''The reflection of the current social paradigm tells us we are largely determined by conditioning and conditions."
- Stephen R. Covey
The current social paradigm, and current legal theory as a part of it is certainly designed around one major idea: conditioning.It is clear and easy to understand that our legal philosophy and by extension our system of values is based upon this very fact.It is that the behaviour of persons can be modified by a system of reward and punishment; and that their conduct can be controlled by force, real or imagined; that their lives are subject to the dictates of an external authority, benign or other wise.
Let us first examine our theory of law.It is scrutinable that a law is a dictum imposed upon a subject, that it derives its nominal legitimacy from a source of authority, but its real power emanates from an agency of enforcement.These three things make a law, the subject, the authority and the enforcement.Remove any one thing and this tripod upon which our social system sits will gracelessly fall.
Moreover, our definition of crime makes the system complete.Without crime there is no law, and laws exist to serve as a deterrent to what is percieved as 'illegal'.There is however no universal definition for crime, or no universal idea of 'wrongness'. Interestingly, many encyclopedias define crime not as an independent entity, but in relation with the legal system that seeks to deter it.
"Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction."
Upon simple observation it is easy to point that there in fact two categories of crime based on the perception of wrongness.One, more or less universally recognized crimes such as murder, rape and theft.The other more varied category is of those crimes that may be peculiar to certain societies and are influenced more by culture and taboo rather than any rigorous foundation of offence.For example, it is illegal for women to drive in Saudi Arabia, in seven countries homosexual relationships are punishable by death, it is a crime for a person of less than 25 years of age to imbibe hard liquor in our own state.
Upon examination it is clear why this demarcation exists.The first category, which is formed around basic human sensibility and is therefore universal, is about infringements made by persons on the basic freedoms of other persons.The first category is about the laws that protect personal freedom.Unfortunately the second set of laws serve to meet the opposite purpose, to restrict the freedom of the individual on ground of cultural and societal acceptability.The individual is sacrificed at the feet of the mob, the powerful and the rich.
It is very important to understand that the first set of laws is natural, it seeks to promote and protect personal freedom, the second set to restrict the same person to behaviours more appropriate in that social context.
Now moving further, we examine the concept of how a dictum becomes legitimate, and enforcable.Legal legitimacy primarily derives from political legitimacy, only a recognized authority could lend authority to a law.In past times, monarchies, autocracies, caliphates and czardoms derived power from an individual or sometimes a class of individuals.In modern times, democracy has unleashed the 'rule of the people'.Elections become the source of political legitimacy, and the elected legislate is the sole fountainhead of law.
The real question I ask is, is it right for a authority to enforce behaviour upon others in the fear of legal reward ? The whole idea of legal theory and legal enforcement is that the individual can be deterred from and illegal act from the fear of consequence or that punishing him or her will deter others.Is it not a case of classic pavlovian conditioned reflex ? Is not the imposition of a justice mechanism based on reward, favorable or prohibitive in the most simple sense a dehumanization of man, subjecting him to conditions such as those of lab rats.
Where you find the laws most numerous, there you will find also the greatest injustice.
The condition of such a society will always be one of repression, the whole legal system by the very definition is repressive of the rights of the individual.Do even universal crimes such as murder and theft, justify that the value system of a society be based on a primitive system of punishment and reward ?
(Part One Ends)