Rajendra Dhar
POLICE WATCH INDIA (Regd. NGO)
There is a growing mood of lawlessness in modern secular society. It has many expressions, some violent, some simply corrupt. The spectacular increase in criminality, corruption and bribery as accepted things, the black markets, the sense of arbitrariness in conduct, the one-sided use of force, the ineffectiveness of international organisms devoted to peace and justice, the incidence of terrorism, the pervading aimlessness, the hooliganism, the dislike of the police … all suggest a contempt and at times a downright hatred for law and order, and for authority, that can have few parallels in history.
Authority – which used to be understood as the moral force behind law – is not looked on any better. Today authority is mostly equated with political or physical force. As such it may be feared. It is not looked up to or revered. It may well be hated. It is generally despised.
This anti-law, anti-authority outlook pervades modern society. That past or present abuses of the law are part cause of it can be readily admitted. It is also no doubt a reaction to the tendency of the modern state to clamp controls on almost every area of its citizens’ lives, and the citizens’ consequent sense of being straitjacketed in red tape and legislation. Despite the permissiveness of modern laws in the area of sexual behaviour, many people feel that their lives are being caught in a growing mesh of legal restrictions.
This mentality is often linked to a pining after “democracy”, understood not as a mere electoral system but rather as suggesting a society in which people are felt to matter instead of just being objects organised by soul-less bureaucracies; a society based less on structures and more on person-to-person relationships, where there is less law and authority or, at least, where authority is exercised in a more human manner.
Some people go further. The more impersonal and oppressive they feel governments and systems to be, the more they dream of an “ideal” society where they suppose freedom will exist without laws and will in fact be the consequence of there being no laws. In the democracy of their dreams which will truly be a “people’s” society the yoke of authority will somehow completely disappear and, as they turn over in their dreams, they sigh, “If only we were free from laws!”
These are dreams, no more. In fact, a society without laws would not be a dream; it would be a nightmare. Law, as we will try to show, is absolutely necessary for any society where people are held to matter. So is respect for law.
No moral or voluntary body can survive a generalised loss of respect for law on the part of its members. If the members of, say, a football club lose respect for the laws of the club, they leave the club; and the club either acquires new law-abiding members, or else it dissolves. A geographical political society can survive a loss of respect for law and authority on the part of its citizens by becoming a police state. If the members of a physical society are not ruled by consent, yet cannot leave the society, they will be ruled by force.
This anti-law movement is still on the upsurge. Its social and political consequences are only beginning to make themselves felt. It is already evident however that modern secular society is not in a healthy condition. It may have suffered or may be suffering from unjust laws or unjust exercise of authority. But its anti-authority, anti-law attitude is a more fatal disease still. Bad laws are bad. No laws, the rejection of all law, are worse. Anarchy – the absence of all law and government – means the collapse of society.
Pro-rights, anti-law?
To help the modern mind emerge from this tangled web of anti-law prejudice and to come to understand the positive nature of law, an acceptable starting-point must be found, some stance or position which the modern spirit itself finds little difficulty in sharing. It can be found, I think, in the human rights movement.
Most people today like to proclaim themselves pro-human rights. It is a good position. But it simply cannot be combined with an anti-law mentality. A pro-rights person must be against bad laws, but must equally be in favour of good laws. A generalised anti-law mentality makes no sense in a pro-rights person for the simple reason that human rights, which are prior to human law, nevertheless require the recognition and the protection of human law.
The human rights philosophy necessarily rejects the thesis that man possesses only those rights which the State grants him. No, says the human rights philosopher; man’s rights do not derive from the State; they derive from his human nature. It is as man, and not just as citizen, that he possesses his basic human rights and he possesses these rights whether the civil law of a particular country recognises them or not. It is precisely when the civil law does not recognise them that one gets legalised violation of human rights.
BAD LAWS ARE A VIOLATION OF HUMAN RIGHTS. GOOD LAWS ARE THEIR NECESSARY PROTECTION. THREE POINTS IN PARTICULAR SHOW THIS:
If rights are to be protected, they must be defined. It is part of the work of law to define rights;
Further, if someone’s right is violated, he needs an effective remedy, a process that others must respect and that again is a matter of law: of courts and judges and law enforcement;
Thirdly, rights imply obligations. If I have a right to property, then others have an obligation to respect my right to my property and I have an obligation to respect their rights to their property. These obligations – to respect the rights of others – also need to be set out in law.
The human rights campaign, after all, is a campaign to have bad laws abolished and good laws put in their place. It is a campaign to have people’s proper human rights recognised and upheld by the civil law. If rights are not upheld by law, people are inevitably going to be exploited.
The third point mentioned above merits special consideration. No philosophy of rights (and for that matter no juridical protection of rights) can exclude the acknowledgement of obligations. If I assert my rights to free speech, for example, yet use this right systematically to censor or silence others, then I am a philosopher not of men’s rights, but of my “rights”. I accept no obligation to respect the rights of others undoubtedly because the restrictions involved in doing so inconvenience me.
It is true that law always involves some restrictions and that restrictions are a nuisance – at least at first sight. But only a superficial and selfish approach sees no more than the restrictions involved in law. A deeper and more mature outlook sees law in terms of reciprocal rights and obligations; and restrictions then appear as the necessary consequence of the interplay between just rights and just obligations. My just rights restrict other people in the sense that they are justly obliged to respect my rights. Their just rights restrict me, in the sense that I am justly obliged to respect their rights.
The defence of the rights of all is bound to place restrictions on the freedom of some: now mine, now yours. Now I am obliged to yield at a road crossing, now you. If neither of us is prepared to yield, the result is collision and anarchy.
Restrictions, then, may be bothersome. Yet they are essential – to defend both my freedom and that of others. If it is true that someone is always inconvenienced by a law, it is also true that if the law in question is just, the inconvenience is a good thing. It reflects the demands placed on the individual by regard for others or for the common good. Most people, if they reflect on this point, are capable of appreciating it. Then their response to the law need not be one of mere submission or reluctant obedience. It can and ought to be a welcoming response to what is seen as an admirable disposition of justice.
Therefore, the suggestion that emphasis on individual rights signifies a de-emphasis on law is quite false. Emphasis on rights means emphasis on duties, and therefore emphasis on law as the means by which rights are protected and duties enforced.
DECLARATIONS OF RIGHTS HAVE BEEN FREQUENT AND POPULAR IN HISTORY. DECLARATIONS OF OBLIGATIONS ARE FAR LESS FREQUENT, MIGHT NOT BE SO POPULAR, AND YET ARE EQUALLY NECESSARY. WIDESPREAD VOLUNTARY ACCEPTANCE OF OBLIGATIONS IS A REAL TEST OF SOCIAL & FINANCIAL HEALTH, AN INFALLIBLE SIGN OF THE RESPECT OF EACH MEMBER OF A COMMUNITY FOR HIS FELLOWS.
If we are sincerely pro-human rights, we will love and defend our own rights, but we will love and fulfill our obligations no less – for that is to love the rights of others. That is the test of the true lover of rights. If I love only my rights, then I may easily come to love other people’s wrongs, i.e. the wrongs that, in my self-assertion, I am almost certain to do them.
The effective presence of justice in a society always depends on people’s awareness of their obligations and their readiness to fulfill them. This is true as between individuals. It is also true as between classes, rich or poor. The class that is conscious only of its rights and not also of its obligations will easily defend its rights by doing wrong.
