Isnin, September 27, 2010

John Godfreys Saxe’s The Blind Men and the Elephant.





John Godfreys Saxe’s The Blind Men and the Elephant is a rather more literal translation of the original fable from the ‘Udana’ scripture. In this traditional story, a group of blind men are gathered to investigate the nature of an elephant, a beast which was previously unfamiliar to them.

Each alights on a different part of the animal and draws his own conclusions from it: in one version, the man who feels its side concludes that it is like a wall, a spear, a snake, a rope, a fan, and a tree.

Each blind man attempt, and ultimately fail, to describe an elephant to each other’s satisfaction. Each blind man is adamant that his own interpretation is ‘full and correct’. The blind men’s innocent attempts to describe the animal together create not an elephant, but what Saxe calls a “theologic war”.

As with the blind men and the elephant, jurists or school of thought tend to describe the word ‘law’ in different ways, depending on their observations. Generally, law means any order, rule, regulation in a form of a statute and cases. Laws can also come in an unwritten form such as customs, traditions, and religious practices. Even some customs and religious practices have crystalised into law since it is practiced by the bulk of a given society.

Law in the eyes of Austin is an impenetrable, solid body which cannot be struck down, much like a wall. Like the restrictive nature of walls, law through Austin’s eyes is a narrow minded view of the law as it is, giving it a scientific character.

At the top of this hypothetical wall comes Austin’s ‘signification of desire’; the significations are of two varieties: firstly there are requests in which the power to ‘inflict evil’ on the person who fails to fulfill the request is not present, and second a command in which the power to ‘inflict evil’ on the person who fails to fulfill the same exists.

Professor H.L.A. Hart tells us in his book, ‘The Concept of Law’, that the ‘spear point’ of a legal system is human behaviour. The same can be divided into two categories social habits and social rules. When members of a society follow a social habit, the members may not be aware of the habit nor may make a conscious effort to see that the habit is maintained. Meanwhile, the violation of a social rule would be regarded as a fault.

Further, for a social rule to exist some of the members must be aware of the same and must strive to see that it is followed as a standard by the group as a whole. Social rules have the words ‘must’, ‘should’, ‘ought’ associated with it. Hart says that there is no logically necessary connection between law and coercion or between law and morality.

Now, let us discuss on Ronald Dworkin’s concept of law. According to him, a proper judges’ function is seen by ‘Taking Rights Seriously’. Indeed, law’s empire might have as well been titled ‘Why Hart’s Concept of Law is wrong’. In his book, the greatest attention is given to the attack on conventionalism. He also disagrees with the pragmatism of the American realists. Finally, through this attack he comes out with his concept of law.

Thus, according to Dworkin, the soundest legal theory is that it must ‘fit’ and justify the settled law, fit with the past political decision and justifiably and morally sound.

Furthermore, Kelsen’s visualisation of the system of norms describes a shape in the form of a tree, with the ‘grundnorm’ at the base, and subsequent norms branching out from the ‘grundnorm’. As one moves away from the base of the tree, into the branches, the norms start getting more specific and less general. The branches will be concerned with how law, such as statute law, is created; then the sub-branches with administration of justice; and finally, you have the twig with a norm that decrees certain action in a specific case.

His legal theory, which is a very strict and scientifically understood type of legal positivism, is based on the idea of a ‘grundnorm’, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and “simple” law are based.

Besides that, John Michael Finnis makes two assertions: firstly, there are human goods that can be secured only through the institution of human law. Human goods are those things that are good for human existence. Secondly, that there are ‘requirements of practical reasonableness that only those institutions (i.e. of human law) can satisfy.’

These are ‘a set of basic methodological requirements which distinguish sound from unsound practical thinking and which provide criteria for distinguishing between acts that are reasonable, and acts that are unreasonable’. His idea of law is just a restatement of Natural law in fresh terms.

In some places, Finnis speaks of ‘human goods’. He regards these things as being basic to human flourishing: those matters without which the achievement by humans of their fullest potential is not possible.

Meanwhile, the Feminists feel that most of the interpretations of law are the results of ‘the male conception of law’. They prefer referring to law as a large rope. A rope consisting of different coloured stands. At some stage in history, one colour dominates, at other times another colour.

However, from early times, one thread runs through the entire cord; it is the belief that the law has been instrumental in women’s historical subordination. Hence, on the most significant matter, namely the fights against patriarchy, the feminist were united. For example, Liberal Feminism (also known as “mainstream feminism”) entails the equality of men and women through political and legal reform.

Bentham defines law as assemblage of signs, declarative of volition, conceived or adopted by sovereign in a state, concerning the conduct to be observed in a certain case by a certain persons or class of persons who in the case in question are or are supposed to be subject to his power.

Next, according to A.V. Dicey, law means everything that regulates the world and its people and beyond. Thus, his approach in interpreting law is the broad approach. He does not believe that the law should only be confined to matters relating to orders, statutes and cases.

He also believes that it should include laws and principle governing the movement of the planets, the rising and setting of the sun and everything else. In short, Dicey believes that everything and everyone is governed by a law, be it in written form, or simply written in the universe to take place.

In addition, Lord Radcliffe defines laws as ‘more than merely learning the law’. He believes that laws should also relate and include ethic, religion, history and principles. Law is more than a mere technique to be applied. It is the study of all things, and its application. For example, a practicing lawyer cannot practice law by merely utilizing that he has learnt in law school.

In fact, in dealing with his client, he must try his utmost best to use any psychological knowledge that he has, to get the client to talk and must also observes ethics and customs while dealing with his job. Thus, the study of law cannot simply mean applying all learnt in the class.

It is to be noted that John Godfreys Saxe’s blind men were not encumbered by their blindness, but by their certainty that they could see when they could not. Each of the men insisted that he alone was correct. Of course, there was no conclusion for not one had thoroughly examined the whole elephant.

How can anyone describe the whole until he has learned the total of the parts? This method encourages the “theologic wars” that inevitably lead to failure, where each individual asserts the rightness of his own perspective, leaving everyone in the wrong.

Therefore, the outcome of the story is that although each man’s interpretation of law is starkly different from the next man’s, none of them are wrong. In fact, it is the integration that accurately defines it. Due to the complex phenomenon of ‘law’, the word ‘law’ arguably should not be interpreted with simple definitions.

Even though the blind men (the jurists or the school of thought) were all bounded by a common goal (which was to understand the true meaning of law), they were divided on one ground alone, that was, their own subjectivity.

They all were right no doubt, but they lacked a more holistic view of the law. Each one was able to visualize the law in their own way, and hence brought out an understanding of this abstract concept- law.

In conclusion, we can assume that the ‘concept of law’ to be ‘the elephant’. Also, we can personify ‘the blind men’ as ‘different jurists or school of thought who try to define law in a similar fashion’ (as with the blind men and the elephant, the jurists or the school of thought tend to describe the word ‘law’ in different ways, depending on their observations).

Thus, the word ‘law’ suffers from the same predicament of the blind men attempting to describe an elephant.

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References:
  1. Anonymous, “Six Blind Men and The Elephant: Fable from Religious Literature”, available at http://www.elephanteria.com/library/blind_men. html, accessed on 20 February 2009
  2. Brian Bix, Jurisprudence: Theory and Context (Sweet and Maxwell London 3rd 2003)
  3. David Schmaltz, The Blind Men and the Elephant Mastering Project Work. (Berrett Koehler Publishers 2003)
  4. Hilaire Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishing Limited London 1998)
  5. JG Riddall, Jurisprudence (Butterworths London 2nd 1999)
  6. Lord Lloyd of Hampstead, Introduction to Jurisprudence (Stevens & Sons London 3rd 1972)
  7. Nicholas Johnson, “Six Blind Men (India Fable)”, available at http://www.uiowa.edu/~cyberlaw/csl03/blindmen.html, accesed on 22 February 2009
  8. Prof. Dr. Shad Saleem Faruqi’s Lecture Note on Jurisprudence
  9. Prof. Hari Chand, Modern Jurisprudence (International Law Book Services Petaling Jaya, 2005).

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