Law is a system of rules, which a particular country or community recognizes, as regulating the actions of its members and which it may enforce by the imposition of penalties. Inbuilt in this premise is that, laws are made assuming everyone would break them. Law as a system helps regulate and ensure, that communities show respect and equality amongst themselves. Can equality exist in a society that is fundamentally built on a complex network of inequality? The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people. Is this the real intent and the narrative of law as it is practiced?
A case is settled, most of the times by a learned Judge, based on the contextual evidence produced. Neither the petitioner nor the defendant would be interested in presenting all that led to the contextual evidence. One who is more articulate in presenting the information and data would probably win the day. This may not necessarily be the truth. Is this the outcome of law? Shouldn’t such a law be outlawed?
Merriam-Webster defines law as: “a binding custom or practice of a community; a rule or mode of conduct or action that is prescribed or formally recognized as binding, by a supreme controlling authority or is made obligatory by a sanction made, recognized, or enforced by the controlling authority.” Can a community’s practice be a law? Are all communities bound by a supreme controlling authority? Several questions arise out of contextual settings.
These are the days when governments are debating the rights of people, do’s and don’ts and what to practice and what not to practice in a moral frame, more than in a physical reference. Can this exercise be seen as one of subjugation? Traditionally, the one with power would control beings less fortunate and less privileged. The Old Testament dates back to 1280 BC and takes the form of moral imperatives, as recommendations for a good society. However, moral imperatives, have to be seen to be implemented. What are morals that need to be enforced is as vital. The Arthashastra, compiled around 100AD with material that is dated even earlier, and the Manusmriti, a couple of hundred years later were the foundational treatises in India and comprise texts considered authoritative legal guidance. Manu’s central philosophy was tolerance and pluralism. Taking a cue from this, why cannot we have a system of law that lays stress on prevention and reformative action than assume everyone as guilty until proved otherwise. The philosophy of law is jurisprudence. Normative jurisprudence asks “what should law be?”, while analytical jurisprudence asks “what is law?” Both these questions need more credible answers in the context of current times.
Will a human being always rebel unless chained? Man would want to rule the nature. Men would want to be one up on women, and every other form of life. Governments in power would want to rule everything for ever. A strong being, irrespective of man, woman or a child would want to control the weak. Each one to its own. Pressure groups eventually evolve and create their personal fiefdoms. Each such group would propagate a system of law that would suit their interests. Hence the normative jurisprudence, asking what law should be, should veer out of the individual preferences and create a set of rules that benefit all, even if it leads to a utopian supposition.
Unfortunately, analytical jurisprudence takes over, albeit with analysis, based on insufficient or inappropriate information made available, sometimes deliberate and sometimes premeditated and data that is created out of contextual settings. The gap between normative and analytical widens, causing great amount of distress in the society. It is said that justice is meted out, even if injustice is done to everyone in the same way and to the same extent. Many of our decisions seem to be driven by this antithesis. Sometimes quixotic expectations too take a toll. In 1991, Richard Overton sued Anheuser-Busch for $10,000 claiming the company had falsely advertised the scene of beautiful women and men enjoying themselves while drinking beer. Overton was upset when he discovered this type of lifestyle was not a reality from merely drinking beer. His case was promptly dismissed.
Interpretation of normative law, is the crux of analytical jurisprudence. A very interesting piece of justice meted out will bear this out. A 2013 judgement, by the highest Court of this Country, divested the All-India Council for Technical Education (AICTE), of all its roles rendering it just an advisory body. No more regulatory powers and no more implementation role. Apparently, two principle definitions used for this conclusion were technical institution and technical education as enshrined in its act. Great turmoil indeed, for an organisation that was explicitly built as a regulator. Functionally the decision was sought to be reviewed and was allowed a yearly extension to avoid an obvious vacuum.
Subsequently, in an unrelated case of deemed universities, the highest Court, this time round, apparently uses the same definitions as above, in conjunction with the objectives of the organisation and rules that it not only will regulate technical education in affiliated institutions, but also distance education across the country, and further extends the jurisdiction even to the deemed universities and probably to all universities. Is this travesty of justice or plain contextual or an error of analytical jurisprudence?
The powers that be also could influence the delivery of justice. As a case in point, the National Eligibility cum Entrance Test, (NEET), which was declared illegal and unconstitutional by the Supreme Court in 2013, was restored in April last year, after a five-judge constitution bench recalled the earlier verdict and allowed the Centre and the Medical Council of India (MCI) to implement the common entrance test. What was the normative base in this case anyway?
One of the most sarcastic rulings in Supreme Court history in the US, came about because of some spoilt tomatoes. In short, a tomato supplier named Joseph Bertman was sued by the U.S. government because the goods arrived spoilt. The court sided with Bertman because it wasn’t his fault but was the fault of the shipping company.
Now, if you lose a court case and want to appeal, you have 60 days to file it. And if the government was going to appeal this case, Bertman was going to have to respond within that deadline. So, the government simply waited, to file until right before closing time, on the 60th day, so Bertman wouldn’t have a chance to do his part. Bertman fought the government’s dickery, all the way to the Supreme Court, where Justice Hugo Black put Bertman’s predicament into words, we all can understand:
“I am aware of the argument that an able, alert, ever-diligent lawyer could have, had he tried hard enough, discovered that the Government had appealed, even in the closing hours of the sixtieth day. I do not doubt that had Bertman’s counsel been Superman, his X-ray eyes would have told him that a notice of appeal was being filed, blocks away in the courthouse, or had he been a lawyer with no clients but Bertman, he could have spent the sixtieth day hovering at the clerk’s office to see whether the Government would file a notice of appeal. But Bertman’s counsel is not Superman, nor should the law expect him to be.” Despite Justice Black’s eloquent argument, Bertman lost.
Technically, Uncle Sam didn’t break any laws, and unfortunately the courts are there to declare only what is illegal, not what is merely lousy. The lesson is, apparently, that the next time you’re up against the government, maybe you should hire a Superman as your lawyer as Judge Black sarcastically espied.