IDEA OF LAW – DENNIS LLOYD

“IS LAW NECESSARY?”

SOMALATHA MOLY T S
ASSISTANT PROFESSOR
RAMAIAH COLLEGE OF LAW, BENGALURU
 IS LAW NECESSARY?

• “The highest perfection of society is found in the union of order and

anarchy” – Proudhon

• Whether law is expandable/unnecessary to the creation of a just

society?

• Whether law is something positively evil in itself & therefore a

dangerous impediment to the fulfilment of man’s social nature?
❑ Rejection of law

• Less well-regulated societies

• Many leading western philosophers – Plato to Karl Marx

• Religious systems of East & West: like Christian Church

• Philosophies like Anarchism

➢Every age – individuals/groups – restlessness against authority –

outbursts against law & order – little influence on human thought?
• Ideological foundations for the dissatisfaction with the idea of law ?

• What has urged them to reject law or regard it as a necessary evil?

 THE NATURE OF MAN

• Idea of law – closely connected to nature of man/human condition

• Evaluation of human nature – human can only attain a truly human

condition with the existence of law or without the existence of law

• Assumption of human purpose – what is good for human & what is

needed for its attainment

One thought:

• Man is an incarnation of evil/an amalgam of good and bad impulses

constantly in conflict – bad tending repeatedly to prevail over good:

→Dark & dangerous forces are implanted in man’s nature – needs to

sternly curbed – if not – total destruction of social order

→ Law – is indispensable restraint upon the forces of evil

→Anarchy/absence of law – supreme horror

Another view:
• Man – inherently good; ills of present condition- situations external to
man – defects in social environment is the true cause of evils

• Govt. & legal system – responsible – as they hold power over this social
environment

• Some – reforms of legal system; some – total elimination of the system

 THE LAW AND THE FORCES OF EVIL
• Law – means of attaining social harmony by curbing the evil passions of
man – 2 stands

1. man’s nature – intrinsically evil – no social progress could be attained

without the restraint of penal laws

2. Man – originally created good by nature – sin, corruption, internal

weakness – original good nature distorted – law / punitive syatem is
needed
• Golden age of primeval innocence – simple, happy, well-ordered lives
without the need for external system of legal rules/coercion to restrain
the impulses – unselfish, common good of mankind.

• Seneca to Rousseau

• return to nature – primitive unspoiled nature – uncorrupted natural

impulse replacing coercive regime of law
• Ancient China: 3 BC – “Legists” – man’s nature was initially evil – good

acts due to influence of social environment – particularly the teachings

of rituals & restraints of penal laws.

• “A single law, enforced by severe penalties, is worth more for the

maintenance of order than all the words of all the sages.”

• India – Shastras – men by nature are passionate & covetous – if left to
themselves world resembles a devil’s workshop – logic of the fish
would reign (matsyanyaya)

• Bodin – original state of man – disorder, force and violence

• Hobbes – life of primitive man – state of perpetual warfare – brutish,

nasty and short life
• Hume – without law, Govt. & coercion – human society cannot exist -
law - natural necessity for man

• Machiavelli – ‘ men are naturally bad and will not observe their faith
towards you, so you must , in the same way, not observe yours to
them’ – advice to princes to disregard their pledges when they
conflicted their own interests
• Ovid – first book of Metamorphoses

• Seneca – primitive innocence – rather the result of ignorance than

virtue ; social evils & necessity for the introduction of a regime of law –
corruption of human nature from the initial state of innocence – vice of
avarice

• Idea of vice & corruption – reason for the establishment of coercive

institutions – key feature of western thought – early Church Fathers to
Judaeo-Christian version of Fall of Man
• Early church fathers, Judaeo – Christian version of Fall of Man

• Bibilical account of Paradise – Seneca’s primitive state of innocence

• Necessity for human law & its institutions like coercive State, private property,
slavery, family – man’s sinful nature – Fall of Man – to mitigate the evil effect
of sin

• Slavery – sin justified it – legitimate in a corrupt State

• Family – coercive domination of male – against freedom & equality: but

necessary
• St. Augustine: Roman-African – early Christian Theologian & Philosopher

• State law & coercion – not sinful in themselves – part of divine order –
means for restraining human vices due to sin – all legal institutions & state
powers are legitimate – coercion could be used to enforce

• Future hope for Mankind: attainment of a commonwealth of God’s elect – a

mystical society – to replace the current regime dominated by man’s sinful
nature.

• Didn’t believe in social reforms to establish a just society

• Augustine – Roman empire’s disintegration – belief – little prospect of
orderly just society through mere human dispensation – reflected in his
philosophy – law as an absolute necessity

• Things changed – influence of other philosophies

• Aristotle’s philosophy – Western Europe

• Aristotle: natural development of the state from man’s nature – influenced
Aquinas

• Aquinas – State – not a necessary evil – natural foundation in the

development of human welfare

• Law – a potentially beneficial positive force – social harmony & welfare –

not just a negative force restraining evil

• Law – a means of rationalizing and directing the social side of man’s nature
 IS MAN NATURALLY GOOD? ANARCHIST’S VIEWPOINT
• Some Thinkers – rejected the idea of law as a necessary force in
shaping & directing human behaviour in a positive way - against the
coercive nature of law
• Man’s nature – basically good; social environment / existence of legal
regime – responsible for man’s condition
• Golden Age of Primeval Innocence – base of anarchist thought
• Plato: “ the man of early times were better than we are and were
nearer to Gods”
• A society free from all legal rules – rational harmony will prevail
because of the good sense & social impulses of its members
• Plato – “ Republic” – non-law State – Philosopher King

• Education – produces adequate rulers & conditions the rest to an

appropriate level of obedience - brainwashing? - Adopted by modern
societies

• Plato – Totalitarianism – “ The Laws” – inflexible & rigorously imposed

legal system
• Christianity – a contempt for human law as against divine law , but not
rejection – “Render unto Caesar the things that are Caesar's, and unto
God the things that are God’s” – conferring a divine legitimacy on
established powers

• Cult of non-violence – threat to State authority? – base for anarchist

doctrines – Tolstoy, Godwin
• 17TH Century – modern period – science & technology – Ideology of
human progress – looking forward to a bright human future – not
primitive paradise
• laissez faire (Adam Smith): Social evolution of mankind – free play of
economic forces leads to ultimate social harmony – Govt. & law were
evil & constricted / distorted the natural development of society &
economy
• But not anarchist – strongly favoured coercive law to protect private
property –indispensable feature free market
• 19th century – anarchist writers – Godwin, Tolstoy

• Godwin – ‘Political Justice’ – 1793 – man’s sinful nature – oppressive human

institutions – faith in human reason & perfectibility – voluntary cooperation &
education enable all laws to be abolished

• Russian school of anarchists: Bukanin, Kropotkin – state, law, coercion & private
property were enemies of human happiness and welfare – beneficent role of
cooperation & mutual aid, not coercive oppression

• Tolstoy: simple Christian God inspired life of early Christian communities

• Followers of Tolstoy – Tolstoy colonies

• Aylmer Maude – ‘Life of Tolstoy’ – strange & comic ways the colonies failed
✓The incident of boy who stole a waist coat in one colony
✓The property of a colony appropriated and presented to a Commune by a member of the
colony
• Maude: “Remove the law, and induce men to believe that no fixed code or seat of
judgement should exist, and the only people who will be able to get on at all decently will
be those who, like Russian pre-revolutionary peasantry, follow a traditional way of life.
The root evil of Tolstoyism is that it disdains and contempt the results of the experience
gained by our forefathers, who devised a system which, in spite of many defects that still
hamper it, made it possible for men to cooperate practically and to carry on their diverse
occupations with a minimum of friction.’
• KARL MARX: Overthrow of the capitalist society by a revolution of the
oppressed proletariat – classless society – law & state wither away

• Law – nothing but a coercive system devised to maintain the privileges of the
property-owning class

• Marxists – looking forward – social harmony will be attuned to the natural

goodness of man unimpeded by such environmental snares as the institution
of private property – social paradise

• The interim period – vast increase of state activity supported by the

apparatus of legal coercion – very unlike anarchism?
 INNATE GOODNESS & THE PRICE OF CIVILIZATION
• Man at primitive level – innately good – social political organization of
civilized life introduced seeds of violence & disorder → systems of legal
coercion became a necessity
• Elliot Smith – Book on ‘Human History’ – 1930 – innate goodness and
peacefulness of human kind
• Envy, malice, uncharitableness – artificial aim which was not known to
Primitive man
• Result of stress, tensions, conflicts of civilised complex life?
• Mary Shelley – ‘Frankenstein’ – a monster created in human form-
slaying the creator
• Duality of human nature – creative & destructive sides – good & bad
• Anarchists – ignoring the dark side of human beings?
• Sir Herbert Read : ‘Anarchists conceive society as a balance of harmony
of social groups.’
• Harmonious interrelation of these social groups – State organisation’s
function?
• Then how do you justify a society without State?
• Sir Read:
➢This function of State will disappear with the elimination of economic
motivation from the society – eg. Crime can be tackwed by elimination
of private property
➢Matters like infant education and public morality are matters of
common sense – innate goodwill of community is enough to tackle this.
• Universal decentralization of authority & simplification of life by
disappearance of inhuman entities like modern cities – disputes
resolved at local level – local courts – common law based on common
sense.

• Read: some general law is needed – not total rejection of law – only
rejecting coercive apparatus of centralised control

• ‘Anarchism – a system without ruler/arkhos – not without law & order.’

• Conclusion: Even the simplest of societies need rules – as societies get
more complex, they need more complex rules
• The idea that human society can exist without rules or law – too
fanciful – impractical
• Read: ‘A society without order is nothing but the negation of society
itself.’