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Expanding Empire of Legalism

Jonathan Sumption in his lecture on Law's Expanding Empire questions the role of a judge to decide the questions of faith, ethics, aesthetics, taste, and politics, and asked them to restrict themselves as a prophet of law and legality. Does it mean that there is a decline of other's authorities? And the questions that may be decided by politics or social agreement are decided by a few judges. Why law is treated as transcendental-problem solver, as if, law is a solution to every problem? Take for an example, love and affection could not be generated by law, neither law could teach the people to be compassionate towards every other creature of the planet. Legalism, a concept developed by Judith N. Shklar, raised the question of gulf between law and poltics or law and morality and advocated to see law in a holistic way rather than a rationalized tool developed by positivists in the modern world. In spite of her objection, there is certain truth in conceiving the idea that there are certain questions which must be raised and solved by political process. Particularly, the questions on morality, faith, attire, or food choices must be decided by democratically elected representatives or through social agreements. 


Legalism as a culture, used to convert all sorts of normative questions into legal one, problematizes the questions up to such an extent that question loses its vitality to be reflected by open and critical minds. Question is left for an authority to be decided. Authority is someone which has been sanctified by law to provide answers to such questions. People in awe of authority don't question it further rather accept it since it is authoritative answer. This process makes a society politically dull and inactive. Judicial Process becomes an apparatus to validate what is required to be done, as if, judges are capable to answer each and every question raised before them. 


There are many studies which show that most of the judgements of  courts are not implemented in its essence. Ratio of the judgements is memorized by law students and precedents became a source of celebration for those, who are interested in the normative  development of law. But the question of efficacy of law remains unanswered. From Sunil Batra to D.K. Basu, judicial activism has produced voluminous literatures on what is required to be done in a republic developed to secure freedom and justice for its citizens, but in reality, "ethics of care" or "care of responsibility" in Weberian term is missing in bureaucratically structured power driven legal-system. Does it mean, there are certain questions which can't be solved by legal rationality? If it is the case, why a question of faith is judged by courts? Secularism is a desirable goal to achieve. Dharma-nirpekshata or sarva dharma sambhav is possible in a "culture of compassion" instead of a culture of secularization". Wearing hizab is a question of religious practice or culture, shouldn't it be decided by an autonomous being with a sense of responsibility? What is the purpose of uniform? To make all alike or to change conscience into masses? Why do we prefer standard in a cultural practice, if deviation makes society pluralistically dynamic and epistemologically vibrant? I don't have answer to such questions. But to rely upon existentialist Kierkegaard, to be an authentic human being, requires a way of life of its own, to tread a path of its own what Buddha did. What standard Buddha followed which made him enlightened being? Reformist zeal is praiseworthy, but the seed of a real reform lies within. Apa Deepo Bhava (Gautam Buddha).

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