You are on page 1of 11

The Dialectics of Law Chhatrapati Singh 1

A Description of the concept of law is an exposition of its essential elements or features. An account of how these various features interact with each other and how they evolve, however, requires a different analysis. Such an analysis of the ends and means of law in its progressive evolution or degeneration constitutes an account of the dialectics of law. Discussions of the dialectics of law are usually the preoccupation of those inclined towards historical materialism, but in so far as the comprehension of the dynamics of law is necessary for anyone interested in the legal phenomena, an exposition of the dialectics is required, whatever philosophical perspective one may take. In this work I attempt to outline the central aspects of the dialectics of the various ends and means, the contradictions between them and the directions in which the resolutions to such conflicts aer possible. An exhaustive account of the dialectics being a major task, here I shall only identify the different conflicts and mention the specific directions in which the resolutions emerge. In my opinion this preliminary groundwork is important because the usual accounts of the legal dialectics leave out a number of significant aspects. Identification of all important points of conflicts within law is a significant task in itself. Each of these issues identified would need separate elaboration; their recognition, however, is the primary task. The aspects of legal dialectics that I deal with here concern mainly with the relationship of ends and means between the legal and the religious, and the legal and the coercive (police) institutions. Society consists of various institutions interrelated in complex ways. The ends of law and the procedures adopted to achieve them change in accordance with the manner in which other institutions of the society intervene in the legal reality. However, the intervention and the changes in law, as this paper will attempt to demonstrate, are not arbitrary. There ae overall purposes and a specific teleos inherent in the nature of law itself. 2 Before one sets out to understand the teleology of law, it will be important to first counter some basic arguments which either speak against teleological expositions or obscure the issues. There are limits to tolerance. But intolerance need not take the form of violence. Every society needs a method by which intolerance to unsociability can express itself in non-violent ways, ways in which co-operative reasoning by the members of the society can lead to resolution of conflicts that are justifiable through standards of acceptable rationality. This unsocial-sociability and the need for a public platform for resolution of conflicts forms the most fundamental ground for the existence of public institutions whose rule of procedure and criteria for evaluation apply commonly to all. Such public institutions are what constitute legal systems. Thus every society, whether primitive or advanced, in so far as it requires a social mechanism for resolving conflicts rationally, must have a legal system. Such public institutions may take various forms, such as courts, tribunals, panchayats and lok adalats. The procedures for resolution are equally varied: adjudication, mediation, arbitration, election, ordeal. These methods require a third party, a judge, the jury, or an electorate. But not all legal methods need be adjudicatory; procedures in which a direct confrontation of the litigating parties takes place, are also known. Lon. L Fuller, who emphasized the plurality of legal methods, made this observation a central critique of legal positivism, such as of H L A Hart. [1] Hart makes a distinction between a pre-legal society and a legal society on the basis of whether or not it practices adjudication. [2] To my understanding, given the varieties of problems and the different methods necessary to resolve them, plurality of legal methods in any society is inevitable. Moreoever, methods being culturespecific cannot really be ranked. Therefore, observations about the types of legal methods practised in a society can throw light on its culture, but it is hard to see how this can enlighten us about its legality. It is possible to imagine a society in which all conflicts are resolved mutually between people in accordance with the prevailing laws. The absence of adjudication will not make

such a society primitive. What, in fact, would make the difference is the quality of the substance that goes into a peculiar conflict-resolving method in a society, and not its variety. Since the conflict-resolving mechanism is one of co-operative reasoning, the substance at stake is the kind and quality of reasoning, the rationality at play. The crucial question therefore, if one is to assess the degree of legality of a society, is: what sort of social reasoning is it that can be said to belong to a public institution so that it can be called a legal system? Must it necessarily embody some specific principles of morality, justice, or rationality in general, which govern the ends and means of the institution? If we do agree that there must be some such principles of rationality, and also have consensus on what some othese principles are, then clearly, we have criteria on the basis of which societies can be evaluated for their degrees of legality. It does not depend upon whether or not it practises a particular legal method, such as adjudication, as Hart would have us believe. Fuller's insistance on the plurality of legal methods, however, can lead to the misleading conclusion that there is a variety of legal systems within a society.Fuller himself seems to have been misled into this fallacy. [3] He calls trade unions, universities, etc., 'legal systems small and big', on the basis of the fact that here too one may find adjudication, arbitration, mediation, elections, and rules which govern behaviour. Now, although it is true that the legal sysetm is a conflict-resolving system, it does not follow that wherever there is a social resolution of conflicts we are dealing with a legal system. In fact conflicts are often resolved within the family too, wherein one of the parents acts as a judge. But this does not make the family a legal system. How then, do we distinguish between a system which sometimes adopts legal methods and the legal system itself? The distinction becomes obvious if only we look at the systematic ends of the system, not merely at the formal procedures, which may vary. If we assume that the systematic end of law is to attain justice, then we evidently know that this is not the end of the family as a system, nor that of educational institutions. So, if we wish to uniquely characterize the legal system, we are back to the initial question: what is unique about the ends and means of law that makes it different from other systems which share some of its properties in common? This question about the ratio of law has been surreptitiously pushed aside by recent legal positivism, as if the question were a marginal issue. In reality, it is the central question, the answer to which can provide the basis for distinguishing despotic, dictatorial, colonial, and imperialistic systems of legislations from genuine legal systems. It is understandable that legal theory, such as legal positivism, which has its roots in such systems of legislation can hardly afford to preoccupy itself with questions about the ratio of law; in keeping with its historical roots it is rightly preoccupied merely with questions about the legitimation of the legislated rules. The usual trite answer that the end of law is justice is grossly misleading. One does not have to be a Marxist to realize that the legislated rules are often oppressive. This does not mean, however, that one must then necessarily jump to the opposite conclusion: the end of law is to perpetuate injustice. The Marxist view needs a closer scrutiny. But before indulging in that it will be important to note how the points made so far bear upon the Marxist view. If every society must necessarily have institutionalized means to resolution of conflicts arising from various reasons, then obviously an instrumentalist thesis which perceives law merely as a means to exploitation of one class by another and which sees it only as a superstructure to serve the material economic base, misunderstands the grounds for the existence of laws. Although Marx himself did not explicitly commit the fallacy of seeking the legitimation of law merely in the regulation of means of production and transaction of goods, his writings are equivocal enough to mislead other Marxists, such as Pashukanis, Vaihinsky and Lenin, to do that. [4] Differences of interests and outcomes in bargaining, transaction and ownership of national resources of commodities, form some basic reasons for conflicts, but these are not the only ones. Cultural and religious interests of communities, their problems of self-identity or autonomy, ideological differences, and sometimes even individual differences of dispositional habits, and customs can form serious grounds for conflicts which need to be resolved in public, on a platform governed by socially acceptable rules of fairness and equity. The Marxist thesis, however, is not devoid of significance. Once an institutionalized means to resolution of conflicts comes into existence, whether through custom or statutory decree, it is not

impossible to imagines that some vested interests will use the same means to resolve conflicts in manners which favour some against others; or that some people will deceive others by making it appear that the rules of fairness and equity are being followed while in fact injustice is being perpetuated. Both these practices indeed occur. Herein lies the need for understanding the dialectics of the contradictions of a rule-governed public institution, how it makes possible the occurrence of both justice and injustice within the same system. But simultaneously it also makes clear that for the dialectics to be possible both ends of the contradiction must actually exist, and hence the Marxist tenet that the legal phenomenon consists only of injustice in untenable. For rules in use that are cognizable as unjust, there must be other rules in use which are cognizable as just. Both the phenomena of deception and bad faith in resolution of conflicts, therefore, do not reveal the basic reason for the existence of law; they tell us about the possible misuse of the system which exists on the grounds of a general willingness of the people to accept that some conflicts can and must be resolved in public view by standards of rationality that are necessary, if not absolute principles of fairness. Law is an instrument, and like any other instrument it can be used or misused. The misuse (as of another instrument, money, for example) is parasitic on the actual proper use of the instrument. Many people can misuse money (such as in smugling and black market) because a great number of people use it in the proper way in the legitimate market. If everyone used it only in the black market the arrangement for the existing legitimate market itself would collapse. This would annihilate the conditions for the existence of the black market too. Similarly, if all laws were only instruments for misuse, the legal system would collapse. It is possible to legislate rules for exploitative purposes because many laws serve the genuine purpose of attaining fairness, order, and equity. The withering away of the law, thus, does not lie in its proper use but (and this the Marxists must note) in its misuse in exploitation. [5] Since Marxism perceives law merely as a means of class dominance, both historical materialism, and its watered down version, class instrumentalism, face a major problem of being unable to explain those aspects of capitalist law which seeks welfare of the underprivileged classes. As a means to the amelioration of the economically or socially deprived classes the welfare state gives juridical legitimation to numerous poverty alleviation schemes, such as affirmative action for reservation of public offices, worker compensation, unemployment insurance, health, nutrition, and educational schemes for the poor, differential taxation laws according to income, and so on. In reconciling to such laws of the welfare state, instead of explaining the Marxist may opt for explaining away the laws as further deceptive steps in the capitalist economy [6], or he may argue that the welfare state is headed towards socialism through such laws [7]. In either case, in so far as welfare legislation provides some economic assistance to the underprivileged, however meagre, the existence of the contradictory exploitative and non-exploitative laws within the same legal systempose serious difficulties for the general Marxist view of the ends of law. III Having taken note of the significance and shortcomings of the Marxist theory, let us turn now to observe the legal phenomenon in its historical perspective, in so far as our understanding of the ends of law is concerned. The history of law is indeed the history of class struggle, but not concerning only the regulation of the means of production. From the point of view of ends and means two major radical changes can be discerned in the conception and practice of law: one that emerges during the Renaissance and the other, after the decline of Enlightenment. To understand the basic structural changes one would have to first note some general characteristics of normative systems. Amongst other properties, there are two basic characteristics of a normative system: it must specify norms, in accordance with which actions generate the social conditions for the achievement of some desirable goals; and it must specify the goals that are to be achieved in such conditions. The latter are the ideals, the end values worth achieving, such as salvation, moka, nirva, self-realization, independence, freedom, dignity, godliness, and so on. The former types of norms, on the other hand, specify those normative values which are necessary for sustaining the conditions under which the ideals can be achieved. Some such values conducive to the generation of the conditions are: tolerance, brotherhood, temperance, harmony, equality, peace, non-violence,

and so on. The point made here is simply that all desirable values are not desirable for the same reason. Some are desirable as ends in themselves, while others are equally absolutely desirable because they generate the means to achieve what is desirable as ends. Now simple as this point may be, moral and legal theorists have not always maintained this distinction clearly, and clubbing them together as 'moral values' they have often asserted something about one sort of values which actually apply to the other kind. [8] Thus, Plato talks of The God as the ideal, without making clear what applies to the good conditions worth sustaining and what to the good that needs to be achieved in such conditions. [9] Kant talks of 'eternal peace' as if that is the final ideal to be achieved by legal treaties. [10] Peace, as noted, is a values conducive to the realization of ends. The ends that are to be achieved in peace need separate specification. One may legitimately ask Kant: once the legal treaties have brought about the desired condition of eternal peace in a society, what ends are worth achieving by the members in that society? Kant's moral and legal theory has very little to say on this, but clearly the question is not vacuous and its answer is just as important to understanding the ends of law and morality as that about the condition of peace. The distinction between these two types of values has ben more consistently maintained in the earlier social and moral theories in India in terms of the distinction between dharma and pururtha. The conditions of dharma must obtain so that people are able to realize their pururtha (ideals). Dharma specifies regulative principles which holds a society together, the ends to be achieved in such a society are specified separately in terms of the ideals. Although the notion of pururtha has been understood more clearly as ends, the idea of dharma has undergone various interpretations. [11] For purpose of the discussion here it is not necessary to go into the various meanings of dharma; it suffices to note this one general distinction between the juridical sense of dharma and of pururtha. IV Let us turn to see now what relationship law has to religious institutions. Prior to Renaissance the main function of law was to regulate, society, in terms of classes and types of people, conditions of transaction and bargaining and sanction against the set rules pertaining to such conditions. This is true of both the dharmasstras and of the Canon law. It was not the task of law to reform or educate society or to tell people what ends are best for them to realize. These tasks were undertaken by the religious institutions. The French Revolution and the new Napoleonic code brought about a radical change in the nature of legal codes and legal enterprise. The new Bill of Rights was not a description of what existed in the society but what ought to; it set out the ideals before the society which it must realize for each member. Law thereafter has become not only regulative but essentially also reformative. Numerous bills of rights and preambles have been enacted since then which guide legislations to bring about a better society. Social reform motivated by religions sought justification through transcendent authority, that is, by appealing to transcendent beings. The new law, after the first Bill of Rights, did not seek justification for social reform on the basis of transcendent authority; it sought a transcendental justification, that is, justification based on human reason and human desires alone. This change from transcendent to transcedental justification marked (sic not only) the separation of law from religion, but in the process it also transformed the nature of law by assigning it a task, namely, social reform, which was hitherto the domain of religion. There are various historical reasons why this fundamental change occurred. It is not possible or necessary here to go into this social history, since the aim here is limited to only noting the radical change in the nature of law. The factors in the social history that one would have to explore to understand the transformation of law, would, I think, relate to the upsurge of the new Baconian science, rebellion against religious authority which had begun to govern not only the fate of men but also the fate of states, and in general the emergence of a new sense of nationalism which could not seek its justification in transcendent authority or ideals. Social reform requires an understanding of social teleology, it demands specification of the goals or ideals that a society must strive to attain. Whereas, law had hitherto concerned itself merely with the specification of the social conditions under which the desirable goals could be achieved (i.e., with dharma), the reformative movement after Renaissance brought in specification of the ideals,

the social teleology (i.e., pururtha) within the domain of law. With the decline of religion, St. Augustine's 'City of God', and the notion of 'Rmarjya' did not perish; they were reborn and with much greater vigour, in the realm of law. The new visions of the 'City of God' or Leibniz's 'Community of Grace' found new expression in various models of 'democracy', the 'socialism' and 'communist society'. These visions now form an integral part of the legal phenomena. Marx's Communist Manifesto is a good restatement of St. Augustine's The City of God, although one may rightly disagree with various aspects of Marx's portrayal of the utopia. The important point however, is that it is this Communist Manifesto pregnant as it is with a particular understanding of the teleology of society and its ideals, that gives life to the socialist legality. It is only in the light of this that one can understand why the various legal codes in socialist and communist nations give prominence to the bill of rights, duties and the preamble, despite the fact that in accordance with their own theories, otherwise, law is an instrument of class exploitation and will wither away. The emphasis on the bill of rights and the ideals embodied in the preamble show that within the socialist legalities the intuitions do not match with the avowed theories. The socialist legality evidently misunderstands itself. It emphasizes rights and ideals for the same reason that the socalled democratic countries do, namely the intuition (although not yet an explicit realization) that utopia, together with all our knowledge about the pururthas, is now an integral part of the idea of law. To work out the law's relationship with the coercive system one has to first understand the basic presuppositions and principles through which the two institutions are related. Kant's moral and legal theories, which signify the high tide of Enlightenment, attempt to establish the autonomy of law. In his Rechtslehere he seeks basic synthetic a priori principles which can justify legal authority independently of the reasons for which a religious or a political institution may exist. In arguing against Hobbes's Leviathan he describes the sociale pactum as an idea of reason that forms a ground for the existence of the civil state, but as a postulate, not as a historical fact. [12] The reasons for the existence of law however, is independent of the social contract. Unlike Locke, Kant does not make the existence of law dependent on the state's capacity to punish the wrongdoer or to safeguard private property a capacity whose legitimation derives from the social contract. For Kant, retribution and the realization of peace are justifications by themselves for the existence of law, the notion of justice in itself entails the notion of reciprocal coercion which in turn justifies punishment for the delinquent. [13] Taken to its logical consequence, Kant's argument shows why the ends and means of law and its existence thereby are free of all political contingencies. But it was not taken to its logical end for the basic reason that although Kant was able to separate the grounds for the existence of law from those for the existence of the state, he was unable to separate them from the grounds for the existence of coercive forces. If the concept of justice implies reciprocal coercion for the delinquent, and coercion can be done only by a legitimate coercive force, then the existence of law becomes dependent on the existence of the coercive force. Now further, if the existence of a legitimate coercive force depends upon the existence of a legitimate civil state, the law eventually cannot seek its justification independently of the grounds for the existence of a civil state. This failure to distinguish the grounds for the existence of legal systems from that of a coercive system has had two major consequences: first, it confuses a theory of law with a theory of state, or at least does not provide grounds for the separation of the two; and second, the more dangerous consequence, it confuses the status of the coercive system, in the sense whether it is an extension of the law or an extension of the state. If the grounds for the existence of the legitimate coercive system (the police) are derived from the grounds for the existence of the law, then the coercive system is an extension of law, in the sense that it exists to make the legal system possible, while on the other hand, if the grounds for the existence of the coercive system are derived from the reasons for the state then it becomes an extension of the state, in the sense that it exists to make the state possible (if the state is equated to the political system, then to make the political system possible). But the high tide of Enlightenment is unable to specify the relationship between the law, the coercive system and the state clearly, and this is where the tide begins to ebb. The period that followed Kant was one of expansionism, colonialism and imperialism; it involved creating new colonial states which were far from Kant's 'Ideal State' and his 'Republic'. It is in this

decline of Enlightenment that we observe a radical change in the Western conception and practice of law,not so much in the United States, but on the Continent, since it was Europe that was actually engaged in expansionism. The radical change, as one may guess, was to strengthen and legitimize the coercive forces as an aspect of law in such a way that the bipolar relationship of the coercive forces with the law and the state could be fully exploited for the purposes of governance. This has been achieved in two ways: first, by propounding an extreme version of legal positivism in which not just the coercive system but the law itself is made an extension of the state. Coercion can then be used by fiat by the state and justified as being in accordance with the law. The zenith of this version of legal positivism was the way in which the Nazi government, declaring itself to be the state, used the coercive forces in the name of law. The second type of legal positivism is more subtle; it officially defines the coercive force to be an extension of the law but declares the state (the governing political party) to be above the law, in terms of privileges and rights. As a consequence, whereas for the common man police action is legitimate legal action, i.e., valid extension of the law and bound by its limits, the question about the legality or the illegality of police action by the state (or whoever represents it) does not arise. As such, the state is once again free to use the coercive forces by fiat, while keeping the appearance of its legality for the common man. This is the type of theory which has been used in colony building; it is also at the root of dictatorship and totalitarianism, which profess to be democratic. In all such political practices the government uses the coercive forces in accordance with its own will but seeks the legitimacy for such uses from the law. Every violation of the rules set by the state can then be punished by the coercive forces as violation of the law. In the dark ages after the Enlightenment the common man therefore says 'here comes the law', when he sees the police coming. The state-person however knows that the police is not the law; hence, he is free to use the police in the manner he chooses. The degree to which this duality occurs evidently varies from society to society, depending on the degree to which the coercive force is identifies with the legal force and the degree to which the state is not above the law. The state is of course a much wider notion; it includes within itself the educational, the recreational, the commercial, the religious and other institutions. But the aspect of state that we are concerned with her is the political. It is this institution that has the most significant relationship with the legal institution, and it is this that is most often identified with the state. A reductionist political realism would identify the state with the ruling political party or the government. As concerns the state as a political institution it is extremely important to realize that the political system, the legal system, and the coercive system are three distinct and independent systems, although related to each other. One is not an extension of the other. On what basis can one say that the three are distinct systems? I have dealt in detail with this question elsewhere, but it will not be out of place to discuss it briefly. [14] The way the uniqueness and identity of any institution is recognized is by noting its structural properties and its systemic aims, that is, its main functions or purposes. If these happen to be the same as those of any other institution or are similar to those of many other institutions, then evidently there is no uniqueness for this institution, it is either a branch of some other system or perhaps not even an institution by itself. Many institutions have overlapping functions and structures, but there are degrees to this similitude. There must be at least some functions and aspects of the structure of an institution which do not belong to others, if it is to be recognized as an independent institution. These special attributes of the institution are its essential properties which distinguish it from others. The essential properties of the political, the legal and the coercive systems would indeed have to be shown to be distinct if they are to be established as independent institutions. A detailed argument cannot be undertaken here, but the distinctions need to be noted. For present purposes, moreover, it is the distinction between the legal and the coercive systems that requires greater attention than that between these two and the political system. As regards the political system one may note one basic general fact that one of its essential functions is to govern to run the administration and the services and manage the finances to some degree. Governance in this sense is neither the function of the legal system nor that of the coercive system. The political system therefore stands apart. Order in human actions can be brought about in various ways: by religious conviction, by mass hypnosis, by fear, under threat of force, etc. , but not any and every order is legal order. Only

voluntary actions in accordance with rules which human beings follow (either because they believe the rules to be rational or because they want to bring about a similitude of actions so that there is a uniform pattern in society for the sake of administration, market, and efficiency) can qualify to be legal actions. The order that such actions bring about is a self-imposed order by human beings; the reasons for such an order are internal such as the rationality or morality involved in following the rules and the efficacy they facilitate. For example, the rule that one ought to drive on the left side of the road, when followed by all or most drivers in general makes driving more efficacious. The desire for an efficacious and safe social order for driving can be both necessary and sufficient grounds for following the rule. No external reason is required. Similarly, the rule not to kill others except in self-defence, can be followed for its own rationality and morality; no external reason is required. The common pattern of determinate and determinable actions which emerge from the following of such rules constitutes the legal order in society, an order which is self-stipulated and willingly self-imposed by the society. A coercive order is a totally different type of order. No society in its senses will self-stipulate and willingly self-impose coercion on all its members. But every society will allow some of its members or some groups to be coerced. Which ones? Precisely those who act contrary to or outside the legal order. Since these members or groups work outside the law and do not maintain the legal order, their actions have to be ordered by another means, namely, coercion. But it must be noted that it becomes necessary to bring about order by external means, such as coercion, only when the legal order fails or is absent. The coercive order is a substitution for the legal order. It comes into play when either the legal system is unable to regulate people's actions and the people have recourse to illegal action on their own, or when the rationality of the law fails to motivate or delimit someone's action and he acts contrary to law. In either case the coercive force, which the law authorizes, is in recognition of the fact that actions are taking place which are outside the legal order. If A is a substitute for B then A cannot be identical with B. The legal order and the coercive order, therefore, are independent but related; related by the fact that the law allows for coercion when it recognizes its own failure or absence. The degree to which this substitution is permitted is defined within law. The coercive system, thus, is neither an extension of the executive nor of the political party forming the government and, as we have noted, not even of the legal system. It is an independent system regulated by law. No unique significance need be attached, however, to this function of law. It also regulates the market system to see that bargaining and transactions are equitable, the political system to see that it governs within the bounds of law, and various other independent systems of the society. Since the legal order brought about by the legal system is a self-imposed order which has its existence in voluntary actions by the people, for reasons that are internal to law, the people have to reach out to law, to the courts, to the lawyers. The law does not impose itself upon the people, it does not compel them to act legally; they must do so on their own. The coercive order brought about by the coercive system, however, being externally imposed upon by the people, has to reach out to them, it has to compel them. The system, therefore, does not have its existence in the actions that the people must do on their own. This radical existential difference between the mode of the existence of law and that of coercion clearly establishes the distinction between the legal system and the coercive system. It is also the basic reason for the distinct modalities for the execution of their respective functions. The point of labouring this distinction between the legal system and the coercive system is just this that it is precisely this distinction that the post-Enlightenment colonial and neo-colonial (but socalled 'liberal') legal theories do their best to muddle and confuse. It is this confusion that has brought about a radical change in the nature and function of what is perceived and practised as law in this century. How is the confusion sustained? First, just as the common man is taught to believe 'here comes the law' when he sees the police, the people are also taught to believe that it is the state's job to maintain 'law and order'. 'Law and order' are always talked of together as if they were one and the same thing. Orders, as we have noted, are of various types. The kind of order that the state proclaims it wants to maintain, namely, the legal order, is precisely the kind of order that cannot be maintained by the states; it can only be maintained by the people when they willingly act according to the rules prescribed. If the people act contrary to it all that the state can really do is to set the coercive forces on the people so that under

compulsion and fear they act in an orderly way as desired by the state. But this order under compulsion is not a legal order, it is a coercive order a uniformity of actions brought about by threat, not by people's rational acceptance of the rules. The maintenance of law and order, in the sense of legal order, can only be a result of mutually self-enacted deliberate actions of the people; the people therefore have a duty to maintain the legal order because its existence depends on their actions. What then is the advantage gained by the state (more precisely the government) in proclaiming that it is maintaining 'law and order' every time it sends in the coercive forces to bring about an order through compulsion? We shall see the advantage in a moment; here it will be important to note the second way in which the confusion between the legal system and the coercive system is sustained. Textbooks on the legal theory in our century are replete with the assertion that 'law is a coercive system' (in the sense of being a coercive institution); they also continuously talk of the 'enforcement' of law. This is true of almost all textbooks, whether one picks up a book on jurisprudence, such as of Paton, or one of legal theory, such as of Hart or Hans Kelsen. What is really meant by 'enforcment' is implementation, but then why talk in terms of force? What advantage is gained thereby? We shall see this presently; it needs to be noted here that if one does accept the fact that the legal system and coercive system are different then defining law as a 'coercive system' is an absurdity, though not without intent. The intent of this definition and of talking of the 'enforcement' of law, as well as of the 'law and order' problem which the government takes the responsibility to solve, is none other than to exploit the relationship of the legal system with the coercive system, in a manner which gives legitimacy to all coercive actions by the state. As noted, since every society has a legitimate need for a coercive system, and since law itself authorizes and limits the powers of the coercive system, it is a matter of great advantage to the governing powers that be, to define the coercive system itself as a legal system, for then there is no external check on the coercive system; it authorizes itself and sets its own limits. The additional step required is to declare the coercive system to be a part of the civil services, that is, an extension of the executive or the administration run by the government. The legitimacy to coerce in the name of law and the freedom to use the coercive force is then simultaneously achieved. The degree to which identification of the law with coercion and coercion with administration is required depends upon the degree to which the state is colonial or dictatorial. In a totalitarian state the bipolar identification of the coercive with the legal system would be total; the state would then declare 'martial law'. This term embodies the perfect contradiction, for if one understands the meaning of the terms 'martial' (i.e. Coercive) and 'law', one would know that law ceases to exist when coercion totally substitutes it. V This analytical and historical background of what law has come to be in this century must be necessarily comprehended if one is to explicate the dialectics of how the law works, in terms of its ends and means, in modern times. But before we attempt to outline the dialectics it will be useful to briefly recapitulate the central features and the main points of tension that have been mentioned so far. We have noted that there is no a priori limit on the types of legal methods, that the plurality of legal methods is not only warranted but also necessary given the diversities of cultures and social needs. Since every society requires a public platform for resolution of conflicts two types of social commitments by the people become necessary: first, to stipulate and abide by some basic principles of fairness and equity expressed as the law, and second, to accept the existence of a coercive system which can substitute the legal order when it fails. This dual commitment creates the conditions for its own contradiction: the willingness to abide by the law allows for the legislation of such rules which are either not at once recognized to be contrary to the principles of equity and fairness, or even when so recognized cannot be repealed at once for political reasons; second, the willingness to accept the coercive system, i.e., to legally authorize it, allows the possibility of the use of the coercive system in a manner which is contrary to the very interest of the legal system, as the coercive order may indefinitely or perpetually replace the legal order if the political interest

has the upper hand. The point about 'resolution of conflicts' requires some deeper consideration. We have noted that modern law is not merely descriptive but essentially reformative. It embodies visions of the best or better society (utopia), it also involves enunciation of social and moral ideals (the pururthas) that need to be realized by the legal system (i.e., through voluntary actions of people). Legal conflicts and their resolution, therefore need not merely concern disputes over property, conjugal relations, and their like. These can also be about the very visions of a good society, about the acceptance or recognition of certain notions as social or moral ideals that must belong to law, as well as about the new legal means that must be adopted to realize these ideals. These facts become obvious if one observes the judgements given to resolve the conflicts, specially in the hard cases. To mention a few Indian cases: for example, the non-operational part of Justice Chandrachud's judgement in the 'slum dwelle's' case [15] is a paradigm instance of how the law invokes social ideals for the amelioration of the condition of the poor. Kesavananda Bharati [16] and Minerva Mills [17] on the other hand, involve explorative visions of what would be a true democracy. Menaka Gandhi [18] and Sunil Batra [19] seek new meanings of human liberty. A good example of how the law takes over the job of religion is the Shah Bano Begum case [20], here the law establishes a new aspect of the conjugal relation amongst muslims an aspect which hitherto was controlled only by religious fiat. The Doon Valley case [21] and numerous other public interest (social action) litigations revolve round the notion of social development and what it means to live a wholesome life. There are hundreds of such cases, not only in India but in the laws of many countries. In the light of these specific characteristics of law what inferences can one draw about its dialectics? The inferences would evidently relate directly to the types of solutions that are possible for the resolution of the inherent contradictions in what is presently called the legal enterprise. First, in so far as law is a rational enterprise (i.e., one that involves co-operative reasoning by the judge, the jurists, the litigants, and the public), in seeking its autonomy and identity it will seek out all those elements which are rational (can be reasoned out) from the religious systems and make them a part of law. Since religious edicts are within the domain of private laws of communities, this dialectical tendency would entail the non-privatization of all private laws. All private law must eventually become public law; the distinction between public and private law would then cease to exist. The Hindu Marriage Act, 1955, is one such deprivatization of the dharmastras. The Special Marriage Act, 1954, was an earlier move that facilitated this dialectical step. The Hindus, in fact, now have very little that can be strictly called private law. The Indian Constitutional desire to have a uniform civil code is in effect nothing but an expression of the dialectical move. Second, in seeking its identity and autonomy, just as law needs to move away and separate itself from religion, it needs to distinguist itself from politics, specially that aspect of politics which controls the coercive system. In other words, just as 'separation of law and morality (i.e., religious morality)' was the theme of the last and the first half of this century, 'separation of law and coercion' is going to be the next dialectical theme in the coming years. There are various ways the tensions and resolutions of these tensions can express themselves. For example, wherea the political system will seek more oppressive jails for effective coercion, the legal system seeks to not only mitigate coercion within such institutions but reach out more and more towards rational psychology for effective reform, rather than punishment. Being antithetical to coercion law will progressively seek methods which check the criminalization of people by the coercive forces, as well a those which promote reform. In the internal dialectis of the law, therefore, the criminal and the constitutional law move in two different directions. Whereas constitutional law progressively enriches itself in its fulfilment, the criminal law is self-annihilating, it would wither away to make place for rational psychology and, in general, education, in place of punishment. The degree to which law has moved away from the notion of punishment to reform is also the degree to which it has moved away from coercive system towards employment of non-coercive forces. Third, as noted, the willingness to accept law also makes possible the legislation of exploitative rules. Cases which involve conflicts of law and not just conflicts of individual interests, can often expose or bring into play the radical differences between the exploitative rules and just rules. This

tension is internal to the legal system. Thus, for example, the implications of the Indian Forest Act, 1927 which is still operative and the Fundamental Rights or the Directive Principles of the Indian Constitution, are radically opposed. While the former is outright exploitative for the tribals, the latter are intended to be for their benefit. The desired amendments to the Indian Forest Act, hence, not only express conflicts between different class interests but also between different types of laws. These laws have been motivated by different ideologies. The total body of law at any given time embodies a variety of laws which, individually, are outcomes of different ideologies. An ideology may, of course, generate not just an individual law but a whole set of laws. Within the Indian law, for example, the Fundamental Rights chapter is an outcome of a liberal ideology, while the Directive Principles emerge from a type of socialist ideology. The Indian Telegraph Act, the Forest Act, the Land Acquisition Act, and other similar Acts, on the other hand, have roots in colonialism and imperialism. The dialectics of law, hence, must seek resolutions of conflicting ideologies within its own body. This happens not only in legislative amendments but also through court judgements. But it must be noted that the public platform or the forum provided for the resolution of conflicting ideologies or rationalities is the legal system itself. The system therefore has a dual role; of resolving opposing ideologies as well as providing the social space within which the ideologies can be resolved. If we understand law in this manner then evidently the leftist assertion that law is an ideology is misconceived; the truth is that law is not an ideology, but ideologies, and moreover and this is more significant it is simultaneously also the social forum for the resolution of ideologies. This social significance of the legal system needs to be emphasized, because it conceives law in a new and a different way than what Habermas, Marcuse, the new Radicals, the Frankfurt and Scandinavian schools, would have us believe. Of course, the relationship that these schools and thinkers like Habermas, Marcuse, Max Weber and others, assert between law and ideology, needs a separate detailed analysis. This task is not intended here; in point out one central feature of this dialectics of law, however, this crucial difference between what I have said here and what others have said about the relationship between law and ideology, is, I think, important to mention. These then are some of the basic features of the dialectics of law. All this is not meant to be exhaustive but only an indicator of the central features that one must necessarily take into consideration if one is to write in detail about the means and ends that law adopts in its dialectical evolution. Notes and References 1. Lon L Fuller, The Morality of Law, New Haven, Yale University Press, 1964, p. 125 2. HLA Hart, The Concept of Law, Oxford, Clarendon Press, 1961, p. 41 3. Lon L Fuller, The Morality of Law, p. 129, See also his 'Positivism and Fidelity of Law', Harvard Law Review, 71, pp. 630, 661-9. 4. The Instrumentalist theory of Law seems to be clearly implied in Karl Marx's Capital (London, Lawrence and Wishart 1972, Vol III, p. 793); but in his earlier writings such as 'Theft of Woods' (Werke, Berlin, 1966, Vol. I, p. 1 and pp., 11-146), his discussion of customary rights suggests he is appealing to principles of fairness and equity which are not dependant on class ideology. 5. For a more detailed discussion of this point see my Law From Anarchy to Utopia, Oxford University Press, New Delhi, 1985, pp. X-XIII, 112-117. 6. The Radical's predicament is explained in some detail by Huge Collins, in his Marxism and Law, Oxford, Clarendon Press, 1982, Ch. 6. 7. See: S. Avineri, The Social and Political Thought of Karl Marx, Cambridge, 1968, Ch. 5. 8. Allan Donagan's work, which professes to be about morality as a whole, is a good leading work from which one can learn how to be confused about two types of values, see his The Theory of Morality, University of Chicago Press, 1977. 9. Plato, The Republic, Trans. Benjamin Jowett, Garden City, N.Y.n, Doubleday, 1960. 10. See Immanuel Kant 'Zu Ewigen Frienden', trans. 'Eternal Peace', by H.B. Nisbet in Kant's Political Writings, Cambridge, 1970.

11. For a detailed discussion on some related meanings of 'dharma' see P.V. Kane, History of Dharmasastras, Bhandarkar Oriental Research Institute, 1930-62, Vol. I, II. For a discussion on pururtha see Rajendra Prasad, 'The Theory of Pururtha Revaluation and Reconstruction', Journal of Indian Philosophy, 9, 1981. 12. Immanuel Kant, 'Theory and Practice', Trans. H.B. Nisbet in Kant's Political Writings, p.297. 13. Kant, The Metaphysical Elements of Justice, Trans. John Ladd, Indianapolis, Bobbs-Merrill, 1964, p. 230 14. Chhatrapati Singh, Law from Anarchy to Utopia. See also Leslie Armour and Chhatrapati Singh, 'Constitutional Law and the Nature of Basic Legal Propositions' in Journal of the Indian Council for Philosophical Research, vol. II, No. 2, 1985. 15. (1985) 2 Scale, Vol. II, No. 1, July 8-14. 16. AIR 1973, SC 1461. 17. AIR 1980, SC 1789. 18. AIR 1978, SC 597. 19. AIR 1980, SC 898. 20. AIR 1985, SC 845. 21. Rural Litigation Entitlement Kendra, Dehradun & Others vs State of U.P., AIR 1985,SC 652.