Moving Towards South Asian Confederation
Ideal of Human Unity - Chapters

Chapter XXI Part I

The Drive towards Legislative and Social Centralisation and Uniformity

One of the hallmarks of modern history has been the process by which the State substituted itself for the natural organic society. Sri Aurobindo examines this transition and points out that the consolidation of the powers of the State is completed not only by executive and financial prowess but when there is finally unity and uniformity of judicial administration (The Ideal of Human Unity, pg 451).

The evolution of judicial functions date to antiquity and but were spread out in a somewhat loose and customary way which had complexity but not uniformity. Sri Aurobindo lists some important judicial administrative set-ups of early communities which actually survived for a long time before the State-idea developed:

1. The Indian panchayat or village jury

2. Guilds or other natural associations

3. Assembly or convocation of citizens as in various Roman comitia

4. Juries, usually large and unwieldy, chosen by lot or otherwise as in Rome and Athens

5. Judicial actions of kings or elders in their administrative capacity (Ibid, pg 451-452)

It is interesting that though such judicial systems were complex in nature, they survived a long time, ostensibly because until the State-idea of modern times developed, there was no pressing urge for ‘uniformity of jurisdiction or of a centralised unity in the source of judicial authority’(Ibid, pg 452). However, with the growth of the State idea, the unity and uniformity of judicial administration becomes imperative. ’It accomplishes itself at first by the gathering up of all these various jurisdictions with the king as at once the source of their sanctions and a high court of appeal and the possessor of original powers, which are exercised sometimes as in ancient India by judicial process but sometimes in more autocratic polities by ukase – the latter specially on the criminal side, in the awarding of punishments and more particularly punishments for offences against the person of the king or the authority of the State’(Ibid) [Note that ‘ukase’ refers to a regal proclamation that had the force of Law. Such decrees were characteristic in Imperial Russia].

Once unity and uniformity of judicial administration is sought to be established, the primary task of the State is to absorb criminal jurisdiction in greater or lesser entirety. In fact, though civil law and criminal law are two distinct arms of the judiciary, the State in its quest for consolidating its own authority, makes sure to hold in its own hands ‘the criminal judicial authority’ so as to crush rebellion, ‘to stifle criticism and opposition and penalize that free thought and free speech which, by their continual seeking for a more perfect social principle and their subtle or direct encouragement to progress, are so dangerous to established powers and institutions, so subversive of the dominant thing in being by their drive towards a better thing in becoming’(Ibid, pg 451).

'Unity of jurisdiction, the power to constitute tribunals, to appoint, salary and remove judges and the right to determine offences and their punishments comprise on the criminal side the whole judicial power of the sovereign. A similar unity of jurisdiction, power to constitute tribunals administering the civil law and the right to modify the laws relating to property, marriage and other social matters which concern the public order of society, comprise its civil side. But the unity and uniformity of the civil law is of less pressing and immediate importance to the State when it is substituting itself for the natural organic society; it is not so directly essential as an instrument' (Ibid).

If the State leans on criminal law to stifle freedom and suppress opposition in one disguise or the other, a time may yet come when the State itself can be accused of a criminal mind-set. In fact, State-sponsored atrocities did not cease with the genocide of European Jews during World War II but persisted during the Cold War in former Yugoslavia and Rwanda. Sri Aurobindo wrote this present chapter on Legislative and Social Centralisation in the aftermath of World War I in 1917 that just predated the first move towards the establishment of individual criminal responsibility under international law in the Versailles Peace Treaty of 28th June, 1919. It is however as late as 2002 that the first comprehensive codification and crystallization of international criminal law came into force with the Rome Statute of International Criminal Court (Gerhard Werle & Florian Jessberger: Principles of International Criminal law, 3rd Ed, Oxford University Press,2014, pg 2).

Date of Update: 23-Apr-15

- By Dr. Soumitra Basu