LAW AND JUSTICE – INDIVISIBLE CHARACTERS OF HUMAN HISTORY by -Nagakishan VJ
The legal system in every country, is the symbol of the ever-long evolution of human beings, from the state of being savages or the beings of the wilderness, to being the beings with rules and regulations, that help humans to have a sense of understanding and comfort to live in society and to be at a state of peace amongst others. All over the globe, all the countries which are present have suffered from a different set of circumstances which have made them rethink and to redesign their framework to govern the citizens of the country and to maintain stability and harmony. Law and Justice are two important aspects for governing people. Law is the rules and regulations and Justice is the correct implementation of the law. Only when humans have achieved a sense of understanding with the way that they live, only then, would there be justice which would be served. In this paper, the author tries to understand the importance of the harmonious existence of the concepts of Law and Justice. The author goes through the various scenarios at different times, throughout the history of mankind and tries to understand the evolution of Law and the interpretation of Justice. In conclusion, Law and Justice are two very important aspects in the lives of any and every person who lives amongst other being in the civilization of man. And with the help of case laws and factual evidences, the author tries to understand the necessity of law and justice to be the indivisible parts of the existence of humanity and what the future might be in regard of the same.
Key Words – Civilizations, Harmony, Implementation, Justice, Law, Peace.
Throughout the history of mankind, all that the human beings have learnt is that “The History of mankind, is the history of ideas”2 which as mentioned by Luigi Pirandello, an Italian author and dramatist3 who speaks truth through his words. And with that example, an elaboration on the history of mankind can be understood. Because with each evolving idea, humans have empowered themselves to solve the biggest of problems with the tiniest of solutions. The vast complexities and the unique distinctions that each and every civilization had, based not only on the geographical location of the civilization but also on the way the people have lived their lives in that part of the globe. The characteristics of civilizations are what makes it unique, the administration of the territories, and the population within the territorial limits, the architecture and the culture all of which make it different from one another4.
The author through the paper, tries to highlight the various scenarios in time and understands the legal structure and the framework with which these civilizations have worked. Because, most of the civilizations are the very basis and the inspiring models of the modern legal systems in various countries and even the way colonization of various parts of the world has been an influencing factor for the legal framework of a country.
Law, is to be understood through the jurisprudential eyes, as various jurists through the apex of time, have had various perspectives and various views on the same subject. But, the question of understanding the meaning of law, with the social functions or thorough the formal definition both of which are given by jurists are the debate which must be resolved to better understand law and its relationship with justice5.
And hence, for better understanding of the topic, the author would like to break the major part of the paper into several parts by which it would be easier for the readers to understand and to reflect the information of this paper. The first part of the body of the paper, would be mainly discussing about the ancient history of the administration and the legal structure of the civilizations which have helped shape the country, which is now in existence. The later-half of the body, would comprise of the modern history which would discuss on the recent trends and developments of law and justice. And through these divisions, it would be easier to understand the intention of the paper, being to highlight the necessity of the Law and Justice to be in harmony with each other.
The Harappan city, which was a major part of the Indus Valley Civilization is one of the four ancient urban civilizations6. And as it was for example, using clay seals which would help for recognition for owners of goods in transit, and to manage goods which would be then stored in warehouses7, which would then fall under the administrative section of the civilization which was hierarchical institution based on kinship or political organization8 and surpassed the way utilization of skills and sowed signs of organization, accomplishment. There is even belief that, the Rig Veda which is the oldest book which has Sanskrit poems written on religious and philosophical development in India9 and is even believed to have been composed during the 1500-1200 BC time period or maybe even older than that, which makes it to be believed that, the Indus Valley Civilization would have also been present during that time10. And so, a conclusion on the assumption that, the Rig Veda was written during the time of the Harappan Civilization and hence could be equated as one and the same. Hence all or most of the writings of the Rig Veda can also be considered to be unified with the way the Harappan people used to follow in terms of politics, their legal structure and their culture and practices. There are a lot of geographical similarities as to where they coexisted and would have been written at the same time11.
The Rig Veda talks about a lot of concepts of human’stasks and duties, which can be called as “DHARMA” and the Rig Veda also talks about the legal system12, which can be assumed that the Harappan people would follow. And a poem from the Rig Veda describes the legal system and the Hymn of Rigveda,10/191/2-3, describes the exact same. The Hymn elaborates For general queries or to submit on the need and necessity for harmony among the people, so there would be no difference between people and all of them would be considered as the same, mutual assistance and co- existence would be the key for the development of the society as a whole13. And there is even traces of this concept in the French Revolution which was “Liberty, Equality, and Fraternity”14 not necessarily influenced from the Vedas, but this concept is what has been used in different parts of the world to get together people and for there to be no differences amongst humans for harmony. Therefore justice as a concept, for the Harappan’s would be something which would be more of equality among the people which would transcend any difference which would exist. And even traces of the peaceful existence of the people are mentioned by various archaeologists15, the only weapons which they had in presence were some clay balls which would be fired by the use of sling shots etc. which was majorly used for self-defence and never to attack. Hence, there would not really be use of brute force to shape the functioning of the people and there was no signs of police being present to handle crimes during their existence.
This is an assumption of what would be followed by the Harappan people, which is based on geographical similarities and very significant mentions of various practices followed by the people of Harappa, which would lead to the author making such assumptions.
And hence that would make a very significant impact of the present India, because as India is a Hindu dominant country and as the religion is highly based on the Vedas and several other sacred scriptures, the traditions and practices of the people now could be trickled down from the people of Harappa.
To conclude the Indus Civilization, they were people who had their roots deeply planted to mutual assistance and harmonious co-existence which is the core theme of the Hymn of Rig Veda, which could have been the legal structure to which they adhered to and as to the justice part of their civilization, they had a very peaceful way of living and crimes committed were also scarce because of the harmony they had amongst their selves. Hence, law and justice were concepts which were interconnected and which got a lot of value because of its integration within the societal norms. As the transition happens to the modern era, life and the way everything prevailed started to become more complex and more convoluted than before. The European countries, in the early 14th and 15th century would voyage through the seas in hope of discovering new wealth, new resources, new regions, new geographical locations etc. And this lust for adventure is what led to the birth of the “COLD WAR”. Cold war which essentially means a war which is fought with the least resort to weapons but fought mostly on the grounds of political, economic and propaganda fronts16, which can also be concluded as a fight for supremacy or being the highest power. This fight was fought even before the actual term of “Cold war” being coined by George Orwell, in his essay which was called “You and the Atomic Bomb”17, and he mentions that the fight for totalitarianism would lead to catastrophic end leading to the death and destruction of population and property, which is because of the evolution of technology. This would be a really relatable example for presenting the current transition in the paper, as there were same tensions between countries in Europe which was for total supremacy and for a reputation of being the first to have done it. And with that, various prominent countries of the European coast set off to venture into the unknown and to discover. And so started colonisation of various other countries. Even though the idea of venturing was by Henry, the prince of Portugal who set out of the first ever great enterprise 18for expedition to discover the world. After which, a number of countries did the same in order to discover the world and for their own political, economic and to reach to the world and to leave an essence of their supremacy. And this is what led to the evolution of Colonisation of various countries, which was at the onset called as an establishment for trade but had other intentions and motives to conquer the world.
The start of slavery by the colonisers had now emerged to be a matter, which was done for economic wealth as Africans were forcefully taken and sold in other countries. It was called as “The Trans-Atlantic Slave Trade” where almost 12-15 million people were brought into the western hemisphere19 and they were considered as commodities and not as people. The first every time slavery set foot on the soil of America was in the year, 1619 when a Portugal ship docked in Virginia20 and were used for labour in plantations. And the slavery soon became means for gain of wealth by the traders as the commodities made by them were sold elsewhere and profits were drained form the sweat of the slaves21. And soon after which, this parasite of slavery turned into law, which mentioned that the child born to a slave woman would be a commodity. This eventually led to the enactment of laws which would be biasing on the grounds of race. The Stono rebellion22, which was the biggest slave rebellion against the colonisers was the start of the long fight to free the slaves. After centuries of fights for freedom, slavery ended when the “Preliminary emancipation proclamation” was announced by President Abraham Lincoln, in 186223.
The major premise of the whole problem lies in the history of the arrival of the Africans and the Immigrant Europeans to the country of America, the former entered the land as “Slaves” and the later entered the land as “Immigrants”24. Which is the initial cause of the entire problem of the discrimination against the coloured. The problem also lies in the way the law during the time was formed. The coloured who were held as slaves, against their will were completely ill-treated and there existed a vast sense of prejudice against their existence and them acquiring free will and independence.
Even after various changes, the damage which happened had not vanished. This issue of slavery slowly changed and emerged in the form of racial tension among people25. The existence of the coloured in the country, led to another problem which was the direct result for the emergence of various crimes, brutality by the police against the coloured people. The interpretation of the law by the police, is most likely to influence the way which would be mostly to justify the actions which they would have taken and not to give the law which exists effect and that influence would also be used in infraction by the District attorney and which would eventually lead to the judge as well, all of this would mean that the trial and the sentencing26 would also have a dire effect which likely would end up being in the ill-favour of the innocent, who is not the perpetrator of the crime, but becomes the victim of the violence by the police. And one such case, which happened in the same manner, was the case of Walter McMillian, a man whose colour of skin led the police to apprehend him for a crime which he did not commit and was put on the death row in the state of Alabama27.
This case is one of the most prominent in the country, because of all the behind the scenes events which had happened prior to the trial, during the trial and even after the sentencing of the innocent. All of which started when, on November 1st, 1986 in Alabama one, Ronda Morrison, who worked at a dry cleaners as a clerk was shot thrice and moreover, the victim of the crime was a white 18 year old woman. This case had met with unfruitful investigations by the police of the state for over three months and the community was outraged by the acts of the crime which they had faced. And due to the pressure, the police arrested, one Walter McMillian, who was black and had no previous criminal record and was framed by the police as the perpetrator of the crime28.
The Monroe County, which is the place where the crime had happened, only had 60% as the white population, because of which the trial had to be moved to Baldwin County which had 86% of the population as the white. And in addition, the jury which is a constitutional right29 of the Americans, and in this particular situation, the 12 person jury30 which had to have an equal representation of all communities had a bias and one person of the other community and all the rest were of the majority, which added to the prejudice of the case. As John L. Cooper, in his book mentions that, “It is this interpretation that is more used for the basis of the prosecution, than is likely to be the explicit statement of law”31 and holds true for this situation. Even though the defence had six witnesses who testified, stating that McMillian was indeed present with them at a family event that day, all of which had been in vain and had not even been considered and based on the recommendation by the jury, he was sentenced for the death penalty32.
When McMillian was initially arrested by the police, he was arrested on, July on 1987, which is one year after the murder had happened. And he had been arrested on the charges of Offence of Sodomy, which are totally unrelated to the case and when he was arrested post the event, the next day a warrant was issued which was charged on murder of Ronda Morrison33. The difference in opinion existed right from the day he was arrested and existed all the way to when a case which was filed for re-trial of the case. Vital information which was important for the credibility of the witness, to prove the innocence of the accused, all of which was undisclosed to the defence.
After 6 years of hearing and appeals for another trial, the trail which had been conducted on the February 23rd of 1993, the court concluded that, “the state suppressed exculpatory and impeachment evidence that had been requested by the defence, thus denying the appellant due process of law, requiring the reversal of his conviction and death sentence”34 and his conviction was considered to be unconstitutional. Later, an investigation which was conducted by the Alabama Bureau of Investigations which later confirmed all the evidence which was founded by the EJI advocates35.
The law had not been kind towards the minority, not only in the United States of America, towards the coloured or for that matter in many countries which have the existence of the minority which might be in race, culture, ethnicity or even religion. They have to be treated equal and have to be treated as if they were on the same boat as the majority are viewed.
The start of the 21st century, the world has evolved. Who would have even thought that, connectivity between two computers would be the most revolutionary technology which would ever be invented. The internet took the world by storm right from the day of its inception in 198336 and from then on, a technological, informational, cultural outburst happened and changed the whole world.
Moving to the eastern hemisphere of the world, India is one of the most prominent country. With the second highest population and the largest democracy because of the interest that people show towards the politics 37in the country is an answer for the question of why it For general queries or to submit your research for publication, kindly email us at firstname.lastname@example.org would be the largest democracy. And considering the fact that, India’s legal system is dependant not only on the legal framework that exists but also is highly dependent on the 4D’s which are “Development, Democracy, Diversity, Demography”38 and along with which the aspects of the cultural, religious and historical importance and sensitivity of the people. The legal framework which is the Constitution, being not only firm on laying down the foundation bricks, but also has been of vital importance as it is open for change in the society and to accommodate it in its ranks.
Some of the most important case, which are the key stones for the development of the Constitution, to what it is in the present time. Cases like, Keshavananda Bharati v. State of Kerala39, one of the most important and strong caselaw which strengthened the Constitution by mentioning and getting to the knowledge about the importance of The Basic Structure Doctrine, which is of at most importance and significance as it is a concept which would protect the underlying principle and the values based upon which the drafters of the Constitution, initially had in mind, when coming up with provisions. Importance which is being given to the Fundamental Rights and the protection of them. A D M Jabalpur v. Shivkanth Shukla40, which is another case law, which highlights the necessity of there being high importance which is being given to Article 21 of the Constitution, which talks in depth about Right to Life and Liberty, and got to the perspective by a very influential dissenting opinion by Justice H R Khanna, who emphasised the importance on Right to Life and Liberty were snatched away for a lot of people as this case was based during the time of the Proclamation of Emergency by the then Indira Gandhi government41, and the time when a democratic opinion over the political scenario would have led to the detention of a lot of people who dissented over the ruling government. Life of a person is very important and is very sacred, and it cannot be given or taken away by anyone, and only when the life of people have been given importance by the law, would people appreciate and abide the law which would exist.
Rule of Law, is another concept, which is a very significant part, where rule of law is the order by which everyone would be bound and not the ruler who interprets the rules which For general queries or to submit your research for publication,
have been laid down. As it is put forth properly and in a more articulated manner, “Rule of Law, mechanism, process, institution, or norms that support the equality of all citizens before the law…secures a nonarbitrary form of government and prevents the arbitrary use of power42” it is a key stone which is of so high regard that, which embodies the concept of being a body of non-arbitrariness, reasonableness and non-discrimination in the entire country. Independent Judiciary, Judicial Review, A democratically elected head of state, all of these are the concepts which promote the reign of just and moral governance of a country. And when these are the provisions which have to be taken into aspect when considering the value which has to be given to the Constitution, the true sense of “Law and Justice” come to picture and everything falls in its place, and the entire country would be a place of peaceful and a well engaged form of governance.
In the last 10 years, a lot has changed in the country. In 2018 September, the decriminalization of Section 377 of the IPC43, and passing a verdict which stated instant Triple Talaq to be unconstitutional44 and giving the people a chance to register a ‘none of the above’ vote and exercise their right to reject45. All of these are important changes in the country, which are most important for the travel of the country in the direction of positive change which would be in addition to the changing minds in the society.
In conclusion, the author would once again come back to the question with which the paper began, to be answered are, What is law? And what is justice?
The first thing which has to be considered is that, the formal way of approaching law and the functional way of approaching law must be clearly understood. In the formal way, what the law is established in the country and the framework which it lays down must be considered and taken into perspective. And once when that is established and understood, only then Rollingstoneindia.com, https://rollingstoneindia.com/377-decriminalized/
would there be a possibility for the people to understand what the relationship between law and justice is. And the functional part of the answer would be when, one takes into consideration the various dynamics which exist in the society. These dynamics might have been associated with the religious sentiments of the people, the economic standpoint of the country, the history of the nation, the standard of living of the majority of the population. When all of these are considered, it becomes an answer which would be easier to arrive at.
Law and justice are the inseparable parts of any civilization. The Harappan civilization, for example had a very definitive connection with the two aspects and hence, the people prospered within the land and lived a very happy, peaceful and a very harmonious life within the civilization.
As next mentioned, the slave trade which was initially started to establish dominance on a race by utilising the other and considering them as inferior and as objects of operation for the advantage of only one race. And with the change in time, the aspect of slavery turned to become the most tragic event which took place in mankind and still is considered as one of the most horrific acts done by any person. The cases where police brutality which were more often targeted against the minority and for the aspects of the benefit of the one’s in power, both politically and financially. The effect of those acts which not only affect the psychology of the person who becomes the victim, but would also leave a scar on the families of the victim and majorly on the same ethnic group to which the person has been associated with would also play the victim card in the event, which is the injustice suffered.
Any society or any civilization would prosper only when there is a unique and a justifiable link between what the law of the land specifically is, and the justice which is deserved by all, which would be given to each and every oneconsidering them as the persons of the human race and not persons of certain stratification which was laid down by man hundreds or thousands of years ago. Justice is what is considered as equal representation of the people to the law and not selective representation which has been based on the pride or prejudice of a group of people to ascertain their dominance on the rest of the humankind.
These two questions cannot be answered separately, but are always in consonance and will remain to be till the end of time. Law is the backbone to justice, which is the structure supported by. Throughout inception of time, Law is of the consequence, with which an answer cannot be derived because without lack of investigation of the ways in which law is
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© 2020 International Journal of Advanced Legal Research
intertwined with the whole pattern of who we are and how we live46. And by that, the answer on what is justice can be inferred, as justice is the very embodiment of law in the society which would bring law to be applied equally for equals47, which is all the people of the society, as there exists no difference from considering the fact that all are humans, whose blood is red.
This paper would like to suggest the need for the harmonious integration of law and justice in the everyday lives of people. When there is the peaceful existence of the law of the land, the citizens of the nation would not hesitate to put forward to the government of the nation if they would be under any such indifferences or any would face discrimination at the hands of their fellow peers. Only when one would know about the history of the nation or of the world around them, would they be aware of the injustice and the prejudice which existed before and what should not repeat once again. History is the best teacher for any person, as it can teach the achievements, the flaws, the mistakes, the thought process of the ancestors and the culture which they valued. And all of those are what trickle down from through the history of the country and would leave a major impact on the way the country would function. Most of the times, it is the historical incidents which trigger emotions in the people’s hearts. Only when there is no differences which exist amongst the people, only then there would be harmony between law and justice and the world would prosper and flourish and reach the pinnacle of the human existence.
No matter what the country is, where the situation is, what the time of era is, the right thing and the just thing, always have to be the number one priority which has to be taken into consideration and given the utmost importance. As, knowledge, justice, power, devolution, and compassion are the five essential elements which make a person morally right and just. And when the same concept is applied to a macro level, the entire world taken to be as one person, then that would be the ideal world which justifies every action and deals with every action is a manner which is suitable and which is the right path for a person to tread on, to find meaning to their life and to be the best suitable self that they can ever be.
1 Student at Christ (Deemed to be University)
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- Id note 6
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- Id note 19
- Two Views of the Stono Slave Rebellion, National Humanities Centre, 2009
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- Bruce Pierce, Blacks and Law Enforcement: Towards police brutality reduction, Vol. 17 No. 3, The Black Scholar, Pg. 49-54
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- Id note 11
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17.1984: George Orwell’s road to dystopia, BBC.com, (May 4 2020), https://www.bbc.com/news/magazine- 21337504
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29.The National Judicial College, Why Jury Trials are Important to a Democratic Society, Judges.org (May 6 2020) https://www.judges.org/uploads/jury/Why-Jury-Trials-are-Important-to-a-Democratic-Society.pdf 30.Role of the Jury, Citizensinfromation.ie, (May 6 2020) https://www.citizensinformation.ie/en/justice/courtroom/jury.html
- Supra note 25
- Walter Mc.Millian, law.umich.edu (May 6 2020) https://law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3461
- Walter McMillian v. State, 1 864, Pg.1253, Pg 8. (1991)
- Walter McMillian State, 1 Div. 864, Pg. 933, Pg 12 (1993)
- Supra note 26
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- AIR 1973 SC 1461
- AIR 1976 SC 1207
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- Naomi Choi, Rule of Law, Encyclopedia Britannica, Encyclopedia inc, (August 27, 2019), https://www.britannica.com/topic/rule-of-law
- Riddhi Chakraborty, Section 377 Decriminalized: Here’s everything you need to know,
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- Supra note 4
- Supra note 4