Platform Sessions: Religion and Law
In the course of three plenary sessions which take the whole afternoon four experts on law will discuss some clearly outlined positions and questions related to the three themes outlined below. The possible questions for discussions during the days themselves are spelt out in a short position paper to allow the participants to consider their responses.
First day: Implications of Religious Distinctions
One of the characteristics of religions like Judaism, Christianity and Islam is the distinction they draw between ‘truth’ and ‘lie’. Confining ourselves to Judaism and Christianity for now, it can be said that both these religions have the notion of ‘deceit’ in the core meaning of falsehood and ‘trustworthiness’ in the core meaning of truth. That is to say, lying involves (at its core) the intent to deceive and thus implies untrustworthiness. In these religions, the Devil or Satan exemplify deceit and falsehood; God embodies the truth and trustworthiness.
These words and their attendant core meanings have made their home in the natural languages of Europe, English included. Because the impact of Latin on the languages of continental Europe is more pronounced, the core meaning of ‘falsum’ of (Latin Christianity) has seeped into their ‘vernacular’ equivalents. However, with King James’ translation of The Bible, English too has absorbed these core meanings of ‘truth’ and ‘falsehood’.
The Criminal Law in continental Europe deals with the issues that this core meaning of falsehood raises by, say, instituting statutes on forgery, false testimony and such like. These core meanings of ‘truth’ and ‘falsity’ are also important in diverse branches of law that involve such issues as ‘evidence’, ‘testimony’ and so on.
Compared to these core meanings, there is also another set of meanings of ‘truth’ and ‘falsehood’. This is better called the ‘philosophical’ conception of truth instead of the ‘Aristotelian conception of truth’ because it is mainly among philosophers that the notion of ‘truth’ is almost entirely defined in terms of the ‘accuracy’ of the descriptions.
In contrast to these core meanings of ‘falsity’ and ‘truth’, there stand their Indian language-equivalents as they are used in the Indian culture. Here, there is a clear and fundamental distinction between ‘lies’ and ‘deception’. These are seen as two different acts, even if, in some cases, they include both. That is, one could lie without deception and truth does not dovetail with trustworthiness. Consequently, when Indians use English, they use it in the ‘Indian’ sense, where a fundamental semantic distinction is made between a lie and a deception. In her culture, the fundamental meaning of ‘truth’ refers to ‘the real’, whereas the ‘false’ connotes ‘existence’ or even ‘transience’.
Yet, say, the Indian Penal Code (IPC) is built upon foundations that deny the Indian semantic sense. Instead, it presupposes the ‘falsum’ as Latin Christianity conceived it. Because of this, entirely unsuspected questions come to the fore: how has the Indian judiciary (and the Indian jurisprudence) interpreted this distinction between ‘truth’ and ‘falsity’? Has it followed the Semitic religious distinction or have its judgments reflected the Indian intuitions on the matter? If the judiciary has followed the British interpretation, it has remained faithful to a particular religious distinction; in the other case, it must have distorted laws while interpreting them. The first day of the Platform is intended as a preliminary exploration of this issue and its consequences for developing an Indian legal discourse.
Second Day: Juridical facts and the goal(s) of Law
One of the signal achievements of the post-war philosophy of science is to hammer home the basic insight that what we call ‘facts’ are almost always ‘theory-laden’. That is to say, the last six decades of research suggests to us that ‘facts’ are always (mostly) facts of a theory. This insight is important not only to the assessment of scientific theories but also to understanding ‘juridical facts’.
The difference between a ‘scientific fact’ and a ‘juridical fact’ can be drawn in the following way: while a scientific fact is given to us by a description that uses some or another scientific theory, we get a juridical fact by using the relevant legal statutes to describe an action or a behaviour. In the former case, the fact is logically and mathematically derivable from the set of theories used; in the case of a juridical fact a transformation process is involved. This transformation process, even though it involves reasonable steps, is not a logical derivation. Acquisition of this ‘reasonableness’ is akin to acquiring a skill and hence the need for legal practice.
Working under this hypothesis, we can now reformulate the goal of law in the western legal tradition. Because the relevant statutes determine what a legal fact is and what is not, the descriptions of actions and behaviours are amenable to only one test: do they violate or are they in conformity with the provisions of law? Given one of the basic principles of law (lex certa), which enjoins the law-giver to be precise and accurate in formulating the law, the judiciary, so to speak, has only one task: to determine what the legal facts of the case are. In this sense, the western legal traditions cannot have ‘extrinsic’ goals thrust on them except to determine the relationship between legal facts and relevant statutes.
In contrast to this stand the Indian cultural practices. Here, ‘legal’ disputes are seen merely as ways of solving conflict between people. Its ends are also in consonance with the ideal of enabling a peaceful and, where possible, harmonious living. Consequently, laws are seen as problem-solving heuristics and not as expressions of the ‘General Will’, whether that Will is the will of God or of the people understood as a ‘sovereign’. Because of the absence of formal legal tradition in this culture, as the West has understood what such a tradition consists of, India had to wait for the British to introduce the western legal tradition in the Indian society.
However, the Indian cultural understanding of Law does not disappear by the mere introduction of an alien way of conceptualizing problems and solutions. It continues to be the case that the Indian judiciary still sees itself as dispensing justice and postulates such a goal as the end that any legal tradition has to strive for. This creates continuous conflicts within the existing legal tradition.
In this context, the questions are these: is there a place for incorporating this cultural understanding within the framework of a parliamentary democracy and the existing legal traditions? Does the practice of informal ‘legal’ disputations shed any light on what juridical facts are within the framework of Indian culture? Should we dispense with this notion and accord the role that the Indian judiciary implicitly want to claim for itself, namely, as a guarantor or justice? Are different heuristics of reasoning involved in these different ways of understanding and resolving disputes?
Third day: On the nature of Persons
There is little doubt that the western legal tradition has emerged from a very typical Semitic, Christian conception of a person. Modern ‘secular’ theories have not challenged this notion substantially, even though many pockets of resistance for this are to be found in various intellectual disciplines. Such a notion sees the person as an entity with a will, capable of acting intentionally and deliberately and capable of choosing between alternatives.
Research in Anthropology, social psychology and sociology, etc. has revealed that an entirely different concept of person is dominant in the Indian culture. It denies agency, sees will and intention as pernicious illusions (and false beliefs) and has very little understanding of choice between alternatives. The western, legal tradition in India presupposes a notion of person that is almost entirely unintelligible within the cultural framework of the ‘Indian mind’.
Many questions arise, therefore: what role does this Christian, religious conception of person play in the Indian interpretations of their own legal system? Is the western legal system compatible with the Indian notion(s) of person? To what extent is this notion intelligible to the Indian judiciary? If it is not, what exactly does it determine, when it passes legal judgements?