His legal theory encompasses four types of law. ‘Eternal law’ comprises God-given rules governing all creation. ‘Natural law’ is that segment of eternal law which is discoverable through the special process of reasoning mapped out by the pagan authors-intuitions of the natural deductions drawn therefrom. ‘Divine law’ has been revealed in Scripture. ‘Human law’ consists of rules, supportable by reason, but articulated by human authorities for the common good. As to the interrelation between these different types of law, two crucial propositions stand out in Thomist philosophy. First, human law derive their legal quality, their power to bind in conscience, from natural law... In some instances, the content of law is deductible from first principles of natural law; for the rest, the legislator has the freedom of an architect. Secondly, any purported law which is in conflict with natural or divine law is a mere corruption of law and so not binding by virtue of its own legal quality; nevertheless, even if an enactment is contrary to natural law and so ‘unjust’, obedience may still be proper to avoid bad example or civil disturbance.
Aquinas’ approach already suggested legal pluralism through his ‘understanding that different types of law co-exist and interact with each other harmoniously and conflictingly’ (Menski 2006: 142) His theories in fact endorse legal positivism, deeming it acceptable as long as human-law makers or rulers maintain their reasoning and values obsequious to religion (Menski 2006: 143); As Christianised Europe adopted Aquina’s theories, it led to later ascendancy of legal positivism; this cause and effect is easy to comprehend from Olivercrona’s (1971: 23) analysis on the relationship between natural law and positive law:
Since positive law is based on the law of nature, its contents must be in harmony with this law. But the lawgiver has got the right to supplement the law of nature in many ways according to the needs of the particular society. The right of property, for instance, has been introduced by positive law. This is also the case with punishments. The precepts of the law of nature are not devoid of sanctions; their sanctions are the pangs of conscience. But human punishments are a human invention, though the justification of punishment rests on the law of nature.
The law of nature, therefore, gives wide scope to the activity of the sovereign as lawgiver. But he cannot do anything contrary to the law of nature. If he did so, his precepts would lack binding force; they might create fear, but they could not impose obligations.
Base on this reasoning, formal laws, are merely meant to formalize the moral principles humans ourselves already recognize. To summarize natural law theory, it has three sources of moral authority to support it’s law making approach. Firstly points to religion sources such as holy books, scriptures. Second, intellectual origin, which is emphasised by John Stuart Mill’s ‘harm principle’. Third, being the natural origin, proposed by Aquinas that there are certain laws in nature, and that everything else derives from there; whether or not a moral code will be successful, it depends on if there is enough people ascribe to that moral code; When we look at all the human flows, migration, travel, tourism, is it possible to find a homogeneous group in our globalising world? if not, how do we determine which particular morality is going to be imposed on everyone? These questions have been imprudently neglected by eurocentric legal theorists; morality is subjective, different individuals have contradicting culture-specific views on what’s right and wrong, questions like whether marijuana should be illegal, or whether homosexuality should be tolerated, simply cannot be satisfyingly answered by natural law theory due to it’s lack for recognition for pluralities in our society.
According to the Positivist tradition, a law or ‘norm’ has the status of law if a recognised human authority declares it to be law (Kelsen 1999: 9 in Menski 2006: 158). The term human authority-not God, precisely distinguish itself from spiritual or deity. The content of the law, such as morality, from a positivist perspective is irrelevant; this legal approach only concerns whether or not the law is enacted by a sovereignty. For a law to be valid in the positivist tradition, a law must have the correct pedigree, referring to the established procedure for law making that must be followed by the sovereignty. The positivists assess the validity of law by asking whether the law is created by the correct authority and whether the correct authority followed the appropriate procedures (Menski 2006: 152). A law is valid only if the answers are yes to both questions. Criticism points to positivism’s failure to justify the process by which a law is enact. Imagine as a positivist being asked: how to determine whether the rule that allows the last Parliament to make law, is itself valid? We are stuck! We cannot logically determine the validity of the rule that Parliament decrees our law, by asking whether Parliament decreed, that it decrees our law; it makes no sense! This scenario demonstrates ‘the great positivist fallacy’ as Menski points out(in 2006: 153)
If law is simply law because it is said by someone in authority to be law (Morrison, 1997: 1), we face a dangerous circularity problem.
So positivists like Hart, or Kelsen, attempted to provide some escape to this conundrum; Hart added that the rule governs law making is ‘socially accepted’ (Menski 2006: 155) When the rule that governs the creation of law is rejected, example situations such as protest, civil disobedience, revolutions, these social rejections invalidate the law-making procedure, and invalidate the laws themselves. Kelsen suggests that the rules that authorise the sovereign to make law exists in what he refers to the the ‘Grundnorm’; it is a fundamental norm, upon which all other norm, and thus, all other laws will rest. Menski (2006: 158) made such observation of Kelson’s theory:
asserting that in every legal system a hierarchy of norms is traceable to the most basic of norms. Kelsen accepted that such a norm could take different forms, and even acknowledged that there could be more than one Grundnorm
Kelsen clearly recognises pluralistic multi-layers of overlapping norms, the keyword ‘Grundnorm’ was formulated throughout Kelsen’s quest for ‘pure theory’, from such quest of ‘pureness’ he succeeded theorising his model independent of any other legal norm, at the same time refused to include the inalienable social-cultural aspect which the basic norm must ultimately dependent on, conveniently avoid tainting his ‘pure theory’ of law with ‘legal pluralism’. ‘Soft positivist” Hart (1961) proposed a distinction between ‘primary rules’ and ‘secondary rules’; where the former imposes obligation and the later confer powers, although implies apparent legal plurality in his dual model, Menski contests(2006: 159) that Hart’s theory remains ‘insufficiently concerned about socio-cultural legal facts to become deeply incorporated as a separate entity into a plurality-conscious, globality-focused analysis.’
In a pluralistic society, there are differences between virtually everyone in any room regarding status of wealth, gender, ethnicity... etc In many instances, these differences will lead to conflict. Socio-legal experts addresses the myth that the state does not take sides in these conflicts, where system is neutral and treats everyone equally, fairly and justly. Socio-legal experts argues that legal order is in fact a self-serving system (Menski 2006: 166). This position is very different from the position that one has seen in natural law and legal positivism which suggests universal acceptance and agreement on what laws should be. In reality, there is no agreement but conflicts, we all live in states where certain powerful groups within society imposing their will upon everyone else (Menski 2006: 164). Pound assumes(Menski: 165) a value-consensus model of social relations, where groups may disagree or conflict, but there should be general agreement surrounding the law and the ability of the legal system to resolve things in a neutral manner, the assumption is that stability is the norm; others proposed a value antagonism model which rejects Pound’s claim of consensus; explaining riots, revolutions or civil wars don’t happen more often is because powerful groups are able to access state power to prevent weaker groups from causing trouble (Freeman 2001: 676 in Menski 2006: 165).
Legal realist see judiciary decision making as a subjective exercise, thus produce ambiguous, inconsistent, often contradicting results. This can be observed through majority decisions: rulings such as three to two, the numbers vary; how is that possible? All of these judges are looking at the same facts, applying the same law, presumably they’re drawing from the same precedents, and yet they are reaching different conclusion due to subjectivity. Scandinavian realists such as Axel Hagerstrom (1868-1939) denied the existence of objective values, as Dias and Hughes decribed (1957: 482 in Menski 2006: 166):
This leads Hagerstrom to deny the possibility of any science of the Ought. All questions of justice, aims, purposes and the reality of law are matters of personal evaluation and not susceptible to any scientific processes of examination. In this way many of the traditional problems of legal philosophy become illusory, and must replaced by an examination of the actual use of legal terms and concepts and a psychological analysis of the mental attitudes that are involved.
what influence the outcome of the case is not merely the facts or the law, but rather the judges, therefore one should take their moral, their beliefs, their particular position within society, their upbringing, their schooling into account. The writings of Karl Olivercrona also made a direct challenge to positivism, stating that the outcome of legal dispute is determined by judge’s morality, mood, personality (Mesnki 2006: 167) Alf Ross maintain that judges can interpret the law, thus judges should be motivated by the public good. (Menski 2006: 168) Legal realists are certainly plurality-conscious scholars by emphasising the social dimensions of legal development. In the recent socio-legal scholarship, researchers remain overly focused on specific narrow agenda and not enough emphasis on globality-focused jurisprudence (Menski 2006: 168) .
New natural law theories take a secular standpoint to approach law, and challenges the traditional recognition of a divine cosmic force as a guide to law-making. They seek to accentuate individual rights and duties, while appreciating the pluralities in defining ‘goodness’; ‘what is ‘good’ depends ultimately to a large extent on social construction and considerations of situation-specificity and it may not matter whether it is legal or not.’ (Menski 2006: 171)
Global legal uniformity is seemingly unrealistic as we gradually realise the nature of globalisation is indeed a pluralistic phenomenon; many globalisations manifested in different places, which brings about the more accurate term ‘glocalisation’ coined by Robertson (1995, in Menski, 2006: 4). Such observation confirms the rising of interdependence and interlinkedness of cultures and societies. In time like this, a plurality-focused perspective is essential to comprehend the enormous conceptual complexities of the term ‘law’ (Menski 2006: 173) Menski’s conceptual kite model presents the interlinked plurality nature of law in a sensible visual manner, including different competing concepts of law on each corner, while the emphasis of importance may shift from one corner to another, depends on the specificity, none of these four elements should be ignored when handling law; in the following discussion, Mesnki’s kite model is borrowed to illustrate the ‘pop’ elements throughout the development of traditional Hindu law and their dynamic interactions.
Figure 1. Kite Model_________________________________________________________
Corner 1: Natural Law Theory
(Religions, ethics, values)
Corner 2: Socio-legal Theory
(Society)
Corner 3: Legal Positivism
(State)
Corner 4: New Natural Law
(Globalisation, human rights)
Kite: Legal pluralism
(all corners are interlinked and interdependent, Law is a dynamic compound entity)
__________________________________________________________________________
Source: Menski (2010a)
Traditional Hindu law is founded upon its plurality-conscious sophistication from over thousands of years ago. According to Menski (2006: 200):
[A]t least four interlinked stages of conceptual development within ‘traditional’ Hindu law itself, from the macrocosmic universal Order (rita) of the Vedic system to the microcosmic self-controlled order (dharma) of classical Hindu law proper, and the deterrence-based stage of punishment (danda) and more or less formal dispute processing (vyavahāra) in the late classical and post-classical system.
Prior to traditional Hindu law, Vedic period (c. 1500 BC to c. 500 BC) gave rise to the term rita corresponds to the macrocosmic Order ‘with a big O’ (Menski 2010a: 17), which signifies Vedic people’s understanding of the interlinkedness of all things; such notion can be observed through Vedas rituals where they describe a complex system of unknown sources, with intrinsic rules that are unknown to human; satya, also a Sanskrit term parallel to rita, represents the secular dimensions of the natural order, signifying a definition of vision of Truth. Such view of natural order is also parallel to Greek legal philosophy of themis, which highlights the relationship between divine power and human actions (Menski, 2006: 134-7)
These Vedic concepts remain fundamentally relevant to later emergence of the concept dharma during classical period of Hindu law (c. 500 BC to c. 200 AD) which translates to ‘good action’ (Menski, 2006: 209). Such concept is clearly more socially focused rather than state-power focused, thus also carry pluralistic meaning open to different interpretations. dharma and its dynamic pluralistic nature derived from four different sources, atmanastushi (individual ethics), sadacara (‘good’ customs), smriti (remembered truth) and shruti (heard knowledge/Veda); these sources delineate the development of early Hindu law, from a macrocosmic realisation of higher Order, corresponding to top corner of natural law theoryl; to microcosmic duties of self-controlled order, drawing parallel to today’s socio-legal approach from second corner of the kite. (Menski 2006: 209)
Hindus’s early ideal assumption of individuals acting accordingly base solely on the concept of dharma soon confronted challenges. The notions of danda and vyavahāra were developed during the late classical period, present themselves as necessary legal refinement for such self-controlled order (Menski 2006: 210). These notions further demonstrate Hindu people’s gradual comprehension of the pluralistic nature of law regulations; applications of such terms can simultaneously overlapping within individuals mind, community, or through dispute settlement and formal punishment which invite state’s power to intervene; regarding the shift towards corner 3 of the kite Menski (2006: 225) notes:
[I]t is still not the state which determines the rules of human coexistence in traditional Hindu law; the primary rules are still a cosmic given with local flavours.
This again confirms the superiority of the ‘pop’ entities rita and dharma, being the foundation principle of self-regulation. The use of Hart’s term ‘primary rules’ points to the obligation of a Hindu ruler, but also clearly suggest that king-made rules merely served as a public agent, to assist the ‘secondary rules’ such as vyavahāra, for the sake of higher Order; far from being considered as central determinator of legal rules. In spite of the rise of Verstaatlichung, questions about dharma are mainly negotiated and settled through local customs, holding rita to its overarching role. Late classical Hindu law, unlike the Europeans, avoided domination of legal positivism.
The use of conceptual kite model (Menski, 2006) to address different elements within the historical development of traditional Hindu law exemplifies that all major legal theories are indeed interconnected and continuously interdependent due to the culture-specificity of law. Not one single theoretical approach is enough to provide an adequate comprehension of the intrinsic plurality nature of law. The conceptual kite model by Menski and the examination of traditional Hindu law’s development substantiate that law is in fact manifestly a plurality of pluralities.
References:
Freeman, M. D. A. 2008. Lloyd’s introduction to jurisprudence. 8th edn. London: Sweet & Maxwell.
Menski, Werner. 2003. Hindu law. Beyond tradition and modernity. New Delhi: Oxford University Press.
Menski, Werner. 2006. Comparative law in a global context. The legal systems of Asia and Africa. Second edition. Cambridge: Cambridge University Press.
Menski, Werner. 2010a. ‘Sanskrit law: Excavating Vedic legal pluralism’. SOAS School of Law Legal Studies Research Paper Series.
Menski, Werner. 2010b. ‘Fuzzy law and the boundaries of secularism’. Religare Seminar 24 June 2010.
