Report No. 54
53.21. Looked at from this broad point of view, the conclusion inevitably follows that:
"Jurisprudence, ethics, economics, politics and sociology, are distinct enough at the core but shade out into each other. All the social sciences must be co-workers, and emphatically all must be co-workers with jurisprudence"1.
It is in the light of this jurisprudential view of the judicial role that we propose to describe the scope and nature of the work to be done at the Institute which we have in mind.
1. Roscoe Pound An Introduction in the Philosophy of Law, p. 57.
Effect of pulls competing for recognition
53.22. The law is predominantly as an instrument off social engineering in which conflicting pulls of political philosophy, economic interests and ethical values struggle for recognition. This struggle has to be viewed against the background of history, tradition and development of legal techniques. A working knowledge of those disciplines is therefore essential. We shall indicate below, by way of illustration, the effect of these pulls upon a few branches of the law.
Property and contracts
53.23. Taking first, the field of property, it may be noted that the concept of property has been gradually widened, but at the same time the principles governing the power and the use of property have been profoundly modified under the impact of new social ideas.
Again, in the law of contracts, the emphasis on contract as an instrument of free bargaining between the parties has been largely modified-sometimes by the operation of commercial forces (e.g. the emergence of standardised contracts), sometimes by economic pressures (e.g. the evolution of collective agreements) and sometimes by the impact of positive legislation (e.g. through the imposition of statutory conditions on contracts).
53.24. A similar phenomenon is noticeable in torts. At common law the rules of the law of torts, which were designed to adjust the consequences of loss, placed the liability on the person who caused the harm. But the shifting of this liability started with the emergence of vicarious responsibility, and now, on a vastly wider scale, with the progress of insurance. This change in liability reflects, in the realm of torts, the operation of private as well as of social forces similar to those operating in the field of contract.
53.25. Criminal law has also witnessed several developments during recent times. The most interesting, of course, is the differentiation between the old-style type of criminal offence and the new type of public welfare offence. The yardstick in both cases is the gravity of the interest that has been injured. But new types of interest deserving of protection by the State and unknown to the older criminal law have emerged. Some-but not all-of these can be measured in terms of older concepts of criminal law. Some require a new approach. Both the traditional 'criminal' type of offence and the new 'public welfare' type of offences have, therefore, been employed in order to protect the new types of interests.
Recent penological trends are also well-known, and we need not here enter into their details.
53.26. We are mentioning these developments in order to give a concrete though illustrative indication of matters which could be usefully included under the subject of law and society (or any other similar appellation which is considered suitable).
53.27. Another subject of importance is that of statutory interpretation. This subject is at present included in the courses leading to the law degree of most Indian Universities. But the emphasis in the training which we propose will be on the practical application of rules of interpretation, covering enacted1 rules of interpretation as well as others.
1. See the General Clauses Act, 1897.
53.28. As regards the process of interpretation of statutes, it is pertinent to note that, because perfect generalization for the future is impossible, no generalization is complete in any legislative measure. As Judge Breitel has observed1-
"Aware of this impossibility, legislatures often do not more than purport to lay down the most general statements of law, intending that the courts and other law-applying agencies shall creatively adapt the general principle to specific cases. Thus, every time a statute uses a rule of reason, or a standard of fairness without specifications, there is conscious and deliberate delegation of this responsibility to the courts."
However, exhaustive a statute may be, there will still remain a group of cases where the purpose of the legislature is not easy of perception. "And here society and the legislature both entrust themselves to the law making powers of the courts2." The judiciary will, therefore, always have to concern itself with these 'interstices' of legislation3. One may call this process a creative one, or only a process of unfolding what is latent. The name does not matter.
1. Judge Breital "Courts and Law-making" Columbia Law School Centennial Symposium, (1959).
2. James M. Landis Note on Statutory Interpretation, (1929) 43 Harvard Law Review, 886 893.
3. Cf. Southern Pacific Co. v. Jenson, 244 US 205 (221) (Holmes J.).
53.29. In the following passage. Mr. Justice Cardozo expressed his views, formed on the basis of his personal experience1, as to the judicial process." logic and history, and custom, and utility and the accepted standards of right conduct, are the forces which, singly or in combination, shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby, promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial.
There must be nothing in its action that saviours of prejudice or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression.
The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new course, of marking a new point of departure from which others who come after him will set out upon their journey. If you ask how he is to know when one interest out weights another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here indeed, is the point of contact between the legislator's work and his".
1. Cardozo The Nature of the Judicial Process, (1921), pp. 112-113.