John Locke & contemporary Indian legal system

In countries having written constitution, the national values are often articulated in the Preamble of the Constitution. Preamble of the Indian Constitution states that the country aims at Justice, equality, liberty and fraternity.

In countries having written constitution, the national values are often articulated in the Preamble of the Constitution. Preamble of the Indian Constitution states that the country aims at Justice, equality, liberty and fraternity.

HT Image

Before we discuss the concept of ‘liberty’, it would be appropriate to discuss the ‘law’ both as 'positivistic' manner and 'naturalistic' manner in view of the great philosopher John Locke.

At the heart of Locke’s theory of Civil Society was the idea of law. His argument was constructed entirely in terms of law and the ideal society which he contemplated was organised on the basis of Institutions deduced from legal practices when he came to summaries his view of the state of nature and to make the vital shift from prepolitical to political society, his approach was exclusively through legal institutions.

According to Locke the great and chief end of men uniting into common wealths, and putting themselves under government, is the preservation of their property, he further observed that this could not be accomplished in the 'state of nature'- because, there is lacking an established settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them.

The laws of nature, of course, plain and intelligible to all rational creatures, but man are biased by their interest and not allow it as a law binding; secondly, lacking a known and indifferent judges, with authority to determine all differences according to the established law. Everyone is judge and executioner of the law of nature.

Thirdly, there often is lacking power to back and support the sentence when right, and to give it due execution. Thus, according to Locke to arrive at peace, safety and public good of the people, the Legislative or supreme power of the common wealth is bound to be governed by established standing laws, promulgated and known to the people.

Not only Locke but other philosophers who accepted theory of 'rule of law' viz Plato had accepted the rule of law as a 'second--best' when contrasted with the administration of a Philosopher -- king; but from the point of view of the government which society in reality to achieve, he regarded law as a necessity, and accordingly made its observance or non-observance the criterion by which all governments should be judged. As per 'Aristotle', the rule of law seemed prefereable to that the prince was supreme. There is no king; Bracton said in a famous phrare, 'where will rules and not law'.

Law for Cicero was the bond of civil society; the state was a partnership in law and was actually a large assemblage of people associated by consent under law.

It is true to say that most of the written Constitutions of the world are based on 'Rule of law', which has direct nexus with ideology of John Locke, especially the Constitution of United States of America has larger impact of what John Locke said about 'rule of law'.

Huntington Cairns observed that Locke's theory had a profound influence on the legal and political thinking of the United States, survive today in the fundamental thought of one of the most vigorous of the modern schools of jurisprudence. But, with respect, in humble view of present author, there are some questions which are unanswered by John Locke, which may have some little or great impact upon the legal system.

As per Locke's theory of 'rule of law', where there is no law there in no freedom, he argues with Spinoza. For liberty is to be free from restraint an violence from others, which cannot be where there is no law.

The concept of 'liberty' was the main aspect of John Locke. The Universal of Declaration of Human Rights in the year 1948 had great influence of theory of Locke. Not only this, but since the birth date of Indian Constitution, the preamble has the concept of 'liberty'. Though the concept of doctrine of separation of powers has been derived from the Montesque, French Philosphers. It is correct to say that 'liberty' is the prime importance of the state for the great security of people.

(The author is a Judge at Fast Track Court at Ahmedabad).