Wednesday, April 20, 2011

The Law, part 2

First part here.

(Before the Law by Franz Kafka)

The Law is esoteric, and its practice is a matter for experts. It is said that "Ignorance of Law is no excuse", but who knows the law completely?

The Law can never treat people equally because people's recourse to law differs, their power to defend themselves differs, their power to engage others to defend themselves differs.

Law is impersonal. The judge has to regard a criminal as well as an aggrieved person without subjectivity. In normal life, we judge people from their faces, stature, clothing, mannerisms, body language, tone of voice, warmth, vibe, tears, smirks... To all that, Law is (and perhaps should be) blind.

The ideal judge would be a computer which through sheer formal analysis decides the matter. Ideally, laws would be specified in formal language. But then, they would be opaque to who they impact.

Are there undecidable matters, impervious to rigorous analysis? On what basis are they decided in the real world? The judge's mood, the lawyer's energy, the regularity of the plaintiff's jaw?

In civil suits, there is always someone trying to gain unjustly. If they lose, the courts rarely if ever punish them for the harassment caused to the winner. Their loss of the lawsuit is deemed sufficient penalty. Costs are rarely imposed. "Dragging" someone to court, if concluded in a loss for the plaintiff, must be considered a criminal offense. It is not very different from dragging someone to a wrestling pit and then raining blows on them, forcing them to defend themselves.

Most people disregard the extent to which the economic disparities are conserved at the point of guns. If you see massive disparity in a society, but no guns, look closer.

An act to violate someone's rights is one kind of a crime. I think it is also a crime, perhaps a greater one, to put someone in a situation of peril where he has to break the law in order to uphold his rights and his peace. It is a greater crime because one has created a criminal from a righteous man, and then the might of State is turned onto him. From then on, he will not trust the machinery of law to protect him, and will regard it as foolishness to be law abiding.

Creating a just Law is one of the most solemn tasks given to man. The Bill of Rights is a paean to the American notion of freedom, and limits to what extent the State shall govern the citizens of that country. "The congress shall make no law ..." On the other hand, consider the language of the Fundamental Rights of a slavish country like India:
Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality.

Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India.

Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India.

Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics.

Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.

Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public.
While in the US Bill of Rights, the State is prohibited from infringing on a certain right, in the Fundamental Rights in India, the State is given discretion to violate those rights.

When the lawmakers are non-representative, then the duty of a citizen to abide by those laws is not a given.

Civil Disobedience is today a crime.

6 comments:

Anonymous said...

Great post.

Anonymous said...

What say you about the rule of law in bringing a most dreaded terrorist to justice?

Harmanjit Singh said...

@anonymous:

http://www.guernicamag.com/blog/2652/noam_chomsky_my_reaction_to_os/

Anonymous said...

Chomsky has nothing useful to say about what should have been done instead, in the name of justice.....

Is there any sense in preaching law to a person who has no regard for it?

The only "real" justice would be if there had been a miraculous Self Realization of the wrong doings of the terrorist, leading to Self transformation,a la Valmiki.......Obviously wishful thinking.....

Until then "Do unto others as they do unto you" seems to be the idea of justice...a vicious cycle that keeps the wheel spinning.... raising money for the lawyers, politicians,Gurus,media,therapists,army etc etc...

Harmanjit Singh said...

@anonymous:

Is there any sense in preaching law to a person who has no regard for it?

You mean to the USA, right?

Anonymous said...

Both the action and reaction are not in accordance to the intent and principles of law - which is to maintain the balance, harmony, order in and around...

So both parties have utter disregard for it. Each has acted within their own narrow scope of vision.

But then, this story is as old as man...
Rama killed Ravana and attained Godhood status so did Krishna for orchestrating the Mahabharata war...

No Ramas or Krishnas here...Only Ravanas, Duryodhans and more and more of them......