“At his (her) best (wo)man is the noblest of all animals, separated from law and justice s/he is the worst,” Aristotle quipped in one of his moorings.
Normally in a country, laws are enacted to curb social evils, and administer justice. There is recourse to the law for the attainment of a perceived good. Today the political dispensation is enacting laws (for example, CAA) which have become reasons for social upheavals and lack of peace in the society (look at what is happening in Assam, University campuses – Jamia Milia Islamia in Delhi, etc.)
There is a strong feeling all over India that the attempt of our present political dispensation in enacting the Citizenship (Amendment) Act is an injustice and it violates common good; law is violating justice and common good. We are in a paradigmatic contradiction here. On the one hand, the argument is that law is necessary for showing mercy on the displaced people. On the other, the very law is perceived as unjust and harmful.
At this juncture a series of questions pass through one’s mind: why recourse to law? What kind of law? What gives adequacy to a law beyond its legality? When is a law right? When can a law claim righteousness? When is a law felt and perceived as an unjust law? What is the purpose of law? How do we determine the unjustness of a law? Why, then, Law at all?
It is often held that a law justifies itself and that what is enacted as law must be obeyed. Law is described by the Philosopher-theologian, Thomas Aquinas, “It is nothing else than an ordinance of reason for the common good, made by him (one) who has the care of the community, and promulgated.” The purpose of a law is thus common good (the good of each and good of all), not a person’s or group’s self-interest or convenience. It is to establish a certain order in the society so that a harmonious social living is protected.
Protection of common good is the very purpose of political power. Without rules and regulations, the order in a community may be disturbed and only a jungle raj of might may prevail. Political civil law aims to make it possible for people to live together peacefully, in a community, with freedom and enjoying peace in an orderly manner.
But today the very law has led to social disturbance; instead of harmonizing people, it has become discrimination against a group of people; instead of bringing equality, it is based on rejection of some and favouritism of another group of people. This law goes against the spirit of the Constitution of India and the good of the people who elected the parliamentarians who in a haste passed the Bill.
The members of the Constituent Assembly had spent hours and hours to frame the Constitution word by word, and the spirit of which just cannot be thrown out at the whims and fancy of a particular ideology. Even the highest legitimating authority was in a haste to give assent to the controversial piece of legislation.
Though it is passed by both Houses of Parliament and given assent by the President, thus making it a law, is it rational and in accordance with the principle of common good? As long as a group of people is discriminated against, it fails the test of common good. Besides a law is meant for the preservation of a social order and harmony. When the very social order is in turmoil, because of an enactment of a law, will that law have the moral legitimacy to be promulgated? Truthfulness of law needs to be preserved and established in the enactment of the law itself.
At the same time, we know that a law that is telling us to do (or not to do) something does not have the power within itself to enable us to do (or prevent us from doing) what the law is telling us to do (not to do). A law does not have the interior motivating force; no grace. It remains essentially coercive. The reason is that a law operates through fear.
Normally, in enacting a just law, a will imposition is done in order to enforce a value. The law “do not kill” is enforced because life is rationally and universally perceived as a value/good in itself. It is the absence of mutuality/love that makes law necessary. Due to self-regarding activity, human capacity to infringe and trample onto the rights of the other makes law inevitable. At the same time, the social necessity of continuous making and enactment of law is an indication that relationality and love is absent.
It is love, a merciful love for that matter, that gives me the strength to act. Tagore has understood this very well, when he makes the supplication, “… Give me the strength to make my love fruitful in service.” It is love that enables me to love. So true what Peter Arrupe, former Jesuit General, quipped once: “What you are in love with, what ceases your imagination will affect everything. … so fall In love, stay in love, and it will decide everything.” Today by enacting a law (CAA) a group of people are discriminated against. It breaks the demand of both justice and common good.
A civil society can move to its final goal of achieving happiness and peaceful co-existence to its people only by the exercise of justice and the proper exercise of rights, and, above all, by the experience of freedom. In a pluralistic society we identify justice as the most basic value that people share in common.
Dealing extensively with the relationship between right and morality, Antonio Roshmini, an Italian Philosopher of 19th century, in his voluminous work, The Philosophy of Right, asserts that justice is the foundation of all law.
John Rawls, in an influential account of justice, has held the primacy of justice in our assessment of social institutions in the following terms: “Justice is the first virtue of social institutions, as truth is of systems of thought. A theory, however elegant and economical, must be rejected or revised if it is untrue; likewise, laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.”
Further, according to Cicero, “The rule of law is to be drawn from the inner nature of (hu)man. Hence, an unjust law does not have the legitimacy of enactment, even if it is passed by a majority of law makers. Gandhiji’s salt satyagraha is a perfect example of this.
In a perfect situation of peaceful co-existing relationship, a law may not be even necessary. Or, in other words, in a situation of perfect mutuality, love, harmony and acceptance of each other as equals, one may not even need a law. Thus law, which is rational, enacted by one having authority, and enacted for the common good, and promulgated in a society, is necessarily connected with basic justice.
Justice, then, is properly understood only in a relational category. It could be described as faithfulness to an equal and caring relationship; “Fidelity to the demands of a relationship”. If an equal caring relationship is absent in a society, that society itself is living in a situation of injustice.
As fallible human beings we fail in our faithfulness to the demands of equal and just relationships lived and maintained in freedom; we fail in creating a harmonious and peaceful community; we fail in our mutuality and inter-relatedness. We fail in keeping ourselves intact from doing harm to another. We fail in our contribution to the common welfare and in the protection of others.
Concerning the absence of this latter social responsibility, Cicero very well says: “There are some also who, either from zeal in attending to their own business or through some sort of aversion to their fellow (hu)men, claim that they are occupied solely with their own affairs, without seeming to themselves to be doing anyone any injury. But while they steer clear of the one kind of injustice, they fall into the other: they are traitors to social life, for they contribute to it none of their interest, none of their means.”
So, according to Cicero, failing to contribute to the enhancement of social life, that is contributing to common good and enhancing thus social justice, is a kind of injustice. He even calls those who fail in this as “traitors to social life”. Then, a fortiori, aren’t those, who enact a law to discriminate against a group of people, traitors to social life? Do they have legitimacy to rule? Questions abound!
Thus, we see that the foundation of law is the value/virtue of justice especially to protect the inherent dignity and the rights of people. It is oriented to preserve and enhance social justice and common good. When a law, though enacted by a lawful authority, fails to preserve social justice and common good, individual dignity and a peaceful social order, that very law loses its legitimacy to be a law. An unjust law can never be justified.
As a conclusion, we could say that life is a sacred, mysterious journey and it calls us to move together, to flow together, as one people in the spirit of humility and compassion (experiencing the pain of another, to act with empathy) reaching our destiny gracefully. If a law fails to enhance this, that law is not a law at all.
(The author can be reached at email@example.com)(Published on 06th January 2020, Volume XXXII, Issue 02)