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Updated: March 16, 2010 14:02 IST

Transformative potential of law

N. R. MADHAVA MENON
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Study of law in the context of social movements, political economy, and comparative perspectives on justice has engaged, for long, the attention of scholars even from disciplines outside Jurisprudence. Critical legal studies that emerged out of such scholarship have questioned the established theories and attempted to carve out an alternative way of looking at law-in-society. In this process, it has advanced arguments for law reform, for interpretation of legal principles, for appreciation of evidence, and for adjudication of disputes, besides re-writing legal knowledge in new perspectives. This book is a collection of essays that look at the transformative potential of law, while contending that the legal theorists ought to own responsibility for the consequences of their ideas and constructions.

The object and function of law is the creation of a just society. The problem is that law is constructed in different periods of history and carries with it past interpretations that served different purposes in different periods. For example, countries that continued to follow the legal systems of their former colonial powers have a problem in adjusting their constitutional aspirations with the inherited legal ideas and institutions.

The conceptual disconnect and the institutional dysfunctionality have retarded the social transformation process the new Constitution envisaged. It is in this context that the critical legal writers have come up with alternatives that found support from theorists, although largely ignored by legal practitioners. Nonetheless, they have succeeded in destabilising the status quoists and influencing public opinion to challenge ideas and syllogisms long taken for granted.

Theme

The essays in this book — presented in the Critical Legal Studies Conference held in 2007 in Hyderabad — have, as the running theme, deconstruction of power, sanctified by law and legal institutions in modern societies. The authors seem to argue that, in doing so, they would have served the cause of justice by increasing choices in decision-making and developing new knowledge in ways more responsible to thought and action. They expect this process to help in combining knowledge with responsibility, which is indeed welcome, particularly in the knowledge society we are in now.

Ambedkar, the architect of the Indian Constitution, spoke long ago of the integral relationship between political justice and socio-economic justice and how the one may disintegrate without the other. Still he had to keep the economic rights only as part of the Directive Principles, as distinct from the Fundamental Rights. This dichotomy, the political-economic factors behind it, and the separate treatment of human rights form the theme of the principal essay, “Development and the Limits of State Politics.”

In a country where the judiciary is independent and the media is powerful, political struggles need not be the only means to secure social justice. This is not to belittle the importance of people's struggles or the need to keep the state on the defensive. At the same time, one cannot agree with those who argue that established institutions and processes are incapable of bringing about change.

Regulatory body

A couple of pieces in the volume look at the adjudicative process and suggest how critical legal theory can contribute to a better appreciation of judicial tasks and help in making a non-biased approach to the process of finding facts and interpreting them.

The attempt to look at regulatory institutions and the jurisprudence they produce from the viewpoint of citizen's rights is interesting and instructive. This is one development to be watched, given the increasing clout markets are assuming in governance particularly in the economic and social sectors.

Legal knowledge is shaping human destiny everywhere. The need to understand and question existing legal knowledge in the context of liberal democracy, human rights, and constitutional governance cannot be over-emphasised. Critical studies provide a window for routing the discourse, provided it is free from invisible and unstated ideologies that cloud the nature of the discourse. In guiding the discourse properly, the law teacher and the law researcher have to be cautious and clear about the fundamentals as well as the terms of the discourse. Amita Dhanda in her essay on the ‘Law Teacher' has focussed on this issue.

It is not clear how the contributors to the volume expect the critical theorists “to take responsibility for their views” which they are advocating in their essays. If providing more choices is the function of critical legal studies, owning of responsibility for the consequences too is critical. Let not “Decolonisation of Legal Knowledge” lead to fresh colonisation by ideas that seem attractive for the moment, but unsustainable in the long run.

The editors are to be commended for putting together some provocative thoughts on a range of issues which engage policy planners and legal reformers in contemporary times. They need to be read and criticised by those involved in teaching, governance, and journalism. For legal academics, the book is an indispensable tool for better teaching.

DECOLONISATION OF LEGAL KNOWLEDGE: Edited by Amita Dhanda, Archana Parashar; Routledge, 912-915, Tolstoy House, 15-17 Tolstoy Marg, New Delhi-110001. Rs. 795.

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