In this essay, I will try to present my own perspective on a simple question which has occurred to innumerable human beings across the breadth of history: What is justice? From this question, there flow a couple of others: Must justice always be “justice according to the law?” Or, can the meaning of justice be discovered without reference to law? How can we improve our understanding of both law and justice? This essay is nothing but an attempt to take the reader by one a tour of the moral universe which I have come to inhabit.

The exploration begins in Part I at precisely the point where the whole moral drama of our species begins: the quest for finding out the meaning of justice in the universe and living their lives in accordance with a law. I will look at how this quest led first to the growth of various ethico-legal traditions how, in recent times, it has fostered schools of Enlightenment philosophy which seek to uncover the meaning of justice in isolation from the historically accumulated systems of law. In Part II, I show how the Enlightenment projects which ascribe no independent ethical value to the law, and seek to conceive the meaning of justice purely through ethical theory, have failed and led us into an impasse. In Part III, I review the experience of two key counter-revolutions sparked by the Enlightenment: fundamentalism and spiritualism. Scriptural fundamentalists have tried to understand the law through formalist readings of scripture and without engaging in any theory of justice. They too have failed. I argue that their failure proves that that while justice must always be justice according to the law, we cannot properly understand the meaning of law with developing a theory of justice. Spiritualists, contend that while the meaning of justice can be understood by individuals, it is an incommunicable truth knowable only by the heart. Spiritualism offers no possibility of ever having a socially-shared sense of justice. Where philosophers and fundamentalists have failed, spiritualists refuse even to try.

Together, Parts I, II and III lead us to the conclusion that projects of trying to find law and justice in isolation from each other have failed; those of us engaged in the ethico-legal quest need to focus our efforts on understanding law and justice through their relationship with each other, rather than in isolation from eachother. What humanity needs today is neither pure Justice, nor pure Law, but what I have termed “Just Law”.

In Part IV, I argue that a search for Just Law inevitably leads us into the realm of various ethico-legal traditions which grew out of the scriptures over the course of human history. The very idea of scriptural law is that the Law (Law in a higher sense) enjoys normativity independent of ethics. By affirming the independent normativity of the Law, these traditions allow law and ethics to engage constructively, without either obliterating the other. That said, scriptural traditions offer the possibility of delivering Just Law for our times, only when interpreted through a particular interpretative approach. In Part V, I propose the contours of one such approach to interpreting scriptures in the briefest outlines. I suggest that in order to be revived, scriptural ethico-legal interpretation must incorporate the ever-greater insights being offered by the sciences of Nature, History and Society. In this part, I also offer a few practical examples of problems where Just Law offers better solution than either Enlightenment ethical philosophy or scriptural fundamentalism. In Part VI, I argue that Just Law promises to practitioners and professors of law something they stand in need of: a renewed meaning for the legal calling and restoring legal education to the centrality that it once enjoyed amongst the human sciences. The concluding Part VII touches upon the philosophical methodology of this essay.

PART I

The Dawn of the Human Ethico-Legal Quest: From Tradition to the Enlightenment

1. A Question That Must Be Answered

The words “law” and “justice” may be particular to one language; but they point out to a concept which is found in so many different societies that we can conclude that these are indeed “universal” questions. It is fair, then, to begin this discourse by thinking about why it is that you and I may need to bother about law and justice and why it is that so many human beings before have actually bothered about law and justice.

The biological make-up of the homo sapiens bears a striking resemblance to other animals in the mammalian family, and particularly the primates amongst them. Yet, our species differs from all the others in a number of very significant ways. The most widely recognized amongst our distinctly human traits is our ethico-legal quest. At some point or another in our lives, most of us begin to feel an inner urge to find out the answer to the question “What shall I do? How shall I live?” Up until this point, which we may call the moment of ethico-legal awakening, the human being lives its life with the same resources that all animal use: the habits of the body (“instinct”) and the habits of mind (“custom”). For the awakened human being however, these sure guides are no longer sufficient; what the awakened human being now looks for is a knowledge of what is right and just. In these fateful moments of ethical awakening, the human gaze turns from the tricks of daily survival to the wonders of the starry heavens above us and the moral law within us. The human develops what I shall, in the rest of this essay, the ethico-legal quest.

Why do we develop this urge to find out what is good and just?

May be it is because we cannot bear the thought that the fate that we see befalling all other animals – death and decay – is going to be ours too. Animals have been able to confronts death with serenity because they have never had to think about what comes later. But humans have a consciousness of their being alive which is far too acute to allow them to live in this state of blissful ignorance. The human beings’s acute consciousness of life compels him to think about the after-life. Those who begin to think of the after-life are generally unable to suffer the conclusion that death and decay is our ultimate end. Once we humans conclude that our fate after death is different from other animals, it only follows that our life here on earth too much be lived in accord with a different code; while instinct and custom suffice for animals, the human needs more. By his nature, the human years, perhaps, for knowledge of the starry heavens that sees above him and the moral law which he finds residing within him.

Or may be we embark upon the ethico-legal quest, taking a cue held out to us by nature (or whoever we perceive as the Creator). That cue lies in language. The fact that we can speak to each other about law and justice unlike animals who can only make sounds expressing pain and pleasure, suggests that we should indeed speak about law and justice, not just pain and pleasure. Aristotle notes this in a beautiful passage in his Politics:

Nature, according to our theory, makes nothing in vain; and man alone of the animals is furnished with the faculty of language. The mere making of sounds serves to indicate pleasure and pain, and is thus a faculty that belongs to animals in general; their nature enables them to attain the point at which they have perceptions of pleasure and pain, and can signify those perceptions to one another. But language serves to declare what is advantageous and what is the reverse, and it is the peculiarity of man, in comparison with other animals, that he alone possesses a perception of good and evil, of the just and the unjust, and other similar qualities.[1]

2. The Traditional Response: The Emergence of Ethico-legal traditions

Our quest for the moral law has, over the course of thousands of years of recorded human history, given birth to innumerable ethico-legal traditions. Awakened human have stumble upon answers to their question in various ways. Firstly, there are those who find the answers in mystical experience, which answers the profoundest questions of life but the results are of an essentially incommunicable nature and remain unknown to all but the recepient. Secondly, there are those amongst the possessors of mystical experience who are able to articulate their results in the highly ambiguous and generalized medium of poetry. Thirdly, there are those who are able to venture sophisticated conjectures using the intellect; but the answers of the intellect to the deepest human questions have, as we shall explore later in this essay, always been essentially indeterminate; it is as though the intellect has, on its own, never able to pierce the veil of multiplicity of phenomena and reach the unitary reality which lies behind it. Finally, there are those who receive answers to the ethico-legal questions through prophetic experience, i.e some prophet’s direct encounter (or professed encounter) with the law of God or nomos. the results of which are composed in the form of scriptures.

One of the most remarkable facts of the human history is that the answers to the ethico-legal question that have proved the most durable and widely accepted in society are the ones that the flowed out of some prophetic experience. Another interesting fact about the ethico-legal traditions that have survived the test of time, and particularly the Jewish, Islamic, Hindu, Catholic and Daoist traditions, is that in these traditions, one’s understanding of justice is never completely detached from one’s understanding of the law. Law and justice are viewed as inextricably related rather than isolated. Unlike our mainstream contemporary understanding of law, the primary concern of these ethico-legal traditions has not the rules that govern adjudication by a state of rights claims between persons. The primary concern of the ethico-legal traditions has been to answer the basic human question of “how ought I to live? what shall I do?” However, through prescribing the rules for living a good life, these traditional also lay down the basis for another subset: rules for adjudication of rights between persons. Since their concern is ethical as well as legal, in these traditions, a detailed study of the contours of the law is deemed indispensible for developing a proper sense of justice; conversely, having a deep concern for justice is deemed indispensible for understanding the contours of the law properly.

The Christian tradition began with undermining the centrality that the Jewish ethico-legal tradition had accorded to the Law. In his second letter to the Corinthians, the Apostle Paul proclaims that “[God] has made us able ministers of the new testament — not of the letter, but of the Spirit; for the letter killeth, but the Spirit giveth life.”[2] This was bold assault on the ethic value of the law. Yet, the truth is that over the course of most of its history, Christians did not abolish the ethical value of their law, the law of the Jewish people; they sought only to shift the balance between the Spirit and the Law toward the former.

I do not intend to suggest that all ancient ethico-legal tradition offered a unanimous view of the relationship between law and ethics; they did not. But I do consider worth pointing out what all the ancients seemed to agree upon: the relationship between law and justice is not a simple binary, a one-way train, with ethic being determined first, and the law only following. It is understood that just as law and ethics cannot have a one-on-one overlap, so too there cannot be an absolute divorce between them; they over-lap and inter-relate in complex ways. In The Queen v. Dudley and Stephens, confronted with a particularly tricky case of high-seas cannibalism, Lord Coleridge, C.J. of the British Court of Appeals, states the ancient understanding in the following words:

Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence…[3]

3. Enlightenment’s Challenge to the Ethico-Legal Tradtions: the Isolation of Ethics from Law

In the post-Christian Enlightenment period, however, this sophisticated and nuanced understanding of the problem begins to disappear. We find amongst ethical philosophers a total neglect for this subtle inter-relatedness of law and ethics. Ethical philosophers of this period seem to be taking Apostle Paul on his word, by attempting to find the meaning of justice without any reference to prior legal tradition. What they seem to have ignored is the subtext of Paul’s statement: the Law that killeth, and the Spirit that saveth, depend on each other for their very existance: the savior exists, because the killer does too. The one can never be understood without reference to the other; indeed, it could not even exist without the other.

The leading exponents of the post-Christian Enlightenment period, however, do not seem have a fair appreciation of this subtle, complicated and seemingly contradictory relationship between law and morality. They complain about how “the rarest of all human qualities is consistency”[4] and how “morality itself remains subjected to all sorts of corruption as long as [a] guiding thread, [an] ultimate norm of correct moral judgment, is lacking.[5] Discontent with the lack of absolute deductive consistency, and a deep yearning for one “ultimate norm” characterizes Enlightenment philosophers’ forays into law and ethics. What they are hoping is to discover the one ethical truth from which all other truths can then be deductively, unthinkingly and definitively derived; it is in the field of law and ethics the necessary outgrowth of the foundationalist project. The quest is definitely: it promises the certainty of deduction, whereas the law has always had to contend with the indeterminacy of induction; and it offers moral confidence where morality has generally had to contend with continuing doubt. But the question is: can such ethical truth ever be found?

The two most significant such projects in the field of law have been those of the Benthamites and Kantians, which we examine here briefly.

Following in the footsteps of Jeremy Bentham, John Stuart Mill complains that “the nonexistence of an acknowledged first principle has made ethics not so much a guide as a consecration of men’s actual sentiments…”. To provide a surer knowledge of right and wrong, he demands:

[T]here ought to be some one fundamental principle or law, at the root of all morality, or if there be several, there should be a determinate order of precedence among them; and the one principle, or the rule for deciding between the various principles when they conflict, ought to be self-evident.” [6]

For the Utilitarians, this one principle or law at the root of all genuine morality is the principle of Utility. Mill states the creed of utilitarianism in the following words:

[A]ctions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure.[7]

For all his differences, Kant shares with the Utilitarians this urge for a single moral truth from which all others can be deductively, unthinkingly and definitively defined. He stresses “the utmost importance [of] forg[ing] for once a pure moral philosophy, completely cleansed of everything that may be only empirical and that really belongs to anthropology” After a detailed inquiry, Kant is able to discover a “pure” conception of law and ethics which he states thus: “Act as though the maxim of your action were to become by your will a universal law of nature.”[8] For Kant, once this one ethical principle has been discovered, all law can be deductively, unthinkingly and definitively derived from it.

While the academic debate between these two schools of ethics continues, it is important is to look at the fate of the political and juristic projects which Enlightenment thought fostered. Both Utilitarians and Kantians have fostered a series of approaches to the law to which we now turn. I mention, albeit briefly, the following Enlightenment projects which attempted to reconstruct the law in accord with pre-determined foundational notions of justice: the Communist assault on the traditional notions of property law and distributive justice; the Feminist assault on traditional notions of family law; and Hedonism’s assault on traditional notions of prohibited spleasures.

All of these Enlightenment projects of law reform emanated from well-meaning efforts by ethical philosophers who were deeply perturbed by injustices perpetrated and justified in the name of the legal tradition. They responded by denying any intrinsic value to the existing laws, and by trying to determine the meaning of justice in isolation from them. The hope was that sure principles of justice are determined, legal rulings could then be deduced axiomatically from them, leading to perfectly just outcomes. At first, these essentially Cartesian projects looked certainly tempting. They promised to resolve all moral problems with clarity and certainty without requiring any much intellectual or ethical effort from lawyers or citizens (save the philosopher who discovers the first principles. But the promise remains unfulfilled.

Perhaps it is time to concede that a unidirectional, binary conception of law and ethics has not succeeded in providing us any moral compass with which to our personal and collective lives. Instead, it has led, in many cases, to unparalleled disasters which should make any careful observer highly cautious about the whole project. This search represents in the field of law and ethics the equivalent of the medieval alchemists’ search for the Sorcerer’s stone in the field of Chemistry.

PART II

The Dreams That Turned Sour: Failures of doing Ethics without Law

1. Egalitarianism and the Road to Totalitarinism

One of the most evident problems that the human condition confronts us with is the problem of distribution. (Almost) everyone desires the good things of the world. Yet, most of us cannot have everything we want, because others must have something too. The question that the morally awakened human being begins to ask himself is: What portion for each would be a just portion? When he looks around himself in the world with this question in mind, he confronts a world marked by a staggering distributive. A few have a lot (guaranteed to them by the law) and most have very little. This disturbs the conscience and creates serious doubts in the mind of the morally awakened human being. He asks: How can a law which gives so much to some and so little to others, be just and good? Far more than the envy which Oliver Wendell Holmes and Hayek complain of, it is this instinctively human curiosity about the normative basis of distributive inequality which motivates those who blow the trumpet of social justice.

At this point in his intellectual quest, one solution that occurs to the morally awakened mind is based on the idea of Equality and merit. This solution seems simple: like things must be treated alike; insofar as human beings are alike, they are entitled to the good things of the world equally; it is only where one person possesses a special “merit” that he can be entitled to something extra. Any legal entitlement that cannot be traced back to principles of Equality (and merit) is an unjust, unmerited entitlement; it must be abolished. Any law which supports such unjust entitlements must also be abolished - or so the morally awakened human at this juncture thinks.

But when the morally awakened mind begins to use this concept for deriving legal outcomes in actual matters concerning the rights of human beings, a practical difficulty arises: how do we determine the “merit” of a human being? Does this not require from society passing a definitive judgment about the “worth” of defenseless individual human being? In other words, the egalitarian conception of distributive justice necessarily requires some external person or community to pass a judgment upon the “worth” of individual human beings. This can be far more degrading to people than treating them unequally.

That the ethical principle of Equality leads us into certain insoluble philosophical quandaries is not a twentieth century discovery. Even as far back as Aristotle, philosophers could envisage it clearly. Here is what Aristotle says in his Politics:

Justice is considered to mean equality. It does mean equality – but equality for those who are equal, and not for all. Again, inequality is considered to be just; and indeed it is – but only for those who are unequal, and not for all. … There is general agreement about what constitutes equality in the thing, but disagreement about what constitutes it in the people.”[9]

The worth of the human being, this most mysterious of all the universe’s wonders, has defied all efforts at objective measurement. If we cannot measure the merit of a human being, then how can be declare him as equal or unequal to another human being?

Aristotle’s proposed solution to this seemingly intractable philosophical quandary – the indeterminacy of the merit of a human being vis-à-vis other human beings – is to look at a human being’s contribution for the “polis” or the political community. He says:

Those who contribute most to the polis have a greater share in the city than who are equal to them (or even greater) in free birth and descent. [10]

A perceptive reader should be able to see the danger that lurks in the practical enforcement of this well-intentioned prescription: when one’s share of the good things of the world is determined entirely in accordance with the categorical imperative of “Equality”, then the political community must become the ultimate arbiter of one’s merit as well as livelihood. Making the political community the arbiter of the individual’s livelihood compromises his political freedoms; and making the individual’s worth socially measurable robs him of his inner dignity and pride.

The swiftness with which both Communist and National Socialist regimes in pre-WWII Europe and post-WWII former colonies morphed into totalitarian governments had much to do with this theoretical problem inherent in the ethical principle of Equality. While communist legality and National Socialist legality were meant, from the beginning to be different from the then-existing conception of rule of law, totally arbitrariness was certainly not on the agenda. Yet, once the legitimacy of the (bourgeiosie’s) historically accumulated legal traditions had been demolished, the people soon found out that they had little left to protect themselves with from oppression. Everywhere, the opporession started with property-less majorities tyrannizing propertied minorities in communist states and ethnic/religious majorities tyrannizing minorities in fascist states; but it did not stop there. Soon all power ended up in the hands of small governing cliques and the majorities too had to suffer.

What this experience showed is that a society in which the ideal of Equality is taken to its logical extreme is a society where the distribution of goods takes place through the central planning, in the hope that each will get precisely what he “deserves”. Friedrich Hayek acutely perceived the dangers that the principle of Equality poses to historically accumulated rule of law and, in turn, to human dignity. In the Constitution of Liberty he stated:

[T]he mark of a free man is to be dependent for his livelihood not on other people’s views of his merit but solely upon on what he has to offer them.… A society in which it was generally presumed that a high income was proof of merit and a low income of the lack of it, in which it was universally believed that position and remuneration correspond to merit, in which there was no other road to success than the approval of one’s conduct by the majority of one’s fellows, would probably by much more unbearable to the unsuccessful ones than one in which it was frankly recognized that was no necessary connection between merit and success. [11]

Most historically accumulated legal systems lay down a complex regime of rules for determining existing property rights, as well as rules for further accumulation of property. By and large, they leave the distribution of goods to the forces that prevail in the market. These legal rules do not deductively flow either from the principle of Equality or the principle of Liberty; instead, they strikes rough but nuanced balance between the two; it is these balances which make the legal field such labyrinth. Egalitarian ethical philosophy’s solution to the problem of distribution - central planning – is far more neat. Initially, it tramples the old rules in name of furthering Equality. But eventually it ends up compromising both Equality and Liberty, making things far worse than before. It is only when the imperfect but useful historically evolved rule of law is gone that its value is true felt and its subtleties appreciated.

2. Utilitarianism and the Road to Communism: The Abolition of Property Law for the General Good

Utilitarians may not own up to it, but the most daring assault on the major legal traditions of the world over the last century – the communist abolition of private property – stemmed directly from the philosophical foundations which they had furnished. The idea of private property enjoys a respectable a lineage in almost all the great legal traditions of the world. The ius civile of the Romans, the Talmud of the Jews, the Shariah of Muslims, the Dharmashastras of the Hindus, Canon law and natural law of the Catholics, English common law, and the Chinese Dao fully recognized that at least some parts of the world’s resource can be legitimately owned by individuals. Before utilitarians eroded the legitimacy of the law as a moral guide, to jurists steeped in these ethico-legal traditions, the very idea of abolishing private property altogether would have seemed unthinkable. Plato could certainly toy with a proposal for a certain kind of communism in his Republic, and Aristotle could counter those arguments in Politics; but in actual practice it was the worldly wisdom of lawyers that was supposed to prevail, of course. That is what changed with the Enlightenment.

When philosophers refused to give the law any independent normativity, the grounds were laid for something radical. When the utilitarians claimed that any law which did not conduce to their one-line ethical creed - the avoidance of pain and the promotion of happiness - could be dispensed with, they meant “any” law. Even as fundamental a legal notion as private property became fair game for reform on ethical grounds.

Almost a century after the Bolshevik Revolution in Russia, and a half century after the Cultural Revolution in China, the economic consensus seems to be clear. The abolition of private property has been found by experience to be devastating for general economic welfare: it did not promote happiness or avoid pain. The traditional legal concept of private property has stood its ground. But this vindication of an ancient legal proposition has not come cheap. When left at the mercy of ethical philosophy, we have managed to verify one legal proposition only at the loss of the lives and livelihoods of millions of innocent human beings.

At this juncture in history, honest lawyer and philosopher cannot help but have serious doubts about the bold enterprise of reinventing the law in the light of rather fickle and oft-shifting rational understandings of what conduces to Utility and what does not. At the theoretical level, if there is anything that the Communist tinkering with fundamental legal notions should have taught us, it is this: ethical philosophy is good fun, but the wisdom of the law as it has historically evolved, and as it presently exists, must never again be taken lightly

The assault on traditional notions of property law has not just come from the various cults of Utilitarians. Kantians believe that all law rules must be based upon the categorical imperative of “do unto others as you shall have do unto yourself” Because no one who treats another unequally would suffer himself to be treated unequally, every rule in the rule book that does not fit the principle of Equality is to be scrapped. Kantian too have also found themselves at odds with various branches of historically evolved law, especially family law.

3. Egalitarianism, Feminist Family Law and the Breakdown of the Human Family

Feminism is presently doing to our regimes of family law what communism did to our private law in the last century: reinventing the entire set of the rules of the game in line with a single ethical principle.

This involves reconceiving all the male-female ethico-legal relationships, including the mother-son, father-daughter, brother-sister relationship, which lie at the heart of family law. But much more than these biological relationships, feminism’s focus is on that one family relationship where, arguable, it is the law and not biology which plays a primary role: the marital relationship. An interesting fact about traditional legal rulings on the marital relationship is that almost nowhere in the pre-modern world was it conceived of as a relationship between absolute equals. The rights of both spouses have everywhere been substantial and defined in law, but they have never before been precisely equal. The idea that marriage is a contract between absolute equals would have been inconceivable to jurists trained in anything from the ius civile to the Shariah, halakha, dharma, canon law and English common law. The scriptures of the Judeo-Christian and Islamic tradition do talk about the male and the female having been created from a “single soul”, thus hinting at significant equality between the two; but any honest interpreter has to concede that there is no mention of absoluted legal equality of husbands and wives in the scriptures, while indications to contrary abound. Such interpretations have been put upon the scriptures in the twentieth century, but the historical norm has clearly been different.

The egalitarian conception of family law became possible only when the inner morality of the legal tradition got totally displaced by ethical philosophy, particularly in the Kantian tradition. What has resulted from this is the feminist jurisprudence of the late twentieth century. Using the a priori principle of equality, the whole legal corpus dealing with the marital relationships has been reinvented. The requirements regarding entry into marriage (capacity, consent, dower etc.), rights during it (conjugal rights, right to maintenance, right to earn property, reasonable chastisement) and exit from it (grounds for divorce, children’s custody, alimony) have been radically altered. Whereas previously each spouse enjoyed advantages over the other in some matters and disadvantages in other matter, the new jurisprudence seeks to equalize them in all matters. The historically accrued rules of family law reflect compromise between principles of Equality and Inter-dependence, often inspired by scriptures, but effectively worked out by the law over centuries of interpretation, are no longer accorded any independent normative values; the only thing sacred is the principle of equality and all that impedes its path must give way.

Whatever the merits of this arrangement may be, empirical evidence suggests that the new family law is failing badly. Historically accumulated legal traditions may have defied the logic of equality in various cases; but at least they succeeded in keeping the institution of family alive and growing. Regardless of one’s normative assessment of the present situation, wherever in the word the new rationalist family law has been established, we see the human family as an institution in decline. People are marrying later in life than ever before; and many are not marring at all, resorting to less permanent forms of cohabitation. The few who marry are unable to stay married for long. Children being born under wedlock are on the point becoming a minority; even those who are born under wedlock are unable to enjoy the secure childhood that the multiple-parent family once ensured to most of the young of our species. While human beings used to live their adult lives with spouses, families and kin groups during much of our history, increasingly, they find themselves living in single-person households.

The evidence establishing a correlation between the two phenomena - the Enlightenment’s reconception of family law and the decline of the family - is so overwhelming that only a most bigoted observer can fail to notice it. Correlation is not causation, but the odds are high thatt there is at least something the former has contributed to the latter. If this is so, then for many of us, it is no longer possible to view the ethico-legal principle of human Equality with the same enthusiasm once had for it. May be, this Philosophers’ Stone is simply incapable of providing the legal foundations for stable and fulfilling marital relationships and we have no choice but to return to the historically accumulated rules of family law.

4. Libertarian Inroads into the world of prohibited pleasures: The hedonist spiral

Almost all the great traditional ethico-legal systems of the world comprehensively regulated the human being’s enjoyment of primal pleasures of life: food, drink, sex and stupor. The Islamic Shariah, the Jewish halakha, the Brahmancial dharma, Catholic natural law, the Chinese Dao and African tribal laws all provide an elaborate list of prohibitions on what a person subject to the law can (at least publically) consume and what forms of sexual relations he is entitled to engage in. In recent years, we have experienced an intensified assault on the few amongst these legal rules that have remained enforceable. This conflict is hardly surprising. None of the old systems of rules fits neatly with the stringent tests of utilitarianism and libertarianism. So, for instance, almost all of these ethico-legal traditions prohibit or greatly restrict the enjoyment of mind-altering drugs, ranging from alcohol to cannabis and marijuana. Most traditions also place restrictions on various forms of sexual conduct, including the conduct of fully-informed and freely consenting persons: fornication, adultery, incest, homosexuality, sado-masochism and anal intercourse (even with a spouse) etc. These ethico-legal traditions have gone so far as to proscribe sexual conduct which involves only one person – such as viewing pornography or engaging in masturbation.

These prohibitions are rooted in a complex set of reasons which new natural lawyers such as John Finnis[12] and Germain Grisez[13] have recently made a commendable attempt to articulate, especially from a Catholic natural law perspective. For the present we are not concerned with establishing the reason behind these legal rules. What we do need to understand is that it is only understandable if there rules run afoul with simple logics of Utilitarianism and Libertarianism because they emerged from a totally difference view about the relationship between law and morality.

Kant restricted the role of the rule’s enforcement of law. For him, the ruler has no business assisting a community in their ethico-legal quest; his business is only to keep peace between them. Advising the ruler, at a time when the ruler’s word was the law, he says:

Salvation is none of [the ruler’s] business; it is his business to prevent one man from forcibly keeping another from determining and promoting his salvation to the best of his ability. [14]

Half a century later, by John Stuart Mill’s time, not only the ruler who enforces the law, but the law itself, supposed to stay clear of any notion of ethics. Mill famously summarized the Libertarian position in the following words:

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...”[15]

Once a curtain is drawn between the law’s value as a protector of individual’s liberty, and its value as the guide to the ethical good, it is only natural that the older laws can no longer stand. Adults engaging in consensual anal sex, extra-marital sex, homosexual and incestuous conduct, watching pornography and smoking and injecting mind-altering drugs do not cause “harm” to others in the ordinary sense of the word. They do, arguably, harm themselves by deviating from the model of life which our ethico-legal systems went lengths to elucidate. Trying to defend these prohibitions within the parameters of Utilitarian or Libertarian reasoning in not only dishonest but impossible. The ethico-legal systems which gave birth to these rules never confined their objectives to protecting our Liberty, ensuring our Equality or enhancing our Utility. In those systems, the Law was concerned quite unabashedly with elaborating the meaning of a truly ethical life for the community; the functional and ethical elements of the Law were not seen in binary terms.

Take, for instance, the case of the definition of marriage in English common law, which is subject of such a charged debate, in the wake of the popularity of homosexual lifestyle in the United States. Classical jurists of the common law tradition always viewed marriage as “the union between man and one woman”; the argument that marriage could be redefined as a union between any kind and number of consenting adults would have flown over their head. This is so because even common law jurists, perhaps the most secularized of all ancient jurists, were still concerned, fundamentally, with propagating through the law an ethical vision of dealing with sexual urge. In their writings, jurists of the common law sought to distance themselves from the ethical content of the law they were expounding, leaving these matter for the ecclesiastical authorities. So Blackstone tries to separate law and ethics by claiming that the common law “considers marriage in no other light than as a civil contract. The Holiness of the matrimonial state is left entirely to our ecclesiastical law…” Yet, even he is forced to acknowledge that “common lawyers … indeed have borrowed (especially in ancient times) almost all of their notions of the legitimacy of marriage from the canon and civil law.”[16] These foundations of the English law of marriage – Roman ius civile and Catholic canon law - were by no means concerned just with a fair distribution of rights between spouses; they were concerned with promoting a certain conception of the good sexual life, and discouraging other approaches to sexuality.

The roots of our present marriage-related legal dilemmas go back to the time when the ethical conception of marriage law got displaced by a libertarian conception. This culminated first in the legalization of adultery, fornication and homosexuality in the 1960s and 1970s. Once the law no longer claimed to be promoting a certain ethical view about proper human sexuality, it was only inevitable that the very definition of marriage too would come under attack. If, under the new libertarian creed, marriage law can no longer serve the function of propagating a society’s vision of good sexuality, then on what grounds can society deny homosexuals an entry into the institution of marriage. In other words, the passage from decriminalization of “deviant” sexuality on libertarian ground to the inclusion of sexual “deviants” into the fold of marriage is a logically necessary move; that societies are now heading in this direction should surprise no one.

The erosion of these rules on prohibited pleasures which we are seeing since the 1960’s in various parts of the world, especially the post-Enlightenment Christian West, is precisely what is to be expected once a society buys into Mill’s notion that the law has no business guiding us about the ethical life. America’s most brilliant conservative jurist, Justice Antonin Scalia, confronted this issue head on in Barnes v. Glen Theatre, Inc.[17], while defending the constitutionality of a ban on fully nude female dancing in the state of Indiana. In his concurrence, he clarified that the legal ban in question did not exist merely to prevent “harm”; it existed in order to project American society’s vision of what a moral sexual life is. He stated:

Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "contra bonos mores," i. e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.

In American society at large, growing skepticism about the ethical basis of the legal rulings on prohibited pleasures has been growing since the failure of the ill-fated prohibition project in the early part of the century. In Lawrence v. Texas,[18] despite Scalia’s eloquent dissent, the Supreme Court’s majority finally over-ruled Barnes v. Glen, thus eroding the constitutional basis of all “morals legislation”. If the logic of Lawrence is followed to its conclusion, the whole gamut of American laws dealing with prohibited pleasures might soon have to be abolished. Scalia’s harm-less “evils” - sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy, and other acts which he did not name - would have be legalized. Actually, many of these are already legal.

What the new trend seems to ignore is an insight offered by most of the world’s ethico-legal systems: the law is by its very nature a vehicle for ethics. The only question that a society must pose itself is: whose ethics shall our law propagate? Libertarianism’s inroads in the legal regulation of prohibited pleasures claim to be ethically neutral; but the reality is that it too is promoting a certain view of the good life at the cost of other views, just as the old laws used to. The only difference is that this time the vision of good life being propagated by the law is not the Biblical morality espoused by America’s silent majority, but the hedonist morality of a privileged minority.

5. Capitalism and the Decriminalization of Wealth Addiction.

Imbalanced approaches to sexuality and mind-altering drugs are, of course, far from the greatest danger to human welfare on earth. Historically, the greatest danger to human welfare has been posed by an imbalanced approach to wealth. And one of the Enlightenment’s greatest ethico-legal failures lies is its inability to restrain this imbalance. The problem is of ancient origins. Every ethico-legal system of the world has had to confront it.

The primary question to be asked is not the legal question on the limits of permissible wealth. The primary question is a psychological question: why are human beings unable to control their drive for wealth in order to allow others in the world, and indeed themselves, a better life? Up to a certain amount, the acquisition of wealth contributes positively to human being’s happiness and that of others too. But once they learn the art of acquiring wealth, human beings have a tendency of get addicted to it. The wealth addict finds himself unable to stop accumulating more and more wealth. The wealth addict is no longer able to enjoy the benefits of what he has, and he also deprives others of what they could have had, creating great misery in the world. Wealth addiction became a problem especially so in the era that dawned after the rise of currency.

Before the invention of money and the rise of trade, this was not such an acute problem, as noted by John Lock (Justice: A Reader, pp. 93 – 95)The wealth of people who made their living by hunting, gathering, grazing and growing consisted mostly of edibles that were non-durable and could not be endless possessed. Furthermore, the safety valves against addiction to food and drink are in-built features of the human body. Our appetite for food and drink (except mind-altering drugs) is quite limited; we can commit a few excess but soon enough, the body’s defenses kick in and we feel sate. The problem is more acute in the case of sexuality, especially male sexuality, where the bodily restraints on excess are less strong. But in the case of currency, the defenses are simply not there. So, for as long as we lived on subsistence and edibles were the sum total of the wealth we would acquire, the chances of getting addicted to the acquisition of wealth were minimal. But when, due to the rise of trade, currency (gold, silver etc.) entered the scene around three to four millennia ago, the game changed.

Currency allowed for a concentration of wealth that was previously not technically possible. The problem with currency is that it is a form of wealth that exists purely in the mind. It does not rot and it does make its bearer sate. In simple words, while one man could never have eaten or drank all the edibles in the world earlier, leaving all others hungry now he could, at least theoretically, own all the trade-able wealth in the world, by monopolizing all currency, leaving others penniless. Soon after the emergence of money, something like this might have actually happened. The era after the emergence of currency is marked by the rise massively wealthy individuals, often kings, like Abraham’s nemesis, the Babylonian Nimrod and Moses’ nemesis, the Egyptian Pharoah. Even today, things are not all that different; the 85 richest people own a larger share of the world’s wealth than half of all the world’s population, ie. 3.5 billion people. And if the total wealth of the world were divide into two halves, one half would be owned by the richest 1%; the other 99% would have to share the other half amongst themselves.[19] Long after the ear of the Pharoahs, we are still struggling to tame the problem of distributive inequality.

A recent op-ed by Sam Polkjan a former wealth addict from the Wall Street capture these problems beautifully. It may be quoted here brielfly:

Like alcoholics driving drunk, wealth addiction imperils everyone. Wealth addicts are, more than anybody, specifically responsible for the ever widening …vast and toxic disparity between the rich and the poor…” The problem he notes is that “[o]ur culture supports and even lauds the addiction. Look at the magazine covers in any newsstand, plastered with the faces of celebrities and C.E.O.'s; the superrich are our cultural gods.” The most decisive change that the Enlightenment made is not in allowing liberal economic laws; the liberal economic law of the Enlightenment have robbed the law of its ethical message which used to discourage wealth addiction.[20]

Much earlier, Aristotle was aware of this human inability to contain the wealth drive.

It would appear… that [the acquisition of] all wealth must have a limit. In actual experience, however, we see the opposite happening. All who are engaged in the acquisition increase their fund of currency without any limit or pause…

Aristotle’s diagnosis is:

The fundamental cause of this state of mind is concern about living, rather than about living well.[21]

Mill also had a diagnosis of this malaise of the human condition:

When people who are tolerably fortunate in their outward lot do not find in life sufficient enjoyment to make it valuable to them, the cause generally is, caring for nobody but themselves… Next to selfishness, the principal cause which makes life unsatisfactory is want of mental cultivation.” [22]

Traditional ethico-legal systems were generally quite focused concerned with the problem of wealth addiction. Firstly, they insisted upon instilling a belief the temporality of the world and the immortality of the human soul. Emphasizing the temporality of the world and the immortality of the soul, goes a long way to change one’s approach to wealth, and contributes to reducing the tendency that human beings have for wealth addiction. The Enlightenment, interestingly, adopts an agnostic position on these questions which are historically the most significant determinant of a person’s approach to wealth. Secondly, while they acknowledged the right to private property and free trade, traditional ethico-legal systems banned some of the most destructive forms of wealth creation - usury, gambling and purely speculative trading. Finally, they saddled those who are “tolerably fortunate” with obligations to take care of other besides themselves, if only in some small measure. These obligations began with what one owed to one’s biological kin and often went on to whole community through systems of tithes (ushar) and alms (zakat)etc.

Once law is divorced from ethics, it is no longer possible to foster communities based on that ethic of of brotherhood which the ethico-legal systems once promoted. Going beyond the island of self through giving is a courageous and fulfilling act but also a difficult one. In our best moments, most of us want to do what is good. But the problem is that without the supporting arm of the law, nudging us, this does not usually happen; ethics generally fails to make human beings take the final plunge that is needed to get off wealth addiction. We are freedom-loving creatures. But sometimes we need some “big brother” to hold our hands; let’s confess it.

PART III

The Counter-Revolutions of the Enlightenment

The Enlightenment project of reconstructing the law on the basis of ethical philosophy has generated two powerful epistemological counter-revolutions: scriptural fundamentalism and anti-legal spiritualism. Let me examine these briefly, before I go on to propose my own alternative.

1. Scriptural Fundamentalism: The Problem in Doing Law without Justice:

Like the Enlightenment, scriptural fundamentalism too draws a wedge between law and ethics instead of viewing the two as deeply inter-related. Both pit law and ethic against each other; the only difference is that whereas in the Enlightenment version, ethical philosophy trumps the Law, in scriptural fundamentalism, the Law trumps ethical philosophy. What neither can imagine is a relationship where the law feeds off ethical philosophy and ethical philosophy feeds off the law. Scriptural fundamentalists are willing to allow no independent normativity to anything other than scripture; neither Reason, nor Nature, nor Society, nor History are allowed to have any acknowledged role in developing an understanding of the ethico-legal obligations imposed by God.

Fundamentalism is not a post-Enlightenment phenomenon. Its seeds have always been there since the rise of the great scriptures. Part of the ministry of the prophet Jesus, it may be recalled, was to wrest the Law from those the stranglehold of the narrow legalists – the Pharisees – who were keeping it from a more wholesome fulfillment. Jesus says:

Don’t suppose that I came to do away with the Law and the Prophets. I did not come to do away with them, but to give them their full meaning. Heaven and earth may disappear. But I promise you that not even a period or comma will ever disappear from the Law. Everything written in it must happen. If you reject even the least important command in the Law and teach others to do the same, you will be the least important person in the kingdom of heaven. But if you obey and teach others its commands, you will have an important place in the kingdom. You must obey God’s commands better than the Pharisees and the teachers of the Law obey them. [23]

The Quran too sought to shift the focus of attention from the Law to the Spirit. So, in the most central aspect of the Law, ie. prayer, it emphasizes not its ritual form, which varies amongst the scriptural communities, but rather its meaning for individuals and communities:

To every people have We appointed ways of worship which they observe. Therefore let them not dispute this matter with thee, but bid them to thy Lord for thou art on the right way: but if they debate with thee, then say: God best knoweth what you do! He will judge between you on the Day of Resurrection, as to the matter wherein ye differ. [24]

Amongst those who the Enlightenment has failed most totally, notably the world’s poorest communities, fundamentalism has experienced a great resurgence. These fundamentalists explain the defeat of their scriptural communities at the hands of the Enlightenment-inspired colonizers, as the result of a deviation from “pure” scriptural law. Scriptural law, the fundamentalist complain, became contaminated over the course of history by interpretations which incorporated the ethical reasoning of the community of believers into the law; they are, in this regard, similar to Kantians who complain about the contamination of ethical thought by empirical knowledge. Scriptural fundamentalists seek redemption through revival of “pure” scriptural Law, just as Kantians seeks redemption through “pure” Ethics. Fundamentalists also strive to keep the Law pure by preventing the insights offered by the modern sciences of nature, history and society from percolating into scriptural interpretation. At the root of fundamentalism lies the idea that scripture is the soles locus of divine revelation in the world and must therefore be understood independently of anything else.

The problem with fundamentalism is that what it seeks in the scriptures, the scriptures refuse to grant: direct answers to the problems of the day. Scriptural tradition records the memory of an epoch when God would speak directly to people and answered their questions; but they also tell us that that era is gone. In the archetype of scriptural traditions, Judaism, the Prophet Moses is lovingly remembered as someone who would have spontaneous conversations with God; but that epoch ends with the revelation of the Ten Commandments, written on a stone tablet. The scriptures gained significance in the human ethico-legal quest precisely when it was no longer possible to converse with God directly, ie. when the world was, in Weber’s words, becoming disenchanted. The scriptures are texts that can be read; they are not oracles that can be heard. Texts do not answer our questions back the way oracles did; but texts can be made to answer our questions through the intermediation of interpretative reasoning. The exercise of interpretation necessarily involves Reason. And Reason, even when it is acting upon scripture, is necessarily affected by understanding of Nature, Society and History. In short, the “pure” Law that fundamentalists seek from scripture, scripture cannot provide.

That God chose to reveal himself in texts and in texts which are so evidently prone to multiple meanings means that it is impossible to retrieve “Law” pure of the influences of Reason, Nature Society and History. One can pretend to do so, but it would only be a false pretension. No less than any other set of interpreters of scripture, fundamentalists too bring to the table their understandings of Reason, Nature, Society and History into the interpretation of the Law; it is just they are less conscious of these understandings and thus less careful about them; often what they infuse into scripture, although unconsciously, are understanding of Reason, Nature and Society which are simply out-dated.

Not only is fundamentalism ultimately unsuccessful in achieving what it seeks – pure Law – it also leads to a terrible waste of human capacity for self-conscious, careful and disciplined reasoning. Many scholars are of the view that the reason why, after a certain point in history, God has chosen to reveal his Law only through scriptures is because He wants human beings to exert their reason and develop. Reason is a like a muscle; it grows with exertion. One of the finest examples of the exertions of human Reason known to the history of civilization is scriptural legal reasoning, as any reader of classical Islamic, Jewish and Catholic natural law texts would attest. Interpreter who are engaged in synchronizing their understanding of scriptural Law, Ethical Reason, Nature, Society and History are often exemplars of the intellectual and spiritual musicality which the human race is capable of; fundamentalism, on the other hand, is characterized by the lack of these attractive features.

A not unexpected result of this undoing of historical evolution is that the “pure” version of Law which is discovered appears antithetical to the prevailing ethical rationality; if feels unjust because it is mixing with the Law notions of justice which no longer uphold. Whatever their claim to “purity” may be worth, the truth is that instead of striving to make scriptural Law more accessible in the intellectual idiom of our times, fundamentalists make it seem more remote and unintelligible. If so few people in the world today can see the charm of scriptural legal reasoning, a lion’s share of blame goes to the fundamentalists who have hijacked it, without projecting its true spirit.

2. Spiritualism: The Problem with Giving Up on the Law

Yet another way to resolve the tension between law and ethics is Spiritualism. Spiritualism represents a completion rejection of the possibilities of the Law. While Enlightenment projects seek to replace the Law with rationalist ethics, Spiritualism replaces the Law with simple personal intuition, the call of the heart. From the spiritualist perspective, one is not supposed to follow the Law but only the spirit behind it. The idea is that since all situations are particular and different, deriving a solution for them from the scriptures is pointless. For each ethico-legal question faced by the individual, the right answer to the can be found only through personal intuition which is conceived of as a form of divine revelation. The focus of spiritualism is on developing personal intuition rather than on cultivating a better understanding of reason, nature, history and society.

While it is hard to deny the continuing presence of persons who are able to divine answers to ethico-legal questions through mystical experience, such experience is by definition incommunicable. As we have noted above, in the era of the scriptures, the value of such experience has been greatly reduced. The spirit can no longer claim self-sufficiency from the Law. The pursuit for the spirit has not to be conducted within the four corners of the law.

Furthermore, spiritualism threatens to undermine one of the most seminal contributions of scriptural religion in human history: the universalization of rationality. Whereas in earlier eras of human history, different castes and tribes looked to the guidance and intermediation of different gods and oracles, the scriptures provided all human being with a single source of divine guidance, thus laying the foundation for universal rationality; and that in turn led to the idea of a true human equality. The foundations of a truly global human civilization can be traced back to the Bible and the Quran because these texts popularized the idea that the truth that is not just true for one people, it is trueor all people. By denying the primacy of widely shared scriptures, and by elevating personal experiential insights of individual, spiritualism roll backs on the universalization brought about by the scriptures. At worst, it leads to a divided society where every individual lives in his or her own moral universe; at best, it leads to a society composed of small, close-knit spiritual cults. What spiritualism has never delivered, and cannot deliver, is a universal human community with a shared ethico-legal sense.

PART IV

Scriptural Legal Tradtions and Prospect of Bridging the Ethico-Legal Divide

The scriptures of the Abrahamic tradition begin with the assertion that there is only one God, the God of the Heavens and the Earth, who is Just and all–Knowing. Because He loves human beings, He has done the thinking for them and formulated a Law which best serves them in their pursuit of happiness. The theological arguments for the existence of such a god, or the just or unjust nature of the Law He has proclaimed are not a matters of present concern to us. What we do contend, however, is that the surest foundations of ethico-legal communities have been laid by the scripture which are revealed (or at least claim to be revealed) by the one God. It is far from a coincidence that what the morally awakened minds have always sought for on earth and never really found, only the heavens have supplied. This has something to do with the very structure of human experience-based reason.

Whenever the awakened human being looks for ethico-legal truth using experience and ethical reasoning alone, he soon confronts an inconvenient fact: the ethical conclusions he arrives at depend upon the presuppositions which he begins from. This means that if he had used other presuppositions, his conclusions would have been different. The presupposition in any ethical argument is an ethical value; and the thing about the ethical values is that there is there is not one but many of them, and often the values compete with each other. So, for instance, you can either maximize liberty or equality; arguments which maximize lead one lead to opposite conclusions; both are perfectly logical, but the end up leading to an unresolved conflict.

Ethical reason is necessarily indeterminate because, on its own, it has no way of reconciling the conflict of values which is so evident in the world.

Max Weber noted this limitation of purely rational forms of pleading in the realm of ethics with great clarity in his lecture “Science as a Vocation”. He observed: “'Scientific' pleading is meaningless in principle because the various value spheres of the world stand in irreconcilable conflict with each other…” This seemingly irreconcilable conflict of values in the modern world has a close parallel in human history: ancient polytheist cultures. Polytheism is what happens when human being infer the presence of divinity from what they see around them – a world of many different forces. Weber quotes the elder Mill who said: “If one proceeds from pure experience, one  arrives  at  polytheism.” Weber also notes another fact which we know about polytheistic cultures such as the Greeks and the Hindus: they viewed the world as plagued by gods conflicting with each other, and vying for the allegiance of human beings. Likewise, today, diverging values compete for our loyalty. He also notes that over the course of human history, the only force that has successfully dethroned the warring pantheons of polytheism is genuine “religious prophecy”. The prophets liberated their people from the clutches of warring gods, helping them focus on the “one thing that is needful”. Prophesy alone possesses the ability to instill the “grandiose  rationalism” which is needed to lay the foundation of “an  ethical  and methodical  conduct of life”. Referring to Christianity’s historical triumph over paganism, he says “for a thousand years, our eyes had been blinded by the allegedly or presumably exclusive orientation towards the grandiose moral fervor of Christian ethics.” But, in the wake of the Enlightenment that exclusive orientation was lost. As a result, the conflict of values is back in town: “’[m]any old gods ascend from their graves; they are disenchanted and hence take the form of impersonal forces. They strive to gain power over our lives and again they resume their eternal struggle with one another….”[25]

For far too long, scholars in the field of law and ethics have evaded Weber’s grim but sparklingly lucid diagnosis of the fate of our times. What we see going on amongst various theorist of justice is precisely a “war of the gods”. Some theorists favour liberty; others favour equality; and so on. Each has worked out his or her system down to the finest details. None of the theorists can be shown to be “wrong”; it is only they are priests of different “gods” or what Weber called different “value sphere”.

It seems to me only natural to conclude that the Just Law which we are looking for can only be found in the scriptures that record revelations from heaven received by the great prophets. Where we differ interminably based upon a conflict of ethical values, the scriptures offer to definitively settle the matter, one way or the other. In that sense, Scriptural law alone offers the prospect of a law that enjoys a normativity independent of the conflicting ethical values of its interpreter. In that sense, scripture provides an ideal ground in which to pursue our search for Just Law – a law which is capable of having a two-way, reciprocal relationship with ethical reasoning, rather than getting trumped by it all the time.

But scriptures, as we have noted above, do not speak us directly; they may record the speech of God, but that God has, since the era of Moses, ceased to hold intimate conversations with human beings. Today, we have to resort to far more demanding methods of discovering exactly what it is that God has decreed. The scriptures bring us close to Just Law, but they cannot get us all the way. For that we need a powerful epistemology that unlocks the truths locked up in the texts.

Not only do the scriptures offer a fertile ground in our search for Just Law, they are the places where Just Law is most desperately needed. As a result of its integration with ethics, in scriptural traditions and especially in juridical religions, the Law comes to play an unusually critical role in the daily life of believers. Contemporary common law and civil are only codes of law; it is possible for their subjects to have a completely independent sense of ethics. But the shariah, the halakha, the dharma, and even traditional tribal laws are as much codes of morality as they are codes of law; this is why I have referred to them as ethico-legal traditions rather than legal stems. In these traditions, not only does the Law define the rules for adjudication of rights (such as matters between ruler and the ruled, and contracting parties), it comes to define the entire meaning of what is “right”. From the time she wakes up on her bed to the time she goes to sleep and from the moment she gains consciousness to the moment she dies, every act of the believer is seen to possess a legal dimension. The thoughtful Muslim, Jew or Brahmanical Hindu, finds herself living in a far more intensely juridical universe than someone for who law and ethics are neatly compartmentalised. It is for the believer in these traditions, more than for anyone else, that a proper epistemology of the Law is a matter of urgent and practical importance. A corrupted vision of the law is here doubly destructive: it destroys the pursuit of happiness here on earth and also dampens prospect of salvation in eternity.

PART V

Just Law: Theory and Application

1. A Proposed Epistemology for Discovering Just Law:

Having presented an extended critique of key Enlightenment projects, and the counter-Enlightenment projects of fundamentalism and spiritualism, it falls upon the critic to perform the far more demanding task presenting an alternative approach to the human ethico-legal quest. As argued in Parts I, I and III, what we need is neither pure Justice, nor pure Law but Just Law. And as argued in Part IV, the best starting point in this search are the scriptures which record heavenly revelations to the prophets about the law of God.

But the scriptures, as we have noticed above, do not speak to us; they cannot tell us what is good and just in the same sense that oracles once did. So how is scriptural law to be understood? What shall the epistemology of a Just Lawyer be?

A - Acknowledging the Role of Reason, including Ethical Reason in Law

To begin with, it must be boldly acknowledged that the source of Just Law is not Revelation per se; rather, the source of Just Law is Reason, including ethical reason. For far too long, scriptural interpretation has been disguised as the product of Revelation alone, and marketed as a recipe of deliverance from the errors and failings to which Reason is prone. This view of scriptural interpretation serves the political agenda of drawing rigid binaries between “Modern Science” and “Traditional Religion”, providing rallying slogans to bigots on both side of the divide. But it needs to be discarded because it is inaccurate: as discussed in Section III, all interpretation is inevitably affected by the reasoning of the interpreter. Furthermore, underemphasizing the role of Reason may have been helpful in another age but, in this Age of Reason, it is extremely unhelpful. Finally, understating the importance of reason in scriptural interpretation runs against the message of the scriptures themselves because the the scriptures exert upon believers to exert their reason. The last of the great revealed books, the Quran, is ahead of all others in this regard. Relying upon the work of Muhammad Iqbal, the prominent 20^th century Islamic philosopher, a contemporary scholar states:

It is difficult to find a non-philosophical text in world literature which discusses the topic of reason as often and in as much depth as the Qur’an. The complementary relationship between wahy [Revelation] and ‘aql [Reason] is illustrated by the way that the Qur’an continually exhorts human beings to use their ‘aql properly. On nearly 24 occasions the Qur’an condemns those who deprive themselves of the light and guidance contained in wahy because they misuse their ‘aql. While it never explicitly says that human reason is “light” or “guidance,” on nearly 60 different occasions the Qur’an does say that that “light” and “guidance” (i.e. revelation) cannot be properly understood without the aid of reason.[26]

The Islamic tradition is characterized by two complementary claims: firstly, the reality of prophesy is affirmed and the origins of the law are traced back to prophesy; but, secondly, it is also affirmed that the Prophet of Islam is the last of the prophet and the doors of prophesy are with him now closed forever. This closing of the doors of prophesy is what elevates Reason to its present position as the foremost (though not exclusive) aid in our ethico-legal enquiries. Iqbal states:

The Prophet of Islam seems to stand between the ancient and the modern world. In so far as the source of his revelation is concerned, he belongs to the ancient word [the world of prophesy]; in so far as the spirit of his revelation is concerned he belongs to the modern world. In him life discovers … sources of knowledge [other than revelation]….” [27]

So what are these other sources of knowledge without which it is no longer possible to properly under the ethico-legal message of the scriptures. Iqbal identifies at least two:

According to the Qur’an, there are two other sources of knowledge – Nature and History; it is in tapping these sources of knowledge the spirit of Islam is seen at its best…[T]he constant appeal to reason and experience in the Qur’an, and the emphasis it lays on Nature and History as sources of human knowledge……

B – Absorbing the Insights of Nature and History into the Law

Let us first consider the role of Nature in our ethico-legal enquiries. The truth is that for most of the history of the Western philosophical tradition, Nature has remained a point of reference in answering the ethico-legal question. The questions of “what is good?” and “what is natural?” have been viewed as deeply related questions. The cues of nature – studied by scientists – were used in the determination of morality and law, by jurists and philosophers alike. Aristotle’s works represent the most ardent such attempt, his repeated refrain being: “nature makes nothing purposeless or in vain…” Aristotle tries to work out the just solution in four fundamental human relationships which he encountered in Hellenic society: master-slave, man-woman, ruler-ruled and teacher-pupil based upon his understanding of nature. But it was not just philosophers who took cognizance of the insights offered by nature; jurists also took stock of these insights. See, for instance, this marvelous passage from the first book of the Institutes of Justinian:

The law of nature is that law which nature teaches to all animals. For this law does not belong exclusively to the human race, but belongs to all animals, whether of the earth, the air, or the water. Hence comes the union of the male and female, which we term matrimony; hence the procreation and bringing up of children. We see, indeed, that all the other animals besides men are considered as having knowledge of this law.[28]

The absolute divorce of ethical philosophy from natural science is one of the great tragedies of our time. As an exemplar of this approach, consider Kant. Kant finds “essays on morality written in [a] fashionable style” bewildering because in these essays, “we run into a marvelous medley – now the talk is of the particular vocation of human nature (but along with this also the Idea of a rational nature as such), now they talk of perfection, now of happiness, here moral feeling and there the fear of God; a little of this and a little of that. But it never occurs to anyone to ask whether the principles of morality are to be sought at all in our knowledge of human nature (which we can get only from experience).”[29] The last line is obviously rhetorical. For Kant, principles of morality are not be sought in our knowledge of human nature, at all. For Just Lawyers, that is not an option because our scriptures refer to human nature as one of the repositories of ethical truth.

Iqbal also identifies History as a point of reference in our understanding of scriptural Law. He says:

History or, in the language of the Qru’an, ‘the days of God’, is the third source of human knowledge, according to the Qur’an. It is one of the most essential teachings of the Quran that nations are collectively judged, and suffer for their misdeeds here and now. In order to establish this proposition, the Quran constantly cites historical instances, and urges upon the reader to reflect on the past and present experience of mankind.

One of the ways of determining which of two ethico-legal concepts are close to truth is to look at their historical career. A close study of history reveals that certain ethico-legal concepts have contributed to the destruction of their bearers, either at the hands of nature, or at the hands of other human beings. In other word, the truth triumphs in the battlefield of history. Clearly, we cannot ignore historically triumphant ethico-legal ideas when the try to read our scriptures.

C – Absorbing the Insights of Society into the Law: The role of ethico-legal anthropology and the search for human universals

Finally, in looking for Just Law, we need to take cognizance of the various commonalities that can be observed amongst societies widely distributed across time and space. If there is something all or most of them have agreed upon, it is clearly a cue that cannot be ignored. A popular author rooted in the Christian traditions observes:

I know some people say the idea of a Law of Nature or decent behavior known to all men is unsound, because different civilizations and different ages had quite different moralities. But this is not true. There have been differences between moralities, but these have never amounted to anything like a total difference. If anyone will take the trouble to compare the moral teaching of, say, the ancient Egyptians, Babylonians, Hindus, Chinese, Greeks and Romans, what will really strike him will be how very like they are to each other and to our own. [30]

In this regards, Just Lawyers need to take stock of the work of ethico-legal anthropologists who have gone a long way to further our understanding of human universals. For instance, Donald Brown, a famous anthropologist, identifies around four hundreds human universals which he claims can be found amongst all the societies that anthropologists have studied in the last century.[31] Ultimately, the question of universals is a definitional one; and the answers to such questions can never be agreed upon. Yet, a Just Lawyer interpreting the scriptures can gainfully be informed about what it is the societies across the span of time and space seem to be agreeing upon. Surely, there has to be some truth to it.

3. Two Approaches to Just Law: An Example from the annals Islamic Jurisprudence

Let me contrast two approaches to ethico-legal epistemology from within the glorious tradition of Islamic tradtion. Firstly, consider this approach which draws a simplistic rigid binary between Law (based on revelation) and Ethics (based on reason); once the binary is drawn, the former is made to trump the latter:

The question arises, ‘Is it possible for the mind alone, unaided by God’s messengers and revealed scriptures, to know God’s rulings …? Or is this impossible?’

The position of the Ash’aris is that the mind is unable to know the rule of Allah about the acts of those morally responsible except by means of His messengers and scriptures…[T]he good of the acts of those morally responsible is what the [Divine] Lawgiver has indicated is good by permitting it or asking it to be done. And the bad is what the Lawgiver has indicted is bad by asking it not be done. The good is not what reason considers good, nor the bad what reason considers bad. The measure of good and bad… is the Sacred Law, not reason. [32]

This last sentence categorically invokes a binary understand of Sacred Law and ethical reason. It is assumed that the answer to the human ethico-legal question can be found in either of the two; what has not been considered is the possibility that the answer could be discovered by both, each acting in tandem with the other, behaving in a relational and non-antagonistic manner. This possibility might have eluded the author because of an ill-assessment of the powers of ethical reason. He writes:

[T]he mind is unable to know the rule of Allah… [f]or minds are in obvious disagreement about acts. Some minds find certain acts good, others find them bad. Moreover, one person can be of two minds about one and the same action. Caprice often wins over the intellect, and considering something good or bad comes to be based on mere whim…[33]

More careful readers the signs of God (ayaat) manifesting in the His Books (scriptures) and the signs (ayaat) manifesting in the His Work (nature, society, history) know that things are not that simple. Ibn Aqil (d. ~ 1119), the eminent eleventh century jurist from the Hambali school of Islamic jurisprudence, explains this philosophical point beautifully:

God has endowed [his creatures], for their own welfare, with boundless Reason and with powerful Instincts impelling them to do what is right and to refrain from evil and corruption. Consider, for instance, how God has gifted us with a carnal appetite and an instinctive desire for seeking sexual intercourse. This instinct is what, indeed, guides us toward the path we necessarily need to tread for the progress and preservation of our species. Or consider, the instinctive compassion we feel towards animals, and the revulsion we feel towards seeing them suffer; this instinct is what makes us refrain from causing pain to others and what makes us curtail an assailant who does venture to hurt others. Or consider how it is in our nature to experience joy when Society lavishes praises upon us for our deeds. Society generally praises only those deeds that are good and therefore our instinct for praise-seeking acts as powerful incentive for the performance of good deeds. This in fact is what drives much of the works that increase utility and ward off pain. God does not leave good deeds to go without praise from society, thus incentivizing them; and God does not let evil deeds go without taunts from society, thus disincentivizing them. Glory be to God… who turns His creatures away from the course of evil, by various means here on earth, as well as with His menaces of punishment in the Hereafter.[34]

Here, then, we have an example from within the Islamic tradition of a jurist whose does not draw rigid binaries between the urgins of scripture, nature and society; for him, all three are deeply inter-related and largely reinforcing, each helping us understand the path to ethico-legal. It is this approach to scripture which offers the best resource for discovering Just Law, a law that derives strength from nature, society and history rather than waging a futile war against them.

3. Applying the Theory of Just Law to Actual Ethico-Legal Issues: A Few Illustrations

When we incorporate the insights revealed by Nature, History and Society into our reading of scriptural legal texts, our appreciation for ethico-legal obligations is considerable improved; at any rate, our appreciation for these obligations is far better than it would be if we relied upon either pure ethical reason or scriptural fundamentalism. In this section, I try and present a few examples to this effect.

1. Private Property: Its Existence and Limits

Let us begin with the obligation to respect private property. While the consensus in most historically accumulated ethico-legal systems is in its favour, our scriptures are often not conclusive on the point. They remain open to multiple interpretations on this point and the debate has never been conclusive. John Locke, for instance, found himself confronted with a communitarian interpretation of the Biblical verse which indicates that God “has given the earth to the children of men”[35] And in the twentieth century, Quranic verses have also received interpretation at the hands of Islamic socialists which challenge the consensus position on private property. Yet, when we move beyond formalist textualism and bring in the fruits of a careful study of Nature, History and Society, things become clear. Aided by the work of natural scientists, historians and anthropologist, the just lawyers can powerful respond the challenges posed by ethical philosophers.

So in our present problem, let us consider the insights offered by evolutionary biology. Evolutionary biologists have documented in great detail the territorial nature of primates, particularly male primates. Everywhere the primate, especially the male primate, seeks to mark his territory out from that of others; and in doing this seemingly selfish act, he contributes positively to the survival of the species. Just lawyers cannot afford to remains blind to this cue about the desirability of private property which nature so abundantly furnishes. Similarly, the performance of the concept of private property in battlefield of history cannot be ignored. Historians link the fate of Communism with its approach to private property. Lawyers must take stock of this reality. Finally, lawyers must also read the account given by anthropologists of societies and tribes which had more communalistic regimes of property, and the gradual eclipse of that form of life.

While our methodology of legal reasoning strengthens the argument in favour of the existence of private property and market-based exchange, the same methodology alos strengthens the case for putting limits on the operation of these institutions.

After concluding that “[m]ost things are the property of individuals who acquire them in different ways,” the authors of the Institutes of Justinian go on to add significant exceptions to private property:

[S]ome things by the law of nature are common to all; some are public; some belong to corporate bodies, and some belong to no one… By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea… Among things belonging to a corporate body, not to individuals, are, for instance, buildings in cities, theaters, race-courses, and other similar places belonging in common to a whole city… Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any one.[36]

To sum, Just Law’s nuanced epistemology allows us to both affirm the existence of the institution of private property, while placing certain limits on its operation. Both concepts rest upon our interpretation of the texts that have a scriptural position in our traditions, coupled with insights offered by Nature, History and Society.

2. Ethics of the Market: Trade, not Usury and Gambling; labour, not slavery

“They ask you about wine and gambling. Say: ‘There is great sin in them, and also advantages for people; but their sin is greater than their advantage.’” Qur’an 2:219

…They say: "Trade is like usury," but Allah hath permitted trade and forbidden usury… (Qur’an 2:275)

“Love Thy Neighbor”

[TO BE COMPLETED]

3. Gender: Between Equality and Inequality

On the face of it, the human world today is more divided than ever before along lines of political and economic power: there are 85 people who own more wealth than half of the members of our species. This is certainly a far more unequal distribution of things than the age of Brahmanical rule. But the difference today is in the realm of ideas: no one today really can really believe that tho 85 persons are more “human” than the rest of us. One of the great historical currents of our history the last two to three thousand years has been the re-unification of tribal and ethnic groups. For the first time in our history since the scattering of the descendants of Adam and Eve into hundreds of different races and tribes into one-world, the Roman Empire, the Holy Roman Empire and even more so the various empires of the Muslim world made the world one. And recently, the forces of modernity which arose from the cradle of post-Christian Enlightenment Europe are doing away with what were once deemed indomitable differentiations amongst the human species, in even more profound ways. Every human being today is one telephone call away; that sort of a global neighborhood, we have never before had, since we left the garden of Eden.

Insofar as “races” and “nations” go, the idea of Equality is a truth revealed by the scriptures as well as History. The Judeo-Christian and Islamic narratives about the origins of the human beings records that Adam and Eve were created from a single soul and their various descendants eventually become not one but many nations. And, not too long ago, the results of the bloodiest war in human history also stand witness to this. Those of us who could not fit this truth into our juridical imagination, and insisted upon Aryan supremacy, are no longer around to tell their story. The world is unified by the concept that we are all one species and that all differentiations between us are purely matter of social and historical coincidence. The ethico-legal significance of this concept is taking its time sinking in. But at the theoretical level, the idea of Equality has certainly made our task much simpler.

However, the one cleavage amongst human beings that is not going away is the one which has its roots in nature rather than social construction: gender. Both the natural sciences which study human nature, especially evolutionary psychology and the sciences which study societies across the breadth of time and space, especially anthropology, are leading us to this conclusion. Gender may have been understood differently in different places; but it has always been there. Since the simple formula of equality is the least help in this area, Just Law will have to work out in great detail how ethico-legal obligations differ between genders. The declarations of the rights that came out of Enlightenment ethical reason working in tandem with the natural law tradition at turn of eighteenth century have stood the test to time, insofar as their original concerns goes – the state-citizen relation. History has vindicated their truth. But when the same mind-set was turned towards understanding problems of a vastly different provenance – especially gender relationship – the solution has proven extremely naïve. The thought gender too would become history. But of course it didn’t and is wont.

This does not mean that we can blithely return to the inherited rules of our scriptural tradition either. Insofar as those rules are concerned, feminists have a point. The influence of patriarchal society in their formulation is undeniable. The different task awaiting Just Lawyers in this century, therefore, is to extricate the corpus of scriptural law from the effects of patriarchal mindset and stripping it down to the level which is warranted by the lessons of Reason, History and Society. This would require from Just Lawyers not only a re-examination of scriptural texts but also a thorough immersion in the natural and historical sciences which deal with gender. When we are done with it, the core of ethico-legal rules about gender will certainly not be equality, but it will be much close to equality than earlier centuries had thought.

4. The Meaning of the Obligation to Pray:

Other than faith in the unity of the Divine being, there is nothing that the ethico-legal tradition of Islam emphasizes more than the performance of prayer (salat), individual as well as congregation. The Prophet Muhammad is reported to have said: Prayer is the foundation of religion. So the way any particular school of thought approaches the concept of prayer is greatly indicative of its entire approach to the ethico-legal tradition.

The human instinct for worship is one of those instincts which Enlightenment law has consistently refused to acknowledge. Human beings do not just love liberty, fraternity and equality; most of them also love worshiping someone higher than themselves. Prayer is an ethico-legal imperative that human beings have acknowledged for much of their history. Any system of Just Law cannot be founded by shutting our eyes to this ethico-legal reality. The result of the Enlightenment’s refusal to deal with the instinct for worship is that prayer has been relegated to the level of individual action; in that sense, the Enlightenment has helped further the growth of spiritualism, with all its dilemmas mentioned above.

Fundamentalists too have failed to provide a compelling way to deal with the human instinct for worship. They view prayer in purely legal terms. From their perspective, the obligation to pray exists only because the law commands so and for no other reason. It is akin to a contractual obligation between man and God: man prays in a certain prescribed manner, and God rewards man in return. It follows from this that the focus of man in the performance of prayer needs to be on the ritual formalities which ensure that his liability to God is fully discharge; and so that if his performance is only partial, constituting part performance, he may be able to do what it takes to make it whole. This purely legal approach. runs quite contrary to our scriptural texts. Prophet Muhammad described prayer not as a ritual but as “the coolness of his eyes”. The Quran refers to the prayer as a balm for the hearts. It says: Indeed it is in the remembrance of God that the hearts find tranquility.

But those scriptural legal interpreters who are open to incorporating the insights of Nature, Society and History are able to present a far more compelling view of prayer as an essential part of a fulfilling human life. The great Indian theologian Muhammad Iqbal presents one such perspective in his essay of The Meaning of Prayer.

Firstly, alluding to the insights into human nature offered by modern psychologists such as William James, he concludes: “[P]sychologically speaking, prayer is instinctive in its origin… Prayer as a means of spiritual illumination is a normal vital act by which the little island of our personality suddenly discovers its situation in a larger whole of life…[W]hether individual or associative, [it] is an expression of man's inner yearning for a response in the awful silence of the universe...".

Secondly, he alludes to lessons from the history of human spirituality across various societies: “[T]he modern mind… demands a concrete living experience of God. And the history of the race shows that the attitude of the mind embodied in the act of worship is a condition for such an experience.”

Finally, he draws a connection between prayer and the proper growth of the human intellectual faculties: “In fact, prayer must be regarded as a necessary complement to the intellectual activity of the observer of Nature. The scientific observation of Nature keeps us in close contact with the behavior of Reality, and thus sharpens our inner perception for a deeper vision of it… The truth is that all search for knowledge is essentially a form of prayer.” [37]

When these multi-faceted insights are brought to bear upon the scriptural texts about the obligation to pray, they give a new life to it. And it also becomes much easier to tell apart the spiritual essence of the obligation imposed from its ritual expterior. So, based upon the foregoing, Iqbal is able to claim in a later part of the same essay: "The form of prayer ought not to become a matter of dispute. Which side you turn your face is certainly not essential to the spirit of prayer. The Quran is perfectly clear on this point..."[38] A Just Law epistemology makes it easier to understand why it is that the great books of our ethico-legal tradition devote such a major part to the rituals of prayers – because the law of prayer helps us deal with our ‘worship instinct’ in a fulfilling way, just as the law of contracts and torts helps us deal with our economic instincts or the law of marriage helps us deal with our sexual instincts.

PART VI

What Just Law Promises to Just Lawyers

1. Giving a new meaning to the legal profession and legal education.

Today, a concern about “justice” might seem the primary or even exclusive concern of philosophers and politicians, not lawyers but it is important to recall that this has not always been the case. For most of our history, lawyers as well as lay people held a far more lofty conception of the legal calling. It is my contention that lawyers’ fall from grace has much to do with the Enlightenment’s divorce between law and ethics; conversely, one of the promises of the Just Law approach I have proposed is that it offers to give their calling a new meaning.

Historically, it was the juridical religions – Judaism, Islam and, to a certain extent, Brahmanical Hinduism – which offered the loftiest conception of legal calling. The juridical religions are ethico-legal traditions, where the universal questions about justice and goodness are answered, mostly though not exclusively, through some notion of the “Law”. The Law itself is viewed as nothing less than a manifestation of divine wisdom, an articulation in humanly intelligible ways of the inner order of the cosmos. The shariah, the halakha, the dharma, and even traditional tribal laws are as much codes of morality as they are codes of law. In often short-lived era of the prophets, it was the prophets who spoke to their communities who spoke about the meaning of law and justice. But in the much longer inter-prophetic eras, and post-prophetic era, the job of discovering what is good and just has usually been assigned to jurists. It is understand therefore, the fuqaha, the Rabbis and the shastris were view no mere white-collar technicians; being expositors of the true meaning of justice and goodness in the universe, they were viewed as no less than the inheritors of the charisma of the prophet. And it is for similar reasons that traditional education for Muslims, Jews and Brahmanical Hindus, was first and foremost, a legal education: fiqh, Talmud and shastars.

While this conception was most obvious in the juridical religions, it was not unique to them. Take, for instance, this statement about the relationship between law and justice with which begins Justinian’s Digest or the Pandects, the most important text that influenced the training of most young lawyers in the Western world (outside England) for more than a millennium:

A law student at the outset of his studies ought first to know the derivation of the word jus (law). Its derivation is from the justitia (justice). For, in terms of Celsius’ elegant definition, the law is the art of goodness and fairness. Of that art we [jurists] are deservedly called the priests.[39]

Clearly Roman jurists held a far more lofty conception of their calling than what we now have. The authors of the Digest make a comment which reveals this lofty self-perception:

…We [jurists] cultivate the virtue of justice and claim awareness of what is good and fair, discriminating between fair and unfair, distinguishing lawful from unlawful, aiming to make men good not only through fear of penalties but also indeed under allurement of rewards, and affecting a philosophy which, if I am not deceived, is genuine, not sham.[40]

These excerpts from the Pandects should be sufficient to illustrate that far more than philosophers and theologians, it was our predecessors in the legal profession who shouldered the burden of telling society about what is “good” and what is “bad” and of teaching that genuine “philosophy” which underlies the whole edifice of the law and without which no legal tradition can go to thrive for long.

Why is it that lawyers today cannot have a similarly conception of their calling? Clearly, this has much to do with the Enlightenment’s divorce between law and ethics. The lawyers who wrote and taught the Pandects believed in the ethical philosophy underlying their law; this is why they thought of their calling as expounding “the art of goodness and fairness.” In the post-Enlgithenment, however, very few of us sincerely believe that about our calling. It is true that our historically accrued bodies of law - English common law, the Roman civil law and the legal heritages of juridical religions – continue to exist. But, since we are failing in our duty as lawyers to expound the ethical philosophy which underlies these laws, But they have lost the ethical hold which they once exerted upon the hearts of men. And increasingly, historically evolved jurists’ law, is being altered, if not altogether replaced, by statutory codes, drafted and promulgated by politicians. Instead, even with the legal community, as soon as the accrued body of legal rulings in our traditions falls out of tune with the tests set by Kant and Bentham, they lose all respect. When the law is no longer views as the source of ethical values, and when lawyers willingly surrender the ethical component of our ethico-legal traditions, then it only natural that our job will be confined to the dull business of determining the outcomes of cases on the basis of what law the state puts in front of us, or, worst still, as the legal realists prescribe, simply predicting the behavior officials. The public too returns the favour. Once lawyers concede the possibility that justice can be determined without reference to the law, they become dispensible. They can be more fruitfully replaced by philosophers hoping to advance certain values or politicians hoping to further certain interest. Indeed, in most countries of the world, the replacement of judge-made law by legislative codes has considerably diminished the social and political prestige of lawyers. Even in the few jurisdictions of the world where the legal class continues to enjoy some prestige, their prestige depend more on their role as advocates of specific political and economic causes, i.e. as cause lawyers, than it does on their claim to offering insights on the meaning of law and justice. Modern day American may have a million strong army of lawyers, and produces 40,000 new lawyers every passing year. But not one of them enjoys the intellectual or social prestige that Sir Edward Coke or William Blackstone once enjoyed and which exerted so profound an influence upon the political vision of America’s founding fathers.

One of the greatest promises of Just Law is that promises to restore a greater sense of meaning to the legal calling. If Just Lawyers play their role in reviving their respective ethico-legal traditions which spring from the scriptures, they will not only contribute to a better appreciation of law and justice in their societies; they will also expand the scope of the legal profession. Just Lawyers will no longer be mere handmaidens of politicians and philosophers, interpreting and enforcing what law the latter throw at them. Just Lawyers will therefore earn for their profession a better place in the world. And professors of Just Law will be able to restore to legal education that centrality it once enjoyed amongst the human and social sciences.

PART VII: A Note on Philosophical Methodology

Let me conclude this essay with a note on my philosophical methodology. While the question that I have tried to to address is a matter of universal significance, in proposing this theory for the discovery of “just-law”, the resources I have used are admittedly from a particular tradition – the ethico-lega tradition of juridical religions, especially Islam. Jurists in the (pre-fudamentalist) Islamic tradition, as in the Jewish and Hindu traditions, have generally considered the legal and moral status of human acts as deeply and somewhat mysteriously inter-related. In their weltanschauung, a legal ruling that is immoral cannot be possibly be a correct legal ruling, while a moral principle which fails to square major legal ruling is in itself morally suspect; it is this ethos which I have tried to utilize in formulating this theory of “just law”. I have deliberately tried to avoid falling for the simple and rigid binaries of law/morality and reason/revelation which characterize so much contemporary discourse on law and justice and which have led to discursive impasses that hurt the highest aspirations of good people on both sides of the binary. My theory aims to be reparative rather than deconstructive: its primary focus is vindicate and reaffirm and not demolish the insights about law and justice which jurists, especially in my own tradition, have generally held. Yet, such is the nature of reasoning that even so a modest and deferential a study cannot remain entirely uncritical; my theory of just law does end up as providing an independent standpoint from which to critique existing views of our jurists about law and justice, for whatever that is worth.

THE END

[1] Aristotle, Politics, Book I, Chapter 2

[2] The Holy Bilble, 2 Corinthians, 3:6

[3] Queen v. Dudley, quoted in Justice: A Reader, p. 6

[4] Jeremy Bentham, Principles of Morals and Legislation, quoted in Justice: A Reader, p. 11)

[5] Innameul Kant, Groundwork for the Metaphysics of Morals, quoted in Justice: A Reader, p. 159)

[6] John Stuart Mill Utilitarianism, quoted in Justice: A Reader, p. 15

[7] John Stuart, Mill, Utilitarianism, quoted in Justice, p. 17

[8] Kant, Groundwork, quoted in Justice

[9] Aristotle, Politics, quoted in Justice p. 287

[10] (Aristotle’s Politics, quoted in Justice p. 289

[11] Hayek, quoted in Justice, p. 80 – 81

[12] John Finnis, Law Morality and “Sexual Orientation”

[13] Germain Grisez,(1993) The Way of the Lord Jesus, Living a Christian Life

[14] Kant, What Is Enlightenment? (1784)

[15] John Stuart Mill, On Liberty (1859)

[16] William Blackstone, Institutes of the Law of England, Of Husband and Wife(1765-1769)

[17] Scalia, J, Barnes v. Glen Theatre, Inc. 501 U.S. 560 (1991)

[18] Lawrence v. Texas, 539 U.S. 558 (2003)

[19] (http://www.oxfam.org/sites/www.oxfam.org/files/bp-working-for-few-political-capture-economic-inequality-200114-summ-en.pdf)

[20] SAM POLKJAN, For the Love of Money, New York Times, 2014) http://www.nytimes.com/2014/01/19/opinion/sunday/for-the-love-of-money.html?_r=1

[21] Aristotle, Politics, p. 27- 28

[22] John Stuart Mill, Utilitarianism, Justice: A Reader, p. 21

[23] Holy Bible, Matthew, 5: 17 - 18

[24] Quran, 22: 67-69, translated by Muhammad Iqbal

[25] Max Weber, Science as a Vocation

[26] Basit Bilal Koshul (2013), Muhammad Iqbal, Charles Peirce and Reclaiming the “Middle Way”, Cambridge Muslim College, Working Paper

[27] Muhammad Iqbal (1933), Reconstruction of Religious Thought in Islam

[28] Natural, Common, and Civil Law, Of Things, Institutes of Justinian, Book I, Chapter II

[29] Kant, Groundwork

[30] C.S. Lewis, Mere Christianity

[31] . ( Brown, D.E. 1991. Human universals. New York: McGraw-Hill)

[32] Ahmad Ibn Naqib al-Misri (d. 1368), ‘Umdatul Salik (Reliance of the Traveller), translated by Nuh Ha Mim Keller (1991) p. a.1.0, a.2.0

[33] Ahmad Ibn Naqib al-Misri (d. 1368), Reliance of the Traveller, translated by Nuh Ha Mim Keller (1991), p. a.1.0

[34] Ibn Aqil quoted in Khaled Abul Fadl’s Conference of the Books, which in turn quotes George Makdisi’s Ibn ‘Aqil; Note: The translation has been significantly to serve the occasion, although it retains fidelity to the original.

[35] Holy Bible, Psalms CXV

[36] Divisions of Things, Of Things, Institutes of Justinian Book II, Chapter I

[37] Muhammad Iqbal, The Meaning of Prayer, from 'Reconstruction of Religious Thought in Islam' (Lahore: 1933)

[38] Muhammad Iqbal, The Meaning of Prayer, from 'Reconstruction of Religious Thought in Islam' (Lahore: 1933)

[39] Justinian’s, Book One, Justice and Law, p. 1

[40] Justinian’s Digest, Book One, Justice and Law, p. 1