Need for a Socialist Jurisprudence
Cite as : (1987) 4 SCC (Jour) 4
Jurisprudence has been defined differently by different Jurists. For our present purpose we may describe Jurisprudence as the enquiry into legal ideology, the wherefrom, the why, the how, and the wherefor. Socialist Jurisprudence therefore is that legal theory which explains the transformation of legal ideology as society transforms itself and which further explains and facilitates the Jurisprudential use to effectuate and accelerate the transformation.
In Jurisprudence there have been several ideological myths. There is the natural law myth which traces the sources of Law to "God, Nature, reason, intution and recognition", that is, to a source outside the Legal system and therefore, incapable of verification. It is impossible to accept a theory which owes allegiance to something which cannot be proved by rational cognition. Further natural law is based on the ill founded assumption that there can be only one sense of justice. It does not recognise Law as a social fact dealing with man. Law is treated as the substance instead of as the reflection of social struggle. Natural law theory is essentially a search for a mirage. But it did serve a revolutionary purpose in moulding the French and the American Revolution but it has since lost its revolutionary character and is nowadays generally used as an armour to protect vested interests. There is then the positivist myth that law is only that which the ruling power commands, a myth which takes no notice of social sciences, of history, of movement, and of class conflict. It is a mental exercise in abstract notions, "the dry bones of the law deprived of the flesh and blood which give them life". The positivist is unconcerned with the direction or motion of social relations. The realist legal myth is to hold up the world of litigation as the one world and to perceive the movement of social policy as confined within the walls of the judges' minds ignoring the obvious truth that a judicial decision can at best uncover a minute fraction of the truth about society's legal ideology. The myth of the sociological school is the reconciling and balancing of competing social and individual interests, with no yardstick to decide when one interest outweighs another. Bureaucratic problems which surface from time to time may be solved by the sociological school but not the deeper, complex problems of change, revolt or revolution.
The myths of the several schools of law have succeeded in clouding legal ideology. The veil must be lifted if we desire to understand legal ideology in relation to the changing structure of social relations. The traditional schools of Jurisprudence do not explain the historical and revolutionary processes by which a system of social relations is overthrown and replaced by another system and the part which legal ideology plays in such transformation. Any satisfactory theory of Jurisprudence must explore the use of legal ideology in the continuous struggle for change. The traditional schools do not. The time has, therefore, arrived for ardent students of law, particularly for the thoughtful rebels and for the thoughtful but perhaps not so rebellious practitioners of law like us, to evolve a satisfying theory of jurisprudence which will explain and hasten the inevitable revolutionary process, a Jurisprudence of change in fact, socialist Jurisprudence.
To develop a truly historical, socialist jurisprudence, we must first distinguish between the various economic modes of production, primitive, ancient, feudal, capitalist and socialist and understand how in every historical epoch, economic power was gained by the development of the forces of production and how it resulted in a class struggle for the control of society, between the existing ruling classes and the classes seeking economic power through the new forces of production. Human history has really been the history of the struggle of these classes. Every class struggle resulted in the creation of a new society. Every new society established its new classes and its new forces of oppression and exploitation. Inevitably there would be a conflict between State power and the rising revolutionary class of that age and out of that conflict would grow the current ideas and ideologies. Legal forms would thus be superstructures on the foundation of the relations of production constituting the economic structure of society. When the economic foundation changes the superstructure transforms itself. The truth is that law rests on society and not that society is based upon law, which is nothing but a lawyer's myth. Law is but a symptom, an expression of other relationships, on which State power is built. But, it must not be thought that law is entirely disautonomous. It has a reciprocal effect and reacts in turn upon the economic base. It can and must express and influence the trend of social change. In every age the ruling classes have certain legal forms which they hold sanctified. They are the forms which they have used in their struggle against the previous ruling classes and in their rise to power and they are the forms which they use to retain their power. It is up to the exploited classes of the age to seize these very forms, and use them in their struggle against the ruling classes. It is true that legal ideology will transform itself when today's exploited classes become tomorrow's ruling classes. But one doesn't have to wait for the transformation of legal ideology. The process of the rise to power of the exploited classes may be hastened by seizing the very legal forms, glorified by the ruling classes and turning them against the ruling classes themselves. That the ruling classes will resist. They will deny the very rules designed by them; they will break them and turn against them. That is history. That is what all socialist Jurisprudents, lawyers, Judges and Academicians must prevent. It is the duty of all socialist Jurisprudents to carefully study the historical origin and the basis of the rules upon which the ruling classes rely in order to understand them, to identify the specific contradictions in the system, to turn them to the advantage of the forces demanding social change, to find opportunities to expose the interests which are protected by the existing legal ideology, to prevent the ruling classes from turning back upon the rules by which they had sworn earlier. Socialist Jurisprudents must prevent the ruling classes from turning back upon the revolutionary principles of fairness, equality, justice and liberty and from supressing the rights of the working classes, the peasants, women and students.
In India, the colonial rulers when they left our shores bequeathed to the bourgeoisie who succeeded them an ideology which paid homage to Freedom Fair Play. The doctrines were there. The weapons were there. The rulers seized the doctrines and the weapons and their judges fashioned a jurisprudence in which Freedom was the keynote. Freedom, of course, meant in truth Freedom of Property. Everything revolved round it. Equality and Justice, Economic, Social and Political were proclaimed in the Constitution but Equality and Social and Economic Justice were forgotten. The Courts, as ever, obliged. Directive Principles of State Policy were ignored and Equality was reduced to the American principle of reasonable classification. But there is now a ferment. The very weapons wielded earlier by the ruling classes, are now being steadily turned against them. The jurisprudents and the law are evolving a great jurisprudence around the doctrines of natural justice, ultra vires and Habeas Corpus. The doctrine of equality and the right to life have currently been seized upon to fight the cause of prisoners, destitute women, bonded labour, agricultural and industrial workers, etc. Despite the inherent conservatism of the existing system, Public interest litigation has shown signs of warming up, much to the disgust of local Oxbridge lawyers. Social ferment is showing up in judicial process and shaping legal ideology.
United, let us all strive towards evolving a socialist Jurisprudence which will enable us to achieve the goal, "to each according to his needs, from each according to his ability and indeed the State shall then wither away".