Justice, Law and Morality
Since the dawn of civilisation, every religion and society has made prohibitions, rules and principles for strict compliance and observation in order to benefit the people as a whole. Punishments for lawbreakers have also been fixed. Criminals or offenders have always been looked down upon as the vilest creatures of society.
In any religious text, utter condemnation of the guilty can be found. Not the criminals alone even their dependents and family get persecuted or may even be made outcasts. It seems surprising that even this severity, though undeserved, irrational and inhuman, does not deter many from breaking the law, and many others from starting a life of crime. Law and its agency, justice, have proved ineffective in the prevention of crime. Why is this?
There have been various theories about the causes of crime, because the problem is complex and difficult to understand fully. Until the seventeenth century, a criminal was understood to carry the curse and displeasure of God, as well as the shadow of evil spirits. An eighteenth century criminologist said that heredity and birth were responsible. Then came the Classical school, the propounder of the theory of will, which dissociated the individual in the commission of crime through his free will functioning on the concept of hedonism. The Neo-classical school of thought sought to find the seed of the criminal act in mental disease, and protested against treating mentally deranged criminals in the same way as ordinary criminals.
The positivists thought that anthropological features influenced the tendency to commit crime. Some attributed the cause to circumstances – the environment and living conditions of individuals. Modern criminologists stress that criminals are products of their genetic inheritance, and influenced in childhood by the experience of life to which they have been exposed. Sociologists, however, say that crime is the consequence of the human tendency to imitate and follow the trails of their guardians.
Even now, no definite conclusions can be made about the motivation of criminals and the cause of crime. Without deeper analysis and appreciating the effect of the endocrine glands over the mind, as well as the factors of society, environment, exploitation, individual cravings, lust, and many other factors, the mysteries of crime cannot be solved.
According to Shrii P.R. Sarkar, criminals may be classified as follows:
1. Instinctive criminals – These are people who are born with psychic abnormalities; the root cause being the maladjustment or malfunction of their glands. We know that secretions from numerous endocrine glands, which are constantly being poured into the bloodstream, do affect human behaviour. In fact, these glandular secretions exert control by retarding or accelerating the propensities of the mind. Even a slight disturbance or in-equilibrium immediately reflects in the person’s thinking and thus in action. A maladjustment or deformity, in many cases right from birth, may however, be due to mutation. This is a basic defect that leads some individuals to commit crime.
2. Criminals by habit – Whenever moral strength is waning in society, no effort is made to vitalise the power of the mind; or when social governance is deplorably lax, people do not hesitate to choose the unbridled path of crude propensities. The relaxation of any of these factors tempts people toward crude pleasures, and in the absence of fear, they get more and more addicted to them. It is in this way that a person, once honest and sincere, degenerates into an antisocial element. These criminals adopt ingenious ways and means to achieve their ends. They may be saints by day and scoundrels by night. Black marketers tax-evaders, bootleggers, smugglers, swindlers, hoarders, even some politicians fall into this category. Some of the biggest wars were started by these selfish fiends and warlords, in the garb of national interest, and they still continue to provoke conflicts to further their own agenda. Since these are neither psychological nor pathological cases, no leniency deserves to be shown to this type of criminal. Their crimes always have a sense of deliberateness and judgment; and to deal with them effectively, a heavy hand is needed.
3. Criminals by environmental pressure – Criminals in this class do not suffer from any physical or psychological derangement, nor do they fall due to laxity in society. They are actually forced to commit crimes by environmental pressure. Even want of money is not a sufficient factor to arouse their feelings. The instances of this category are found in persons who are forced to adopt crime. Their parents or guardians, who are vile by nature themselves, want to infect other members of their family and clan as well with their criminal and sadist psychology. In some orthodox societies, torturing wives or women for violations of the social code and for money (for failure to give enough money as a dowry in India) is a common feature.
4. Criminals by bad company – This factor is also responsible for inciting well- meaning, sincere, honest and even religious people to crime. A person of any age, young or old, is susceptible to the influence of bad company. It is easier to fall than to rise; easier to regress than to progress. The negative propensities within us are simply waiting for a chance. As soon as the external circumstances for their development are congenial, the moral conscience may fall apart. Perhaps this is the reason that George Bernard Shaw wryly commented that “morality is nothing but want of opportunity.”
5. Criminals by necessity – However, most crimes are committed because of deprivation and necessity. There are industrialised, rich countries, where physical wants are practically non-existent. Even unemployed people receive a sufficient maintenance allowance for their basic needs. In such countries, of course, crimes are generally committed due to the aforesaid conditions, i.e. due to instincts, habits and environment. But in the Third World, the level of development is still so low that thousands and millions of people do not have even two full meals a day, nor a roof to sleep under. The problem of want, no doubt, is partly due to this low level of development, The fact remains, however, that the concentration of economic wealth in the hands of a few, and irrational distribution, are the prime causes. The very social structure itself, is therefore responsible for the malaise.
If anybody commits theft or robbery because of hunger, or indulges in any mean act, driven by any of his sensory faculties, is it not the duty of the society to know the nature of his wants and remove them? If the person who has committed some misdeeds is driven to them by want (be that want of food, clothes or of physical or mental gratification), this makes the society responsible. He wants to convey to us that his want was created due to flaws in the social system, which is, however, unfortunately true.
Poverty casts its shameful shadow as soon as a family’s breadwinner prematurely dies; in most cases the family disintegrates. All its harmony, sweetness and sanctity get destroyed in the wake of poverty. Young boys become the pawns of antisocial forces and join the bands of thieves and smugglers. The young girls of the family are compelled to live antisocial lives or are seduced in different ways.
The fundamentals of these so-called crimes centering around poverty can be eradicated only with the establishment of sound economic and social structures. P.R. Sarkar declared – “That is why I say that these unfortunate men and women have been moving about with the load of sin on their shoulders, created by and through our own combined agency. They themselves are not the creators of these inequities; or even if they are, the quantity of their sin will certainly be very much less than that of cruel-hearted so-called saints (many of whom move in the society with nice dress and high status) – at least it will not be any greater. It is doubtful if Providence, not to speak of humans, has got the right to pass penal decrees against sins and crimes committed in the vicious grip of poverty. Still, from a moral standpoint, I cannot support such crimes. Rather, I would suggest that those who are on the verge of committing such crimes had better take to bringing about revolution instead.”³
6. Criminals by occasional urge or “snap volition” – In some people, in a particular environment, there springs up a sudden urge to commit a crime. When this is expressed as a sudden desire to steal, it is called kleptomania. Soon afterwards, however, these people become normal and then repent their wrongdoings.
Generally, weak-minded people, having seen torture, murder or other such heinous crime, deeply reflect on it, and with the impact of internal stirring and agitation, take a step back from their good sense. Coming in contact with different situations, whenever there is a recurrence of the old agitation, they resort to crime. They often imagine themselves to be the original perpetrator of the crime, narrating the scene vividly, which gives a stamp of reality to the whole event.
7. Other factors – The state of intoxication, dispute over property, hurt to one’s prestige, urge of sexual passion, and acute difference of opinion may also stimulate the commission of crimes. Slander, jealousy, party politics, lethargy, etc., are various kinds of propensities, which in a congenial atmosphere, create criminals from human beings. These evils are very much in evidence in modem society. The main reason for this is a lust for power. Much crime is instigated especially by the dominance of the political aspirations of a few over the rest of society. Greed for power shapes people into criminals.
If criminality becomes a natural trait in the society, if we became intolerant of others’ opinions and beliefs, if we discard our good judgment and divert our actions for selfish ends, then human beings’ age-old struggle to create a civilised world and for the attainment of higher values of life would lose its value. All conscious human beings should raise their voices against this, and counter such evil designs with a strong and sane policy.
The meaning of the word ‘justice’ is ‘a distinctive form of mental application to ascertain truth’. Although our actions are dependent on relative principles, whatever appears to be the truth in this world of relativity is justice according to the concept of society. There are many who say, “what intelligence does a man have that he can sit in judgement over another?”
The judgement may not always be correct, or even a judge may not always be an ideal human being, but still the system of justice cannot be dissolved in human society. In every sphere of life there should be an effort to march from imperfection to perfection.
The system of judgement should not appear to come from revenge or vindictiveness. Flaws and errors in judgement are unavoidable and hence the system of penalisation should be abolished. Rather, corrective measures should be introduced. In using corrective measures, there will be no cause for accusing anybody. Even if it happens that innocent people are mistakenly sentenced, the corrective measures will not harm them.
The judicial system should be developed in such a way that no innocent person will get an opportunity to say, “I am a victim of wrong judgement, for want of money.” An innocent person should never be punished. Both from the social and human point of view, society has the right to take corrective measures for the greater welfare of all.
There is a fundamental difference between the executive and reformatory systems. The executive system often imposes severe actions to strengthen the social and state structures, but this is not at all needed in a judicial system. Rather, there must be a human touch to it. That is why executive and judicial systems often contradict each other. A judge with integrity will nullify executive rigidity with human reasoning. If judges are reluctant to impart justice endowed with human values, then it may be taken for granted that an individual or party is controlling the judicial machinery, as can be found in all totalitarian countries.
The selection of judges should not be a routine affair, because they have to shoulder a very heavy and sacred responsibility. No doubt, the study and knowledge of law is necessary, but the idea that only brilliant students make good judges is not based on practical experience. Strength of character, morality, humanism, kindness and compassion coupled with firmness, efficiency and quick judgment are the virtues which can be found in an environment of higher social consciousness.
Without evaluation or assessment of these virtues, the selection today of judges on the basis of competition, or by the routine elevation of lawyers, cannot be supported. Most of the ills of law and its administration are due to the wrong selection of people for these positions. A person devoid of the necessary qualities cannot have sufficient courage to impart justice based on truth, as pressures by the ruling class or dogmatic social customs, would throttle the very existence of justice.
Judges and Social Boards (Civic society )
Judicial courts and judges should not be considered as above criticism as is the normal practice in many countries. Judges are also human beings and are prone to committing mistakes. There are ample instances in history or even today, which show that judges have delivered a judgment influenced by the executive authority, friends and relatives, dogmas and prejudices, or money. There are many instances where so-called lower class people in India, have become the victims of injustice by judges belonging to the so-called upper class. Thousands of young people in Iran have been persecuted because judges are under the dictates of dogmatic fundamentalist rulers.
Of course, judges have to be protected from vicious criticism and public scandal, but people with real virtues have no cause to fear. However, a representative body from the civic society local or regional i.e. a Social Board can be required to investigate all criticism and complaints from any quarter. This board can investigate matters and report to the higher judicial authorities for prompt action. Thus, judges could be saved from unwanted criticism; but at the same time, they would not be able to hide any partiality, inefficiency or shadowy character under the garb of contempt of court, as can be done today.
Law and Morality
In a society, people generally interact in a human way, cooperating and communicating with each other. A strong social structure can be maintained if there are generally accepted rules of conduct. Many believe that these rules need not be defined and enforced by any centralised agency. However, this concept has caused the distabilisation of many societies and has weakened social relations.
The defect lies not with the system of the centralised agency, but in the notion of prevailing social values. In the so-called democratic society, state law does not follow the dictum of social institutions. But in Islamic society, religious law guides the state laws.
There are contradicting ideas regarding the importance of natural law as positive law. According to Locke, obedience to the state is the protection of the rights possessed by individuals under natural law. Some philosophers have gone further and said if a rule is in conflict with natural law, it cannot be a positive law at all. One origin for the doctrine of natural law is the idea that God stands in relation to mankind at large as in the relation of a monarch to his subjects. From this developed the concept of the divine rights of kings.
In this era, with its plurality of conflicting moral beliefs, the doctrine of natural law has lost much of its appeal. Political philosophers generally confuse moral values with religious doctrines. Natural law does not mean that it has to have a religious sanction. There are innumerable contradictory religions, each defining their own concept of ethical standards.
Natural law should not be considered as the law enacted by the clergy. Similarly, much importance has been given today to positive law, the law enacted by the state. The concept of legal and illegal is considered only on the basis of the penal code, as enacted by the political institution. Yet, so far there is no reason to believe that state law has protected freedom and human values in the true sense of the term.
Religious institutions enact their laws according to their age-old concepts of sin and virtue. The ideas of sin and virtue constitute mere mental distortions, the concepts of which shift according to changes in time, place and person. Hence, the penal code should not be framed on the basis of the conception of sin and virtue.
What is the basis of framing the state laws apart from religion? Those who criticise the concept of natural law must realise that this is a natural right of human beings, which the state is supposed to safeguard through its legal agencies. The word rationality is frequently used to deny any moral concept. The positive laws are supposed to be inherently rational; but what is meant by rationality? Is it not embedded in human nature?
There is a prevalent idea about human nature: that it is empirical and cannot be the basis of any judgment, but this is not only an ignorant concept, but self-contradictory. After all, a few people belonging to the ruling class frame the laws and constitution; this gives no special reason to believe that the laws have been framed for the best interests of the people. This is because the law makers were not aware of the physico-psycho-spiritual characteristics of human beings. The lawmaking process only served the interests of the ruling class, and cardinal human values were constantly neglected.
Social values are based on one’s status in the society. In the modern era, wealth plays a major role in ascertaining social value. That is the reason why churches, temples, mosques, scriptures and constitutions have always been valued above human beings. For thousands of years, people have been taught to ignore human values. Laws and constitutions always vary to suit the interests of the ruling class.
Where religious domination prevailed, laws were based on dogmas. The multiple marriage system and divorce law (triple talaq), that are detrimental women, are still enforced in many Islamic countries. In so called secular countries, contradictions exist about same-sex marriages. In totalitarian countries laws are framed to enforce authoritarian rule. Society need to derive its laws from a universal principle.
Morality should not be confused with religious ethics that enforce certain do’s and don’ts on people by some centralised agency. Morality must have a universal foundation; it is a dynamic principle that guides human expression towards benevolence. The principles of non-violence, truthfulness, non-stealing in a wider sense, non-indulgence and universal attitude infuse the spirit of benevolence, humanness, justice and fairness. These universal moral principles should be the guiding factor in framing laws.
The “protection of human values in all the three spheres life” and the concept of “Human society is one and indivisible”, are two cardinal principles of PROUT. We are firstly human beings and secondly social beings. Human value precedes social value. If anybody does a crime, measures for reforming his or her character should be taken instead of punishment. However, until the person is rehabilitated, social responsibility should not be given to them. Capital punishment should be abolished from all parts of society.
Those who are engaged in antisocial activities cannot be condemned to death by execution, as some ultra-political thinkers believe. Certain penal codes are based on such principles. A court of law takes into consideration whether or not there are witnesses to the crime under investigation, but its concept of justice is not based on rational cardinal principles. The circumstances under which the crime has been committed have also to be taken into account.
According to current penal codes, a person will be executed or imprisoned for life if found guilty of homicide. But these codes fail to prescribe justice in such cases where people are killed by starvation through the creation of artificial scarcity or by legalised exploitation. Causing death by starvation is considered no crime, whereas revolt against social injustice by a hungry populace is punished. This penal code is contrary to PROUT’s concept of cardinal principles.
“Based on the above cardinal principles, one universal law, one universal penal code for all people, is the demand of the day. While framing laws, all consideration of narrow sentiments based on religion, race, nation, caste or communities should be discarded. In case of any conflict between criminal law and moral law, the latter should be respected and not the criminal law.
The right of framing the constitution should be vested in the World Body approved by the consensus of human opinion. If the World Body is not empowered to interfere with the internal affairs of any country, the people not belonging to the power circle are virtually leading the lives of slaves, in spite of their declared individual freedom.”4
- Parekh, Bhikhu – Cultural Particularity of Liberal Democracy, Polity Press U.K.1994
- Sarkar, PR – Human Society, AM Publication, Kolkata, May, 1984