Readings in Chapter XXI (Part 1)
The Drive towards Legislative and Social Centralisation and Uniformity
Unity and Uniformity of Judicial Administration
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 twin arms of the judiciary, the State in its quest for consolidating its own authority, gives more importance to 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. Such 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 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).
Political instinct and religious ideas
When the ruling authority, the monarchy or the State achieves full control over the administration as well as unity and uniformity of the judicial administration, dissenting voices are bound to appear. While today it is the modern human rights activist who comes forward to protest to uphold human values, initially, it was the conventionally established religious authority who protested for fear of losing sway over the masses and influence over the throne. Sri Aurobindo writes, "Against the tendency to unification and State authority, there militates often a religious sense in the community which attaches as in most countries of the East a sacrosanct character to its laws and customs and tends to keep the king or State in bounds; the ruler is accepted as the administrator of justice, but he is supposed to be strictly bound by the law of which he is not the fountain but the channel. Sometimes this religious sense develops a theocratical element in the society, a Church with its separate ecclesiastical authority and jurisdiction, a Shastra in the keeping of Brahmin jurists, a law entrusted to the Ulemas. Where the religious sense maintains its predominance, a solution is found by the association of Brahmin jurists with the king or with the judge appointed by him in every State tribunal and by maintenance of the supreme authority of the Pundits or Ulemas in all moot judicial questions."(The Ideal of Human Unity, pg 452) Thus the Federal Shariat court in 21st century Pakistan can strike down any law that is not in compliance with the code of Islamic law (Sharia) though the responsibility falls upon legal scholars who are Muslims but not necessarily religious clerics. Modern India tries to balance secular governance with religious communities by delegating some aspects of civil law like control of marriage to the latter.
Sri Aurobindo also points out that unlike in the East, the Western mind-set has a stronger political instinct than the religious, with the result that the ecclesiastical jurisdiction came to be subordinated to the State and finally disappeared (Ibid). Thus, the US constitution was very particular to install a "Religious Test Clause" to prohibit the use of a religious test as a qualification to serve in any office or public trust. In construing the protections under the Establishments Clause and Free Exercise Clause, the US courts interpret the term "religion" quite broadly to include a wide variety of theistic and non-theistic beliefs.(Bryan A Garner [Ed]: Black's Law Dictionary, Thomson Reuters, 2009,pg 1405)
Once the State achieves absolute control over the administration and the judiciary, the danger of subordinating the judiciary entirely to an executive possessed of arbitrary and irresponsible powers becomes obvious. Sri Aurobindo notes that "it is only in England - the one country always where liberty has been valued as of equal importance with order and not considered a lesser necessity or no necessity at all -that there was a successful attempt from an early period to limit the judicial power of the State. This was done partly by the firm tradition of the independence of the tribunals supported by the complete security of the judges, once appointed, in their position and emoluments and partly by the institution of the jury system. Much room was left for oppression and injustice, as in all human institutions social or political, but the object as roughly attained". (The Ideal of Human Unity, pg 453) In fact, Henry II's introduction of the trial by jury had two important significances. Firstly, the process of trial became reasonable based on hearing testimony and weighing evidence in contrast to trials based on superstitions and ordeals trying to find a scapegoat in God. Secondly, the concept of grand jury was broad-based to include citizens so that people could not only be trained to take part in the administration of law but also would be aware of larger privileges that would shape future laws. The symbol of the jury is still looked upon as a protection from authoritarian control in the English psyche. It is in this context that Lord Devlin's famous and oft-quoted comment in 1956 that trial by jury is "the lamp which shows that freedom lives" assumes significance.
Uniformity of Law & Uniformity of Social Administration
Sri Aurobindo points out that the uniformity of law develops differently from unity and uniformity of social administration. The evolution of the uniformity of law needs to be traced from the customs and codes that developed over time and hence needs to be understood in the perspective of social anthropology. The evolution of the uniformity in judicial administration has to be understood in the way how the organic society develops over time a rational outlook whether in the monarchy or in the State to become the "head of law as well as the embodiment of public order and efficiency" and hence needs to be interpreted in terms of political science.
Customs and Codes - Uniformity of Law
Originally, local customs of communities grew spontaneously and organically as customary laws that reflected social habits and naturally admitted variation and freedom. The Indian customary tradition called acara represented community norms of social groups which differed widely. "In India, any sect or even any family was permitted to develop variations of the religious and civil custom which the general law of the society was bound within vague limits to accept, and this freedom is still part of the theory of Hindu law, although now in practice it is very difficult to get any new departure recognized" (Ibid, pg 453).
In the progressive march of the collectivity as a society, some of the important customs became codes. However the progress of human psyche is not uniform and it progresses along several perspectives. There were customs based on cultural values, religious faiths and social conventions. Naturally such customs varied from place to place and from one group to other for which they could not coalesce into a uniform superstructure. In fact, some cultural systems like the Hindu Shastra became an ossification of custom that stereotyped society without rationalizing it. (Ibid, pg 454) But over time, the human mind also developed its rational, logical and intellectual faculties; broadened its outlook; transcended the family, clan, religion and nation and became universal in character. This change necessitated the evolution of universal codes of law, codes that transcended cultural barriers and social inequality, overcame ossified religious habits and were more in consonance with the rational and scientific temper. Restrictive cultural codes were taken up and upgraded to be in tune with uniformity of law as a result of which, code and constitution came to prevail over custom.
It is not enough to develop a uniformity in law with intelligently systematized legal codes but there should also be a sovereign authority, a constitution which "fixes the cadres of the law and admits from time to time changes that are intelligent accommodations to new needs, variations that do not disturb but merely modify and develop the intelligent unity and reasonable fixity of the system". (Ibid) Sri Aurobindo hailed the emergence of uniformity in law as an important achievement which was "the triumph of the narrower but more self-conscious and self-helpful rational over the larger but vaguer and more helpless life-instinct in the society". (Ibid) He also pointed out that it was one important step towards the larger socialistic ideal of establishing a fundamental equality in society. "When it has arrived at this triumph of a perfectly self-conscious and systematically rational determination and arrangement of its life on one side by a fixed and uniform constitution, on the other by a uniform and intelligently structural civil and criminal law, the society is ready for the second stage of its development. It can undertake the self-conscious, uniform ordering of its whole life in the light of the reason which is the principle of modern socialism and has been the drift of all the Utopias of the thinkers". (Ibid)
Monarchy to Democracy - Growth of Self-Consciousness
Just as legal codes evolved from customs and later transcended customs in accordance with the scientific spirit and temper to produce the uniformity in law, the uniformity of judicial administration also shifted from the monarchy to democracy and socialism where the self-consciousness of the social being began to assert itself against the absolutism of the regal authority.
The shift from monarchy to other forms of control actually represents a great question of political science: who is to be the State? "Is the embodiment of the intellect, will and conscience of the society to be a king and his counselors or a theocratic, autocratic or plutocratic governing class or body which shall at least seem to stand sufficiently for the whole society, or is it to be a compromise between some or all of these possibilities?"(Ibid, pg 454) Sri Aurobindo explains that this query underwent many upheavals but finally prepared the way for the expression of self-consciousness of the social being that eventually found a standing-ground in a democratic arrangement.
The three orders of the free nation in its early and elementary form comprised the king as the key-stone along with "his council, military and civil, the priesthood and the assembly of freemen converting itself for the purposes of war into host, were perhaps everywhere, but certainly in the Aryan races, the elements with which the self-conscious evolution of society began". (Ibid, pg 455) In this elementary structure, it was somewhat easier for the monarch to deal with the priesthood and council by ignoring them, replacing them or subordinating them to the position of servility where they would provide political and military support for its actions. It was more difficult for the monarch to deal with the assembly of freemen who represented the vox populi and could undermine the regal authority. That is why we find throughout history that the assemblies of freemen were very often not convened unless under exceptional pressure, "like the French monarchy with its States-General summoned only once or twice in the course of centuries and under the pressure of great difficulties". (Ibid) True, a compromise could be worked out if the monarch left the practical work of legislation to a non-political body like the judiciary but there was no guarantee that there would be no resistance. "Therefore the disappearance of the assembly or the power of the monarch to convoke it or not at his pleasure is always the real mark of his absolutism. But when he has succeeded, when his decrees are laws, when he has got rid of or subordinated to himself all the other powers of the social life, there at that point of his highest success his failure begins; the monarchical system has fulfilled its positive part in the social evolution and all that is left to it is either to hold the State together until it has transformed itself or else to provoke by oppression the movement towards the sovereignty of the people".(Ibid)
Sri Aurobindo explains that in the earlier stages of societal formation, a naturally organic and intuitive development chalked the pathway but now in an era of reason, science and universal values, a self-conscious regulation through a governing body is the need of the Time-Spirit which would more or less adequately represent if it could not fully embody, the reason and will of the entire society. Such an endeavour is never possible to be enacted by the monarch, even if he is a brilliant administrator for in engrossing the legislative power the monarchy exceeds its own law of being. "Administration is simply the regulation of the outward life of the people, the ordered maintenance of the external activities of its developed or developing being and the king may well be their regulator...But legislation, social development, culture, religion, even the determination of the economic life of the people are outside his proper sphere; they constitute the expression of the life, the thought, the soul of the society which, if he is a strong personality in touch with the spirit of the age, he may help to influence but which he cannot determine". (Ibid, pg 456) Only society can itself determine its own law of being; not even a governing class, aristocracy or intelligent theocracy. Therefore the Time-Spirit pressed towards democracy and socialism, which even though imperfect, yet allows the self-consciousness of the social being to assert itself. "Certainly, democracy as it is now practiced is not the last or penultimate stage; for it is often merely democratic in appearance and even at the best amounts to the rule of the majority and works by the vicious method of party government...Even a perfect democracy is not likely to be the last stage of social evolution, but it is still the necessary broad standing-ground upon which the self-consciousness of the social being can come to its own. Democracy and Socialism are, as we have already said, the sign that that self-consciousness is beginning to ripen into fullness". (Ibid, pg 456-457)
Soul of the People
It is interesting that while education, culture, religion, political temperament and economic forms are inextricably linked with the social psyche, legislation is viewed as something like an external prop needed to support the social scaffolding, an administrative device that somehow, with checks and balances, keeps the show running. It had thus "confined itself until recently to politics and constitutional law, the principles and process of administration and so much only of social and economic legislation as was barely necessary for the security of property and the maintenance of public order" (Ibid, pg 457). Arguably, such a legislative function could be enacted by an intelligent or intellectual or better still by a visionary executive, a monarch or a premier or a succession of such executive individuals with as much efficacy as a democratic government. History however bears witness to the fact that the king is an inefficient legislator. The monarch has limitations and it is naive to believe that an individual executive can determine the whole social and economic life, the whole religious institution or even the cultural tradition. "It is evident that he cannot determine the whole social life of the nation, it is much too large for him; no society would bear the heavy hand of an arbitrary individual on its whole social living. He cannot determine the economic life, that too is much too large for him; he can only watch over it and help it in this or that direction where help is needed. He cannot determine the religious life, though that attempt has been made; it is too deep for him; for religion is the spiritual and ethical life of the individual, the relations of his soul with God and the intimate dealings with his will and character with other individuals, and no monarch or governing class, not even a theocracy or priesthood, can really substitute itself for the soul of the individual or for the soul of a nation. Nor can he determine the national culture; he can only in great flowering times of that culture help by his protection in fixing for it the turn which by its own force of tendency it was already taking. To attempt more is an irrational attempt which cannot lead to the development of a rational society". (Ibid, pg 457-458)
One might object to such a broad generalization of the limitations of the monarch for were there not great visionary emperors, benevolent monarchs, philosopher-kings-mighty rulers with zeal and mission? Sri Aurobindo explains that despite their uniqueness, even the greatest of the great monarchs usually ended with autocratic oppression supported often by a false claim of divine right and lineage. At the end, even "exceptional rulers, a Charlemagne, an Augustus, a Napoleon, a Chandragupta, Asoka or Akbar, can do no more than fix certain new institutions which the time needed and help the emergence of its best or else its strongest tendencies in a critical era. When they attempt more, they fail. Akbar's effort to create a new dharma for the Indian nation by its enlightened reason was a brilliant futility. Asoka's edicts remain graven upon pillar and rock, but the development of Indian religion and culture took its own line in other and far more complex directions determined by the soul of a great people."(Ibid, pg 458) The political executive cannot claim divine right for that is the province of the rare prophet or Messiah whose secret of force is not political but spiritual.
It is actually the soul of the people which has to develop the law of the society. It is in this way that in the pristine heritage of the Orient, legislation had developed like an all-embracing Shastra, a phenomenon that was originally a product of intuition but which now has to be worked out and consolidated on the edifice of Reason in accordance to the Zeitgeist. The self-consciousness of the society has to develop to realize something like the Utopia of thinker. "For the Utopian thinker is the individual mind forerunning in its turn of thought the trend which the social mind must eventually take."(Ibid, pg 457)
Date of Update: 21-Feb-23
- By Dr. Soumitra Basu