Outline:
- The will of Allah is the source of Islamic law
- The role of law in the present technological and scientific age
- Law is an aid to the overall development of society
- New concept of Law
- Law one of the greatest civilizing forces of human society
- New directions emerging in law
- Law as an integrator of cultural, social, economic and political dimensions
- Clarification of social policy and goals can be attained by observing legislative trends
- Precepts of law
- The origin of the concept of law
- Law is an important source of justice
- Judiciary as an arbitrator between government and people
- Judicial activism, a prominent feature of the political system
- How can we lessen the suffering of people?
- Reliance on law can effectively implement the policies of development
- Role of an advocate in a developing society
The source of Islamic law, which is directly related to the idea of justice and to the concept of society, is the will of Allah Almighty. Islamic law derives its source from the divine revelation through the Holy Prophet PBUH). Being divine, these sources are believed to be sacred, final, eternal and hence immutable. The strength of Islamic law is in the extensiveness of approach, which at its best is applicable to all situations. It does mean universality. It does imply proximity in relation to the world of thought and perception. The Islamic law possesses a quality of response, of dignity and poise, which has developed as a result of the dynamic conception of an ideal society. Islamic law carves good life for its followers and better life for posterity. Being a divinely ordained system preceding and not preceded by the state, Islamic law controls society, but is not controlled by the society. Islamic law asserts that man has been created for a purpose. His value is high and his dignity great. The law teaches him his duties and his rewards. Islamic law is omnipotent. It has qualities that can keep its identity in changed circumstances and conditions. It continues to broaden its base within the framework of the Quranic text.
[the_ad id=”17141″]The legal system of Islam maintains its liberal traditions of accepting information, techniques, objects, and customs from all possible sources. The originality of Islamic law consists exactly in the capacity of adapting the Qur’anic inspiration to its needs. This effectiveness can be measured by the extent to which Islamic jurisprudence contributes to all aspects of welfare in human society. The Islamic legal scholarship as a transmitter of Quranic thought has been a powerful inspiration for the entire world. And at times the West has borrowed avidly concepts like social justice, free legal aid, social welfare taxation and development-oriented law from the potentialities of Islamic law to provide satisfactory answers to the basic questions with which humanity is now confronted on the face of the globe.
Since the end of World War II, societies are feeling the impact of technology and science converging upon them with an intensity not felt at any time in history before. Technological and scientific development has opened new horizons for mankind and created innumerable social problems in relation to law-making and law enforcement. The emerging political system is providing wider avenues for expression of opinion and action than have existed at any known point of history in organized societies. Under the impact of the industrial revolution and technological change, the legal norms and institutions of the past two hundred years are considered inappropriate and do not provide a philosophical basis for legal systems of developing countries. The resurgence of the need for economic harmonization at the infrastructural level calls for the commencement of a process towards adjusting that infrastructure to the altered base of the society. The rule of law in such a situation strives towards seeking a universal method for making just laws. In many instances, equality and other liberal concepts are preserved through the intervention of Courts of law and by resorting to the adjudicatory process. The demands of technological age require legal solutions to socio-economic difficulties that call for a legal methodology for generating useful solutions, and for reliable knowledge about the relation between law and society.[the_ad id=”17142″]
Adverting now to the other systems of law, we would focus our attention more on the practical dimensions of the theme, than the mere academic enunciation of these terms. In the world today, it is now the prevalent view of the modern school of jurisprudence that law is regarded as an aid to the overall development of society and has recently developed an equation with the process of development. This is because the traditional theories of law have failed to explain the role of law and development. The major focus of traditional theories has been to locate perspectives that were not concerned with the need to modernize the society, but they were instead only to explain and provide a justification for the existence of a system of laws in a given society. Now in modern times there is a strong thinking that law is a useful instrument for achieving development, because it not only provides the rule of conduct, but also furnishes a legal order that operates as a tool to bring about purposive social change. This, the law, does it by redefining norms so that new patterns of social interaction may emerge to bring about a change in the society under the impact of laws. It is in this respect that what is now required is a new perspective with a view to improving the social system both qualitatively. Since law is an instrument to normative the policies regarding development, regard should also be had to the conditions in developing countries where conscious efforts are needed to rectify deficiencies. Gunnar Myrdal in his published work: “Asian Drama, an inequality into the poverty of nations”.
“I mean to characterize a general lack of social discipline in underdeveloped countries, signified by many weaknesses; deficiencies in their legislation and, in particular, in law observance and enforcement; lack of obedience to rules and directives handed down to public officials on various levels.”
This outlook as it now presents itself provides justification for the induction with respect to law of a new theory of liberal legalism of which professors Trubek and Gafenter of the University of Wisconsin are the principal exponents and this viewpoint has received worldwide attention and is hotly being debated in legal circles. The combination of comparative law and development can give a wide scope to the contributions of law to the process of development. The concept in its practical approach implies that the modern world would expand its attention from law to comparative law, with a study of society shared between them.[the_ad id=”17150″]
This principle could be purposeful if societies of different countries having particular perspective define independently their values and their vision for the future and thereafter they integrate it with the comparative perspective of different nations so as to achieve their adjustment to the human conditions they are to govern rather than to assume first principles. It has for its vivid object, a movement for putting the human problems in the central place and relegating legal logic to its position as an instrument. The prime purpose, therefore, is to enhance legal certainty and to discount “mechanical jurisprudence”. The followers of legal liberalism emphasize the felt necessities of the time, the prevalent moral and political ethos, and the intuitions of public policy, more than the syllogism in determining the rules by which men should be governed. This is, however, one way of looking at the perspective of law.
Law is one of the great civilizing forces of human society, and human memory tells us that the growth of civilization has generally been linked with the gradual development of a system of laws. The emergence of the notion of law both as a concept and as an institution reflects the crystallization of reason and common sense. It not only reflects the general will, but also the history, culture and the needs of a given society, reconciliation of free will and hierarchy of normative relations. Its object is to promote principles of justice and equity by identifying conditions of social existence possible in organized groups. Law denotes the presence of certain norms that have been approved by a given society for the regulation of the behavior of its members which in turn regulates peace and security of institutions, provides equality and attains a maximum satisfaction of human wants. The norms of law can be likened to a continuum. It can be perceived as both an instrument of social control and change that can be used in both direct and indirect ways to alter public policy and private behaviour.[the_ad id=”17144″]
It is also significant to note that several new directions are emerging in the sphere of law. We are now heading, in this domain, towards interdisciplinary understanding, towards increased academic participation, and towards enhanced judicial creativity. The impact of sociology on law is visible in the legal tolerance of sub-cultures, in greater attention to social and human rights, to corporate responsibility and to industrial harmony. Modern law is giving rise to new concepts of property and to new concepts of compensation. Modern law is getting very much concerned with the legal processes needed for the elimination of poverty, to advance the cause of equality, of the protection of children and of openness in government. In essence, law is being transformed these days to emerge as a powerful force for the elimination of discrimination arising from various social prejudices. Intolerance divides one sect of the community from others. Law imposes sanctions against all sorts of discrimination based on sect, religion and other forms of man’s inhumanity to man, both by the legislation and judicial process. A question naturally arises as what new types of attitude towards law are needed in developing societies. I cannot find any better expression that what Mr. T.Q. Elias, President of the International Court of Justice, as he then was, said in his paper on “Law in a Developing Society”: (M.L. Marasingha, Editor, Essays on Third World Perspectives in Jurisprudence, Singapore, Malayan Law Journal, 1984).
“All these considerations lead us to envisage the possible role of the law and the lawyer in this great task ahead of the nation. Is the lawyer, on whom the burden will likely devolve, to be just a utilitarian in search of the greatest happiness of the greatest number, an analytical jurist primarily concerned with concepts, a social engineer preoccupied with how law affects man’s social interests, a functionalist anxious to ascertain the functioning of legal rules, a realist, sold of the idea that psychology is of the essence of the judicial process, a Pedicles engaged as a policy maker wisely dispensing laws, or a plumber skilled only as a technocrat whose main interest is in lawyers’ law.”
While posing the question it seems to me that the author wanted to draw the attention of the jurists to the desirability of shifting their attention from mechanical jurisprudence to human welfare oriented law, and one should be prepared to appreciate the value of liberal training which includes a spirit of inquiry and analysis, informed by a sense of obligation to his society.[the_ad id=”17151″]
By and large the thinking of jurists is gaining unanimity, that one of the roles law can play in development now seems to be that it should function as the integrator of ecological, cultural, social, economic, institutional and political dimensions of a given society, so that the diverse trends and aspirations in each of these fields could be synthesized and that the society as a whole evolves into a cohesive unit. The role of law in this sense is to integrate the various elements that comprise the society so that conditions of social stability can be achieved.
We are aware that one of the most significant signs of the times is the ferment of the present day interests that are bound up with the scope and application of law, with the problems of judicial method, with the problems of judicial teleology and problems of legal philosophy. The sociological orientation in jurisprudence is being crystallized in many parts of the globe under the influence of a new approach projected by Roscoe Pound which in essence boils down to an assumption that the function of adjudication is not only to resolve disputes, but also to give meaning to public values. It seems that this approach, now being considered for adoption, in addition to the West, by the Third World countries, indicates the importance of considering the dispute settlement process as a method of resolving social conflicts through the application of a system of flexible rules of law that should be meant to promote human welfare.
The new approach to the development of law provides for the systematic and disciplined performance of intellectual tasks. The tasks include the clarification of community policy and goals, the description of past trends in decision, the prediction of future perspectives and the discovery, invention, creation, evaluation and selection of policy alternatives.
The clarification of social policy and goals can be attained by observing legislative trends, major articulations of social and political policy by various institutions, the structure of society, and the direction in which it is moving with respect to the articulated policies. This does not mean that the lawyers and judges have to ignore the past. Continuity with the past is not a duty but it is a necessity. Obviously, we need to know the past that is to know where we have been, in order to know where we are going, to gain direction. The law persuades the future, and one of the functions of a reasoned judicial opinion is to give direction to the growth of legal doctrine.
[the_ad id=”17141″]Justice denotes the presence of a system, which gives to every man his due. The law is. the practical expression of justice, for the precepts of law are these: to live honestly, to injure no one and to always give every man his due, without being influenced by external pressures and extraneous considerations. Justice would be achieved if each man receives the equivalent of what his knowledge, skills, experience, and credentials are, and if he is enabled to perform the function he can perform best. The just man is hence the man who has right placement doing the best he can and giving to society the full equivalent of what he receives. If men are out of context with what they deserve, injustice prevails. Thus, in the general Aristotelian sense, justice is the sum of all social virtues and in the particular sense it signifies “equality of opportunity” and “equality before the law”.
The concept of justice owes its origin to a great extent to its enunciation by Hammurabi of Babylon (about 1728 to 1686 B.C.) in his well-known Code, in the words, that it was his purpose to make justice appear in the land, to destroy the evil, in order that the strong might not oppress the weak. The theme of justice inheres the maintenance of right relations between the members of the society by an impartial authority, i.e., the Judiciary. However, today as it has ever been, there cannot be justice in the abstract it can only be conceived in terms of the economic, social and political philosophy of the state concerned. In countries with written constitutions, which vest judicial functions in the Courts, it becomes the duty of the judiciary to uphold the concept of justice as enshrined in the economic, social and political base of the state.
Law is an important source of social justice and an effective vehicle of social change. The life of the law is creativity, imagination, innovation, experimentation and faith in search of public order and of human dignity. After all, that is the law of life; that is what life itself is. With the hanging time, the role of a Judge was also changed and what we see is demonstration of judicial activism a device by which Judges exercise their lawmaking power through the application of the doctrine of precedents, the invocation of the concept of public policy, the infusion of law with the principles of equity and the beneficial interpretation of statutes and of the Constitution. This growth of the law is visible in a way, which can be described as unconscious and inarticulate. Laws and statues made applicable to the State in its pre-independence era are being subjected now, in the post-independence era, to rigorous tests and meticulous scrutiny to see if they are conducive to the creation of a genuinely independent society. Justice Cardozo of the United States Supreme Court wrote in his book ‘on the Growth of the Law 1942’.
“When a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be no hesitation in frank avowal and full abandonment.”
[the_ad id=”17150″]The judges’ attitudes about their law making powers are also changing in England. Lord Simonds in the Shaw case 1962 AC 220 at page 268 said:
“Law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessments of human values and the purposes of society.”
Lord Simonds again elaborated this viewpoint in Midland Silicones Ltd. Vs. Scruttons Limited 1962 A C 446 at page 468 in these words:
“The law is developed by the application of old principles to new circumstances. Therein lies its genius.”
In this movement from principles to pragmatism and realism, there is the justification of an active role for judges in order to keep the law relevant to the needs of society.
Liberties guaranteed under Constitution should be protected not only individually but also collectively such as where there is a violation of liberties concerning a group or class of citizens. The judiciary has come to occupy the position of an arbitrator between government and people, with regard to public and private rights. The scope of judiciary law has expanded enormously during the past decade in various parts of the world. And one continually remains of the assertion of the International Commission of Jurists after the Lagos Conference in 1961 that the rule of law embraces those institutions and principles of justice, which are considered minimal to the assurance of human rights and the dignity of man.
Judicial activism now appears to be a prominent feature of many political systems that vest adjudicatory power in an independent judiciary. The scope of judicial varies, however, from one country to another. Where the Courts have been given the power of judicial review of administrative discretion and the legislative action, judicial activism emerges with great eminence. The point I wish to emphasize is that judicial activism is an inseparable feature of the judicial process in democratic settings and a very relevant question arises as to what should be the scope of judicial activism permissible to a judge.
Judicial activism has assumed several forms. In some settings, the judges have been given the discretion to choose alternative courses of action. Certain other settings have what is known as ‘technical activists’. It gives a free choice to the judges to have recourse to action to a wide range of techniques and choices. It is concerned with keeping jurists techniques open-ended. And there is a shift from formalism; judicial activism operates as a device for achieving social justice.[the_ad id=”17144″]
Judicial activism has in recent past demonstrated a practice to convert some constitutional litigation into public interest litigation. This practice is calculated to bring social justice within the reach of the common man. The Supreme Courts in many countries are expanding the frontiers of fundamental rights and of natural justice. They are developing a new normative system of rights insisting that the governments must act reasonably and in the public interest. They are making use of public interest litigation for the purposes of making basic human rights meaningful for the common people and for making it possible for them to realize their social and economic entitlements. Public interest litigation is providing access to justice for the deprived sections of the population. Thus, public interest litigation is acquiring new credibility with the people. It is embarking upon unorthodox and unconventional strategies for bringing justice to the poor. Judges have started presenting new ideas, opening new possibilities, and exercising judicial power in aid of the disadvantages. They are devising new procedures, which would make it easier for the poor to use the legal process for their welfare and betterment.
The sufferings of the people who are disadvantaged cannot be relieved by the mere exercise of writ jurisdiction. The practice of appointing socio-legal commissions of inquiry for the purpose of gathering relevant information is getting institutionalized in certain countries in public interest litigation. There are numerous cases where remedy by way of affirmative action has been dispensed with by some superior Courts. It is clear that when judges grant relief in public interest cases, they do not act as a parallel government. They simply enforce the constitutional rights of the underprivileged and obligate the governments concerned to carry out their legal and constitutional obligations. Thus, the superior Courts are experimenting with different methods and strategies in their resolve to solve the problems arising from the aspiration of countries to work for the development and welfare of rural and urban communities.
It also needs to be said that the jurists of the developing world are asserting that modern jurisprudence must concern itself more and more with access to justice. Inherent in their arguments is their claim that a legal order necessarily affords easy access to all sections of society, access in the sense of effectively utilizing the law, access in the sense of participating in the rulemaking the process, and access in the sense of experiencing positively the benefits of society.[the_ad id=”17151″]
Keeping in mind the present trends in human affairs and human institutions it seems desirable that members of legal profession should make efforts to maintain and improve the legal system. This system should function in a manner that commands public respect and fosters the use of legal remedies to achieve redressal of grievances.
Reliance on law can effectively implement the policies of development. This is because the equation of development contains a heavy social element for which law does provide a satisfactory answer. Legal social engineering requires legal solutions of socio-economic difficulties that call for a methodology for generating useful solutions. Here the need arises for reliable knowledge about the relationship between law and society. Legal effectiveness research would, therefore, be valuable to people in a position to reform the legal order. This would appear to be particularly true of those investigations that relate empirical findings to legal ideals, which are clearly expressed in the written law. Such research might provide law reformers with a kind of leverage for change.
We are highly appreciative of the importance of the role of an advocate in a developing society. This role grows with the role of Judges. As advocate’s input is often crucial not only to the outcome of a case, but also to the quality and the authority of the decision arrived at by the Court. It is only through this sort of cooperation between Judges and advocates that the judiciary and other branches of Government will be able to achieve through law the attainment of the goals they fondly seek. They must assist each other’s creative efforts. Ti is in this kind of hospitable climate that the Courts can play their true role effectively.
