20 Dec 2007

Why LAW? (Law Series - 2)

Situation 1: Mr. Giant approaches Mr. Cute and says 'hey dumbo, I don't like your face!!! I am going to reshape.' Gives a punch and blow on the eye. Laughs and leaves. Mr. Cute is left ailing.

Situation 2: Miss Yojyna plans to goes for shopping at Oxford Street. She takes a cab from Regent Street and asks the driver to drop her at the nearest bus stop. The driver says 'Madam, why are you taking the cab.
Oxford Street is just around the corner, just walk.' But she insists. So he says, 'alright. I am gonna take you to Oxford Street but you have to pay double the charge of whatever comes on the machine.' She responds, 'alright. so be it'. The driver drops her at the bus stop and asks for double the amount, as promised by her. She replies 'you cheat, you liar, you thug!!! you harressed me and tempted me to get in your car so that you could sell me to a sex-shop. help, people help !!!' The cab driver sees people accumulating and so runs off.

Do these situations make you think? Is there something unfair going on in here? Is everything ok? Are the people crazy? Or is it just an everyday affair? Happens just around the corner everyday, right?

I will try to explore the answers to these while dealing with the issue, why law?

Though the question 'why law' is not as perplexing a question as to 'what is law' but the answer to this is essentially embedded in the determination of that other question. Thus the most approximate answer to this 'why' is that law is needed to regulate human behaviour. But another 'why' leads to the question, 'why do we need to regulate human behaviour?' and it is here that we need to appreciate the nuances of a social structure, that also leads us towards discovering the answer to the question 'why law'.

Defining human behaviour is, essentially, a prediction as to interactions which take place when two humans interact; do they act friendly, do they turn hostile, do they act as unknown, etc. The reason is essentially the xenophobic and self-preserving tendencies of humans, coupled with the fear-factor and self-interest motivations, which influence interactions. Therefore, there arises a need for an independent unbiased person/institution to define the specific parameter in which the interactions should take place. These parameters acts as the rules of bounded rationality in which the interactions should take place.

The rules (or 'law') conceive general and specific situations which are to be promoted or avoided and accordingly devise mechanisms influencing these interactions. To illustrate, the rules prohibit interactions between parties where there is an inequality of bargaining power (therefore the concept of undue influence and other 'vires vitiating consent' in the law of contracts). Also, the law gives a legal protection to those entities which are considered to be ignorant of their self interests (like doli incapax and similarly the concept of statutory rape in relation to minors, etc.). It is here relevant to point out that these rules vary across countries and regions, depending upon the social ethos and morality issues operating therein. For example, while
India prescribes laws against the harmful practices of Sati and child-marriage, there may not be any need for these laws in European jurisdictions wherein such practices are unknown.

As regards the side of promotional factors, one illustration can be the promotion of research and development, intellectual outputs etc.; therefore the protection and right of exclusive exploitation to the harbingers of intellectual property. Similarly, the law rewards good behaviour and so the concept of probation.

Therefore law comes to define the environment in which the interaction should take place; the manner in which interaction should take place; the grounds for and effects of abuse; prohibitions and debarring of erring individuals; rewards for good behaviour; etc. Thus law is required to govern; govern the governed (individual or subjects) and govern the governing (person or institution). Thus these set of rules act as the paramount basis for governance, and this is how the legal system works. And therefore we have LAW.

Now let us come back to our two situations. It may be right in a few places that Mr. Cute was punched. But a majority of people will say that this was wrong on the part of Mr. Giant and he must be punished for that. But why should he be punished. Did he do anything wrong? Not until it is recognized that the conduct of Mr. Giant was unacceptable in a social system and there is a punishment prescribed for that. Doing that, is precisely what law is for. It recognizes and defines what is impermissible social behaviour and proscribes mechanism to ensure that such incident is not repeated.

Similarly, in the second situation, while it was wrong on the part of the cab-driver to ask double payment, it was similarly wrong on the part of Miss Yogjna to shout at him in an offensive and rude manner. Now it depends upon the social perspective in which we are in, to decide what law should prescribe for it. Should the driver be held to have done an acceptable act (and thus there be a law to prohibit that) or the lady to have done something obnoxious (and thus dealt with accordingly) or should both of them be taken to task for what they did. I would leave you with that, to define in your own terms as to what should have been the next step that law would have taken after the incident took place, of if you desire, what should the law say for such situations.

** [ For general interest, I may as well point out that these rules are subjective, subjective to the one laying down these rules (and therefore they vary). This is for the reason that societies, invariably, identify a chosen one (or chosen few) to lay down these rules. The selection process of this chosen group may again be laid down by habits or prevalent practices. This chosen group remains responsible for laying down these rules in a manner, as it is so expected from it, which is in the best interests of those to whom these rules apply. For example, in early
England the King was the 'fountain-head of justice', next to God and was considered the chosen one to lay down the law. Now the system that works is termed as the 'rule of law' i.e. no one is above the law, the law-maker himself.

Thus, while there may be a reason behind the legal rules, which may as well be clearly evident from the rule itself (like a rule prohibiting corruption / bribery etc.), there may not be an identifiable reason behind the rule (like why a particular age is declared as the age at which an individual attains majority). These are questions mostly left unanswered and justified as 'legislative wisdom'. ] **

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