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The above consideration would also in a way enable one to answer the question
as to whether the individual is for the State or the State is for the
individual. The controversy seems to be finally unfounded, arisen due to a
misconception of the relationship between the individual and the State. To
bring the instance of the judiciary once again, the client, the lawyer and the
judge form a single cooperative network in the act of bringing about legal and
social balance in the jurisdiction of the people concerned, and the unit
constitutes a whole, each member forming a necessary contributory part of the whole,
and the whole in turn deciding the status of each of such participating parts.
The individual exists for the State, because the individual, as a lesser whole,
is a constitutive element in the larger whole which is the State. But the State
exists for the individual, since the integral wholeness which is the State
cannot afford to interfere with the progressive welfare of any of the lesser
wholes, insofar as the lesser wholes do not contradict or clash with one
another's welfare. So, both the views stand the test of tenability, for they
are actually not two viewpoints but two phases of a single point of view, which
is the consideration of the entire State as a final whole which is at once
inclusive of all the lesser wholes within it forming its inner constituents.
This also answers the other question sometimes raised, that both the State and
the individual are equally important. The point, however, is that the two are
not distinct entities at all.
The administrative and legal issues of life, while they essentially constitute
an operation of positive and constructive remedying and equitable healing
forces in the organisation, also involve a sometimes unavoidable factor known
as punitive justice. Criminal laws engage themselves in this latter aspect of
the management of human affairs and in the act known as punishment inflicted by
law, the social welfare of the organism is supposed to be ensured. The positive
side of legal justice mainly concerns itself with the distribution of property
and the question of its ownership in society: the civil rights of the people.
Though, even in an act of civil dispensation of justice, an element of
punishment may be said to be involved, where, for example, a landed property
wrongly appropriated by a person is wrenched out from him and handed over to
its rightful owner, based on the principle of equity and welfare of the entire
organism of administration; yet, in what is known specially criminal procedure,
the punitive aspect puts on an accentuated form as a special kind of pain
inflicted on the wrong-doer. It has been held even in a free state or a
democracy, where private property is conceded, that all ownership is more a
kind of trusteeship and the State can have the right, and has actually the
right, to own the entire property under given conditions. In fact, private
ownership cannot defy or contravene public welfare or the well-being of the
State as a whole. All this means that no one exists for himself alone, but
everyone exists for everyone else, also. Here comes into high relief the great
spiritual significance of life operating powerfully even in political and
judicial administration.
While the manner in which people are entrusted with civil rights or ownership
of property has been seen to vary from country to country and from nation to
nation, occasioned by local conditions of people and their mentality in the
regions concerned, what strikes one's eye ostensibly is the peculiarity in the
administration of criminal justice as understood and enacted by the different
nations. What kind of punishment is to be meted out to what offence? Can the
hand of a person who steals a pencil be amputated as a punishment equitable
with the act of offence? Can a nation which forbids smoking, execute a person
for committing that act under its jurisdiction? These are extreme cases which
kick up basic questions of human justice, but there are others which are
involved in the prejudices of the human mind. The steel frames within which are
locked up, in India, the characteristics attributed to the classes of people
called castes, Varnas, and the functions associated with the Ashramas in the
personal life of an individual, as if they are water-tight compartments, iron
cages, and not flowing streams joining the river of life, are also examples of
the inveterate habit of human prejudice, ignorance and self-esteem, which raise
similar questions of a thing called justice behind the rule of social law. In a
region monogamy is holy and inviolable, in another polyandry is not only necessary
but an act of sacred cooperation and sacrifice. One leader of the people
exhorts the nation on the necessity for unconditional non-violence, but another
concedes a proviso that violence is justifiable where self-defence is involved,
or where one feels a need to protect the lives of people or guard the security
of the nation. It needs no mention that the principle of unconditional
non-violence considers that even death should be welcome if it follows as a
consequence of adherence to non-violence. It follows also from this that one
who does not hesitate to embrace death as an inevitable something, whatever be
its causative factors, believes perhaps in a deathless immortality of a soul in
man, and the welfare hereafter is a greater concern than a welfare in this
world. This strange conclusion, though it is likely automatically to follow
from a strict observance of unconditional non-violence, cannot be said to be
the intention of the leader of a people, who would not deny the possibility of
their earthly welfare, all which would only mean that there is a difficulty in
reconciling the need for the welfare of people in the world and the necessity,
to be adherents of unconditional non-violence.
The processes of the study of the principles of life considered in the above
paragraphs should enable one to accept that justice is neither an affirmation
nor a negation of life, but a harmony of conditions that should contribute
towards the manifestation of circumstances which would enable lower
organisations of reality to expand their dimensions and reach up to higher
levels which are the souls of the lower ones. Nature does not go to
extremes, nor are law and justice extremes of act and behaviour. The meaning of
principles that transcend personalities is generally hard for the mind to
grasp. As action and reaction are equal and opposite, because they are based on
a unitary law of a balance maintained by the forces of Nature, the rights and
privileges of people as may be conceded to them, or even the punishments that
are supposed to be necessary, cannot, even in a state of enthusiasm, ignore the
fundamental principles of righteousness and justice which demand that the
spiritual expansion of the individual and the society has to be the criterion
behind all judgments, whether rights and properties, privileges and
concessions, or punishments and deprivations. It is not for nothing that great
thinkers have often felt that only philosophers can be kings, and kings should
be philosophers. It was Plata who proclaimed that until this condition of
administration is fulfilled, the world is not going to have peace. There must
be justice in conceding privileges to a person and justice in meting out
punishment. The justice consists not only in the security and welfare ensured to
people in general by that dispensation, but it also should, at the same time,
ensure the betterment, welfare and progress of the particular individual
concerned. Certainly, none but a god can be a just ruler (Navishnuh
Prithivipatih). It has to be borne in mind, again, that the ruler is a
principle of integration involving an element of universality in it, and not
just a person among many others.
The philosophy and the rationale behind law, justice and jurisprudence would,
then, raise the pertinent question: Is man prior to law or is law prior to man?
This crucial difference of viewpoint in ultimate matters concerning life is
virtually the point of distinction between the Contract Theory of State
propounded by thinkers like Thomas Hobbes and the Logical Theory of State
advocated by philosophers like G.W.F. 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 naturally the height of any conceivable insecure
condition of things. To obviate this sort of perpetual fear endangering the
lives of everyone, people are said to have made 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 considered as something 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 and agreement.
This would make it appear that there is no such thing as law unless man wills,
individually or in a group, that it should be there. It is the creation of
human needs and the 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 origin 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 would also
follow that even the sense of justice can turn out to be a whim oftentimes 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 close examination of the
subject, the implications of the Contract Theory would seem to be inseparable
from the psychological background of society presented by psychoanalysis. Man
can be no better because he can make laws, for he can also unmake the very same
laws by the same principles of contract which made them, and rational justice
would be a 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 as propounded by the Contract
Theory. Here we come to a 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 law arrests a
person and inflicts on him punishment, it is not because of the operation of a
man-made law merely (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?
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