Law versus justice

Law versus justice

FPJ BureauUpdated: Wednesday, May 29, 2019, 05:52 AM IST
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Every society has its own legal system. Law is the body of principles recognised and applied by the state in the administration of justice. Being an institute of society, the State has to maintain law and order. Law is a body of rules. It guides human conduct in society and is a means of social control. Law is imposed by authority. Those who deviate from the law are usually given punishment of various kinds such as fines, imprisonments, exile or even death. (Dr SR Myneni, Sociology for Law Students, Allahabad Law Agency)

Law means justice, morality, reason, order, righteousness etc. From the point of view of society, The function of law connotes purpose. Law is an instrument of society and it’s objects are achievement of justice, stability and peaceful change. (TK Oommen and CN Venugopal, Sociology, Eastern Book Company, Lucknow) Lawyer, more than anything else, is a ‘social engineer’ trained in ordering and facilitating change in a manner that creates the minimum friction and maximum happiness for the maximum number of people. (TK Oommen and CN Venugopal, Sociology)

In the words of Thurman Arnold: “Obviously, law can never be defined.” Various schools of law have defined law from different angles. Some have defined it on the basis of its nature. Some concentrate mainly on its sources. Some define it in terms of its effect on society. There are others who define law in terms of the end or purpose of law. (VD Mahajan, Jurisprudence & Legal Theory)  Savigny says that law is “The rule whereby the indivisible borderline is fixed within which the being and the activity of each individual obtains a secure and free space”.

According to Austin, “Law is the aggregate of rules set by men as politically superior, or sovereign, to men as politically subject”. In other words, law is the command of the sovereign. It imposes a duty and is backed by a sanction. Kelson defines law as the depsychologised command.  Justice is a concept of moral rightness based on ethics, rationality, law, religion, equity and fairness. George Washington said: “Administration of justice is the pillar of the government. Law exists to bind together the community.” Salmond and Roscoe Pound have emphasized the importance of justice in their definitions of law.

They have defined law in terms of justice. According to Salmond: “Law may be defined as the body of principles recognised and applied by the State in the administration of justice”. It implies the maintenance of right within a political community by means of the physical force of the state. Roscoe Pound observes: “Law is the body of principles recognised or enforced by public and regular tribunals in the administration of justice.” The origin and growth of administration of justice is identical with the origin and growth of man. The social nature of man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the necessity for providing for the administration of justice. (VD Mahajan, Jurisprudence & Legal Theory)
To begin with, every individual had to help himself punish the wrongdoer.

Personal vengeance was allowed. The second stage in the history of administration of justice started with the rise of political States. The State merely regulated private vengeance and violent self-help. With the growth of the power of the State, the State began to act as a judge to assess liability and impose penalty. The modern administration of justice is a natural corollary to the growth in the power of political State.

In modern times, what is given by the courts to the people is not what can really be called justice but merely justice according to law. Judges are not legislators and it is not their duty to correct the defective provisions of law. Their only function is to administer the law of the country. They are not expected to ignore the law of the country. It is rightly said that “in the modern State, the administration of justice according to law is commonly taken to imply recognition of fixed rules”. (VD Mahajan, Jurisprudence & Legal Theory)  Justice is also, relative as it keeps on changing it’s meaning from time to time. Justice delivered at the time of lord Ram’s reign will differ in it’s meaning from Maharaja Yudhisthir’s reign or Maharaja Harish chandra’s reign.

Criminal justice system is based upon the principle given by Sir William Blackstone in 1765: “It is better that ten guilty persons escape than that one innocent suffer”. It means it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent to imprisonment or death. Justice has to be achieved only through the instrumentality of law in order to achieve its objectivity. Justice may be in the form of economic justice, political justice, social or legal justice. Law is equally applicable to all persons. It means everyone is equal in the eyes of law. Reservation policy, special protection to women or protection to minorities and many other similar provisions which are enshrined in the Constitution of India can be counted as an exception to this.

But, Justice differs from person to person. Justice done to you may not be justice for me and vice-versa. It can be explained further as both parties can’t be a winner in one case. One party shall be a winner and other a loser until and unless that case is not referred for mediation or conciliation proceeding where win-win situation exists for both the parties. In litigation, judgment or decree can only be passed in favour of either plaintiff or defendant. But, it can’t be in favour of both. So, in that situation one may argue that injustice was done with the other. Even the person in whose favour, judgment was delivered might not be satisfied on the ground of not receiving her/his full claim.

Our daily social life is littered with examples, which depicts prevalent social notion of society about justice and its general mental attitude towards the implementation of law. A small child is beaten up badly when he is found guilty of stealing Rs 10. Same is the situation with small pick- pocketor. We purposefully fail to see their motive behind the intention to steal. There might be some urgent reasons like- his parents might be seriously ill and he tries to steal money in order to purchase medicine or when he tries to feed his starving siblings. But, we salute and revere smugglers and persons who are involved in money laundering, black marketing or hoarding and are rich and can flaunt power. It means there is no place, no sympathy for the poor in our society. But, rich, corrupt and criminals are being respected and becoming more rich day by day.

In case of rape, law provides stringent punishment to the rapists. But, in our real social life, we do not penalise and stigmatise the actual offender but the victims by passing comments or by giving sarcastic remarks and sometimes even by social isolation. Criminal should be stigmatised and boycotted from the society so that others should not dare to commit such heinous crimes.  These examples are stark reminders that we have become mentally handicapped today. In this way, are we not doing injustice with the innocent? The answer is- Yes, we are.

If we can’t serve justice then we must adhere from doing injustice to innocent, poor, women and children. And for this, we have to change our mental attitude. We have to strengthen ourselves morally and psychologically. We cannot beat the drum of 21st century when we so shamefully let injustice and corruption wreak our society, where we stand and not question the grave injustice done to poor who comprise the majority of the masses. It is a high time to do introspection and find our true moral calling. Our nation is counting upon us.

The author is law officer,
Bank of India
email: rahuldeo.cnlu@gmail.com

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