Professor Dr. Mokhdum Mushrafi :
Law held in black letters contain only fifty per cent of its essence. Its complete essence is contained by the verdict of the wise judge or justice plus law in letters. Through amalgamation of black letter law and the wisdom of the judge law gets completed in its essence. In fact, any judgment refers to wisdom and not law. Law is an auxiliary to true judgment. Judgment is dependent on the analytical power and wisdom of the judge. Wisdom of the judge must be as profound as multi-angular. Wisdom is founded on the knowledge of the past and future and the present of reality. It’s a conglomeration of the three for a meaningful inference. This meaningful inference provides a sense of direction to the society. The entire judiciary is meant for providing sense of direction to the society. It is meant for providing continuity to the harmonious social continuum.
The judge who applies the black letter law alone provides merely fifty per cent of the law and, therefore, judgment to that extend. The more a judge depends on black letter law the less justice he provides.
And he rolls on the fifty per cent of the essence of law. Fifty per cent of law can never provide exact and true justice. And so it provides injustice or apparent justice. Extreme dependence or exclusive dependence on black letter law provides injustice to society and relative anarchy on that account.
The goal of law, social harmony, is attacked by such absolute dependence by judge on black letter law. Black letter law and wisdom of the judge together provide true justice. The quality of that justice depends on the quality of wisdom which means its extend of profundity and totality of multi-angularity.
The quality of wisdom of the judge is dependent on the quality of the concerned institutional mechanism and the quality of culture where he grows and learns. It refers to his entire social and academic orientation and his personal quality of merit and morality. Quality of culture again depends on its quality of wisdom. Culture is the accumulated wisdom of its heritage which is contained and articulated in its value.
The basic quality of culture is harmony. Nay, its dynamic harmony. Dynamic harmony means its capability to adjust with change keeping the harmony as it is. Change is constant in reality, material and non material. And on the same account in the social self.
The interactive process at the subjective level is multifarious with phases of complicacies and attitudinal clusters.
These interactive overlapping of dimensions and attitudinal clusters always remain pregnant with possibilities of explosions and profound clashes which the society encounters in its course of advancement. These are great challenges. The more the society is competent for absorbing the possible clashes of these typologies the more is it qualitatively higher.
This competence is constituted by the sober, farsighted, tolerant and softly flexible is the approach of a society the more it is qualitatively competent. An accommodative, servicing and soberly and diplomatically supervising society easily absorbs the above mentioned dimensions of possible clashes. So long a society remains philosophically balanced its encounter of change remains smooth with resultant harmony.
Philosophical balance of a society saves it from possible clashes and fragmentation. Here the individuals are set in right role and right role-play. When role differentiation is rational and role play is responsible society remains auto-moving and auto-operative. The moment philosophical balance of a society loses its track cleavages follow. Then the need of law and its application come to the fore. Law thus rests on relative social failure. Social failure is failure of social wisdom. It follows from this that need of law and its application are inversely proportionate to social wisdom or wisdom as such.
Philosophical balance of a society is always exposed to the uniqueness of the individual and his unique ideas or innovations in technology. Every individual is unique and he or she tends to possess unique ideas of his or her own. Often his merit or talent transcends the philosophical level of his or her time. And that injects elements of philosophical imbalance of the correspondent society. Also there is common tendency that the newer generations are more meritorious than the older ones.
Necessarily, the philosophical balance of the time of the older generation encounters challenge of adjustment. But then the older generation does not command the adjustment potential requisite to that. On that account conditionally the society gets exposed to vulnerability of relative philosophical imbalance which leads to relative wisdom-lag and relative social failure.
Likewise innovations in technology bring about new array of attitudinal clusters and the ideas associated with such attitudinal clusters. That again cause philosophical imbalance necessitating the society for a total overhauling of its existing value. In other words, society needs to update itself to correspond to the conditional changes. If the society is aware of and capable of such updating social balance remains the same.
Otherwise, social imbalance follows which creates condition for the formal application of law. Legal assertion always follows social failure. But then legal assertion is not adequate enough to compensate for the relevant social failure.
It always remains as artificial as foreign to the social self. Once it begins to assert it begins to secrete irregular consequences breeding new relationships and distortions of social value which is always counterproductive for philosophical balance of the society. The results are corruption, excessive application of coercion, killing, murder and relative power blindness here and there from bottom to the top.
Philosophical failure of a society and power blindness in that society go hand in hand in increasing proportions. All institutions get gripped by that process with excessive heat generated in the society for explosions in any direction any time. In other words, the entire society becomes too sensitive to explosions.
It is just the reverse of concealed anarchy. Concealed anarchy is characterized by sober adjustment. But an explosive society is the other way round. Here tolerance is least both from the powerful and powerless.
The difference between value and law is that the former is supported by the social self and the later is supported by coercive forces of different typologies ranging from trifling institutions to powerful state. It is power all the way that backs it. In other words, power based or powerfully designed value is law.
Away from society it is in the grip of institution of power be that state or whatever. Law, therefore, is relatively contrary to value. To make it match with value it needs coercion support or power support. It is never as spontaneous as social value. It is imposed thus. To the extend it is imposed it taxes freedom of the society and the individual composing it. A socially fulfilled society is best for the fulfillment of the purpose of law. Between the lines there are contradictions as to law and social harmony. Legal process never can ensure its attainment. Only legal process backed by wisdom can ensure attainment of the same.
Let us illustrate. Legal process is characterized by legal debate between lawyers on opposite poles. Law thus is exposed to distorting torning apart by the merits of the opposing lawyers. Law as it is does not stand valid as absolute with rationale and equilibrium of reason.
This is one part of the process. The other part is even more terrible. The case of the witness. Man being a combination of appearance and reality as witness he is never assesseable. His apparent self is always capable of hiding his real self making a lie a concrete truth and a concrete truth a definite lie. He can at ease play with justice and judgement.
Unless the judge is empowered with discretion he is helpless before the magic and mockery of the witness and the reckless torning of law by the opposing lawyers.
Again even if the judge is given a free discretion it must be associatd with wisdom to make judgement a true symbol of justice. These are all uncertain and unassesseable making the legal process futile and absurd in the last analysis.
Social wisdom or the wisdom of the judge are the lone way outs for true justice. Away from this there can be pretentions and power assertions in the name of rule of law or “system’. Power can give pain or pleasure but it can never deliver justice.
Trough cultural mobilization and value harmonization, philosophical balance and social competence generation justice can be reached and established. All these lead to social wisdom which the social individual commands as person. This person can ensure justice in day to day life like the wise judge who can commands the process of the judiciary. Process on its own can never deliver or establish justice. So, culture is the best option left for establishing justice.
(Prof. Dr. Mokhdum Mushrafi is Ex-Chairman, Department of Political Science, University of Chittagong)
Law held in black letters contain only fifty per cent of its essence. Its complete essence is contained by the verdict of the wise judge or justice plus law in letters. Through amalgamation of black letter law and the wisdom of the judge law gets completed in its essence. In fact, any judgment refers to wisdom and not law. Law is an auxiliary to true judgment. Judgment is dependent on the analytical power and wisdom of the judge. Wisdom of the judge must be as profound as multi-angular. Wisdom is founded on the knowledge of the past and future and the present of reality. It’s a conglomeration of the three for a meaningful inference. This meaningful inference provides a sense of direction to the society. The entire judiciary is meant for providing sense of direction to the society. It is meant for providing continuity to the harmonious social continuum.
The judge who applies the black letter law alone provides merely fifty per cent of the law and, therefore, judgment to that extend. The more a judge depends on black letter law the less justice he provides.
And he rolls on the fifty per cent of the essence of law. Fifty per cent of law can never provide exact and true justice. And so it provides injustice or apparent justice. Extreme dependence or exclusive dependence on black letter law provides injustice to society and relative anarchy on that account.
The goal of law, social harmony, is attacked by such absolute dependence by judge on black letter law. Black letter law and wisdom of the judge together provide true justice. The quality of that justice depends on the quality of wisdom which means its extend of profundity and totality of multi-angularity.
The quality of wisdom of the judge is dependent on the quality of the concerned institutional mechanism and the quality of culture where he grows and learns. It refers to his entire social and academic orientation and his personal quality of merit and morality. Quality of culture again depends on its quality of wisdom. Culture is the accumulated wisdom of its heritage which is contained and articulated in its value.
The basic quality of culture is harmony. Nay, its dynamic harmony. Dynamic harmony means its capability to adjust with change keeping the harmony as it is. Change is constant in reality, material and non material. And on the same account in the social self.
The interactive process at the subjective level is multifarious with phases of complicacies and attitudinal clusters.
These interactive overlapping of dimensions and attitudinal clusters always remain pregnant with possibilities of explosions and profound clashes which the society encounters in its course of advancement. These are great challenges. The more the society is competent for absorbing the possible clashes of these typologies the more is it qualitatively higher.
This competence is constituted by the sober, farsighted, tolerant and softly flexible is the approach of a society the more it is qualitatively competent. An accommodative, servicing and soberly and diplomatically supervising society easily absorbs the above mentioned dimensions of possible clashes. So long a society remains philosophically balanced its encounter of change remains smooth with resultant harmony.
Philosophical balance of a society saves it from possible clashes and fragmentation. Here the individuals are set in right role and right role-play. When role differentiation is rational and role play is responsible society remains auto-moving and auto-operative. The moment philosophical balance of a society loses its track cleavages follow. Then the need of law and its application come to the fore. Law thus rests on relative social failure. Social failure is failure of social wisdom. It follows from this that need of law and its application are inversely proportionate to social wisdom or wisdom as such.
Philosophical balance of a society is always exposed to the uniqueness of the individual and his unique ideas or innovations in technology. Every individual is unique and he or she tends to possess unique ideas of his or her own. Often his merit or talent transcends the philosophical level of his or her time. And that injects elements of philosophical imbalance of the correspondent society. Also there is common tendency that the newer generations are more meritorious than the older ones.
Necessarily, the philosophical balance of the time of the older generation encounters challenge of adjustment. But then the older generation does not command the adjustment potential requisite to that. On that account conditionally the society gets exposed to vulnerability of relative philosophical imbalance which leads to relative wisdom-lag and relative social failure.
Likewise innovations in technology bring about new array of attitudinal clusters and the ideas associated with such attitudinal clusters. That again cause philosophical imbalance necessitating the society for a total overhauling of its existing value. In other words, society needs to update itself to correspond to the conditional changes. If the society is aware of and capable of such updating social balance remains the same.
Otherwise, social imbalance follows which creates condition for the formal application of law. Legal assertion always follows social failure. But then legal assertion is not adequate enough to compensate for the relevant social failure.
It always remains as artificial as foreign to the social self. Once it begins to assert it begins to secrete irregular consequences breeding new relationships and distortions of social value which is always counterproductive for philosophical balance of the society. The results are corruption, excessive application of coercion, killing, murder and relative power blindness here and there from bottom to the top.
Philosophical failure of a society and power blindness in that society go hand in hand in increasing proportions. All institutions get gripped by that process with excessive heat generated in the society for explosions in any direction any time. In other words, the entire society becomes too sensitive to explosions.
It is just the reverse of concealed anarchy. Concealed anarchy is characterized by sober adjustment. But an explosive society is the other way round. Here tolerance is least both from the powerful and powerless.
The difference between value and law is that the former is supported by the social self and the later is supported by coercive forces of different typologies ranging from trifling institutions to powerful state. It is power all the way that backs it. In other words, power based or powerfully designed value is law.
Away from society it is in the grip of institution of power be that state or whatever. Law, therefore, is relatively contrary to value. To make it match with value it needs coercion support or power support. It is never as spontaneous as social value. It is imposed thus. To the extend it is imposed it taxes freedom of the society and the individual composing it. A socially fulfilled society is best for the fulfillment of the purpose of law. Between the lines there are contradictions as to law and social harmony. Legal process never can ensure its attainment. Only legal process backed by wisdom can ensure attainment of the same.
Let us illustrate. Legal process is characterized by legal debate between lawyers on opposite poles. Law thus is exposed to distorting torning apart by the merits of the opposing lawyers. Law as it is does not stand valid as absolute with rationale and equilibrium of reason.
This is one part of the process. The other part is even more terrible. The case of the witness. Man being a combination of appearance and reality as witness he is never assesseable. His apparent self is always capable of hiding his real self making a lie a concrete truth and a concrete truth a definite lie. He can at ease play with justice and judgement.
Unless the judge is empowered with discretion he is helpless before the magic and mockery of the witness and the reckless torning of law by the opposing lawyers.
Again even if the judge is given a free discretion it must be associatd with wisdom to make judgement a true symbol of justice. These are all uncertain and unassesseable making the legal process futile and absurd in the last analysis.
Social wisdom or the wisdom of the judge are the lone way outs for true justice. Away from this there can be pretentions and power assertions in the name of rule of law or “system’. Power can give pain or pleasure but it can never deliver justice.
Trough cultural mobilization and value harmonization, philosophical balance and social competence generation justice can be reached and established. All these lead to social wisdom which the social individual commands as person. This person can ensure justice in day to day life like the wise judge who can commands the process of the judiciary. Process on its own can never deliver or establish justice. So, culture is the best option left for establishing justice.
(Prof. Dr. Mokhdum Mushrafi is Ex-Chairman, Department of Political Science, University of Chittagong)
