LAW, CRIME AND JURISPRUDENCE

Every society has certain degree of minimal order, based on certain shared values and norms, for its existence, continuation and sustenance. Those shared values and norms gradually become the binding force on the members of those society or community.Without order no society and for that matter any living beings cannot thrive for long. Order is the basic credo whether we may look at the basic unit of our lives from family, community, society to nation-state or international community. Even if we go beyond to the level of the star and inter planetary objects, there is only order and no chaos. It is conspicuously manifested in their spherical movement and operation. Any slight deviation might result in a big catastrophe that would go beyond our imagination.

1. Human Society
If we talk about human society, it is order that is one of the basic foundations of its existence, growth and progress. Durkheim believed that society exerted a powerful force on individuals. People’s norms beliefs and values make up a collective consciousness or a shared way of understanding and behaving in the world. The collective consciousness binds individuals together and creates social integration. For Durkheim, “the collective consciousness was crucial in explaining the existence of society it produces society and holds it together. At the same time, the collective consciousness is produced by individuals through their actions and interactions.

Society is a social product created by the actions of individuals that then exerts a coercive social force back on those individuals.”Through their collective consciousness, Durkheim argued human beings become aware of one another as social beings, not just animals. Order, based on shared values and norms, ensures stability, security, discipline, culture and civilisation as against chaos, instability and anarchy." 

• It reflects how various elements of the society cohabit, adjust and work together for sustainability as well as to cope with any contingencies. It involves:
• Devising a way of life based on certain shared principles, norms, beliefs, values and culture.
• Evolving structures for embodying the formulated principles, norms, beliefs, values and culture.
• Setting in motion mechanisms for interpreting and enforcement basic credos of orderly social life.
• Power play emerges to become part of the social structures and processes.
• Recognition and acceptance of the rules of engagement within the social set-up as well as vis-visa-vis other social set-ups.

Once social norms are ‘recognised’ as shared norms for the way of lives in a given society it starts to unfold its binding force on those members, who try to deviate from the accepted lines. That binding part manifests into nature of law.

2. Law: Validity and Efficacy
The society so grows by shared values, norms and regulations, strives for common ‘acceptance’ and ‘recognition’ of those for order, security, growth, stability and overall advancement of ways of lives of its members. The common acceptance and recognition shared values, norms and regulations evolve into become the ‘law’ of the given land. The main features of the law eventually become:
• Facilitating
• Enabling and
• Binding

Law, as a matter of fact deals with the factual situation and concerned with statuary acts, judicial adjudication, legal rules and regulations. It treats anything as legal or illegal on the basis of the factual situation, irrespective of the circumstances or conditionalities where it is being occurred.

In India, and for that matter in any other democratic country, the validity of a law is subject to clearing a test through passing by majority of members in all the chambers of the Parliament. This followed by given the stamp of recognition once it is notified in the Gazette of India. Once that is done the law plays facilitating, enabling and binding role. This may be called the statute law. Besides that we have also common law validated through Judicial pronouncement in the Supreme Court of India or corresponding High Court of state. The judicial pronouncement also gives validity to the “rule of recognition” of the law. (The Concept of Law, H.L.A. Hart, 2nd Edition, 1994) 

However, one fundamental issue that comes into the picture is relating to the ‘efficacy’ of law. The efficacy of law is a subject matter of further discussion, but the fact is that it is law as it emanates from the ‘rule of recognition.’ As for example in India, there are more than a thousand laws to make the legal system in society efficient as well as extensive. But serious question marks come into the picture as well as into public knowledge when corruption cases and cases under heinous crimes are being liberally discharged after a certain point of time from the adjudicatory process. Everyday news paper reports come out with news that in rape and murder charges convicted at the district courts being discharged at the higher court of judicature. Same happens to number corruption cases against public servants and other functionaries, where in majority cases the legal charges become weak leading to acquittal or remission in punishment.

Why it so? Is it due to poor investigation or weak prosecution before the court of justice?

First, no professional and specialise investigation set-ups being handled by experts legal investigation at the district level.

Second, the same is the case for prosecution which is being handled in a perfunctory manner.

The role of public prosecutor is significant in enforcing the rule of law and safeguarding the rights of the members of the society or polity. The prosecutors should be knowledgeable and well converse in jurisprudence. It should not and cannot be handled by unprofessional.

“Public prosecutors perform a crucial role in society. They are the ' gate keepers' of criminal justice, insofar as without their initiative there cannot be the prosecution and repression of crimes. Prosecution services are, in fact, society's principal means of pursuing punishment of criminal behaviour and its interface with the adjudicative power. Only cases that are brought to courts by public prosecutors can be processed and adjudicated by judges. Other forms of prosecution (like private prosecution) exist only in a few countries and apply in limited circumstances.” 

Third, no time bound adjudication process in the court of law. There is a tendency by the parties to the litigation pressing for frequent adjournment of case trial. This was recently being highlighted by one senior Judge of the top court of India. 

3. Jurisprudence
Jurisprudence is crucial discipline that every legal professional need to know or inculcate before applying the law to the factual situation. It sees that knowledge of society including socio-cultural process involving norms, morality and ethics are well understood. If law is mechanical and factual then, jurisprudence is organic that gives the horizon to the law. Legal crimes need to be addressed in this context only.

In some democratic countries, including USA, we still find the Jury system that emerges from this context only. In USA there are Trial Jury, at the trial cases and Grand Jury for federal criminal cases.

“A trial jury...decides whether the defendant committed the crime as charged in a criminal case, or whether the defendant injured the plaintiff in a civil case.
• Consist of 6-12 people.
• Trials are generally public, but jury deliberations are private.
• Defendants have the right to appear, testify, and call witnesses on their behalf.
• A final outcome is a verdict, in favor of the plaintiff or defendant in a civil case, or guilty/not guilty in a criminal case.
The grand jury determines whether there is “probable cause” to believe the individual has committed a crime and should be put on trial. If the grand jury determines there is enough evidence, an indictment will be issued against the defendant.
• Consist of 16-23 people.
• Grand jury proceedings are not open to the public.
• Defendants and their attorneys do not have the right to appear before the grand jury.”

4.Remarks
But the issues are why judges differ while adjudicating any legal cases in a court of judicature? Why do they decide in a particular way? Is their approaches based on logic or reasoning or experience. That part need to be pondered over for more clarity.

Overall, normative and moral reasoning need to be taken into account while addressing pure legal issue. Ultimately, law derives its sourcing from social norms and values.

-Asutosh Satpathy