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Justice in adapting to change

The task in the achievement of justice, outlined is adapting to change. Just as consonance with accepted ideas is an inducement to obey, so also when these change, tensions arise between the law on the one hand, and needs and outlook on the other, and there is then an inducement to ignore the law or to disobey. Failure to use power to adapt to change is in its own way an abuse of power. The issue is thus not one of change or no change, but of the direction and speed of change. The Laws of the Medes and Persians were said to be immutable; but unless a system is capable of adapting itself to changing conditions, it can only go the way of the Laws of the Medes and Persians. Adaptability is truly a condition sine quo non of the continued existence of a legal system.

Change within a legal system may come in various ways, by day-to-day adjustment of details and tinkering with the concepts used in legal reasoning, which is appropriate in a slow moving society; or by reform on a larger scale, which becomes inevitable when the whole social structure begins to change. The system itself may be changed, in which case the change may be constitutional or revolutionary.

Let us consider the illustration of Information Technology. The influence of Information Technology on law has already effected significant changes, and there is likelihood that there will be many more with the increasing sophistication of equipment and techniques. Analysis of their impact should be sought in specialized works. The concept of Artificial Intelligence, I fear that needs to be dispelled is that it will replace the warmth of human justice with an alien philosophy. On the contrary, all that is claimed for them is that they can help and improve human justice and relieve people of drudgery by performing routine jobs more efficiently. Fintech revolution is also facilitate financial transactions to cater more efficient and secure system. Despite of new change through Information Technology, the financial crimes are exponentially explode in our welfare society. To meet out financial or cyber crimes, adaptability of new change in terms of fintech and cyber know-how is required to be accepted in our justice system.

Medical Science has provided examples of the way in which modern developments are forcing the law to restructure certain concepts hitherto supposed to be so obvious and straightforward that few lawyers, if any, even dreamed that they would be seriously challenged. What, for instance, is an “act” and “omission”, what is ‘death’, or ‘man’ and ‘woman’? These are now in the melting pot and it remains to be seen in what form modified concepts will emerge. Lawyers must understandably hold back with their revision while the problems are still in ferment, for the profoundest moral, social and scientific issues have still to be resolved. Traditional concepts, however, no longer provide the best tools with which to handle the kind of problem that are emerging.

Civil disobedience has become a problem in many societies in recent times, and changes have been brought about in consequence. The question is how far, if at all, disobedience can be accommodated within a theory of law. On the face of it, there is an obvious contradiction here; but if law is thought of in a continuum and ability to change is regarded as a condition of the continuity of law, then disobedience could, within limits, be included among phenomena inducing legal change.

Machinery of Change

Changes may be effected judicially or through legislation. Judicial methods include conceptual tinkering, use of fiction and equity. Maine defined this as “any assumption which conceals or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified”. Fictions need to be distinguished from shifts in the meanings of words. For example, the word “possession” was originally applied to physical control; then it came to be applied to situations where there was no physical control. There was no pretence about the facts of either situation; there was simply the application of a word to a new situation. Adoption, on the other hand, is not a shift in meaning, but the name for pretended fact, namely, that the adopted child was born into the family. A more difficult case is that of the corporate person. One application of the word ‘person’ is to a human being, and its application to a corporation is best treated as shift in meaning.

In one sense equity is synonymous with justice. In so far as the purpose of the law is to do justice, Cicero spoke of aequitas as the principle, which makes possible any systematized administration of law, namely, deciding like cases alike. However, there develops before long a need for justice over and above that available at law, and it was in the sense of this further justice needed to correct legal justice that Aristotle spoke of equity. Maine defined it as ‘any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles’. Broadly stated, one function of equity is to mitigate in various ways the effects of the strict law in its application to individual cases. Another function is to procure a humane and liberal interpretation of the law itself.

Even while social conditions were relatively stable, the gradual dimming of the fires behind the forces of fiction and equity in keeping law adaptable made that task devolve increasingly on legislation. With the rapid changes now taking place, this is the only efficient way of dealing with the problem. In addition to the aspects of legislation, something should also be said about its application to law reforms and codification. There is a great deal of room for improvement short of drastic change of the system itself. It is in the business of law reform that all the insights of legal and sociological analysis, philosophy and morality are called into service. Codification is a phenomenon, which found at various stages of development. Undeveloped systems often start with codes. The ‘start’ of Roman law, for instance, is usually taken to be the twelve tables. Maine opened his classic work with the remark, ‘The most celebrated system of jurisprudence known to the world begins, as it ends, with a code’. In pre-Norman Britain there were various Anglo-Saxon codes. Codes are also introduced in mature systems to unify diverse jurisdiction, an outstanding example of which is the Uniform Commercial Code of America, unifying the diversities that had grown up in the jurisdiction of the several states. Codes may also be introduced in systems which have exhausted their powers of development.

Finally, there is a claim that a code will have the beneficent effect of facilitating and expediting future reforms. This again may well prove to be so, but such evidence as there is does not bear out the hope. In France, there was no revision of the Code for 140 years, in Germany, the problem of exception clauses had to be dealt with judicially as in Britain. To speak of future reform being facilitated raises the query: what sort of reform-reforms within the structure of the code, or recodification? Society is never still, and as new development take place, the unifying pattern of the code will tend to become out-moded and new unification needed. Such an argument seems somewhat unrealistic, and should not stand in the way of codification now. In view of the balance between theses various considerations, perhaps one ought to ask whether there is a risk that a code would actually do harm and whether such risk, if there is one, is worth taking. All in all, adaptability of change will be an act of faith.

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