{"id":1134,"date":"2013-07-13T01:32:49","date_gmt":"2013-07-13T01:32:49","guid":{"rendered":"http:\/\/localhost\/?p=1134"},"modified":"2013-07-13T01:32:49","modified_gmt":"2013-07-13T01:32:49","slug":"47-the-drive-towards-legislative-vol-15-social-and-political-thought-volume-15","status":"publish","type":"post","link":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/01-works-of-sri-aurobindo\/01-sabcl\/15-social-and-political-thought-volume-15\/47-the-drive-towards-legislative-vol-15-social-and-political-thought-volume-15","title":{"rendered":"-47_The Drive Towards Legislative.htm"},"content":{"rendered":"\n\n
\n
\n


\nCHAPTER <\/font><\/b>
\nXXI<\/font><\/span>
\n<\/font>
\n<\/span>
\nThe
\nDrive towards Legislative
\n<\/font><\/span><\/p>\n

\n
\nand Social Centralisation and Uniformity<\/font><\/span><\/p>\n

\n <\/p>\n

\n\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/font><\/span>T<\/font><\/span>HE gathering of the essential powers
\nof administration into the hands of the sovereign is completed when there is
\nunity and uniformity of judicial administration, – espe<\/span>cially of the criminal side; for this is intimately
\nconnected with the maintenance of order and internal peace. And it is, besides,
\nnecessary for the ruler to have the criminal judicial authority in his hands so
\nthat he may use it to crush all rebellion against him- self as treason and
\neven, so far as may be possible, to stifle criticism and opposition and
\npenalise that free thought and free speech which, by their continual seeking
\nfor a more perfect social principle and their subtle or direct encouragement to
\nprogress, are so dangerous to established powers and institutions, so
\nsubversive of the dominant thing in being by their drive towards a better thing
\nin becoming. Unity of jurisdiction, the power to constitute tribunals, to
\nappoint, salary and remove judges and the right to determine offences and their
\npunishments comprise on the criminal side the whole judicial power of the
\nsovereign. A similar unity of jurisdiction, power to constitute tribunals
\nadministering the civil law and the right to modify the laws relating to
\nproperty, marriage and other social matters which concern the public order of
\nsociety, comprise its civil side. But the unity and uniformity of the civil law
\nis of less pressing and immediate importance to the State when it is
\nsubstituting itself for the natural organic society; it is not so directly
\nessential as an instrument. Therefore it is the criminal jurisdiction which is
\nfirst absorbed in a greater or less entirety.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>Originally,
\nall these powers belonged to the organic society and were put into force mainly
\nby various natural devices of a<\/font><\/p>\n

\nPage-429<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\nloose and entirely customary character, such as the
\nIndian panchayet <\/i>or village jury, the jurisdiction of guilds or other
\nnatural associations, the judicial power of the assembly or con- vocations of
\nthe citizens as in the various Roman comitia <\/i>or large and unwieldy
\njuries chosen by lot or otherwise as in Rome and Athens, and only to a minor
\nextent by the judicial action of the king or elders in their administrative
\ncapacity. Human societies, therefore, in their earlier development retained for
\na long time an aspect of great complexity in their judicial administration and
\nneither possessed nor felt any need of a uniformity of jurisdiction or of a
\ncentralised unity in the source of judicial authority. But as the State idea
\ndevelops, this unity and uniformity must arrive. It accomplishes itself at
\nfirst by the gathering up of all these various jurisdictions with the king as
\nat once the source of their sanctions and a high court of appeal and the
\npossessor of original powers, which are exercised sometimes as in ancient India
\nby judicial process but sometimes in more autocratic polities by ukase –<\/span> the latter especially on the
\ncriminal side, in the awarding of punishments and more particularly punishments
\nfor offences against the person of the king or the authority of the State.
\nAgainst this tendency to unification and State authority there militates often
\na religious sense in the community which attaches as in most countries of the
\nEast a<\/span> sacrosanct character to
\nits laws and customs and tends to keep the king or State in bounds; the ruler
\nis accepted as the administrator of justice, but he is supposed to be strictly
\nbound by the law of which he is not the fountain but the channel. Sometimes
\nthis religious sense develops a theocratical element in the society, a Church
\nwith its separate ecclesiastical authority and jurisdiction, a Shastra in the
\nkeeping of Brahmin jurists, a law entrusted to the Ulemas. Where the religious
\nsense maintains its predominance, a solution is found by the association of
\nBrahmin jurists with the king or with the judge appointed by him in every State
\ntribunal and by maintenance of the supreme authority of the Pundits or Ulemas
\nin all moot judicial questions. Where, as in Europe, the political ‘instinct is
\nstronger than the religious, the ecclesiastical jurisdiction comes in time to
\nbe subordinated to the State’s and finally disappears.<\/font><\/p>\n

\nPage-430<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>Thus
\neventually the State or the monarchy –<\/span>
\nthat great instrument of the transition from the organic to the rational
\nsociety – becomes the head of the law as well as the embodiment of public order
\nand efficiency. The danger of subordinating the judiciary entirely to an
\nexecutive possessed at all of arbitrary and irresponsible powers is obvious;
\nbut it is only in England – <\/span>the
\none country always where liberty has been valued as of equal importance with
\norder and not considered a lesser necessity or no necessity at all- that there
\nwas a successful attempt from an early period to limit the judicial power of
\nthe State. This was done partly by the firm tradition of the independence of
\nthe tribunals supported by the complete security of the judges, once appointed,
\nin their position and emoluments and partly by the institution of the jury
\nsystem. Much room was left for oppression and injustice, as in all human
\ninstitutions social or political, but the object was roughly attained. Other
\ncountries, it may be noted, have adopted the jury system but, more dominated by
\nthe instinct of order and system, have left the judiciary under the control of
\nthe executive. This, however, is not so serious a defect where the executive
\nnot only represents but is appointed and con- trolled by the society as where
\nit is independent of public control.<\/font>\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span><\/p>\n


\n\u00a0\u00a0\u00a0 \u00a0<\/font><\/span>Uniformity of the law develops on different
\nlines from the unity and uniformity of judicial administration. In its beginnings,
\nlaw is always customary and where it is freely customary, where, that is to
\nsay, it merely expresses the social habits of the people, it must, except in
\nsmall societies, naturally lead to or permit considerable variety of custom. In
\nIndia, any sect or even any family was permitted to develop variations of the
\nreligious and civil custom which the general law of the society was bound
\nwithin vague limits to accept, and this freedom is still part of the theory of
\nHindu law, although now in practice it is very difficult to get any new
\ndeparture recognised. This spontaneous freedom of variation is the surviving
\nsign of a former natural or organic life of society as opposed to an
\nintellectually ordered, rationalised or mechanised living. The organic group-life
\nfixed its general lines and particular divergences by the general sense and.
\ninstinct or intuition of the group-life rather than by the stricter structure
\nof the reason.<\/font><\/p>\n

\nPage-431<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\nThe first marked sign of a rational evolution is the
\ntendency of code and constitution to prevail over custom. But still there are
\ncodes and codes. For first there are systems that are un- written or only
\npartly written and do not throw themselves into the strict code form, but are a
\nfloating mass of laws, decreta, <\/i>precedents, and admit still of a large
\namount of merely customary law. And again there are systems that do take the
\nstrict code form, like the Hindu Shastra, but are really only an ossification
\nof custom and help to stereotype the life of the society but not to rationalise
\nit. Finally, there are those deliberately ordered codes which are an attempt at
\nintelligent systematisation; a sovereign authority fixes the cadres <\/i>of
\nthe law and admits from time to time changes that are intelligent
\naccommodations to new needs, variations that do not disturb but merely modify
\nand develop the intelligent unity and reasonable fixity of the system. The
\ncoming to perfection of this last type is the triumph of the narrower but more
\nself-conscious and self-helpful rational over the larger but vaguer and more
\nhelpless life-instinct in the society. When it has arrived at this triumph of a
\nperfectly self-conscious and systematically rational determination and
\narrangement of its life on one side by a fixed and uniform constitution, on the
\nother by a uniform and intelligently structural civil and criminal law, the
\nsociety is ready for the second stage of its development. It can undertake the
\nself-conscious, uniform ordering of its whole life in the light of the reason
\nwhich is the principle of modern social- ism and has been the drift of all the
\nUtopias of the thinkers.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>But before
\nwe can arrive at this stage, the great question must be settled, who is to be
\nthe State? Is the embodiment of the intellect, will and conscience of the
\nsociety to be a king and his counsellors or a theocratic, autocratic or
\nplutocratic governing class or a body which shall at least seem to stand
\nsufficiently for the whole society, or is it to be \u00b0a compromise between some
\nor all of these possibilities? The whole course of constitutional history has
\nturned upon this question and to all appearance wavered obscurely between
\nvarious possibilities; but in reality, we can see that throughout there has
\nbeen acting the pressure of a necessity which travelled indeed through the
\nmonarchical, aristocratic and other stages, but had to debouch in the end in a
\ndemocratic form<\/font> <\/font><\/p>\n

\nPage-432<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n


\nof government.<\/font><\/span>
\nThe king in his attempt to be the State \u2013
\nan <\/span>attempt imposed on him by the impulse of his evolution – must <\/span>try indeed to become the fountain
\nas well as the head of the law; he must seek to engross the legislative as well
\nas the administrative functions of the society, its side of efficient thought
\nas well as its side of efficient action. But even in so doing he was only
\npreparing the way for the democratic State.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>The king,
\nhis council military and civil, the priesthood and the assembly of freemen
\nconverting itself for the purposes of war into the host, were perhaps everywhere,
\nbut certainly in the Aryan races, the elements with which the self-conscious
\nevolution of society began: they represent the three orders of the free nation
\nin its early and elementary form with the king as the key- stone of the
\nstructure. The king may get rid of the power of the priesthood, he may reduce
\nhis council to an instrument of his will or the nobility which they represent
\nto a political and military support for his actions, but until he has got rid
\nof the assembly or is no longer obliged to convoke it, -like the French
\nmonarchy with its States-General summoned only once or twice in the course of
\ncenturies and under the pressure of great difficulties, –<\/span> he cannot be the chief, much less the sole legislative
\nauthority. Even if he leaves the practical work of legislation to a non-
\npolitical, a judicial body like the French Parliaments, he is bound to find
\nthere a centre of resistance. Therefore the disappearance of the assembly or
\nthe power of the monarch to convoke it or not at his pleasure is always the
\nreal mark of his absolutism. But when he has got rid of or subordinated to
\nhimself all the other powers of the social life, there at that point of his
\nhighest success his failure begins; the monarchical system has fulfilled its
\npositive part in the social evolution and all that is left to it is either to
\nhold the State together until it has transformed itself or else to provoke by
\noppression the movement towards the sovereignty of the people.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>The reason
\nis that in engrossing the legislative power the monarchy has exceeded the right
\nlaw of its being, it has gone beyond its Dharma, it has undertaken functions
\nwhich it cannot healthily and effectively fulfil. Administration is simply the
\nregulation of the outward life of the people, the ordered maintenance<\/font><\/p>\n

\nPage-433<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\nof the external activities of its developed or
\ndeveloping being, and the king may well be their regulator; he, may well fulfil
\nthe function which the Indian polity assigned to him, the upholder of the
\n"Dharma". But legislation, social development, culture, religion,
\neven the determination of the economic life of the people are outside his
\nproper sphere; they constitute the expression of the life, the thought, the
\nsoul of the society which, if he is a strong personality in touch with the
\nspirit of the age, he may help to influence but which he cannot determine. They
\nconstitute the national Dharma, – we must use the Indian word which alone is
\ncapable of expressing the whole idea; for our Dharma means the law of our
\nnature and it means also its formulated expression. Only the society itself can
\ndetermine the development of its own Dharma or can formulate its expression;
\nand if this is to be done not in the old way by a naturally organic and
\nintuitive development, but by a self-conscious regulation through the organised
\nnational reason and will, then a governing body must be created which will more
\nor less adequately re- present, if it cannot quite embody, the reason and will
\nof the whole society. A governing class, aristocracy or intelligent theocracy
\nmay represent, not indeed this but some vigorous or noble part of the national
\nreason and will; but even that can only be a stage of development towards a
\ndemocratic State. Certainly, democracy as it is now practised is not the last
\nor penultimate stage; for it is often merely democratic in appearance and even
\nat the best amounts to the rule of the majority and works by the vicious method
\nof party government, defects the increasing perception of which enters largely
\ninto the present-day dissatisfaction with parliamentary systems. Even a perfect
\ndemocracy is not likely to be the last stage of social evolution, but it is
\nstill the necessary broad standing-ground upon which the self- consciousness of
\nthe social being can come to its own1 <\/sup> Democracy and Socialism are, as we
\nhave already said, the sign that that self-consciousness is beginning to ripen
\ninto fullness.<\/font><\/p>\n

\n <\/p>\n

\n1 <\/font><\/sup>
\nIt
\ndoes not follow that a true democracy must necessarily come into being at some
\ntime. For man individually or collectively to come to a full self-consciousness
\nis a most difficult tangle. Before a true democracy can be established, the
\nprocess is likely to be overtaken by a prematurely socialistic endeavour<\/span>.<\/span><\/font><\/p>\n

\nPage-434<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\n\u00a0<\/font><\/span>Legislation may seem at first sight to
\nbe something external, simply a form for the administration, not part of the
\nintimate grain of the social life like its economic forms, its religion, its
\neducation and culture. It so appears because in the past polity of the European
\nnations it has not been like oriental legislation or Shastra all-embracing, but
\nhas confined itself until recently to politics and constitutional law, the
\nprinciples and process of administration and so much only of social and
\neconomic legislation as was barely necessary for the security of property and
\nthe maintenance of public order. All this, it might seem, might well fall
\nwithin the province of the king and be discharged by him with as much
\nefficiency as by a democratic government. But it is not so in reality, as
\nhistory bears witness; the king is an inefficient legislator and unmixed
\naristocracies are not much better. For the laws and institutions of a society
\nare the framework it builds for its life and its Dharma. When it begins to
\ndetermine these for itself by a self-conscious action of its reason and will
\nwithin whatever limits, it has
\ntaken the first step in a movement which must inevitably end in an attempt to
\nregulate self-consciously its whole social and cultural life; it must, as its
\nself-consciousness increases, drive towards the endeavour to realise something
\nlike the Utopia of the thinker. For the Utopian thinker is the individual mind
\nforerunning in its turn of thought the trend which the social mind must
\neventually take.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>But as no
\nindividual thinker can determine in thought by his arbitrary reason the
\nevolution of the rational self-conscious society, so no executive individual or
\nsuccession of executive individuals can determine it in fact by his or their
\narbitrary power. It is evident that he cannot determine the whole social life
\nof the nation, it is much too large for him; no society would bear the heavy
\nhand of an arbitrary individual on its whole social living. He cannot determine
\nthe economic life, that too is much too large for him; he can only watch over
\nit and help it in this or that direction where help is needed. He cannot deter-
\nmine the religious life, though that attempt has been made; it is too deep for
\nhim; for religion is the spiritual and ethical life of the individual, the
\nrelations of his soul with God and the intimate dealings of his will and
\ncharacter with other individuals,<\/font><\/p>\n

\nPage-435<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\nand no monarch or governing class, not even a theocracy
\nor priesthood, can really substitute itself for the soul of the individual or
\nfor the soul of a nation. Nor can he determine the national culture; he can
\nonly in great flowering times of that culture help by his protection in fixing
\nfor it the turn which by its own force of tendency it was already taking. To
\nattempt more is an irrational attempt which cannot lead to the development of a
\nrational society. He can only support the attempt by autocratic oppression
\nwhich leads in the end to the feebleness and stagnation of the society, and
\njustify it by some mystical falsity about the divine right of kings or monarchy
\na peculiarly divine institution. Even exceptional rulers, a Charlemagne, an
\nAugustus, a Napoleon, a Chandragupta, Asoka or Akbar, can do no more than fix
\ncertain new institutions which the time needed, and help the emergence of its
\nbest or else its strongest tendencies in a critical era. When they attempt
\nmore, they fail. Akbar’s effort to create a new Dharma for the Indian nation by
\nhis enlightened reason was a brilliant futility. Asoka’s edicts remain graven
\nupon pillar and rock, but the development of Indian religion and culture took
\nits own line in other and far more complex directions deter- mined by the soul
\nof a great people. Only the rare individual Manu, Avatar or prophet who comes
\non earth perhaps once in a millennium can speak truly of his divine right, for the
\nsecret of his force is not political but spiritual. For an ordinary political
\nruling man or a political institution to have made such a claim was one of the
\nmost amazing among the many follies of the human mind.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>Yet the
\nattempt in itself, and apart from its false justifications and practical
\nfailure, was inevitable, fruitful and a necessary step in social evolution. It
\nwas inevitable because this transitional instrument represented the first idea
\nof the human reason and will, seizing on the group-life to fashion, mould and
\narrange it according to its own pleasure and power and intelligent choice, to
\ngovern nature in the human mass as it has already learned partly to govern it
\nin the human individual. And since the mass is unenlightened and incapable of
\nsuch an intelligent effort, who can do this for it, if not the capable
\nindividual or a body of intelligent and capable individuals? That is the whole<\/font><\/p>\n

\nPage-436<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\nreligion is an artificial monstrosity, although a
\nnational religion may well be a living reality; but even that, if it is not to
\nformalise and kill in the end the religious spirit or prevent spiritual
\nexpansion, has to be tolerant, self-adaptive, flexible, a mirror of the deeper
\nsoul of the society. Both these devices, however seemingly successful for a
\ntime, are foredoomed to failure, failure by revolt of the oppressed social
\nbeing or failure by its decay, weakness and death or life in death. Stagnation
\nand weakness such as in the end overtook Greece, Rome, the Mussulman nations,
\nChina, India, or else a saving spiritual, social and political revolution are
\nthe only issues of absolutism. Still it was an inevitable stage of human
\ndevelopment, an experiment that could not fail to be made. It was also fruitful
\nin spite of its failure and even by reason of it; for the absolutist
\nmonarchical and aristocratic State was the father of the modem idea of the
\nabsolutist socialistic State which seems now to be in process of birth. It was,
\nfor all its vices, a necessary step because only so could the clear idea of an
\nintelligently self-governing society firmly evolve.<\/font> <\/font><\/p>\n


\n\u00a0\u00a0\u00a0\u00a0 <\/font> <\/span>For what
\nking or aristocracy could not do the democratic State may, perhaps with a
\nbetter chance of success and a greater security, attempt and bring nearer to
\nfruition, – the conscious and organised unity, the regularised efficiency on
\nuniform and intelligent principles, the rational order and self-governed perfectioning of a developed society. That is the idea and, however
\nimperfectly, the attempt of modem life; and this attempt has been the whole
\nrationale of modern progress. Unity and uniformity are its principal trend; for
\nhow else are the incalculable complexities of the vast and profound thing we
\ncall life to be taken hold of, dominated, made calculable and manageable by a
\nlogical intelligence and unified will? Socialism is the complete expression of
\nthis idea. Uniformity of the social and economic principles and processes that
\ngovern the collectivity secured by means of a fundamental equality of all, and
\nthe management of the whole social and economic life in all its parts by the
\nState; uniformity of culture by the process of a State education organised upon
\nscientific lines; to regularise and maintain the whole a unified, uniform and
\nperfectly organised government and administration that will represent and act
\nfor the whole social<\/font><\/p>\n

\nPage-438<\/font><\/p>\n

<\/p>\n
\n

<\/span><\/div>\n

\nbeing, this is the modern Utopia which in one form or
\nanother it is hoped to turn, in spite of all extant obstacles and opposite
\ntendencies, into a living reality. Human science will, it seems, replace the
\nlarge and obscure processes of Nature and bring about perfection or at least
\nsome approach to perfection in the collective human life.<\/font><\/p>\n

\nPage-439<\/font><\/p>\n<\/div>\n<\/td>\n<\/tr>\n<\/table>\n","protected":false},"excerpt":{"rendered":"

CHAPTER XXI The Drive towards Legislative and Social Centralisation and Uniformity   \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0THE gathering of the essential powers of administration into the hands of the…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[25],"tags":[],"class_list":["post-1134","post","type-post","status-publish","format-standard","hentry","category-15-social-and-political-thought-volume-15","wpcat-25-id"],"_links":{"self":[{"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/posts\/1134","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/comments?post=1134"}],"version-history":[{"count":0,"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/posts\/1134\/revisions"}],"wp:attachment":[{"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/media?parent=1134"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/categories?post=1134"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/worksofthemotherandsriaurobindo.org\/index.php\/wp-json\/wp\/v2\/tags?post=1134"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}