Law as a Dynamic Institution - Essay Example

of the of the Concerned 19 September 2008 Law: A Dynamic The law is never static, it is always changing, being reinterpreted or redefined, as regulators and judges strive, with varying degrees of success, to ensure that the law constantly reflects changes in society itself. One can only talk about law only in a social context, as society and law are two institutions that are literally inseparable. Thus any argument attempting to elaborate upon the nature of law and justice has to digest the fact that any society, even the most primitive one, is not a monolithic entity, but is a complex juggernaut of a plethora of concepts, values and institutions that continually need to be regulated and organized to ensure its hassle free existence. Every age furnishes its own set of vantage points in all the realms of existence, be it social, political or economic. The very history of law testifies to the fact that laws had always to be in tandem with the objectives and aspirations of a wider social context. Aristotle stressed on the natural moorings of law and held that a just and fair law was one that facilitated a positive unfolding of every personality in a social scenario. He further classified the idea of justice as distributive justice and corrective justice, specifically related to the establishment of a just and fair society and a preservation of the legal status quo in a functional society. Thus the proponents of the 'natural law' philosophy tacitly relied for the sustenance of their theory on an instinctive recognition of the human conscience as being the final authority for the authentication of any law. It would definitely not be erroneous to say that a scope for the possibility of the evolution of laws, necessitated by pressing social changes, comes within the ambit of the concept of 'natural law'. The utilitarian doctrine that originated in the nineteenth century, considered the preservation of the interests of a discernable social majority to be the final arbitrator of justice. Though seemingly crude and gross, the utilitarian idea of justice, propitiously hinted towards a decisive and discernable, democratic tilt in the European legal institutions. The Marxian notion of law vied for an equitable distribution of national wealth and resources, thereby closely bordering on the Aristotelian dogma of distributive justice. The very contemporary Rawls' theory of justice absorbed the modern elements of Liberty and Equality within the ambit of law. While Rawls validated the inevitability of individual consensus for the sustenance of a just system, Robert Nozick advocated a pragmatic severance of the state and the law to build a society based on justice. Hence there is no denying the fact that the intelligentsia in all the ages and times recognized the effervescent aspects of law vis--vis popular and dominant social aspirations. Thus, conclusively and undeniably, the law is definitely a dynamic institution that is always changing. As a holistic and all encompassing evolution is the hallmark of a growing and vibrant society, the laws simply cannot afford to be static. Practically speaking, laws are always or should be susceptible to change, proactively towing the fundamental changes in the society by a variety of mechanisms, be it through amendments, reinterpretations or redefinitions. The social and the political history of the Great Britain is a saga of the meaningful metamorphosis of a monarchical set up into a modern, democratic society resting on sound legal foundations. It is Henry II who is credited with the establishment of the permanent professional courts in the UK that were to change the face of the British society in the times to come. Surviving the vicious skirmishes between the ecclesiastical canons and the English lay law that originated from the Anglo-Saxon beliefs and values, the English Common Law secured an important niche into the mass consciousness, so far as the definition and interpretation of the national identity was concerned. The very acceptance of the concept of professional courts by the monarch and the people made the law and the legal arguments an acceptable media for resolving disputes, besides the popular option of resorting to free violence. This aught to be mentioned, that the church's canon law made a significant contribution in terms of terminology and ideas, to the English Common Law. The assimilation of the concept of laws and courts into the British society was to a great extent responsible for the solidification of the earlier somewhat amorphous notion of a free and sovereign state in the British mindset. Simply speaking, this sanctified and solemnized the relationship between the state and the people. Later on the Normans were to make vital additions to the British law, especially in the area of the customs related to land holdings. The issuing of the Magna Carta in 1215 immensely curtailed the monarchical interference in the legal procedures and in a way, laid down the foundations of the current constitutional law. Courtesy this evolutionary urge in the British law and legal system, that UK today has a parliamentary government, wrought out of the successive and persistent adjustments and alterations in the feudal, medieval councils of the yore. The 21st century arrived in the UK with its own bulky baggage of novel aspirations, expectations, changes and challenges. The law and the related institutions and regulatory mechanisms are more then ever expected to contend with this insatiable flux like situation, calling for immediate and pressing changes and adjustments. The unforeseen advances in science and the ensuing IT revolution has placed the institution of law in a precarious position, where it is exposed to unprecedented social, political and economic changes unravelling themselves at an ever increasing pace. The very fundamental bulwarks of the society, be it the family, businesses or the government institutions are fast evolving into unconventional and astereotypical entities that vociferously call for the relevant and compatible changes in the laws. The UK being a leading and responsible member of the international community is bound to aspire for an up-to-date legal system that exhibits generous consideration for the basic human rights. Not only this unwavering commitment has become an issue of debate amongst many pressure groups residing within the British politico-legal fraternity, but like many other Western European nations, this obligation has brought the UK into confrontation with the contrary and differing ideological stance of the major third world powers. Considering the complex and intricate nature of the British society, the need for the changes in the existing laws to ensure privacy in the private and public spheres is one other issue that has gained mammoth importance in the present times. The physical chastisement that was considered to be legally valid and rampant in the British family life is taken to be inhuman and scandalous by the existing moral standards. Such changes are bound to redefine and remould the nature and scope of marital relationships and the sanctimonious responsibility of parenting. The laws and the courts are under tremendous pressure and onus to redefine and reinterpret the laws as per these recent developments. The UK has a rich and thriving economy having abundant corporate participation and influence. In this era of globalization, when the MNCs have become intimidating and transnational powers by themselves, it is the biggest challenge before the law to enforce criminal liability on the acts of corporate recklessness and irresponsibility. The ambitious goal of bringing the national corporate life within the ambit of the ordinary criminal law demands massive resources and an unwavering political will. With every third marriage in the UK ending in a divorce and an augmenting trend towards cohabitation, the law makers are increasingly under pressure to come out with the legal instruments that ensure the requisite rights and responsibilities for the people opting for civil partnerships. The magnitude of this challenge grows manifold when one aspires to include within its ambit, the rights and the privileges of the same sex couples. Other area that calls for cautious but definite changes is the issue of the role and the level of interference of the law in the reproductive decision making. Fresh possibilities like cloning, in vitro-fertilization, artificial insemination and surrogate motherhood, unleashed by the recent developments in the reproductive technology, that irritatingly involves conflicting ethical, moral and political ramifications calls for more then usual tight rope walking by the law makers and the courts. Even a cursory perusal of the above mentioned social, economic and technological challenges, unravels the complexity of challenges that the laws and the law makers are expected to deal with in the times to come. So far as the establishment and the consolidation of the legal principles is concerned, the judiciary in England and the Wales have been relying on the system of precedent whereby the lower courts are expected to abide by the principles established by the higher courts in letter and spirit. However, a rapidly altering social scenario impinges upon the judges to go for a proactive sense of initiative so far as the establishment of the legal procedures is concerned. In that context, the judiciary's role of statutory interpretation is of cardinal importance and luckily or unluckily, the interpretation of a particular law in the context of an unprecedented case may greatly be influenced by the opinions of the particular judge hearing that case. On the one side this could worsen the confusion rampant in the courts of law, but on the other side, a variegated and catholic interpretation of the laws may be what an emerging, multipoler and secular society may be desperately in need of. Infact the judges themselves, most of the times are aware of the dilemma inherent in the process of the reinterpretation and redefinition of the laws, so as to be in resonance with the emerging changes in the society. For example the traditional legal definition of marriage in the UK emerged from the 1866 case of Hyde v Hyde, where the concerned judge defined marriage as "the voluntary union for life of one man and one woman to the exclusion of all others." However, divorces, same sex couples, extramarital affairs and civil partnerships are an undeniable contemporary reality and a modern interpretation of the law in this context needs to take into cognizance these new emerging social realities. Still it is a fact that this definition of marriage has more or less remained unaltered, at least in the theoretical sense. However, in a more pragmatic and realistic scenario, marriage has proved to be a flexible and adaptable institution and the judges are constantly under stress to redefine the notion of marriage so far as the realities rampant in the family law courts are concerned. The corporal chastisement of children by parents and teachers is one other issue that exemplifies the ordeal and intricacy involved in the reinterpretation and redefinition of the law. Till now it was unquestionably held by a majority of the people that it is the fundamental right of a parent to discipline a child. The support for corporal chastisement of children could be found in many biblical proverbs and verses and a number of fundamentalist Christian schools consider corporal chastisement to be the best way for achieving moral correction in a child. However the existing professional, medical and psychological research and data strongly opposes the validity of corporal chastisement by both the parents and the teachers. The intense polarization of the public opinion pertaining to this contentious and sensitive issue raises many thought provoking questions. Do children lack the legal status and legal protection enjoyed by the adults Does the prerogative of parental responsibility justify a parent's right to resort to corporal punishment In the trend setting case of R v Hopley, Chief Justice Cockburn gave the verdict that "moderate and reasonable chastisement may be used to correct what is evil in a child but such punishment should be neither excessive nor protracted." Since the pronouncement of this verdict almost a century and a half ago, many judicial reinterpretations have been furnished so as to define and delineate the provision of 'reasonableness'. Still, a lot needs to be done to bring the laws in alignment with the contemporary trends and practices related to child rearing. At present, the government is under tremendous internal and international pressure to reform the laws pertaining to the corporal punishment of children. Though the indigenous customs and traditions had a seminal influence on the English Common Law, with the rise in the stature of the Parliament in the 18th century, the statues became the primary source of new laws. The MPs directly elected by the public are vested with the powers to pass, reject or assess legislations. The supremacy of the Parliament is the bedrock on which rests the English politico-legal framework. The Parliament has the ultimate power to alter or repeal any law. As the UK joined the European Union (EU) in 1973, it has the obligation to incorporate the EU legislations in the UK law and to agree to the supremacy of the European Court of Justice in the matters pertaining to the EU law. This has given way to a new situation in the history of the British political and legal existence, where the British Parliament is expected to tow the changes ushered in by the European Union institutions. The aspired for supremacy of the European Law brings the very existence of an independent British legal system into question. How the British Parliament is to deal with these altered circumstances which are mandatory for a broader and meaningful integration into the European Union will become evident in the near future. The impact of this new change is already visible in the English courts of law. It is the European Community Law that came to the rescue of Diane Blood, when her appeal for being allowed to be artificially inseminated by her late husband's sperm was turned down by the Human Fertilisation and Embryology Authority and the High Court's family division. The institution that is expected to bear the direct brunt of the changes in the laws motivated by the incumbent social expediencies is the law enforcement agencies. The entire concept of policing in Britain is changing so as to timely respond to the altered social needs and expectations. The Britain's police is urgently refurbishing its policies to ensure a publically more cooperative and collaborative approach towards law enforcement. The latest developments in the forensic sciences are bound to influence the way investigations are carried out and the evidence is collected. The more recent challenges in the form of drug trafficking, human trafficking, race related crimes and terrorist violence is making it even tougher for the police to maintain the law and order while ensuring the sanctity of human rights and exhibiting due respect for political correctness. Thus there is no denying the fact that the laws have to exist and operate in a broad social context and are required to incorporate the changes occurring in the society which they intend to organize and regulate. The modern law makers and regulators are bound to come across situations where the quest for justice leads to no right and wrong answers. Thus the concept of justice must be defined in an adaptable and flexible context, which is catholic and open enough to respond to the aspirations and expectations of the hitherto ignored or sidelined issues. Total Words: 2500 Read More