Guided Democracy Or Legal Plunder – A Reasonable Man Viewpoint Of Legal Foundations Of Democracy

By Author: Premkumar Nadarajan
Total Articles: 26
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The Vedas describe democracy or Dharma as being a guided one, but leaves open the gray area of probable legal plunder in the name of democracy. The reasonable man in law when in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling the reasonable man to see and perceive the transition. From a purely legal standpoint the reasonable man on his own was in a primitive ethical stance. Law and morals were still largely undifferentiated. Hence the reasonable man is of a stage of undifferentiated law and morals. This itself leads to the objective reasonable man having an identification of the legal and the moral juristic thinking which was characteristic of the classical Vedic law. But the strict law obviously was indifferent to morals and in many vital points was quite at variance with the moral ideas of the time. The Vedic distinction of just by nature and just by convention or enactment was suggested at once by such a situation. Moreover, the forms of law at the conclusion of the Vedic viewpoint and at the beginning of the Dravidian era invited ...
... a theory of law as something composite, made up of more than one type of precept and resting immediately on more than one basis of authority.

The traditional reasonable man itself encompasses several forms of legal viewpoints. Evidently already in Vedic times, the reasonable man on his own was bereft of accomplishing a legal standpoint of effective and actual law. The four items, namely, statutes, resolutions of the ruler, edicts of the magistrates, and the authority of those learned in the law, come to three--legislation, administrative priests, and juristic reasoning on the basis of the Vedic tradition. And these correspond to the three elements which made up the law. First, there was the four Vedas, subsequent legislation, interpretation of both, and the traditional law of the Vedic foundations itself. Second, there was the mass of rules, in form largely procedural, which was contained in the edicts. The growing point of the law had been here and to some extent growth was still going on through this means. Indeed, this part of the law reached its final form under the Dravidians. Third, there were the writings of the intellectuals of the King’s court. The growing point of the law had begun to be here and this was the most important form of law in the culmination of the reasonable man’s objective viewpoint. This part of the law got its final form in the Dravidian writings. Of the three elements, the first was thought of originally as declared and published custom. Later it was thought of as resting on the authority of the state. It was obviously local and peculiar to revealed Vedic scripture.
In form it rested on the legislative power of the Vedic language, supplemented by a mere interpretation of the legislative command with only the authority of customary acceptance. In Vedic phrase it rested on convention and enactment. The second purported to be the rules observed by civilized peoples living in Vedic cities, and on points of commercial law may well have been an approximation thereto. Apart from this, however, according to ancient ideas of objectivity in terms of the reasonable man, the rules which obtained among civilized peoples were eminently a proper law to apply between citizen and non-citizen. In Vedic phrase it was law by convention. The basis of the third was simply logic. The intellectuals of the King’s court had no legislative power and no legal authority aside from the King’s edict itself. The authority of the former as soon as law ceased to be a class tradition, was to be found in its intrinsic reasonableness; in the appeal which it made to the reason and sense of justice. In Vedic phrase, if it was law, it was law by nature.
A crude equitable application, a crude individualization, throughout the field of judicial administration of justice. It is assumed by courts more widely than we suspect, or at least, more widely than we like to acknowledge. Ostensibly there is no such power. But when one looks beneath the surface of the law reports, the process reveals itself under the name of "implication" or in the guise of two lines of decisions of the same tribunal upon the same point from which it may choose at will, or in the form of what have been termed "soft spots" in the law--spots where the lines are so drawn by the adjudicated cases that the court may go either way as the ethical exigencies of the special circumstances of the case in hand may require, with no apparent transgression of what purport to be hard and fast rules. Such has been the result of attempts to exclude the administrative element in adjudication. In theory there is no such thing except with respect to equitable remedies, where it exists for historical reasons.

As the rise of intellectual scholars in the King’s court came about subsequently, the shifting of the growing point of law to juristic writing and the transition from the law of a Vedic city to a law of many cities covered by the Vedic Emperor ( of which the Kings held allegiance to) called for a legal science, there was need of a theory of what law was that could give a rational account of the threefold body of rules in point of origin and authority, which were actually in operation, and would at the same time enable the Vedic jurists to shape the existing body of legal precepts by reason so as to make it possible for them to serve as law for the whole arena. The perennial problem of preserving stability and admitting of change was presented in an acute form. The scholars of the King’s court were practical lawyers and the paramount interest in the general security was ever before their eyes. While as an ideal they identified law with morals, they did not cease to observe the objective reasonable man doctrine where it was applicable nor to develop its precepts by analogy according to the known traditional technique when new phases of old questions came before them. Hence what to the Vedas was a distinction between right by nature and right by convention or enactment became to them a distinction between law by nature and law by custom or legislation.

lecturer at a private learning institution ( UTAR).