A THEORY OF NATURAL JUSTICE

A THEORY OF NATURAL JUSTICE

1.    Existence of norms of conduct


2.    Discernible trend in the norms of conduct

3.    Explanation behind changing norms

4.    Working of natural justice

4.1     Regulation of output of human life

4.2     Liberality and objective decision making

4.3     No dichotomy between positivism and natural justice

4.4     Role of prevailing perspective

4.5     Other aberrations in the working of natural justice

 

5.      Application to different themes and situations

5.1     Capital punishment



1. Existence of norms of conduct


The greater portion of human population has witnessed marked changes in the operation of law.


In modern democratic societies, law is understood to be that which is formulated under the legislative powers or that which is derived from judicial decisions. Legislation and judicial decisions often take into account customary practices or work of jurists in determining and laying down the law.


Such manner of law-making, as understood in the above sense, may not be available in non-democratic society or in historical times or in simple societies. In non-democratic society, the power to determine how the society would be governed would lie in the body or the organ which holds the governing power. Norms of governance in non-democratic societies, though being laid down in a manner somewhat different from democratic societies, would nonetheless be very much available and would have the status of law in such non-democratic societies.


So also in historical times, there would always be norms applicable as regards the manner in which the society concerned was expected to behave. In simple societies, there may not be the formal apparatus of law as prevails in modern societies; nonetheless, there remains a code of conduct; some of which may be collectively enforced.


Or in other words, human society, most always, has had norms applicable to it as regards the manner in which it was expected to behave. These norms would constitute the morality of such society at such point of time. Some of these norms may be enforced through the collective strength of the society and be akin to how law functions in present times.


The point that is being made is that there always have been norms governing the behaviour of the human society; whether such norms were applicable as a matter of law as understood in modern times or whether they were applied otherwise either through the majority opinion actively undertaking the enforcement of such opinion or confining itself to expressing approval or disapproval of any particular conduct which had, of course, its natural results and consequences.


2. Discernible trend in the norms of conduct


Over time, as stated, the norms of behaviour of much of the human society undoubtedly have witnessed changes. The change may not always have been towards greater liberality and fairness. For instance, the norms of behaviour of Nazi Germany, even though Germany achieved remarkable industrial progress in that period and time, in the manner it authorised the persecution of Jews, was more barbaric than even the “barbaric” historical times.


Still, there is definitely a trend discernible in the way norms have changed through passage of time.


This trend is discernible, for instance, in the way in which norms relating to punishment of crimes have changed. This trend is discernible again in the way norms have changed in a way as to attempt to take greater care of the sick, the handicapped and the disadvantaged. A large collection of legislations in modern states are welfare oriented.


Through passage of time, undoubtedly the norms prevalent in much of the human society, where punishment for crimes is concerned, has attempted to place increasingly greater stress on understanding the cause of the crime and also in attempting to provide an opportunity for reform of the crime doer.


Or in other words, as stated, there is undoubtedly a trend discernible in the way the norms applicable to the mode of behaviour of much of the human society has changed over time.

3. Explanation behind changing norms

As stated, this trend through the passage of time, though marked with aberrations, can be categorised as seeking to be more fair and liberal in matters of governance and behaviour.


How to describe or explain this trend?


To examine this, one needs to focus on the nature and manner of the human organism.


A human being is born with a certain scope of biological and mental development in the course of its life. This scope has a compulsion of its own. The compulsion is to seek the full enactment of such scope of biological and mental development rather than have a truncated end imposed on it.

 

Arguably, it is this compulsion of the scope of biological and mental growth of the human organism in its lifetime which compels changes in the norms governing human society in a way and manner as allows greater fulfilment of such scope of biological and mental growth.

It is therefore the instinctive and inherent need of the human organism to see the enactment of its biological life cycle which compels changes in the atmosphere around, including the norms applicable to governance and conduct of human society, in a manner such as to be more and more conducive to such enactment and playing out of the biological cycle.

The inherent human need and instinct, to allow a situation which facilitates the complete and better running of the human biological cycle, has consistently forced the norms of conduct and governance in a way as to increasingly facilitate the same.

Such instinctive or self compelled need to bring out more from a human life, both in terms of length and quality of time consumed by it, is possible to be stated as doing “justice” to human life and is what comprises the core of so-called “natural justice”.

4. Working of natural justice

4.1 Regulation of output of human life


The human society, so far as the output of the life cycle of the human organism is concerned, in its interests, would like to have such output in a manner as is favorable to preservation and promotion of human life. In keeping with this, there would be compulsion throughout to develop norms of conduct which are favorable to preservation and promotion of human life and to suppress and alienate such output of human life which is considered or found destructive or harmful to human life.


Or in other words, the persistent trend or force behind changing norms of conduct would be that which aids and assists the bringing out of the life cycle of the human organism to a greater and wider extent and, in the interest of the same, promotes human conduct as is considered favorable to the same and suppress conduct found harmful to wider and greater playing out of the life cycle of the human organism.


4.2 Liberality and objective decision making


In so far as technological developments, scientific discoveries and/or intellectual thought process are found necessary towards physical and mental well being of the human; norms of conduct and governance would inherently strive to furnish such liberal atmosphere as is found more helpful to nurturing and assisting technological developments, scientific discoveries and/or intellectual thought process.


Liberality, therefore, would, over long run have compelling logic to be a core constituent of this explanation of natural justice.


Stability and security of life stands to be a primary requirement of human society. Such requirements would involve a degree of order and predictability in human affairs. Ordered regulations of human affairs would require taking of decisions in as objective, rational and informed manner as possible. This would require therefore hearing all the sides which stand to be primarily affected by the decision in question and would also require decision taking in an unbiased manner after taking into account all relevant considerations. Greater information having a bearing on the decision in question would tend to help the quality of decision and thereby ordered regulation of human life which in turn would assist greater stability and predictability in affairs of human life.


All these; wider opportunities and scope of hearing to affected sections, taking into account more efficiently relevant considerations and having available wider information bearing on the subject matter besides the need to have unbiased and more efficient decision taking authority and mechanism; would, to the extent the same aids and assists the security, stability and well being of human life, would again by itself, in the course of evolution of the human life have compelling logic behind changing norms of human conduct; constituting core constituents of natural justice.


The very working of natural justice, nonetheless, at a given point of time, may place restrictions on liberality and objective decision-making.


To the extent that natural justice is geared towards security and well-being of human society; in times of emergency, catastrophe and serious crisis, decisions may be required to be taken in a manner which place restrictions on liberality and objective decision-making in order to better secure or undertake measures required in the interests of well-being of the concerned human society.

Again, in an effort to achieve greater results of economic development and industrial growth; liberality may be restricted and a relatively more disciplinarian and rigorous regime be implemented. It would always be a matter of analysis whether such a disciplinarian and rigorous regime has attained its purpose of achieving human well-being by way of desired economic development and industrial growth; or whether, the cost of obtaining such industrial growth and economic development has singularly sacrificed material aspects of human well-being. This analysis shall determine the changing nature and degree of liberality and/or freedom awarded.

At times, as pointed out at the very outset, if the need for quick economic development and industrial development, even if it entails relatively more disciplinarian regime, is justified in the overall interests of the concerned human society; then the working of natural justice would justify such a relatively more disciplinarian regime.

 

However, if the working of such disciplinarian regime is found to be more burdensome than beneficial; then such a disciplinarian regime would need to be accordingly relaxed.

To the extent that liberality and/or other requirements of objective decision-making are conducive to human well-being as pointed out; working of natural justice, however, would tend to accord greater importance to liberality and/or requirements of objective decision-making rather than to the contrary.

4.3 No dichotomy between positivist school and natural justice school

The view of natural justice presented here disallows dichotomy between the positivist school of thought and natural justice school of thought.

The compulsion behind ordered regulation of human affairs, in the very interest of human life would require, at any given point of time focus on working the norms of conduct as efficiently as possible. This, in turn, would compel need for understanding the norms of conduct applicable through the apparatus of the governance having force of law and placing stress on an understanding also of the process of implementation of such norms. This would be what the positivist school of thought comprises of.

This very manner and mode of working of natural justice would itself desire at any given point of time suitable focus on analyzing and understanding the norms of conduct including that which works through the apparatus of governance by way of law; as also better understanding and analysis of the mode of working and implementation of such norms.

At any given point of time, therefore, all that comprises positivist school of thought falls to be a part of natural justice.

In fact, this particular aspect of natural justice comprising analysis and understanding of the working of law helps facilitate evolution of norms, which in the longer run and in continuum, are more conducive to human life.

What comprises positivist school of thought at any point of time is not only an integral aspect and constituent of this explanation of natural justice; but helps functioning of natural justice towards continuing evolution of norms of human conduct overtime in the interest of the length and the quality of human life.

4.4 Role of prevailing perspective

Though the sheer need of biological preservation and prolongation and/or basic requirements of human life would, as a logic of self interest of the human organism, near always be the driving factor behind the changing norms of human conduct; different perspective as regards quality of human life have a potential to generate variables behind changing norms of human conduct.


For instance if the prevalent point of view arises that widespread greenery and natural life is necessary to quality of human life; then norms which promote preservation and restoration of greenery and wildlife would find increasing stress and importance and would tend to reverse norms which had allowed wide spread destruction of greenery and natural life.

Human society, at a particular point of time, may not behave in a manner which is compatible with human well-being in the long run or even in the given short run.  Such manner of behaviour would be in contradiction to natural justice as seen in continuity.

The ability of human society to realise for itself what is injurious for it and to behave in a manner which is helpful to future generations would greatly facilitate the working of natural justice.


There is a two-way process, therefore, between the working of natural justice and the ability of human society to realise for itself what is injurious for it and to realize that interests of future generations are required to be maintained. The compulsion towards human well-being, both in the short run and the long run, would create pressure towards better perspective and analysis of the balance required to be maintained between human well-being in the short run and that in the long run. This better balance of human well-being both in the short run and the long run would, in turn, helps create better working of natural justice and, thereby, even better balance of human well-being both in the short run and the long run.

If at a given point of time, the human life style is such as to be poorly appreciative of human well-being in the long run or even in the short run; then the working of natural justice, which is towards evolution of continuing human well-being, would suffer and be arrested.

The working of natural justice, therefore, is not perpetually independent and overriding. Though it has powerful natural compulsions derived from continuing evolution of human well-being; it is vulnerable to being overridden by human behaviour at any point of time which, in its interest at such point of time, can be damaging to continuing evolution of human well-being.

4.5 Other aberrations in the working of natural justice

There would be other factors causing aberrations in the working of natural justice. There would be periods in which norms would change in a manner different to the working of natural justice.

At times, the entity or entities holding dominant power would change norms which would be against the principles of stability and promotion of human life, such as done by Hitler or Nazis, but which would be designed to help promote such dominant entity or entities as perceived or considered by this dominant entity or entities.

Such aberrations to the extent that they militate against ordered regulations of human affairs including peace and security as a matter of primary self interest of human life; would be resisted and sought to be reversed so as to be in line with the working of the natural justice.

At times, a dominant school of thought may hold a particular line of conduct to be more in interest of human well being and may lay down norms of conduct accordingly. These norms however may not achieve their stated purpose or in fact be found contrary to the interest of human well being and be sought to be changed accordingly.

 

Then, again factions or section of human society which are not otherwise dominant, may find particular norms to be conducive to their self interest even though such norms are against the well being of much of the rest of the human society. Whether it are these factions which prevail over the greater rest of human society or whether the greater rest of human society prevails over these factions; once the tussle ends, the prevailing parties shall find the need for better continuity and quality of human life; which shall have a tendency to restore thereby the working of natural justice in the manner explained.


5. Application to certain themes and situations

Clarity on what comprises “natural justice” is of critical importance for the future of human society.

Nothing illustrates this better than the increasing importance of the environmental issues. The human society used natural resources to help sustain and strengthen its biological life cycle and the possible outcomes from such life cycle. Natural resources were consumed to achieve aid and sustenance of human life. Increasing and alarming consumption of natural resources took place towards greater sustenance, ease and comfort of human life. When the depletion or destruction of natural resources reached the point where they threatened the existence of human life on planet Earth; the norms of governance facilitating preservation of natural resources and even its restoration and resurrection are finding increasing importance.


5.1 An illustration of application of this view of natural justice

This explanation of natural justice, that it is simply the compulsion to assist the human biological life cycle in terms of its length and quality, are required to be kept in mind wherever the task of formulating norms of governance or conduct or implementing the same is concerned.

When applied to penology; this explanation of natural justice has obvious implications. Straight away, it would argue against capital punishment as that would prevent the enactment of biological cycle of a given human life. At the same time, from the point of view of assisting not only the enactment of the biological life cycle but, importantly, the quality of the same; this explanation of natural justice would emphasize reform and rehabilitation measures of the crime doer to the widest extent possible. However, where the nature of the crime and the crime-doer is found to be such as to be an irrefutable grave threat to human life in general; then by the same principle of preservation & promotion of human life, the scales may be tipped in favor of capital punishment in such case for the sake of preservation of human life in general.

The application of this view of natural justice that it is simply such as promotes the continuity of human life and its quality, when applied to penology, would not altogether rule out capital punishment but, would find its application only where the crime committed is of exceptionally threatening nature to human society.

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