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The Philosophy of Society and Law (By-Utkarsh Singh)
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The Philosophy of Society and Law
Authored By-Utkarsh Singh
The
ancient Indian legal scholars had their own indigenous system and framework,
which was based on principles of reasoning connected to human welfare and
outperformed many other legal systems in the globe at the time. Mayne made the
following observation on the old Indian system and its jurisprudence:
"Indian
law has the oldest pedigree of any non-system of jurisprudence and even now it
shows no signs of decrepitude. At this day it governs races of men
extending from Kashmir to CapeComorin who agree in nothing else except their
submission to it"
The
Indian jurisprudence is considered to be as old as when humans existed as there
is no founder of it other than the creator of the human himself. The ancient
Sanatan Dharma imbibe all the law proper that has developed on the Indian soil
and has been nurtured by it since ages. The Hindu philosophy has been
considered as the all-encompassing philosophy where every Idea and concern
could be accumulated and it is considered as the soul of all the religions and
therefore is ever present and ever ending. Law was at that time the part of
Dharma and there was no conflict or disharmony between both of them as they
constituted a part of a single integrated whole. Where we can say that the
importance of ancient Hindu legal theory, its study and analysis is perhaps
necessary for all round understanding of the present scenario where the Indian
legal system works and the state structure and its jurisprudential background.
1.1.
The
Philosophical Concept Of Dharma:
Dharma
means anything which sustains or is persistent or upholds, the word comes from
the Sanskrit route which means establishing or holding. The statutes and the
laws which are given the name of Dharma hold that a particular society and
individual residing in such a society has to defend and preserve the right
track and also the right path which such an individual would follow; this it
can be said that it is also to an extent a moral system.
According
to Mahanarayanoupanishad, -
The
stability of the universe and the world is with dharma and it is with dharma
hat the subjects are looked after; dharma removes demerits and everyone’s
stability is with dharma. Thus, dharma has been called supreme.
India
being a subcontinent and very old and its foundation is rich in cultural, legal
and political heritage. It was here that the first time an idealistic and
pragmatic legal philosophy evolved based on spiritual as well as the material
will being.
- Dharma
- Artha
- Kama
- Moksha
The
ring of Dharma or the life will as have described in the ancient Hindu
scriptures moved from the attainment of prosperity that is Aartha and moving
through gratification of senses and desires that is Kama with a view at the end
to attain spiritual salvation that is moksh. Indian legal philosophers were not
only dreamers about the spiritual world but also they had values related to
universalism, humanism, rationalism and above all they were also the moralists
who evolved us specific philosophy that was based on the pure concept of
Dharma.
The
concept of Dharma had a very innate relationship with the concept of state and
the ruler in India and the ancient law giver were also clear in their mind as
to the limitation that what would be the consequences of one man's rule so they
had enunciated principle of limited sovereignty which was assigned to the ruler
to administer the state without any legislative power or rule making power. The
thinkers always held law or for that matter the concept of Dharma to be the
superior thing to any form of state or the government where the state was by no
means a source of law as has been said by a number of European legal thinkers
as Hobbes and Hegel. It can be said that the Indian kingship was a trust
relationship and the Indian kings like Harsha and Ashoka looked upon the throne
in that light only and a fear of popular revolt was deterrent for any form of
gross misrule. The Mahabharata also sanctioned rebellion against an unjust
king. Thus the thinkers in India never ever depicted or made out that the state
was a form of evil; it was on the other hand a necessary instrument for the
advancement of law and
Dharma.
where it was said that human beings can find security and warmth through the
instrument of the state and without any sovereign authority to establish law
and order, maintenance of peace could not be possible and the stronger will
swallow the downtrodden like in the manner of a fish. The paramount duty of the
King at that time was to promote the cause of Dharma and if the law was not
maintained by the king the righteousness would soon disappear as was said and
darkness would prevail everywhere. At the end the society itself would cease to
exist and animals would run the street.
In
Mahabharat social contract theory is referred where in the ruler was being appointed
by the God with the consent of people and a form of sanction or punishment that
is dandniti was an instrument that promoted and protected the society and its
welfare and for achieving the ends laid down by the law of Dharma. The Hindu
also developed what is called as the Rajajdharma, in arthashastra and
dharmasastra give a detailed exposition of the concept under which the
protection of people and the maintenance of social order was described as the
vital duties of the state and the ruler. In the Mahabharatha the Rajanushashan
parva is a treasure which is precious house of ideas on the dharrama of the
king - arthashastra declares that "of
a king, religious vow is his readiness of action; satisfactory discharge of duties is his performance of
sacrifices, equal protection to
all is his offer of fees” and the ideal king regards the happiness of
his subjects as his own happiness which can be realized only through the
observance and practice of dharma.
1.2.
Societal
Philosophy Of Law
Law
and society both are intertwined concepts as both exist for each other. In one
way we can say that law has been developed for the welfare and sustenance of
the society and on the other way we can say that society is necessary for
regulation of law and order and maintenance of peace. The concept of law and
society in India has its roots in vedic times and has been represented as such
in various Upanishad and dharamshastra. However, the philosophy related to law
and societal implications and the other way round is not limited to India but
is also a universal concept which has been explained by various propounder and
thinkers. For example, of course there is no such example of irresponsible or
an autocratic or despotic sovereign as of Austin were he says that law is
the command of the sovereign, in the Hindu legal philosophy with unlimited
powers over subjects without any moral or ethical constraints whatsoever. In
the Indian society moral liberty and individual freedom has been guaranteed
within the social
law
of Dharma. The existence of law within a society is made a compulsion from the
times when the state came into existence, the responsibility of the state on
one side was to provide security and warmth to its citizens or the people
residing in it on the other way round state had also the force and power to
compel its citizens or residents to perform such duties and task which was
necessary for its perpetuation. Whereas the concept of state society and law
has been defined uniquely by thinkers and sociologist and various philosophers
in their own manner and style but one thing remains common that for the
existence of consent among individuals it is very much necessary that the state
should exist which has the force or power to check the individual desires and
reaches and also to maintain coherence, law and order in a society for human
survival at end. Where Bryce observes the sanction is the power of imposition
of penalties were for the state it is not always necessary to make laws or
rules of conduct accepted by community. We have instances of certain laws where
we can see that as an originator or sustained there was no state and where the
breaches of such particular laws were visited by form of public opinion with
the power of implementation not inferior to that of the state.
It
should be kept in view that Indian view of society has been to eschew class war
and postulate social harmony by reconciling the claims of conflicting interests
from the stand point of dharma or higher law of morality. The acquisitive west
has been unable to transcend the maxim "greatest good, largest
numbers." Indian scholars, philosophers, and jurists, on the other hand,
were the first to consider world oneness and universal welfare. Indeed, long
before the introduction of so-called modern European civilization and ideals,
Indian philosophers had pondered this crucial issue. Since time immemorial, the
vision of human togetherness and a world free of wars and pain has touched
Indian hearts. Throughout the decades, our one continuous prayer has remained- "Lei
everyone be free from all ills”. Indian ideal of service and sacrifice
always placed material acquisitions and possessions as offerings at the service
of society.
1.3.
Crime, Society And Law
Law
within the fashionable context is confined to rights, legal obligations,
duties, etc. it's during this sense that law is completely different from
Dharma or ‘sadachar” as a result of the previous sustains in particular society
however the latter is all-pervasive and applies to the whole universe. Further,
law reach itself to solely such obligations as square measure created by the
sovereign or the state however dharma includes an abundant wider connotation
and includes spiritual, moral, social and legal activities of group. once more
terribly improper or undesirable conduct is against “sadachara" and thus
against “dharma” additionally, however not by fashionable law unless it's
specifically a prohibited conduct. It must, however, be reiterated that
"sadachar” although cannot be equated with law however resembles the trendy
law. The idea of i.e. virtuous conduct is uniformly applicable throughout,
however it's not therefore with the electronic equipment law. what's lawful at
an area might not be necessarily therefore at another as a result of law being
a dynamic idea, varies in keeping with place and time betting on the values,
customs, physical conditions, etc.
Thus
we see that in Indian the history itself speaks multitude of its legacy in
development of law and society in general and not only that it has also
provided theories and ideas that were used and are now also used were prominent
thinkers of the west have based their conception of society, law and morals for
that matter. But the point of concern is basically that for the ultimate
perpetuation of the society in general and efforts put so that individuals
residing herein live in perfect harmony and vigour it is very much necessary
that such tendencies of delinquency and crime that may emerge in minds of
certain individual out of whim or desire must be curved and stopped. For that
sole purpose it is necessary that the state structure that have been talked of
from Socrates till now is given certain superior powers so that it can
formulate laws and make regulations with respect to curbing these kinds of
tendencies, not only that the state is also responsible for providing education
and health and other social services which are necessary for growth and
survival of human beings so that they that they do not turn towards wrong means
for substantiating their desires and needs. For that matter we would be
analysing certain thinkers and their aspects in this area of law and sociology
and certainly their philosophy about what they have to say about these things
and to what extent their ideas. and conception would be feasible in present
context. It may be said that what we are about to relate is a concept term
called Anthropological Criminology which may also have
certain
aspects of sociology as well. A combination were we shall make out human nature
and criminology for that matter, a field of offending standards based on
grasping the relation that may exist between the nature of a certain crime and
offence and an individual's disposition or inclination to commit a crime
Charles Robert Darwin's (1809–1882) ideas profoundly affected the notion of
social science sociology. However, the philosophy developed from Darwin's
theory of evolution, notably that some species were virtuously superior to
others, was a major impact. This concept was inspired by the Social Theory of
Organic Evolution, but it has since become an important aspect of social
scientific sociology. Between 1881 and 1911, Social Darwinists in the United
States continued the effort.
1.4.
Sociological Theories
·
These theories make out that a
particular situation or environment that may exist in society is a cause for
committing a crime
·
Another school contends that any form
of disorganisation is a perfect cause for deviation from set standards of the
society
·
Edwin Sutherland who propounded the
Differential Association theory makes that a crime is a thing that is
specifically learned.
·
Robert Merton sociologist maintains
strain theory of crime and delinquency which was also a theory heavily
influenced by theories of Durkheim’s ‘Normlessness’ and the concept of anomie
·
Travis Hirchi gave a theory as social
control which made out that why there is more tendency among people who do not
commit crimes.
·
Neutralization theory by sociologist
describes that why people who are committing crimes shed feelings of blame and
shame.
·
Edwin Lemert propounded the labelling
theory which explained that certain people consider themselves outsiders and
not among a particular group and turn towards crime to live up to that
standards.
1.4.1.
Critical Sociological Theory Of
Crime:
- Critical theory is made to be
describing perspectives that range that ultimately conside social justice
as a purposeful and legitimate end
- Criminologist who study ideas
and conception in view of Marx’s principles make out that basically those
in power have full control over law and its enforcement.
- Feminism has also developed
its own theory were it says that females are differently treated in a
society made up of male power structure
- There is another theory as
critical race theory which makes out that people of a specific color are over
represented and are in power than o other. Here it is also made out that
race is an important variable in attempting to explain various dynamics of
criminal justice system.
1.4.2.
Differential Association Theory
This theory
in literal meaning would imply that when individuals in the particular society
base their conduct or the behaviors by association and upon interaction with
each other. In criminology the theory is developed by Edwin Sutherland, who
made out that people and individuals learn values and attitudes, various
techniques for that matter and motives by purposeful interaction with other
people which may also include learning out a criminal behavior. It makes out
and is most of the talked theories of crime and deviance were I focuses on how
any individual may learn criminal attitude. The main theory makes that a person
may chose a path that may be criminal when the balance that exist between the
law breaking exceeds the law abiding scenario, with manifold increase in
tendency to choose path if that individual is surrounded by the likeminded
people. However, this might not be true that this theory would deny any
intention or personal reasons that exist for committing a particular crime. For
example, if an individual is hungry in any case he will try to steal food if he
finds that to be necessary for survival, were it can be said that both criminal
minded and non-criminal persons are motivated by need for money and gain. Were
Sutherland maintaining that individuals encounter untoward situations which are
non-harmonious and see influences were they get involved in criminalistics
norms and behave similarly. His main points could be as below:
·
The
behaviours as regards crime is a learning process that is learned.
·
In the
process of interaction and communication as a consequence criminal behaviour is
learned
·
There
exists a personal group in which principal art of the criminal behaviour gets
inculcated in an individual.
·
Criminal
behaviour learning includes learning techniques of crime committing, and per se
motive formation, direction to commit specific offence, attitudes and
rationalization
·
What may be
a specific direction of committing a crime is learned from the legal codes that
define the favourable and non-favourable pathways.
·
Differential
associations vary in frequency etc.
·
The same
kind of learning a criminal behaviour exist as there exist in other forms of
other specific areas of learning.
·
The general
needs and values, desires do not specifically explain the criminal behaviour
though those are motivated by the same.
The frequency and intensity of interaction are two
fundamental characteristics of differential associations. For explaining
criminal behaviour, the number of times someone is exposed to a given concept
and the intent for which the interaction began are both critical. The process of learning
criminal behaviour is comparable to that of learning any other sort of
behaviour. According to Sutherland, there is no one-size-fits-all method for
learning non-normative behaviours. One of the most striking features of this
theory is that it aims to explain more than just delinquency and crime
committed by people from lower socioeconomic groups. Because crime is thought
to be a learned behaviour, the theory also applies to white-collar, corporate,
and organised crime.
1.4.3.
Economic
Theory
There is no specific definition given by any
Criminologists relating to the term ‘economic crime’. the foremost unremarkably
accepted definition relating to the term is that economic crimes ar done by the
offenders principally upon a motivation for economic gain. An economic crime is
planned of as an offense upon that people or cluster of people purposefully act
in a criminal manner to realize money returns. the most feature of those styles
of crimes is that the offenders in several cases won’t be ready to distinguish
between the explanations that persuaded them to try to the crime and also the
realizations and justifications that follow them.
Many social scientists argue that crime is closely
associated with work, education, and financial condition. state and crime area
unit by-products or perhaps measures of social exclusion. several of the
criminals typically have restricted education or possess restricted labour
market skills. Another major facet concerning the commission of crimes is that
a lot of of the offenders contemplate crime as a paid employment wherever they
will generate financial gain. a number of the persons commit crime strictly for
meeting their wants. Thus, the theory of crime has targeted on sanction effects
and also the relationship between work and crime. except for this, there are a
unit sure different factors that lead someone to commit a crime:
- Expected
gains from crime in comparison with legal works
- probability
of being caught and condemned
- Extend
of penalty
- Opportunities
in legal activities.
The influence of society on a person's personality
is significant. The character of a community is quickly mirrored in the
character of an individual. As a result, someone who lives in a smart and
healthy society may have a smarter personality than someone who lives in a slum
or similar environment. This comment was well-established in Bonger's theory of
economic guilt. There is a causal link between crime and contemporary economic
and social situations, according to William Adriaan Bonger. He maintained that
crime is a natural response to existing cultural conditions and that it is a
social phenomenon. In a more primitive or extra-social civilization, he said,
survival demands more selfless unselfishness within the community.
When capitalist economy emerges, there have been
social forces of competition and wealth, leading to associate degree unequal
distribution of resources that conjointly result in individualism. Once
self-interest and additional self-centred impulses assert during a person,
crime emerges. folks with an occasional economic background would commit a
criminal offense out of would like or out of a way of injustice. Out of a
desire or a sense of unfairness, someone from a lower socioeconomic background
might commit a criminal offence. Those who exercise power and impose punishment
equate the notion of crime with damage or danger of damage to the powerful
property and financial interests. Bonger also argued that street crime was the
outcome of a variety of circumstances in which employees were in rivalry with
one
another. He argued that poverty alone could not be a
justification for crime, but that individualism, consumerism, misguided
desires, racism, and incorrect beliefs about violence may all be factors.
1.4.4.
The Multiple Factor Theory
Throughout history, numerous sociologists and
criminologists have proposed diverse theories expressing differing viewpoints
in order to develop a particular theoretical explanation for any sort of
criminal activity, but no single hypothesis has been able to fully explain the
issue. As a result, several sociologists decided to take a new approach,
combining numerous ideas and conceptions into a theory known as Multiple Factor
Theory.
Supporters of this theory say that crime is caused
by a complex interplay of causes that cannot be explained in simple words. This
position is supported by the writings of renowned American specialist William
Healy, who articulated his beliefs on the multiple causes theory. Prof. Healy
established that a person's delinquency is the result of a set of
circumstances—say, eight or ten—that push him to engage in criminal behaviour.
He did agree, however, that not all of the
conditions surrounding a crime are equally relevant as a cause of the crime.
The extent to which they influence crime may also differ, with some having a
stronger impact than others. On the other side, Albert Francis Charles Augustus
Emmanuel Cohen has slammed this theory, stating that it gives no single
clarification that can be used to build a case.
It is clear from the preceding study that
sociologists consider that crime to be a particular result of environmental
aberrations and a wide range of social situations. Under the following
headings, the inter-relationship between criminalism and a number of these
factors is also discussed:
- Mobility
In recent
years, the emergence of industrial activity and urbanisation has led to an
increase in communication, transit facilities, and the dissemination of ideas
through the press and platform. As a result, human interaction has moved away
from close relationships and toward quality possibilities. People who move to new
places, especially places where they are strangers, are more likely to commit
crimes because their chances of being detected are considerably reduced. As a
result, mobility can be a source of social disorganisation, leading to deviant
behaviour as a result of a lack of parental control.
The impact
of newspaper crime reporting on guiltiness supports crime and delinquency in
two ways, according to Barnes & Teeters. To begin with, criminals with
unstable minds and psychopaths are naturally driven to such acts; and, as a
result of the continual broadcasting of crime-news, people begin to lose faith
in the police and law-enforcement agencies. Aside from that, deviants pick up
new illegal habits via crime-news items in newspapers and magazines.
b. Cultural Conflict:
The society in which we live is always evolving, and
this is an unavoidable phenomenon. The impact of modernity, urbanisation, and
other variables in today's fast-paced society can sometimes lead to social
disorganisation, which can lead to cultural clashes between different sections.
There's also a contrast to be made between old and modern values, native and
foreign values, and ancient values, as well as government-imposed values.
The Cultural Transmission Theory of Crime, developed
by Shah and McKay, was a dominant sociology theory of the twentieth century,
and it accurately explained how criminality arises from cultural conflict.
"Traditions of delinquency are passed via recurrent generations of similar
tenancy in the same way that language and attitudes are conveyed," the
notion simply explains.
The incapacity of native communities to understand
their people' common beliefs or address difficulties without being
exceptionally knowledgeable about them produces friction, which leads to
deviant behaviour. Criminal traditions, on the other hand, are frequently
rooted in the operation of a society and coexist with normal ideals.
Sutherland coined the term "differential social
disorganisation" to characterise the type of development that occurs
frequently in lower-class neighbourhoods. He identifies three major sources of
cultural conflict:
·
residential
instability;
·
social or
ethnic heterogeneity; and
·
impoverishment.
c. Family
Background:
The basic desires of children are expected to be met
in the creation of a family. As a result, the youngster should feel like he has
particular privileges and protection in his family, and that his parents and
other family members love and like him. Children are taught the values of
affection, respect, and responsibility toward others as a result of this sense
of safety, warmth, and reliance.
Thus, via his own life experiences and the
construction of home, the child instinctively learns to adapt to his
environment and adopts life values such as respect for others, quality, trait,
and collaboration. As a result, a toddler reared in a dysfunctional family is
almost guaranteed to develop feelings of guilt.
Lack of
parental control over children as a result of a parent's death, divorce, or
desertion, or their content or disease, may give a safe haven for children to
engage in criminal behaviour. Again, frequent quarrels among elders, undue
dominance of one over the other, stepmotherly treatment of children, frequent
births within the family, elder immorality, misery, financial condition, or an
unhealthy family environment, and the like may lead to the neglect of a child,
who, lacking an adequate outlet for his skills, may turn to crime. To add to
the preceding points, kid delinquency can be caused by the state, a lack of
financial gain, or a parent's ongoing long absence from home for the sake of
survival.
Article Information
The Philosophy of Society and Law (By-Utkarsh Singh)
Authors: Utkarsh Singh
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/12
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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