Skip to main content

The Moral Basis of Indian Law

Now, while the debate exists in the philosophy of law about the relationship between political laws and the moral law, attempts to base the laws on anything other than the moral law sooner face problems of justifiability. While it may be the case that reductionism of politics to ethics is not totally feasible, resort to anti reductionism is only self-defeating. And, then authority arguments that try to derive validity of laws from higher laws, which in return try to derive their validity from a much higher one (e.g. Hans Kelsen's Pure Theory of Law), will have to strike ceiling at some point ( See Marmor, A. Philosophy of Law, Princeton, 2011). For instance, the judges under Hitler's regime could not be absolved upon the relativist presumption that they were only conforming to some law of a sovereign nation. The question of validity and justice could not be anchored in such "sovereign" authority alone.

However, this doesn't mean that authority doesn't count. In fact, authority does often prescribe laws in many cases, but the laws are only instrumental towards a much larger cause. Thus, we have law-givers such as Solon, Moses, and Manu. However, the validity of the prescriptions are based on a deeper intent. The intent or the spirit of the law is what matters. It also means that where laws fail to serve the intent, they must fade away and give place to the new.

Plato's elaborative study of justice as an ethical virtue in the analogically larger Republic is based on the same understanding that ethics and politics are inseparable. Similarly, his disciple Aristotle didn't see any reason to separate the both. In the Biblical tradition, the entire Mosaic Law was based on the Decalogue or the Ten Commandments, which were the essence of the Law. Jesus pointed out that they all hung on the two Great Commandments: To love God absolutely and to love one's neighbor as oneself. Of course, Paul, later submitted that the Law was only a revealer and a restricter. It revealed human sinfulness and it was meant to restrict the lawless (it was given for the lawless). Jesus pointed out that certain laws (for instance, the law of divorce) were only permissive because of the hardness of human hearts, but didn't reflect the original intent of human creation.

Looking, now, into the Indian Constitution, one asks what is Indian Law based upon ultimately. The Preamble makes the democratic nature of the Republic clear. And, so it is the people's government for sure. But, the moral philosophy is indicated in words like "humanism" and "scientific temper", featured later on under Fundamental Duties. While the temper is scientific, the philosophical ground is humanism and its philosophy of man is condensed in the section called Fundamental Rights. The Law exists to ensure the protection of these fundamental rights of every Indian citizen. Consequently, any law that is inconsistent with these rights is automatically annulled.

The Fundamental Rights are not prescriptions to the people but declarations of humanism. These declarations are prescriptive only to the laws, since the laws are expected to conform to them. Thus, they not only inform but also serve as reference points, as absolute foundation, for the laws. As such, we may refer to them, with regard to humanism, as the intent, or spirit of the laws; perhaps even as the Law of the laws since they serve as the measure of all laws.

But, how do we know that these declarations are true? Perhaps, it is similar to asking about the laws of logic, "How does one know whether they are true?" The answer is: by using them or trying not to use them. One cannot deny them, but then one cannot deny anything without using them. Similarly, one cannot deny the Fundamental Rights without himself losing the rights.

Comments

Popular posts from this blog

Story of the Song Stuti Aradhana Upar Jati Hei

In 1995, while waiting alone in a van for his colleagues who had gone shopping, Wilson Burhankar, presently Senior Associate Pastor at the Fellowship Church of Itarsi, fell into ecstasy remembering the awesome goodness of God in his life. It was his first year in the Seminary as a teacher and his first year as a full-time Worship Leader at the Itarsi Church. He remembered the ill-battered lifestyle that he had lived prior to knowing Christ, the drunken boozes, the street fights, the nights spent singing at religious gatherings, and the continual stress and pain inflicted on his family because of his sin-laden lifestyle. But, one day the Lord changed his life all over. He came to the Seminary and underwent three years of theological training. The greatest surprise came when Dr. Thomas asked him to consider to stay back and minister here as a worship leader. Inside he felt totally unworthy, and yet was confident of the grace of the Lord. As he sat in the van considering these things, the...

Ibadat Karo by Anil & Reena Kant (Lyrics and Translation)

IBADAT KARO – ANIL & REENA KANT CHORUS: Hei duniya ke logon oonchi aawaj karon O people of the world, lift up your voice Gawon khushi key geet And sing the songs of joy Uska gungaan karo Declare praises of Him Ibadat karo uski Ibadat karo (x2) Worship Him, Worship… (Repeat Chorus) 1. Yaad karo ki vahi ek Khuda hein Remember that He alone is God Hum ko ye jeevan useene diya hein It is He who has given us this life Us charagah se hum sab hein aaye We all have come from that (spring) Humd o sana ke hum geet gaaye Let’s sing the song of His praise Rab ka tum shukar karo Give thanks to the Lord Oonchi aawaj karo Lift up your voice Gawon khushi key geet And sing the songs of joy Uska gungaan karo Declare praises of Him Ibadat karo uski Ibadat karo (x2) Worship Him, Worship… 2. Naamey Khudawand kitna mubaarak How blessed is the Name of the Lord! Mera Khudawand kitna bhala hein My God, How good is He! Rehmat hei uski sadiyon purani His compassion is from ageless past Wafa ka azar se yahi s...

Origin of the Poem "When God Wants To Drill A Man"

The poem as quoted in Oswald J. Sander's (not to be confused with Oswald Chambers (1874-1917)) Spiritual Leadership (1967) credits it to an "Author Unknown". The poem as he quotes it is as follows: When God wants to drill a man    And thrill a man    And skill a man, When God wants to mold a man    To play the noblest part; When He yearns with all His heart    To create so great and bold a man That all the world shall be amazed,    Watch His methods, watch His ways! How He ruthlessly perfects    Whom He royally elects! How He hammers him and hurts him,    And with mighty blows converts him Into trial shapes of clay which    Only God understands; While his tortured heart is crying    And he lifts beseeching hands! How He bends but never breaks    When his good He undertakes; How He uses whom He chooses    And with every purpose fuses him;    By ev...