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AN ANALYTICAL STUDY ON THE LEGAL PHILOSOPHIES THAT BINDS THE INDIAN CONSTITUTION THROUGH THE LENS OF LEGAL PHILOSOPHY OF ROSCOE POUND
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AN ANALYTICAL STUDY ON THE LEGAL PHILOSOPHIES THAT BINDS THE
INDIAN CONSTITUTION THROUGH THE LENS OF LEGAL PHILOSOPHY OF ROSCOE POUND
AURTHORED BY - SARATHY G
1. INTRODUCTION
Among all
sovereign nations, India has the longest constitution. It is essentially a
document that provides the core values, norms, and regulations that underpin a
nation. It establishes the fundamental guidelines for how the government should
operate and spells out how it should interact with its organs. The philosophies
of the Indian constitution is based on ideas such as democratic, secularism,
socialism, the rule of law, Fundamental duties, and rights, and so forth.
The "Theory of Interests"
introduced by Roscoe Pound asserts that "Interest" is a demand or a
desire that people or groups attempt to gratify, such as the right to property,
free will, etc. These very interests served as the impetus for the creation of
law, which in turn were intended to safeguard and advance the unique
interests of different people and groups which goes on like a cycle.
His approach emphasises how the law
reflects social and cultural values in addition to being a system of rules and
regulations. Since everyone's interests are unique and depend on their
environment, upbringing, and culture, by pursuing and satiating them, they
eventually get enshrined in the law. In order to shed light on the legal
philosophies that underlies the Indian Constitution, this study will attempt to
investigate how the Indian Constitution and Pound's theory of interest relate
to one another.
1.1. STATEMENT OF PROBLEM
The philosophies such as fundamental
duties, rights and legal principles are all enshrined in the Indian
Constitution. Pound's theory of interest, states that law or legal rights
are established to safeguard and advance the diverse interests of the people,
which vary from person to person owing to a variety of factors. This study
tries to examine how far can Pound’s theory can be applied to the Indian
Constitution’s philosophies.
1.2. RESEARCH OBJECTIVES
·
To provide a detailed analysis of the legal
philosophies that binds the Indian Constitution
·
To dive deep on Roscoe Pound’s theory of interest and
understand its application on the Indian Constitution
1.3. SCOPE AND LIMITATIONS
This research focuses on the Indian
Constitution and how Pound's theory of interest relates to the
constitution of India. Therefore, scope of this research will be
solely on the Indian Constitution and Pound's sociological jurisprudence,
not other philosophers, or other constitutions.
There are several limitations on
this study that must be acknowledged. First, just a small number of secondary
sources were used in the investigation. Second, because the research is mostly
reliant on the researcher's arguments, not every argument can be supported by a
source owing to a shortage of sources, Moreover, every argument is open to
biases that may arise from the researcher's analysis and interpretation of the
data. Thirdly, given only ten days to concentrate on this research while also
working on two other research topics, the researcher does not have enough time
to devote to it so there might not be a detailed analysis to substantiate the
objectives to be attained in this research.
1.4. RESEARCH METHODOLOGY
This research being not being a
well-researched topic calls for a theoretical research methodology. Theoretical
research involves the researcher’s development of theories and expanding
existing ones. This is all done by analysing the legal philosophies of the
Constitution and the Interest theory by Pound.
2. REVIEW OF
LITERATURE
·
Understanding Jurisprudence: An Introduction to Legal Theory by Raymond
Wacks:
The Book by Wacks
provides a comprehensive and understandable review of the difficult and
confusing subject of sociological jurisprudence. This book does a good job
of explaining sociological jurisprudence and emphasises that it is all about
the social context of legal concepts and how the law is shaped by society.
The different ways Pound's idea has been developed and criticized by
various theorists are examined in-depth throughout the course of several
chapters on this specific subject.
·
Jurisprudence-The philosophy and method of law by Edgar Bodenheimer:
The book does justice
explaining sociological jurisprudence, including its history and where it
originated from. The author makes the case that sociological jurisprudence
provides a perspective on how social environment is recognised by law and how
it influenced the creation of legal institutions.
·
Roscoe Pound and Sociological Jurisprudence by Julius Stone:
Julius Stone starts off
with Pound’s perspective on the function of law in the society, highlighting
his theory that law ought to be viewed as a vessel for advancing justice and
welfare. Furthermore, the article gives a overlook of Pound’s works such as the
book “The Spirit of the Common Law” and others to name a few, and discusses how
his concepts has been accepted and interpreted by legal theorists of next
generations.
Constitution is a legal document
having a special legal sanctity, which sets out the framework and the principal
functions of the organs of the government of a state, and declares the
principles governing the operation of those organs[1]. The
Indian constitution aims to sets the basic structure, powers and primary duties
of the government and also explains how each institution should interact with
others.
Through the constitution, the states
have reasserted certain legal principles. The Indian constitution is a example
of democratic legislation, it upholds the citizen’s fundamental rights among
other things it performs. India has one of the longest constitutions and that
is needed for diverse nation like Indian, with the people following different
religions, speaking different languages, etc. Because of the diversity of the
nation, the constitution is based of different philosophies. These philosophies
are all inspired by different factors like the citizens, morals and ideals.
3.1. BACKGROUND OF THE INDIAN CONSTITUTION
From the its development during colonization
till present, the administration system of India has changed. Prior to 1947,
India was divided into two main groups – the 11 province British India and the
princely states governed by the Indian princes under the subsidiary alliance
policy. Eventually they both came together to form the Indian Union.
The constitution from its inception
has gone through many changes due to numerous acts and amendments that were
added, they all helped in its advancement. For instance, the Regulating Act
1773, was the first ever step taken by the British to oversee and control the
East India Company’s affairs. Then, with the passage of the Charter Act 1833,
India made steps towards centralization by making the governor-general of
Bengal as the governor-general of India.
Then the Government of India act
1858, replaced the rule of the company with the Crown’s powers, which the
secretary of the state for India wielded. Then came Indian Council Act 1861,
which established Indian representation in organizations like legislative
councils etc.
Additionally, the Government of India
Acts of 1919 and 1935 added to their own rules and aided in the constitution's
development. The Indian constitution was enacted by the constituent assembly on
November 26, 1949, following India's independence. According to the
constitution, India is a sovereign socialist, secular, democratic republic with
a president as its head. The constitution has undergone numerous amendments—105
to be exact—and is one of the longest ever.
3.2. LEGAL PHILOSOPHY OF THE INDIAN
CONSTITUTION
The Indian constitution is founded on
a number of legal philosophies that represent the national values and
guiding ideas. These legal philosophies influence how the Constitution is
interpreted and used because they are woven into its structure. The
philosophies have been restricted to the directive principles of the state,
fundamental rights and duties, the preamble, socialism, secularism, and
democracy values established in the constitution in order to narrow the
project's research.
3.2.1. DIRECTIVE PRINCIPLES OF THE STATE
Directive principles of the state or
DPSP is dealt under Art 36-51 of the Indian Constitution. They are borrowed
from the Ireland Constitution which itself is copied from the Spanish
Constitution. DPSP are tenets that the state is supposed to keep in mind as it
creates policies and passes legislation. Although the Indian Constitution did
not initially categorise DPSPs, they are typically divided into three types
based on their content and direction: socialistic principles, Gandhian
principles, and liberal-intellectual principles.
3.2.1.1.
SOCIALISTIC PRINCIPLES
The concept
of "Socialism" is the foundation of the Socialistic Directive
Principles. The state must provide social and economic equality to all its
citizens in order to qualify as a welfare state, which is its ultimate purpose.
The socialistic principles are covered in the following articles – 38, 39, 39A,
41, 42, 43, 43A and 47.
3.2.1.2.
GANDHIAN PRINCIPLES
Gandhian
Principles are ideologies based on Gandhi. Some of Gandhi's ideas were adopted
as Directive Principles in order to realise his dreams. Some of his ideas are
incorporated into the DPSP, which provides guidance to the state through these articles
– 40, 43, 43B, 46, 47, 48.
3.2.1.3.
LIBERAL-INTELLECTUAL PRINCPLES
These
principles reflect the liberalism ideology and tries to promote equality to
all. These articles cover those ideas – 44, 45, 48, 48A, 49, 50 and 51.
3.2.2. FUNDAMENTAL RIGHTS
Fundamental
rights are basic human rights given to the citizen by the constitution; without
these rights it will be difficult to progress as nation nor preserve human
dignity. Art 12-35 covers these rights. They are called fundamental rights
because they are enshrined in the constitution and can be enforced in the court
in case of violation of one’s fundamental rights. These rights are-
Ø
Right to equality - These rights vary from abolishment of untouchability, to giving equal
opportunities, no discrimination etc.
Ø
Right to freedom - These rights vary from freedom of speech, right to assemble,
Protection of liberty, etc.
Ø
Right against exploitation - These rights are prohibition of human trafficking and
child labour.
Ø
Right to freedom of religion - These rights vary from propagating religion, maintaining of
religious institutions, no need to pay tax for maintain religious institutions.
Ø
Minorities Rights - These rights vary from protection of minority interests and minorities
education opportunities and institutions.
Ø
Right to constitutional remedies - This right is for individual to move their case to supreme
court if they feel they have deprived of their justice.
These fundamental rights are the
backbone of our nation and if they are breached by anyone, the person’s whose
rights have been breached can straight move their case to supreme court
bypassing the lower courts, that is how important these rights are.
3.2.3. FUNDAMENTAL
DUTIES
Fundamental
Duties are the moral obligations that Indian people must fulfil in order to
maintain the nation's unity and foster a sense of patriotism. The Constitution
(42nd Amendment Act, 1976) added the fundamental duties to Part IV-A of
the Constitution. The Constitution's
Article 51(A)[2] lists 11
fundamental obligations. These are a
constant reminder to the people of India that while they can enjoy their
fundamental rights, they still have to perform their duties to the society and
the nation. They encourage a sense of devotion and discipline among the people
and act as an inspiration for the people. These duties guide the citizen in the
proper course and also tell them that they are not just spectators but also an
active participant in the nation.
3.2.4. RULE
OF LAW
Le
principle de legalite which literally translated to “the principle of legality”
is the origin for the term Rule of law. It is one of the most fundamental legal
philosophies that the Constitution is based on. Numerous scholars have
described the doctrine of rule of law as a representation of supreme authority
which no men can overrule. In the case Gouriet
v Union of post office workers[3], it
was held that no matter how powerful a person may be, law will always prevail
over them.
Even if the concept of ‘rule of law’
has been use plentiful times in courts, it is not clearly defined in the
constitution. But it doesn’t matter if it is not recognised as the basic idea
of rule of law is included into many provisions of the constitution. For
example, in the Preamble clearly expresses promotion of equality and justice.
In Art 14[4],
it states that the state shall not deny to any person equality before the law
or the equal protection of laws within India.
4. EXPLORING
ROSCOE POUND’S LEGAL PHILSOPHY
Pound, the leading exponent of
‘sociological jurisprudence’, lived a long and productive life. His prolific
output, with its propensity for ‘classification’ is, to a large extent,
consolidated in his five-volume work, Jurisprudence, which was published in
1959. It constitutes a powerful reaction against British analytical legal
theory, and demonstrates a knowledge of and sympathy for Continental juristic
thought.[5]
Pound believed there existed a
concept called ‘social engineering.’ It refers to his belief that law should be
serve as a tool for shaping and improving society efficiently. Law to him,
should be responsive to the dynamic changing social conditions and should be
used to achieve desired social outcomes. For Pound the task of lawyers and
legislators is ‘social engineering’.[6]
Through law, we identify and protect certain demands called ‘interests’, which
leads to social cohesion.
A human being's (individual or
collective) interest is a demand or desire that they attempt to satisfy. We
shall create social cohesion, which is the harmonious integration of persons
and groups in a society, as described above paragraph, by identifying and
defending the interests. Through social engineering, we may effectively create
a society that guarantees the fulfilment of the greatest number of interests
with the least amount of resource waste. To put it simply, we safeguard and satisfy
these interests, resulting in social cohesion, through law and lawmakers who
carry out their social engineering work.
There
are various interests according to Roscoe Pound’ theory of interests and they
are –
Ø Individual Interests – These are what humans wants as a
individual living being like freedom of speech, movement, life etc. These
include
o
Personality:
These include freedom of will, privacy and etc.
o
Domestic
relations: These include wanting children, husband and wives.
o
Interest
of substance: These include interest in property, employment and succession.
Ø Public Interests – These are interests that humans
can hold against the state and what the state owes to the humans as a political
organization, like right to ration
Ø Social Interests – These interests are what humans
own to a society such as general security, conservations of social resources.
This includes social interest in security of social institutions, in general
morals, in general progress.
In an event
of conflicts of interests, Pound argues that they may be weighed only against
other interests on the same thought or line. Therefore, an individual interest
cannot be weighed against an public interests. In the hierarchy of the
interests, the social interest comes first, with public interest in the second
and finally individual interests in the end.
Pound stated that to achieve social
cohesion maximum number of interests must be satisfied. But how can we recognise
all the interests? Clearly not all interests can be satisfied, as each interest
differ from one other based on the individual or the group’s environment, culture
and other factors. Here is where Jural postulates come into play. Jural
Postulates refers to the principles that on which the interests are recognised,
if the interests apply with the jural postulates, they are recognised. These
postulates are the foundational base for laws. Pound identified 5 postulates
and they are – No intentional aggression, Beneficial control over what people acquire
under the existing social and economic order, good faith in dealings, Due care not
to injure, Control over dangerous activities.[7]
Pound said that these postulates are
not absolute and they have a relative value. They set a ideal standard which
law should pursue in a society. These postulates are changing in nature and
newer postulates may emerge.
4.1. NO INTENTIONAL AGGRESSION
The main objective of law is to stop
intentional aggression between individuals or groups. So therefore, the
interest of an individual or the group should be that they do not cause
aggression towards another intentionally. If the interest does not fulfil this
postulate, it cannot be turned into law. It is also important to note that
Pound didn’t advocate for complete termination of aggression, he acknowledged
there exists a little aggression in humans but law should try to minimise it.
Moreover, intentional aggression can lead to social inequalities, such as
discrimination and prejudice.
4.2. BENEFICIAL CONTROL OVER WHAT PEOPLE
ACQUIRE UNDER THE EXISTING SOCIAL AND ECONOMIC ORDER
When a person invests their time and
efforts to achieve a thing, they have legitimate claim over it and no other
person can enjoy fruits of other person’s labour.
4.3. GOOD FAITH IN DEALINGS
This postulates states that in a
civilized society, men must should act in good faith and should carry out their
undertaking accordingly. Moreover, men must be able to assume that those with
whom they deal with will also act in good faith.
4.4. DUE CARE NOT TO INJURE
Men who engage in some type of
conduct should take due care not to injure any other person or cause
unreasonable risk of injury upon others.
4.5. CONTROL OVER DANGEROUS ACTIVITES
Similar to the above postulate, men
who engage in activities that are considered dangerous, must have control over
them so that the act will not cause injury to others.
5. INTERPLAY
BETWEEN POUND’S THEORY OF SOCIOLOGICAL JURISPRUDENCE AND THE LEGAL PHILOSOPHIES
OF THE INDIAN CONSTITUTION
Pound argues that law is a tool for
social engineering which is used to achieve social cohesion. He also states
that law as such is inspired by interest which rise from different social contexts.
This law should be adaptable and address the changes that happen in the world.
The philosophy behind the Indian constitution is based on similar notion of
Pound’s. Like how he states that law is inspired by interests which are in turn
rise due social context, traditions and other factors, the Constitution also
draws inspiration from various traditions and the from the freedom struggle.
This chapter will align the above stated legal philosophies and check whether
they align with the postulates laid by Pound to recognised as an Interest.
5.1. DIRECTIVE PRINCIPLES
Ø
No intentional aggression – The Liberal-Intellectual principles aligns with the first
postulate. The postulate basically talks that no one should intentionally harm someone
in pursuit of their interest and the prevention of the same. This postulate’s influence can be clearly
seen in article 51[8], which
talks about promotion of international peace and security, fostering respect
for international law and treaties. While it does not directly delve about
intentional aggression, this article tries to prevent from aggression happening
by promoting peace and at the same time respecting international law which
discourages acts of aggression and promotes peaceful solutions. Therefore, the
first postulate aligns with DPSP
Ø
Beneficial control over what people acquire under the existing social and
economic conditions –
The DPSP and the second postulate by Pound go hand in hand. Both talk about
individual enjoying their fruits of labour and no one having claim over it. The
effect of the postulate can be observed in socialistic principles such as
article 39[9], which prohibits the concentration of wealth and
production resources and calls for equal pay for work done by men and women.
This all stops people from taking advantage of the poor, something the
postulate also aims to stop even though it neither particularly addresses the
poor nor the rich. Therefore, the second postulate aligns with DPSP
Ø
Good faith in dealings – This postulate applies to DPSP, specifically under
socialistic principles and that too under article 39[10]. The postulate strives for a fair
dealing between individuals or groups in pursuit of interest. This is evident
in article 39, which lays out various guideline like equitable distribution of
material resources, equal pay for men and women and finally promotion of equal
justice. This is all influenced by the notion of fairness and equality, which
the postulate also strives to achieve. Therefore, the third postulate aligns
with DPSP.
Ø
Care not to injure – DPSP goes hand in hand with the fourth postulate also. Article 47[11] which talks about prohibition of
intoxicating drinks and drugs aligns with this postulate. The postulate talks
about we taking care not to bring harm to others and DPSP guides the state to
not bring harm to its citizens, by prohibiting drinks and drugs. This prevents
harm to the consumer’s health and there is a less risk that they would cause
harms to others while intoxicated. Additionally, article 39 also lays out the
guideline for the state to preserve the health and strength of workers and
children against forcible abuse. With these articles, it is evident enough that
DPSP algins with the fourth postulate
Ø
Control over dangerous actions - The fifth postulate talks about safeguarding others while
engaging in a dangerous activity. While not true to the definition of the
postulate, DPSP also executes the same by ensuring that the state protects the
public and guaranteeing a secured society. The postulate expresses that it is
the individual or the group’s responsibility take care and not injure while
engaging in activities and the state here is taking that responsibility and
takes control to prevent injury to the public. For instance, take article 42[12], it lays down the guidelines for the
state to make sure that the working conditions are just and humane. This
ensures that employees are not working in dangerous work environments that can
cause injury to them. The state takes responsibility here by enforcing measures
and provisions to create humane working conditions and thus preventing harm to
people by taking control over dangerous actions. Example of this article is
construction workers getting safety equipment and sanitations workers getting
proper working equipment.
With above arguments, it
can be said that DPSP clearly aligns with the Jural postulates laid out by
Roscoe Pound, though not in the literal sense it carries out the nature and
essence of the postulates and can be identified as interest, specifically
public interest.
5.2. FUNDAMENTAL RIGHTS
As explained in the first chapter,
fundamental rights are rights given by the state to its citizens. These are
basic rights and are enforceable in court. These rights are very essential for
society’s improvement and must be given to all citizens of the state without
discrimination. To check whether they can be identified as an interest, we must
apply the 5 postulates.
Ø
No intentional aggression – This postulate’s essence can be seen in the fundamental
rights through right to equality and religion. Right to equality guarantees
individuals are shielded from internal aggression or discrimination based on
their race, caste, and religion. This right makes sure that in a civilized
society there rises no aggression based on bias. In right to religion, the
citizens are allowed to practice any religion without fear of riots and
aggression happening based on their religion. Additionally, right to assembly
without arms also falls into the purview of the first postulate, as it allows
the citizens to assemble and give their opinions in a peaceful manner so that
there will not arise a situation where the citizen have to express their
opinions in an aggressive method. With the above arguments, it is evident that
the fundamental rights align with the first postulate laid by Roscoe Pound.
Ø
Beneficial control over what people acquire under the existing social and
economic conditions – This postulate’s essence is evident in article 32[13] which provides constitutional
remedies. Quo warranto is one of the remedies offered by article 32, in
layman’s terms it means a person should vacate an office if they assumed it
wrongfully through illegal methods. This article ensures that only person who
rightfully have earned their position through their fruits of labour under
existing social and economic conditions have claim over it. No one else can
claim the office through illegal factors such as financial background or
political backgrounds or nepotism. So therefore, fundamental rights algin with
the second postulate also.
Ø
Good faith in dealings – As stated above, article 32[14] provides constitutional remedies in case of breaches.
It grants 5 types of writs – Habeas Corpus, Mandamus, Quo warranto, Prohibition
and Certiorari. These different writs all give different remedies based on the
type of breach. With these writs, the fundamental rights prevent breaches in
contracts and dealings based on good faith. For instance, take Mandamus, if
person A files a complaint to the police to act in a case. The person
complained to the police assuming in good faith that they will act and in case
they do not act, then A can file mandamus writ to the supreme court and they
will order the authority to do its duty. Therefore, the breach of good faith is
undone and thus the second postulate also aligns with fundamental rights.
Ø
Care not to injure – This postulate aligns with the right against exploitation, especially
article 23[15] which prohibits traffic in human beings and forced
labour. The postulate as explained in
the previous chapter states that humans should take due care not to injure
others in pursuit of interests. Here there exist two exploitations –
trafficking and forced labour. In trafficking the article prevents harm to the
humans who are kidnapped by prohibiting the act and in case of forced labour,
it prevents physical and psychological harm to the workers who will be beaten
and threated to work. So therefore, fundamental rights take care and prevents
these harms happening to its citizens and in doing so align with the fourth
postulate also.
Ø
Control over dangerous activities – This postulate’s essence can be seen in article 21[16] which talks right to life and
liberty, and in article 24[17] which deals with prohibition of
children employment. In regards to article 21, while it grants a right for the
citizens to live their life to their fullest liberty it also enforces a
corresponding duty on people who engage in dangerous activities to have control
over that act and take care not to injure others. Article 24 forbids employers
from hiring children as workers. For instance, if person A hires individuals to
work in his chemical factory, the law require him to refrain from hiring
children in order to protect them from harm caused by working a dangerous
environment. Through this the state exercises control over dangerous activities
and prevents harm caused to the children. Thus, it is evident that fundamental
right aligns with the fifth postulate also.
It is sufficed to say
that fundamental rights should be recognised as an interest. By upholding the
postulates, fundamental right ensures that social cohesion can exists as it
also strives for equality and justice.
5.3. FUNDAMENTAL DUTIES
Ø
No intentional aggression – The duties have incorporated this postulate in various
duties that the citizens must uphold. Firstly, “Renouncing practices derogatory
to the dignity of women” – this duty makes sure the citizens don’t take part in
gender-based aggression specifically on the female gender, this duty prevents
from intentional aggression towards women is prevented and peace is ensured.
Secondly, “To promote harmony and the spirit of common brotherhood amongst all
the people of India transcending religious, linguistic and regional or
sectional diversities” – This duty makes sure that their exists peace between
all the citizens by making the citizen to promote harmony and peace between
people regardless of their section, religion, language, or section. This
therefore ensures that there will not rise any intentional aggression between
people based on language, religion and other factors mentioned in the duty. So,
it is sufficed to say that the first postulate checks out.
Ø
Beneficial control over what people acquire under the existing social and
economic conditions
– Fundamental duties are duties that citizens have towards the state. The
duties like promoting prosperity, harmony, respecting flag among others, these
duties are all essential for the welfare of the nation but it does not carry
the essence of the second postulate. The second postulate talks about
individual having claim over things they worked to achieve and other individual
not having claim over the fruits of other’s labour. This is not addressed
directly or implicitly in the duties. But it is also to be noted that it does
not mean the duties don’t support the postulate. When the citizens fulfil their
duties, it creates a civilized society where individual’s claim over the things
they acquired will most likely be protected from others claiming it. So
therefore, it can be said even though we cannot see the postulate’s direct
essence in the duties, the duties still work towards the same goal through
indirect methods, so we can say that the duties align with the second
postulate.
Ø
Good faith in dealings – The whole concept of fundamental duties is built on the
faith and trust that the citizens will perform the duty and promote peace and
equality in the nation. This is evident because the duties are not enforceable
in courts and state can’t do anything if the citizens don’t fulfil their
duties. For instance, the duty to protect and improve the environment is fully
based on good faith. The citizens are assumed to act in good faith to take all
steps in protecting and improving the nature. So therefore, fundamental duties
align with the second duties as well.
Ø
Care not to injure – This postulate can be seen in the duties renounce practices derogatory
to the dignity of women, safeguard public property and abjure violence. The
former duty makes the citizens to renounce derogatory practices against women
and makes sure the citizen do not injure others. The later duty outright says
that we should not take part in violence and not cause harm. These two duties
are evidence enough that fundamental duties align with the fourth postulate as
well.
Ø
Control over dangerous activities – The duty to abide by the Indian constitution and respect
its ideals and institutions reflects this postulate. Basically, this duty asks
the citizens to respect and follow the constitution and the institutions under
it. By doing so the state will have control over citizens and can prevent them
from engaging in dangerous activities or at least if they engage in those
activities, they engage with the guidance and control of the state. For
instance, even though police officers have risky jobs, the state has laws that
they must abide by to ensure that they do not hurt themselves or others while
carrying out their duties.
With the fundamental
duties aligning with all the postulates, it is safe to say the philosophy of
fundamental duties can be recognised as a interest as laid out by Roscoe Pound.
5.4. RULE OF LAW
It is to be noted that the doctrine
of rule of law is not clearly defined in the Indian constitution and therefore
the research takes and analyses acts and statutes established by the
constitution that has the doctrine incorporated in it. By analysing the below
mentioned acts and seeing whether they align or not align with the postulates,
we can know whether the doctrine as a philosophy that binds the constitution
can be recognised as an interest or not.
Ø
No intentional aggression – The doctrine of rule of law very well aligns with the first
postulate that is no intentional aggression. The doctrine though not clearly
defined in the constitution still has its influence in the its acts and one of
that acts we are going to see that aligns with the first postulate is the
protection of women from domestic violence act 2005[18].
In this act it lays out various intentional aggression carried by the abuser on
the abused varying from physical to mental abuse. The act also punishes the
abuser based on the abuse they have performed. The act tries to prevent
intentional aggression from happening by enforcing penalties and punishments.
Moreover, as the doctrine of rule of law is based on that the law is supreme
all is subject to the punishments of this act, therefore it can be ensured that
all individual who engages in the act of intentional aggression is punished
irrespective of their financial or political background. The protection of
women from domestic violence act is one of the many acts that punishes
intentional aggression. Therefore, it can see very well that the doctrine of
rule of law goes hand in hand with the first postulate.
Ø
Beneficial control over what people acquire under the existing social and
economic conditions – For this postulate, the Indian Contracts Act[19]
can be considered. The act sets out contract laws that protects the people’s
claim to property, assets. It gives regulations for the people to follow so
that they don’t exploit and have false claim over other person’s assets. They only
have claim over assets that they have earned legally through contracts. This
clearly aligns with second postulate, that states people can claim things if
they earned it and no one else can have claim over it.
Ø
Good faith in dealings – Again the above stated act can be utilised. It governs
contracts between parties. The contracts are based on trust and good faith and
each party assumes the other party will function in good faith to perform their
part of their contract let it, working or transfer of property. If by chance a
breach of contract happens, the law being the supreme power provides remedies
for the cheated party to uphold the faith. The constitution incorporating the
rule of law and at the same time upholding good faith through the act, it
algins with the third postulate.
Ø
Care not to injure – The doctrine of rule of law has placed many laws to address injury that
take place due to various reasons. For instance, section 353 of the Indian
Penal Code[20] talks
about assault. It also provides legal consequence that will take place if the
aggressor continues with the act of assault. Assault is just a basic section
and has lesser punishment compared to other heinous acts of injury such as
murder and rape which has even heavier punishments such as life imprisonment
and death row. These types of punishment will instil fear in the criminals and
will stop them for engaging in these activities. Therefore, it can be said the
rule of law also algins with the fourth postulate.
Ø
Control over dangerous activities – The doctrine of rule of law has many acts that sets
out regulations for people engaging in dangerous activities. The regulations
act as a control over the activities by providing them with guides to act upon
ensuring that they don’t harm themselves or other while discharging their duty.
By enforcing stringent laws, the doctrine tries to protect people from harms
that happen from dangerous activities. Example of such act will be the Police
act 1861[21]. This
act lays out regulations which the police must follow to ensure safety for
themselves and others. Through the act the doctrine has control over the
officers as the law is always supreme. The acts lay various laws explaining
about their powers, to penalties if they disobey the regulations. This clearly
shows that the doctrine has control over the officers who engage in dangerous
job. As a result, the doctrine algins with the fifth postulate also.
The doctrine of rule of
law aligns with the postulates through many of acts which has the incorporated
the doctrine. The researcher has restricted the study to a smaller number of
acts because of textual constraints, but all the acts stated are in line with
the postulates. It is also important to highlight that many of the acts
established by the constitution have also included the doctrine. Not all acts
can be used to determine if they are consistent with the postulates. However,
it can be argued that many acts will concur with the postulates.
6. CONCLUSION
This research project has analysed
four legal philosophies that bind the Indian Constitution namely Directive
principle of state policy, fundamental rights, fundamental duties and the
doctrine of rule of law. The philosophies are explained in a brief manner and
later seen whether they apply with the jural postulates laid by Roscoe Pound,
to check whether these philosophies can be recognised as a interest. It has
been established that the philosophies do in fact align with the postulate,
according to the researcher’s interpretations. These philosophies by aligning
with Roscoe Pound’s theory of interest helps with legislators to perform their
task of social engineering and in turn social cohesion may exists.
[1] Wade, H. and Phillips, J.,
'Constitutional Law' p 1.
[3] 3 ALL ER 70
[4] Constitution of India, art 14 (as
of 28 September 2023)
[5] Raymond
Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (3rd edn,
Oxford University Press 2012).
[6] Ibid.
[7] Supra Note 5.
[8] Constitution of India, art 51 (as
of 28 September 2023).
[9] Constitution of India, art 39 (as
of 28 September 2023)
[10] Ibid.
[11] Constitution of India, art 47 (as
of 28 September 2023)
[12] Constitution of India, art 42 (as
of 28 September 2023)
[13] Constitution of India, art 32 (as
of 28 September 2023)
[14] Ibid.
[15] Constitution of India, art 23 (as
of 28 September 2023)
[17]Constitution of India, art 24 (as
of 28 September 2023)
[18] Protection of Women from Domestic
Violence Act, 2005, Act No 43 of 2005 (India).
[19] The Indian Contract Act, 1872, Act
No 9 of 1872 (India).
[20] Indian Penal Code 1860, § 353, No
45 of Acts of Parliament, 1860 (India).
[21] The Police Act, 1861, Act No 5 of
1861 (India).
Article Information
AN ANALYTICAL STUDY ON THE LEGAL PHILOSOPHIES THAT BINDS THE INDIAN CONSTITUTION THROUGH THE LENS OF LEGAL PHILOSOPHY OF ROSCOE POUND
Authors: SARATHY G
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/08
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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