shadows. What affects all aspects of human behaviour equally impacts the mechanism for regulating the same and this is where the question of identity of Law comes into the picture. While some regard it as a systematized institutional arrangement, others regard it as a mere aggregate of rules. The aggravation of the debate leads to a search for the truth, for the exploration and examination of the empires of delusion to discover the reality of this social invention called Law.

While jurists like Austin consider Law to be nothing more than a bunch of rules backed by sanction, others like Hart and Kelsen regard it as a systematized product of a social evolution. The search for the solution has to be made in the context of contemporary societies, against the backdrop of history.

Any progress towards a solution to this eternal debate would require an insight into a structural and functional analysis of the entire legal machinery and its goals in the social context. The evolution of Law, its development, and an analysis of its characteristics would determine its quality as a system or an ad hoc body of rules. What evolved as a tool for disciplining the human mind itself needs to be analysed to be rescued from an identity-crisis and to render more effective the job allotted to it. The same has been attempted in this research endeavour.

Conceptualizing a System

“I understand by a system, however, the unity of the manifold cognitions under one Idea. This is the rational concept of the form of a whole, insofar as through this the domain of the manifold as the position of the parts with respect to each other is determined a priori.”-Immanuel Kant

In the philosophy of Law, the concept of system forms the matrix of all rational comprehension, be it causal, consequential or incidental. The existential import of any legal entity can be understood only with reference to its character as a component of the entire systematic whole, which is designed to determine its perpetuity in the backdrop of the twin phenomena of stability and change.

Literally, the term ‘system’ connotes “an organized scheme or method” or “a set of things that are connected or that work together”. It radiates a sense of planning, a coherence in the inter-connection of its structural elements and a unified functioning of the different elements aligned together. An illustration of it could be the Human Body, that consists of several organs, each of which discharges a unique function, yet, is harmoniously integrated with the other organs to form a unified whole that efficaciously performs all activities, according to the demand of circumstances.

A transparent analysis of the concept of system is possible only by identification of its essential properties, which have their basis in a stratified structural existence. The phrase means that a system is always divided into vertical or horizontal strata or levels for the smooth and easy discharge of functions. The existence of the entire system is a struggle for independence; however, there is a correlation among the different parts and a co-existence among them, despite individual differences. A system is an assortment of distinct ingredients retaining their unique characteristics, and at the same time creating a distinct and composite whole, having a character of its own.

The second important characteristic of a system is the existence of a Pivot, a fulcrum around which the other elements of the system revolve. This Pivot plays the role of a substratum from which the entire system derives its sustenance. Structurally speaking, the pivot could be the seat of primary power from which the other parts of the system derive their existential authenticity or it could be the monitoring device guiding the course of motion and progress of all the component elements. For example, the Sun which is at the centre of the Solar system determines the course of rotation and revolution of the other planets.

Apart from this, every system follows a certain method in the alignment of its different parts and a pattern in the discharge of its functions. The element of order is very crucial as it provides the requisite arrangement for the formation of a structure and for a consistent discharge of its functions. Every system has a level of certainty or consistency and a principle which governs the working of the entire integration. A very important factor is the existence of a purpose which justifies the reason for the system to come into existence and clarifies the objectives it seeks to attain.

Over and above all, a system always follows a process of evolution, which means that it doesn’t come into existence on the spur of the moment but takes its roots from necessity and grows according to the demands of the society. Thus, a system is a methodical integration of coordinated components, which evolves according to the demands of the society and whose existence is defined by a consistent progress towards the attainment of a specific purpose, which is beyond the attainment of short-term goals.

An Analysis of the Rule
A rule forms an essential ingredient of a legal system. Therefore, it is important to dissect and deconstruct the idea of Rule in order to ascertain whether the identity and nature of Law is confined to being just an ad hoc body of rules or it is in the nature of an integrated system. The definition of rule has acquired different shades and colours on different occasions. Austin defines Rule in terms of command. For him, rules are imperative or prescriptive rather than being indicative or descriptive because their concern lies in imposing legally binding obligations. For H.L.A. Hart, Rule is a standard for judging conduct. The idea of obligation lies at the core of a rule and this is stated as the internal aspect of rule, which aids in condemning deviations from the set standard. According to Dworkin, every Rule is grounded in a Principle. Thus, while Rule is an ingredient of Law, the Principle inspires the law to take a certain direction. The influence exerted by Principles is primarily persuasive and they have a spectrum broader than Rules.

The fundamental difference between an ad hoc body of rules and a System is in their structural composition, the nature of their impact and their scope of operation. Structurally speaking, an ad hoc body of Rules is a mass of rules bundled together. There need not be any connection between the component parts or any method in their conglomeration. Secondly, such a body of rules comes into existence only for a specific purpose. Its objective is confined to resolution of particular problems and the minute the problem finds a solution, its existence comes to an end. On the other hand, the impact of a system is far-reaching and it caters to unforeseen demands of circumstances. Finally, the area of influence and operation of a system is much wider than that of an ad hoc body of rules.

Deciphering the Dimensions of Law as a Systematic Device:
An analysis of Law as a systematic device necessarily requires a study aimed at deciphering its multifarious dimensions, in the context of its existence, development and necessity for progress. A study of these dimensions would facilitate a comprehension of the architectonic unity which pervades the legal system and integrates its different elements into a composite whole. That such a unity exists in Law, has been reaffirmed by Kant who regards the entire system of law as an architectonic of pure reason.

These dimensions of Law can never be examined in isolation as they derive their colour and texture from society. Like any other system, Law undergoes a process of evolution, growth and development. As stated by Savigny, all Law is the manifestation of the common consciousness of the people and reflects the spirit of the people who evolved it. He wrote very aptly,

Law grows with the growth, strengthens with the strength of the people and finally dies away as the nation loses its identity.

The process of evolution ensures that Law adapts to changes in society and accordingly either acquires new elements or gives up certain appendages which lose their relevance with the passage of time. Thus, the fundamental element of evolution which forms an essential characteristic of a system is an important dimension of Law.

For Kelsen, Law is a hierarchy of norms. The term hierarchy denotes the existence of a stratified structure in Law, which has already been stated to be an essential property of a system. In the Kelsenian legal system, we find a Grundnorm, which is held to be the basic norm granting sanctity and authenticity to all other norms. Law is regarded as an integration of all those norms which conform to the Grundnorm. The hierarchy and integration is therefore methodical and follows a pattern by virtue of conformity to a particular principle.

The dimension of a pivot or fulcrum being present in Law is another aspect which needs to be examined to determine its systematic quality. While Kelsen used the term Grundnorm for the pivot, Austin gave it the form of Sovereign; for Savigny, the pivot was Volksgeist or the common consciousness of the masses and for Kant, the source of all law was Pure Reason. Whatever be the name, every school of thought converged on the inference that there was a nucleus or guiding principle around which the system of Law evolved eventually. A real life example of such a pivot would be the Constitution of India which forms the fulcrum of the entire legal system in our country.

The element of an ordered unification is another important dimension of Law. According to Bentham and Austin Law is nothing but the sum-total of individual laws. However, it is to be noted that the entire body of law is a structure of linkage of selected elements, otherwise known as legal material. For the purpose of unifying legal material, the test of validity is applied, which refers to the determination of the law-quality of a particular proposition. All propositions having law-quality are integrated under the umbrella of Law and the rest are isolated from the former. Under this unified structure, there are institutional elements of Law like law making, law-applying and law-enforcing bodies, each coordinating with another in fulfilling the object which the legal system seeks to attain. Apart from these, there are also conceptual institutions within the body of law itself, which prescribe a particular consequence in a given fact- situation. For the purpose of attaining this objective, several concepts like possession, ownership, etc. have come into existence.

The purpose of a system clearly demarcates it from an ad-hoc body of rules. Whereas the latter becomes extinct after solving the particular purpose it seeks to attain, the former lives and grows beyond the attainment of specific objects. The entire system of Law is devised to cater to the multifarious needs of human society, both predictable and unpredictable and in this way; it differs from a bunch of rules which are created, keeping in mind only a particular social problem.

Furthermore, a system is marked by a certain degree of consistency. Since law follows a process of evolution, it is characterized by an internalization of certain values and principles. A bunch of rules inflicted on a mass of unwilling people can neither grow nor evolve; hence, they cannot be internalized. Without internalization, there cannot be an expectation of consistency. Since Law is characterized by internalization and acceptance of some essential values, it can be said to be a consistent phenomenon and hence, a system.

A combination of the elements of purpose and consistency in Law give rise to the dimension of completeness. Law has to be complete to the extent that the bodies of principles which comprise it have the quality of reasonable foreseeability. However, it doesn’t mean that Law can be absolutely or ideally complete. The existence of gaps in the system is always a possibility, which can be resolved by resorting to interpretation of the basic premises bringing the system into existence.

Furthermore, Law has been held to be a normative system. The presence of heuristic and hermeneutical elements gives Law the character of a normative system. Heuristic principles refer to those principles which organize the material contents of a system in particular ways. Heuristic principles in a legal system can prescribe the priorities of the system, the conditions to which one must always conform in order to be a part of the system, the deeds, persons and entities which are to be excluded from the purview of law, etc. Hermeneutical elements in a normative system refer to those principles which prescribe ways in which systematic ends of the system, as defined by the heuristic principles, can be achieved. The presence of hermeneutical elements ensures that the normative system is open and not closed.

“The Law, like the Traveller must be ready for the morrow. It must have a principle of Growth.”- Cardozo

The culmination of every Rule is in its crystallization into a System. The idea of Law came into existence for the purpose of securing Order in the chaos of human relations and for securing peace in the eternal war of greed against need. What has been so carefully designed to infuse an element of congruency in human behaviour cannot itself afford to violate the fundamental canons of symmetry. It would not be possible to confine Law to the evanescence of an ad hoc body of unconnected rules, when it is supposed to grow, breathe and perpetuate with the twists and turns of society.

The needs of society are so vast and varied that humanity would require much more than just an inconsistent mass of rules to secure its existence. This purpose cannot be solved when Law is without a structure, form and pattern in the discharge of functions. A certain degree of consistency would ensure the construction of a security system that would meet long-term needs and goals. Consistency, permanence and completeness of Law as a system also sharpen the nature and quantum of obligation that it is likely to receive from the masses and in this way, Law is rendered more effective.

Therefore, the determination of the identity of Law can be tracked to its character as a System, which evolves out of a linkage of carefully chosen components, striving towards a solution of Justice in the mathematics of human relations.
**********************
# Immanuel Kant, Critique of Pure Reason, Cambridge University Press, New York, p.691 (1998)
# At http://dictionary.reference.com/browse/systematic on 23.12.2009
# At http://www.thefreedictionary.com/system on 23.12.2009
# S.R. Myneni, Jurisprudence, Asia Law House, Hyderabad, p. 37 (2004)
# RWM Dias, Jurisprudence, Aditya Books Pvt. Ltd., New Delhi, p.352 (1994)
# S.R. Myneni, Supra Note 4, at p. 39
# Immanuel Kant, Critique of Pure Reason, Supra Note 1
# RWM Dias, Supra Note 5, at p. 378
# Ibid
# RWM Dias, Supra Note 5, at p. 61
# Ibid
# Ibid at p. 61-62
# Ibid at 62
# Chhatrapati Singh, Law from Anarchy to Utopia, Oxford University Press, USA, pp.30-31 (1988)
# Chhatrapati Singh, Supra Note 14, at p.30-31 and p. 16-18
# Chhatrapati Singh, Supra Note 14, at p. 38- 45

Authors contact info - articles The  author can be reached at: sumanbhattamishra@legalserviceindia.com




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