Developing a theory of Justice in the present times with special emphasis on the role of Dharma
“यतो अभ्युदय निःश्रेयस सिद्धि सह धर्मः।“ (कणाद, वैशेषिकसूत्र, १.१.२)
The above sutra, “Yato Dharma Abhudaya Nishreyas Siddhihi Saha Dharmaha” (Kanada, Vaisheshika Sutra 1.1.2) states Dharma to be that from which results the accomplishment of exaltation and the supreme good.[1] To Indians Dharma means that which was Religion for ancient Egyptians, Purity for Persians, Science for Chaldeans, Beauty for Greeks, and Law for Romans.[2] The word Dharma appears 58 times in the Rg Veda and is used in six different senses as follows. It is used to denote: (1) ancient custom (2) laws (3) any arrangement which maintains law and order in society (4) the course of nature (5) the quality of a substance and (6) duty.[3] Dharma is a vast term. This discourse is limited to exploring three connotations of Dharma in the sense of Law, Duty and as Upholder, and the comparison and relevance of these connotations, for achieving Justice.
Dharma in the sense of Law:
Etymologically, Justice means and includes the quality of being fair and just, moral soundness and conformity to Truth, righteousness, equity, right order, of giving that to everyone which is due. [4] Justice is the goal of Law. As per the Indian system, Law is one of the connotations of Dharma. Rta to the Vedic Aryans meant Natural and Human Order, a closely related concept to Dharma. Dharma is one of the aspects of Rta referring specifically to the moral function of rewarding good and punishing evil. Dharma has special bearings upon legal and ethical rights and duties. For the Greeks Rta was “Nous” and Dharma was “Themis”. The Romans through Greeks, derived from Rta their central conception “ratum”, “ratio”, “natural ratio”.[5] Dharma conveys the sense of being standard and binding and therefore a Law. The etymological meaning of the word “Law” is derived from Old English “Lagu” which means and includes ‘that which is fixed’ or ‘that which is put, laid’.[6] As a result of it having fixed or laid it gets its force. It comes to be abided. Not abiding it becomes detrimental to oneself.
Justice is an ideal to be reached by being Just. Just implies being morally upright, righteous in the eyes of God, justifiable, equitable, impartial, fair, conforming to rules, precise, exact, having correct dimensions.[7] A Just person aims to close the issues with mathematical precision using mathematical formulae of addition, subtraction, multiplication and division to restore things as they previously existed. Precision is expected from the Judge just in the same way as it is expected from an architect failing which the entire structure may collapse. A Just person ought to be objective, a Traigunatit in the Yogic sense, like Krishna, Buddha, Mahavira or Dr. Babasaheb Ambedkar who were the Dharma masters. The objectiveness of the Dharma masters through their experiences helped them overcome suffering by following certain Path. These great Avatars could not as such hand out Justice but they showed the Path to the entire humanity. They prescribed certain do`s and don`ts for the multitude which can in simple words be termed as Dharma.
Justice can also be understood as Cosmic Justice and Conventional Justice. Imagine a man living alone on an island asking for Justice. Initially, it seems difficult to imagine as against whom and to whom he would ask for Justice. Probably he would ask for Justice to Nature or Some Universal Force or God against certain animals or trees or rocks on the island. If a tree falls on the animal troubling the man, Cosmic Justice would seem to be done. Justice in the Conventional sense is tit for tat. An eye for an eye, a limb for a limb, a life for a life, property for property and if not any of the said things then of snatching away the freedom of the wrongdoer by putting him in prison. It is the price the wrongdoer has to pay for disturbing the harmony of another person. Justice is the instrument that sets things right or at least attempts to set things right or satisfy the angst of the wronged person. Some of those who have experienced suffering would consider Justice like an ointment which is applied on the wound. Like the ointment, Justice, in certain cases, is an external agent, a third person or third force. It can also be the case that the man on the island may drive away the animal troubling him or even kill it and he would justify doing this for his own survival. Seeking Justice comes into picture only after the damage is done, only after a person has suffered. It can only heal the wound but can never undo the wound.
Man, like any other animal species strives to survive. Man, as a social animal sustains on a give and take relationship with other persons. Man is also a rational animal with the ability to choose a course of action that is beneficial to himself or herself so as to prefer pleasure over pain. Pleasure for oneself would imply avoiding pain to others so as not to invite animosity. The same concept of “Love Thy Neighbours” of Christianity advising respectful relationship with others in the hope of maintaining peace. Similarly explained by Jurist Jeremy Bentham through his concepts of Pleasure and Pain and the greatest happiness for the greatest number of people. In the Indian system, very exhaustive terms Shreyas and Preyas are used. In Hindu Dharma, legal philosophy and moral philosophy are one and the same[8]. An emphasis is on leading a harmonious and virtuous life.
However, the exact nature of virtues has been disputed by philosophers. The Sophists of the ancient Greek times did not believe in the universals of any concepts including Justice or Virtue. Friedrich Nietzsche advises not to believe in a long list of virtues but to have a single virtue. He states, “I love him who desireth not too many virtues. One virtue is more of a virtue than two, because it is more of a knot for one`s destiny to cling to.”[9] As per Friedrich Nietzsche, virtue is decided by the blond race as against the plebian race. The nobles decide, “this is that, and that”.[10] Virtue is merely a play of words. He blames the priestly class for deciding morals for the society and not allowing an individual to live up to his full potential. Friedrich Nietzsche drives home the point that all virtues including Justice are as per convenience of conventions. The priestly class defined all aspects of Dharma to their own advantage. Another scholar to blame the priestly class for manipulating the society is Dr. Babasaheb Ambedkar. Dr. Ambedkar states that the Chaturvarna system in Hindu Dharma does not provide for liberty, fraternity and equality to the lowest rung of the Varna System and therefore unjust. He concluded, “Hinduism, thy name is inequality! ”.[11] Though the Varna System may have merits, in that, an individual could choose his or her vocation and specialize, the feature of permanency of the chosen vocation imposed on subsequent generations for centuries together is unjustified. Similar to the Varna system of the Indian system, a system of freemen and slaves existed in ancient Greece. Aristotle starts of by stating that it is Nature that has created some races strong by Soul and some strong by bodily abilities. He believed that those strong by Soul should rule over those by body. He considered the slaves to be instruments and possessions of the masters for their better living. He accepts that, in certain cases, the Souls may have interchanged between the noble race and the slave race, however, Souls are not visible hence we cannot decide on the basis of Souls but on external appearances of races. Finally, and in contradiction to his initial statement, he justifies the superiority of the noble race based on physical appearances. He states that just as men compared to statutes of Gods would be lower so also the slave race would be lower to the noble race.[12] Sadly, Aristotle also endorses the view, “Silence is a woman`s glory”.[13]
The similarity between the Hindu Dharma and Greeks is the lofty ideals to be achieved by the higher castes and classes so as to liberate their Souls. Both believed in the eternality and transmigration of the Souls after death. Heretically, Friedrich Nietzsche has turned the belief upside down. He presents the thought of the Soul dying before the body.[14] It seems so in practical life that our Souls or Consciousness or Conscience, the Viveka Buddhi is already dead. We are like zombies, just with our physical bodies minus rationality, simply existing. The human race has been subjected to deep conditioning of caste divisions, class divisions and gender inequality. The individual has been reduced merely to an object making it impossible for self-actualization let alone self-realization. How can one have self-realization if one cannot have peace? Reason enough for Dr. Ambedkar to give up Hindu Dharma and take upon Buddhist Dharma for its objectiveness and humanitarian values. The Buddhist Dharma believes in Streams of Consciousness rather than a permanent Soul- a belief that caused so many hardships to certain sections of the society and probably the most convincing reason for Dr. Ambedkar to take up Buddhism. Overall, Hindu Dharma has been a mixed bag of virtues and, inter-alia, the vice of Chaturvarna.
As per the Indian Scriptures, the ideal situation of harmony apparently existed in Satyuga. The decline in society (symbolized by the Dharma Bull standing on four legs in Satyug, three legs in Tretayug, two legs in Dwaparyug and on one leg in Kalyug) started when persons did not follow their duties.[15] As if the explanation of the decline as mentioned in the Indian Scriptures is given by Aristotle: “where the relation of master and slave between them is natural they are friends and have a common interest, but where it rests on law and force the reverse is true.”[16] Therefore, Dharma in the sense of Conventional Laws has not been of much help.
Interestingly, Gandhi, the biggest votary of Hindu Dharma, states against the British styled Conventional Laws, “It is my confirmed belief that every government masks its brute force and maintains its control over the people through civil and criminal courts for it is cheaper, simpler and more honourable for a ruler that instead of his controlling the people through naked force, they themselves, lured into slavery through courts, etc., submit to him of their own accord. If people settle their civil disputes among themselves and the lawyers, unmindful of self-interest, boycott the courts in the interest of the people, the latter can advance in no time. I have believed for many years that every State tries to perpetuate its power through lawyers.” [17]
Dharma in the sense of Duty:
Dharma in the sense of Duty and Essence is more relevant than Dharma in the sense of Law. Dharma means following certain do`s and don`ts as per one`s essence/capacity and situation that leads to one`s own happiness and the happiness of others. Dharma is a Duty, it is an action. Karma also means an action including various connotations such as the law of cause and effect, retribution as a result of acts, one`s store of merits and demerits. Dharma and Karma are related in the sense that while doing one`s duty the Intention matters. In the real sense, Karma means the Intention. Duty or any act is preceded by Intention. As mentioned above, Justice is mathematical and can also be understood in the Karmic sense. Pythagoras has stated Justice to be “the equal multiple of itself “or “square number”, a concept not easily understood. It is assumed to mean Retributive Justice.[18] Probably, in a loose sense would mean an effect in multiples of one`s action. Plato, through his mouthpiece Socrates, also conveys the view that Justice is doing one`s Duty with right action: “Justice is the perfect order by which all natures and classes do their own business, the right man in the right place, the division and co-operation of all the citizens”[19].
Dharma in the sense of the Upholder:
Without the religious or legal connotations, Dharma in the etymological sense “Dhr” as the Upholder that preserves the society is most relevant. Dharma then would be like a mother who understands the subtle things about the child and takes a larger picture into account. It would be a society based on understanding and nourishment. Effort has to be made to understand the root cause rather than simply imposing penalties or awarding imprisonments. Both intrinsic and extrinsic factors contribute in loss of harmony in the society. A serial rapist may have excessive hormones that may lead him to commit rape repeatedly. Rajneesh Osho explained, “The man who is committing rape perhaps has more hormones than those moral people who manage to live with one woman for their whole life, thinking that they are moral. A man with more hormones will need more women; so will be the case with a woman. It is not a question of morality, it is a question of biology. A man who commits rape needs all our sympathy, needs a certain operation in which his extra hormones are removed, and he will cool down, calm down. To punish him is simply an exercise in stupidity. By punishing, you cannot change his hormones. Throwing him in jail, you will create a homosexual, some kind of pervert. In American jails they have done a survey: thirty percent of the inmates are homosexuals. That is according to their confession; we don’t know how many have not confessed. Thirty percent is not a small number. In monasteries the number is bigger – fifty percent, sixty percent. But the responsibility lies with our idiotic clinging to religions which are out of date, which are not supported and nourished by scientific research”.[20]
The human behavior that causes disturbances in the society is due to the mental defilements of passions and envy. Even Gandhi believed that prisons should be hospitals where criminals were cured rather than punished. According to Gandhi, “All criminals should be treated as patients and the jails should be hospitals admitting this class of patients for treatment and cure. No one commits crime for the fun of it. It is a sign of a diseased mind”[21]. The Dharma then would be in the corrective or reformative sense that would bring harmony in the society.
Another aspect of Justice is of Justice in the seen world and from the unseen world. The perennial dilemma of Ahimsa of the spiritually inclined who let Karma and the cosmic energies take their own course and that of the Kshatriyas who believe it is their duty to fight for the sake of righteousness still exists. Socrates believed that by punishing someone one does not become Just. Socrates states, “Then to injure a friend or anyone else is not the act of a Just man, but of the opposite, who is the unjust?”[22]. Gandhi advised in the subtle power of love, to win the other person over rather than winning over the other person.
Also, a proper methodology for right thinking to achieve Nishreyas, the goal of Dharma, has been laid out in the Indian scriptures[23]. However, we, the ordinary citizens, lack the capacity to think critically and, therefore, Plato held the view, “Philosophers should be Kings”.
When we study history, we understand that, in most cultures, women and slaves did not have rights similar to men nor were they respected. There were no specific measures for the protection of children. Persons with disabilities and certain diseases were disowned by society. Hunting of animals was a sport. The picture changed gradually with various activists and reformers standing in support of women, children, the neglected, the downtrodden and the environment. Similarly, the new role or Dharma of the Judges could be, not of only attending courts, but that of active social reformers. The Judges should show the Path, like the Maha Avtaras did, to avoid litigation. Least number of cases turning up before the courts would then be the success of the Judicial System.
Conclusion:
The concept of Dharma in the sense of Duty and as Upholder is most relevant so far. However, all concepts mutate according to time. Changing social and cultural mores, developments in science and technology, people’s views on religion, emergence of new entities (terrorists, corporates, journalists) add new dimensions to the prism through which Dharma and Justice is viewed. This is an unprecedented time in the history of human civilization. The world is moving towards globalization and multiculturalism. Media, especially social media has changed the spatial and temporal landscape of Justice. A person is ‘judged’ every instant and almost by everyone and ‘judgment’ is passed instantaneously. A new kind of Consciousness is evolving. Machines are acquiring Artificial Intelligence. How do we apply the concept of Dharma to Artificial Intelligence? It remains to be seen what connotation of Dharma the new society, polity, media, corporate houses, international bodies and the individual would live by? There are no easy answers. But we should continue to ask the right questions. That could be one place where we as individuals can perform our Dharma. Acting in the zone of positive influence can be our moral imperative.
[1] Sinha Nandalal, The Vaisesika Sutras of Kanada
[2] Beasant Annie, Dharma (Third Edition)
[3] Dr. Ambedkar, Babasaheb: Writings and Speeches, Volume 3 (First Edition), pg82.
[4] https://www.etymonline.com/search?q=justice
[5] Berolzheimer Fritz, The World`s Legal Philosophies, pg 38, pg97
[6] https://www.etymonline.com/search?q=law
[7] https://www.etymonline.com/search?q=Just
[8] Dr.Ambedkar Babasaheb : Writings and Speeches, Volume 3 (First Edition), pg82.
[9] Nietzsche Friedrich, Thus Spake Zarathustra. Chapter 4, pg 23
[10] Nietzsche Friedrich, The Genealogy of Morals, pg 12
[11] Dr. Bababsaheb Ambedkar, Writings and Speeches, Volume 3, First Edition, pg 87
[12] Aristotle, Politics, pg 10, “Nature would like to distinguish between the bodies of freemen and slaves, making the one strong for servile labor, the other upright, and although useless for such services, useful for political life in the arts both of war and peace. But the opposite often happens — that some have the souls and others have the bodies of freemen. And doubtless if men differed from one another in the mere forms of their bodies as much as the statues of the Gods do from men, all would acknowledge that the inferior class should be slaves of the superior. And if this is true of the body, how much more just that a similar distinction should exist in the soul? but the beauty of the body is seen, whereas the beauty of the soul is not seen. It is clear, then, that some men are by nature free, and others slaves, and that for these latter slavery is both expedient and right.”
[13] Aristotle, Politics, pg 25
[14] Nietzsche Friedrich, Thus Spake Zarathustra, pg 28, “On mine honour, my friend”, answered Zarathustra, “there is nothing of all that whereof thou speakest: there is no devil and no hell. The soul will be dead even sooner than thy body: fear, therefore, nothing anymore!”
[15] Shantiparvaha of Mahabharata
[16] Politics, Aristotle, pg 12.
[17] Gandhi Mohandas, The Law and the Lawyers, pg258-pg259
[18] Berolzheimer Fritz, The World`s Legal Philosophies, pg 52-pg53
[19] Plato,Republic, pg 59
[20] Osho. https://www.osho.com/read/osho/vision/the-greatest-challenge-the-golden-future/revenge-or-understanding-the-rule-of-law-or-of-love
[21] Gandhi Mohandas, Harijan, pg395-pg396
[22] Plato, Republic, pg 230
[23] Goutama Nyaya Sutras (Translation and Commentary by John Wells). Perfection is attained by the correct knowledge about true nature of sixteen categories: means of right knowledge (pramāṇa); object of right knowledge (prameya); doubt (samsaya); purpose (prayojana); familiar instance (dṛṣṭānta); established tenet (siddhānta); members of an inference (avayava); reasoning (tarka); ascertainment or results (nirṇaya); discussion (vāda); sophistic disputations (jalpa); cavil (vitaṇḍa); fallacies (hetvābhāsa); quibbles (chala); futile rejoinders (jāti); and methods of losing an argument (nigrahasthāna).