Chapter 10: The Individual and Society: The Philosophy of Law
We may take a resume of our prima facie observations. Human enterprise of every type is vitally concerned with social relationship. Principally, the relation of the individual with human society is psychological and ethical, though it has its other important aspects, such as the economic, the legal and the political, among many others with connected values. However, the psychological relationship tops the list, and everything seems to follow from this important foundation of all human functions, personal and social. On a cursory observation, it appears that there is no such thing as society apart from the individuals that constitute it, so that, from this point of view, it could be logically concluded that whatever obtains in the individual obtains also in society. Social values seem to be merely a total of individual values, differing only in magnitude but not in quality. If this is to be the truth of the substance of human society, it would be futile to imagine that social laws and regulations can exert any kind of influence over the individual. This would, of course, rule out all ultimate significance in social etiquette, social tradition and even social morality.
The whole subject calls for a thorough investigation not only in its form of appearance in the surface but also in what it seems to imply at a level deeper than the surface. In practical life, it is, no doubt, seen that the innate structure of the human mind, with all its prejudices consequent upon its desires following as a corollary from its structure, is at the background of even the so-called cultured relationships and ethical conducts in society, which would mean that even the apparently acceptable social good is a covert form of the individual’s private urges and longings. We can cite several instances to prove this point: It is said that mutual cooperation and sacrifice are the hallmark of cultured social relationship, which makes it appear that such cooperation and sacrifice are a qualitatively higher form of human behaviour than the way in which one would conduct oneself in a strictly individual capacity. But what is cooperation and sacrifice except a subtle safeguard of the private interests of each individual, whose intentions and purposes would be defeated if there is no such cooperation and sacrifice? Is it not true that social sacrifice is unthinkable if it is to end in an utter abolition of the private longings of the individual? Would anyone do any sacrifice for the welfare of others if the outcome of the sacrifice were to be the destruction of the sacrificer himself? Would anyone serve a society which is ready to stone the sacrificer to death for reasons of its own? Has not the society been ungrateful in most cases to those who dedicated their lives for its happiness and welfare? How would it be possible for anyone to love the society by negating oneself entirely?
But these doubts may be rebutted by the citation of the great examples of martyrs who sacrificed their lives either for social or religious causes, in the interest of the public good. How could one deliberately court death for the welfare of the society if it had not been for the love which one had for the society, excelling the love for one’s own self? Here, again, the situation needs a further investigation. And, on a careful analysis, it would be found that even martyrdom would be impossible and inconceivable if it were not to be engendered by a hope of satisfaction to oneself through such a sacrifice. The courting of death voluntarily for whatever reason should be the urge of a satisfaction that is behind even the extinction of personality through death. Though death is usually regarded as the most intense form of pain conceivable, no one could be thought to be ready to embrace it if it were not to be stirred by a feeling of joyous enthusiasm caused by secret inner factors, though these factors may be invisible and unimaginable to others, in outer society. Even suicide, an act of voluntary self-annihilation, can be explicable only by a hope of a total extinction of the pain which has urged the commission of such an act, a hope which is obviously inseparable from the hope for peace and joy as its ultimate outcome, whatever be the extent of the error involved in anyone’s holding such an opinion about this catastrophic abolition of life. No thought and no action can, in the end, be either generated by or directed to a final suffering of the individual. The struggle for an ultimate joy is the inviolable law of life. Cooperation with others and sacrifice for others cannot obliterate the operation of this law. On the other hand, cooperation and sacrifice are entered into only when they promise an enhancement of personal joy, more intense than that which would have accrued to oneself without such a regard for others. Here we have perhaps the psychological secret behind all human conduct.
The ethical consideration of the individual for the society does not seem to point to any fact far different from what is indicated by a psychological analysis. What the society regards as a moral or an ethical act, or a proper thing to do, cannot finally afford to vitiate the secret desires and urges and the longing of pleasure inherent in every individual. It will be seen that social morality is mostly a kind of legalisation, by mutual agreement, of the private interests of the individual. The desire for food, clothing and shelter; name, fame and power; wealth, sex and aesthetic enjoyment; are the ruling principles which condition every activity of humanity, whether it takes the form of a moral rule, an ethical necessity or a legal mandate. Here again, social morality seems to go hand-in-hand with the psychological secret operating behind human nature and conduct, as observed above. It is unthinkable that there could be any ethical rule acceptable to the society which would devastate or even diminish the satisfactions of the individual. It may be asked: Why, then, does social morality seem to restrict and put a check upon the extravagant greed of the individual for personal pleasure of every kind? Does this not prove that social law is antagonistic to, more powerful than, and intended to correct the individual’s desire and greed? How can it be said that social ethics is only a legal regularisation of the individual’s cravings? These questions are easily answered. The checks which the society imposes upon the individual’s personal conduct do not prove that it is against the individual or that it thereby diminishes the pleasures of the individual. What it proves is simply the open secret that every individual seeks the greatest amount of pleasure and freedom of the highest possible quality and no individual would reasonably tolerate anyone else coming in the way of the fulfilment of these longings. If social ethics and law were not to operate, the result would be a mutual war among individuals, almost like the lawless attacks of the animals of the forest among themselves, a state of affairs which would place everyone in continuous and perpetual insecurity as to the very chance of fulfilling even a single desire or a scope of enjoyment of any pleasure. A mutual agreement among individuals, which is the social law, cannot, therefore, be regarded as an unwarranted intrusion of external restriction into the individual’s freedom to live and to enjoy, for it, on the other hand, is voluntarily agreed upon mutually by individuals for ensuring security for themselves, which is virtually an assurance of the possibility of the expression of personal freedom to live and to enjoy without infringing the similar rights of others for the same. Social rules, whether they pertain to material possessions, personal prestige and power or sexual relationship, have this aim and objective before them, which cannot be gainsaid by any kind of intellectual sophistication or veneer of logic.
This much of incisive enquiry into the relationship between the individual and the society would be adequate for the purposes of discovering the roots of human behaviour, their intentions and purposes. Thorough-going psychoanalysts, who are out-and-out matter-of-fact in their diagnosis of human nature, would, evidently, have nothing more to say than these naked features of human duty which appears in the form of the complicated network of social culture, ethics, morality and law.
While all this may perforce have to be accepted as an inescapable truth of human life in general, it cannot be said that this is its whole truth. Psychoanalysis takes a mechanistic view of life considering the mutual relationship of individuals in the form of society as some sort of movement of a machine, whose independent parts they are, and in whose lifeless operation by the collaborative action of its limbs they participate with no teleological initiative except the individual motions characteristic of their location as different parts of the machine. But here comes a poignant query arisen from the observation of certain intriguing phenomena of human life. Is social relationship a necessity artificially arisen on account of the individual’s need to maintain personal security and ensure personal freedom and enjoyment? And, if mutual love and sacrifice are virtues of real value, if human life is really sacred and worthy of regard and protection in every way, how does it happen that human justice, which cannot be separated from human love and sacrifice, sanctions execution of individuals in jails and war of one nation with another, and no one considers the Judge of a court who has passed a death-sentence or a Field-Marshal who has won a victory in war after the destruction of the enemies as an unrighteous person or one infected with hatred for others? If death inflicted upon a person by the order of a court and mass destruction brought about by a triumphant Field-Marshal can be regarded as perfectly consistent with human love and justice, there should certainly be something strange about the inner operative formulae which guide human thought and action. How, on earth, can imprisonment and execution of a person in the goal be a form of altruistic love and universal justice? If the worst pain and sorrow of man cannot go beyond the torturing process of death, and if this punishment legally meted out to an individual cannot be regarded as inconsistent with love, justice and service, these terms of altruistic significance may find themselves in an urgent need of an amendment in the common notion that people have of human affection, human goodness and legal justice. Else, how would courts of law who are held in high esteem by the best brains of the world and Commanders-in-Chief of armies who have won world-famous laurels be free from the stigma of vindictiveness, cruelty, violence, tyranny and viciousness, which are the worst crimes and sins conceivable? Truly, the study of man and his relations is a marvel, a mystery and an enigma. There appears to be something behind the screen which manages to attract the attention of the human individual throughout his life. And no one seems to die with a satisfaction that the secrets of life have been unravelled.
The whole circumstance of the issue can be clinched with the central question in this regard: Is man prior to Law or is Law prior to man? This crucial difference of viewpoint in ultimate matters is the point of distinction between the Contract Theory of State propounded by Thomas Hobbes and the Logical Theory of State advocated by G. W. Hegel in the West. The Contract Theory holds that man was originally in a state of nature and was ruled by the law of the fish (the larger swallows the smaller) and the law of the jungle (might is right), and this could be the height of any conceivable insecure condition of things. If anyone could do anything to any other at any time under any circumstance, life would be in a state of perpetual threat and itself become impossible in the end. To obviate this sort of perpetual fear endangering the lives of everyone, people came to an agreement among themselves and framed a system of laws and of governance, vesting the power of rule in a single person (monarchy) or a body of persons (oligarchy or bureaucracy) or an assembly of chosen ones by periodical election (democracy). Here the law of the society and of political government is created by man by mutual consent or agreement to suit the circumstances or conditions under which he lives at any given time. When the circumstances of life change, the laws also can be and have to be changed by mutual understanding. Thus, it would appear that there is no such thing as law unless man wills that it should be there. It is the creation of his needs and environment of life. Law does not exist by itself. Man can do or undo it by a majority of votes (since it is unlikely that everyone would always consent to everything unanimously), and sometimes by the exercise of physical force even by a quantitative minority (as it has happened rarely in the history of the world, though unfortunately for the many in the majority)—a situation which implies that man makes laws either by understanding, which would be to the satisfaction of many, or by physical force, which can be to the sorrow of many. Anyway, according to this point of view of the of social law and political government, man is the law-maker, and this is the essence of the Theory of Contract in the science of politics. From this it also follows that even the sense of justice can turn out to be a mere crotchet or a whim in the minds of the ruling powers, because it is hard for the dispensation of justice to stand isolated from the operation of law. On a very close examination of the subject, the implications of the Contract Theory would seem to be inseparable from the psychological background of society studied by psychoanalysis. Man is no better now because he can make laws, for he can also unmake the very same laws by the very principles of contract, and rational justice would be a mere word without any substantial meaning.
Though it may be conceded that the Contract Theory is perhaps the truth of the historical origin of human law and government, even this manner of the origin of law must have itself originated from a principle which ought to have a logical priority over the historical accident of the origin of law according to the Contract Theory. Here we come to a very subtle philosophical point which would not ordinarily occur to the mind of the common man. Why does there come about a necessity for man to frame a law at all by mutual consent? The answer to this question is the logical ground which explains the meaning of law and the necessity for law. The principle which is prior to the human effort of mutual agreement in respect of the framing of the law is itself the central law, conditioning and regulating all the laws that man makes subsequently by agreement, election, etc. This is the point which Hegel endeavours to win over Hobbes. It cannot be that man is the sole maker of law; if that had been the case, it would be difficult to understand why at all man felt a need to make law. This need felt by him is the conditioning factor behind man-made laws and is the main law, the universal law, which regulates temporal laws of the terrestrial State. If the law arrests a person, imprisons him and even executes him, it is not because of the operation of the man-made law (else, man could suddenly change his law and abolish such a thing as legal punishment) but the reaction set up by a wider law which is superior even to the totality of the individuals in society and the members in the State. And what is this law?
Here we turn to the metaphysical background of law which is also its logical explanation and justification. The relationship between man and man is not the outcome of a mere quixotic agreement but a rational necessity dictated by the structure of the universe. Human relationship cannot be made or unmade according to fancy, for it is rooted in a fixed pattern of structural behaviour which is harmonious with the nature of the universe as a whole. The necessity for law arises on account of a need felt to rise and grow into a higher degree of reality than the one in which one finds oneself at a given moment of time. The growth into a higher reality is both quantitative and qualitative in a measure in which the two aspects cannot be distinguished one from the other. Is not the youth a higher degree of reality than the baby, both in the quantity of power and the quality of understanding? And, can we distinguish between this quantity and quality in the conduct and activity of the youth? This would, of course, be a commonplace example to substantiate the issue on hand. A higher degree of reality is much more in its grandeur and significance than this illustration would be able to suggest. The higher degree of reality implies and connotes not only a larger inclusiveness of quantitative measure but also a deeper profundity of knowledge and wisdom, or an insight into the nature of things. We may take another example for purpose of clarification: In what way does the degree of reality manifest in the waking world transcend that experienced in the dream world? It is the quality of the degree of reality in waking that would make a person consent to remain rather a beggar in the waking world than be a king in the dream world? The quantitative transcendence and inclusiveness in waking needs no mention, as it is obvious. To give a third example: Is not man more than a mere total or an assemblage of the different limbs of the body? All the parts of the body of a man, even when viewed together, cannot be regarded as the man himself, for what we mean by man is a significant meaning or a transcendent essence vitalising and animating the body and the personality rather than the body or the personality by itself. Man is a significance, a connotation, a suggestiveness, the state of an integrated consciousness, and not merely a physical body, a psychological unit or a social personality.
So is law. It is a transcendent, connotative significance or force which demands a gradational integration of consciousness, both in quantity and quality simultaneously, until it reaches its culmination, which is known as the Absolute. Law is, thus, an operation of the system of the Absolute, in different evolutionary degrees of comprehensiveness and perfection, right from the Ultimate Causality of the universe down to the revolution of an atom or the vibration of an electron. Social laws and political systems of administration cannot, therefore, be separated from the requisitions necessitated by the law of the Absolute. It is just this Universal Transcendent Principle that either rewards or punishes individuals by its gradational actions and reactions, and it is this, again, that is the basis of all human behaviour, looking so inscrutable, and this is the explanation as to why individuals strive for mutual love and cooperation, and, at the same time, keep themselves ready with a knife hidden in their armpits. Here we have, perhaps, the foundation of the philosophy of law. Ethics and morality have, thus, a necessary value. Law has a meaning, and it points to a truth beyond itself.