Securing Sovereignty and Searching for Happiness

A traditional juristtakes a narrowapproach, transpiring essentially in examining facts and damages in a particular case, in general, to compensatefor prejudice, if any.

Feb. 1, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 07 No. -15 Jan. 31- 2014 (Magh 17, 2070)

Ample points have been made throughthis Magazinein support of constitutionalism, legal reform, rights-based development and the likes, all intended to elaborateon the implementation of the principle of people’s sovereignty in the country, which, to be meaningful, calls for itsgovernance system to establish a clear political, institutional, social and economic mechanism detailing the terms, conditions and criteria forthe enjoyment of sovereign rights.Elections to choose representatives, procedures to recall the non-performing elected leaders, good governance and rule of law to protect citizens, adequate food, health, and shelter for their survival, equal social and economic opportunity for their growth, all come under the broad ideal of people’s sovereignty. However, because of the opportunity costs involved, a comprehensive solution to materialize it only remains possible in theory, not in practice, not even in the most affluent of countries, even though most boast theequality they provide and empowerment they implement in a broad context of equity.

Note that the International Court of Justice considers‘equity’ as a legal concept,directly emanating from the idea of justice. However, its role is still controversial, a fact exacerbated by the absence of a universally accepted meaning in international law. Due to lack of clarity in meaning, in its realization, nations have tended to focus on changing the traditional development pattern to achieve the end of poverty and to design rights and duties for all to ensure a common prosperity. But there is now afurther shift towards ensuring, more specifically,the plight of the underserved and the moral duties of those partaking in what is commonly referred to as ‘societal justice’.This school of thought is slowly gaining ground and focuses on ‘happiness’.

Emerging Concept

For the past few years, civil society organizations from different continents have been discussingthe theme of happiness in international forumsto reflect upon ways to devising a system to ensuring it for all. And, interestingly, the moral duty of dealing with it, in the broad context of ‘societal responsibility,’ has been bestowed, among others, upon jurists/lawyers; considering them as one of the main conduit of the law and happiness relationship.

That this responsibility has come in the domain of jurists is not surprising. It was a logical response to a UN General Assembly Resolution dated July 2011, co-sponsored by 68 countries (Resolution No. 65/309), and titled, Happiness: Towards a Holistic Approach to Development. Endorsing an idea Bhutan had long been proposing, the resolution conceded that "the gross domestic product indicator, by nature, was not designed to and does not adequately reflect the happiness and well-being in a country”. More pointedly, it implied that public policies in many countries have encouraged "unsustainable patterns of production and consumption," at the expense of "a more inclusive, equitable and balanced approach to economic growth that promotes sustainable development, poverty eradication, happiness and well-being of peoples." Indeed, the responsibility bestowed upon the jurists/lawyers, as discernible from the spirit of the Resolution, is huge and the concept too broad to be hastily transplanted.

Broadness of the Concept

The polysemy associated with the definition of happiness tends to draw onan unlimited number of disciplines including, without limitation,philosophy, morality,law, economics, statistics, medicine and so forth. However, an ethno-centric definition needs to be avoided to not engender a sclerosis of thoughtsand further blur the concept. The main focus should be on considering not individual, but societal, happiness, along with the environment in which each of the citizens develops and thrives.

Between Art and Science:Law tends to revolve around a set of rules of human behavior, wherein the professionals are used to thinking in terms of civil, administrative or criminal liabilities, with little or no regard to their societal responsibility. A traditional juristtakes a narrowapproach, transpiring essentially in examining facts and damages in a particular case, in general, to compensatefor prejudice, if any. Contrasting with this is societal responsibility which focuses on the impact of actions and decisions on othergroups of individuals and the surrounding environment.

Acknowledging societal responsibility would,therefore, clearly lead to a paradigm shift and consequently would first call for establishing a nexus amongst happiness, jurists and societal responsibility in order to make happiness a purpose for the law.In this context recall that Kant portrayed happiness as the ‘ideal of the imagination’ and Giraudoux referred to law as a ‘school for imagination’. The nexus, thus, seems to exist.Certainly, the impediments due to the methodologyinvolved in law need to be addressed, butjurists, believers in the spirit of law, clarity and conciseness in determining rules of conduct, must also be asked to be cognizant of the law’s usefulness, its negative impactsvis-à-vis people and surrounding environment, and the collective actions for creating positive impacts of law.

Elements for Consideration:Few centuries earlier, Montesquieu already made a poignant observation: "If we only wanted to be happy, it would be possible, but it is that we want to be happier than others.” Clearly, there seems to be competition for happinesswhich needs to be managed.The formalization of jurists’ societal responsibility vis-à-vis happiness, which also goes in the direction of managing said competition,could be carried out through refinement of a few areas that are relevant to the profession.

1.The first area relates to normative creativity and reflection on the negative impact of the law. When a law is rigorous, it is predictable. Reasoningbased on the principles of legal predictability, may lead to anxiety and anguish of uncertainty. Jurists, who rely on surety granted by the rigor of the law, hesitate to operate in an environment where rules are not known in advance. However, the constant search for surety can also create stress, thus weaken their ability to reason with a pluralistic construct and to incorporate into domestic law a more flexible system which permits to also consider the diversities of contexts, environments, communities, development and so forth.

Certainly, positivism provides a marked advantage; an advantage in terms of legal realism. However, some spaceneeds to be granted for ethics too. There are scholars who recommend jurists/lawyers to be ‘for a sociology of law without rigor’,to be ‘more flexible’, and to follow ‘intellectual indiscipline’. They further ask them to become more human and design laws with human dimension, not only procedures focused on judging and managing case files.

2.The second area concerns hermeneutics. We all know that denial of justice is wrong,that judges interpret the law,that lawyers help judges, and that doctrines enlighten them both. Therefore, unless otherwise required, judges will continue to take their traditional approach in judgments. This callsfor introducing an ethical dimension in hermeneutics: considering equality of human dignity, thus,creating a link between ethics and happiness. The science of flexible interpretation can contribute in terms of clarity with exegesis as well as openness to methods of analysis. It can help provide a reasonable space for equity, fairness or purpose,as well as ethical rules for citizens, ethics in the pursuit of profit for business people,or ethical responsibility of leaders.

3.The third area relates to the penal system and its negative impacts. Prisons are created as a deterrent to an individual’s violation of a law. But penalty has now-a-days become so common that societies tend to forget its negative, symbolic, psychological and emotional discharge.Societies punish just for the sake of enforcing laws, and in the name of effective enforcement, continue to undermine that, at a micro level, freedom is infringed and heritage is destroyed, and that humiliation, suffering, loss, discomfort, disease, violence and physical and social trauma, are caused.

Nobody denies that there needs to be adequatesafeguards for a society to function. But punishing for the sake of enforcing laws alone is also futile. Bentham developed the theory of ‘sweetness in punishment’ that became the basis for exemption in criminal matters. Jhering concluded that ‘the history of criminal law was a history of constant abolition of penalty’. Levasseur echoed "it is with the thinness of its criminal law that we measure the degree of civilization of a state." Some scholars have even suggested ‘a law without punishment’. Hulsman, in his abolitionists’ theories, even questioned "why we were talking about crimes, misdemeanors and contraventions?” For him, the reality was simply ‘managing problem-situations’. Indeed, when societies punish severely, at a macro level, they also severely hurt themselves.

4.The fourth area concerns the jurists’ societal commitment. Jurists are one of the major players in the application of law. But their actions (albeit technicallyjustified) may also be the cause for damaging the names of individuals, destabilizing families or hurting environment. A society is content, for example, granting a divorce, which could negatively impact child development and familial harmony, even lead to suicide.Surprisingly however, theabove scenariowould not affect a jurist, since the law on welfare or family would have been correctly applied, from a technical standpoint.

Systematization is, therefore, needed in legal categorization.Nothing prevents societies from making human beings the ultimate purpose of the law. For Kant human dignity was paramount; and this dignity could become an indicator of measuring ethics in the rule of law.

5.The fifth area relates to the knowledge base.Certainly, there has been ample development of praxeology in law. Specializations have developed, but not one that relates to human happiness. There is,thus,a need for filling in the vacuum by developing a culture of a law on emotion and affection, something that jurists might resist since it blurs their world of pure law. Thatwould require integrating happiness in the organizational paradigm, and in this respect, to revisit the values of law. As for now, lawyers are accustomed with the legal values of solidarity, peace and order. The non-legal values, such as kindness, love, generosity, humility andselflessness, are not integrated.

Conclusion    

Happiness through law is neither an intellectual speculation nor an illusion anymore. The concept has recognition of the international community and, thus,is likely to become a theme for continual discussions innot toodistant a future, particularly in the context of the subsets of approaches tomeaningfully ensuring the sovereign rights of people in all capitals, countries and continents.

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