The relationship between law and social development is complex and poorly understood. Law plays a crucial role in the development of society, and social development drives the evolution of law. In his presentation at the Delhi General Assembly, In Search of a New Rule of Law Paradigm
The principles and practice of law are a composite of multiple forces – the force of past precedent, established custom, and accepted tradition; the force of present political, economic and social power; and the force of emerging aspirations and ideas striving for acceptance. At any point in time, law consists of a more or less precarious balance between the past and the future. It is both a condition and a consequence of social development. As a social organization, law is a mechanism for channeling social energies. It reflects the prevailing values of society and the precise points at which there is contention between conflicting values. Thus, legal choices go to determine what to conserve, what to bury, what to affirm and what to enhance. Since values are changing rapidly in the modern era, social change leads to changes in the interpretation and application of law over time.
The governing principles of law are progressively shifting from a conflict paradigm of naked coercion to the exercise of authorized social power influenced by higher values. The early ‘law’ of humanity was the law of the jungle, survival of the fittest, might is right. The stronger imposed their will on the weaker, reinforced by force of arms or popular support. Hereditary rule became prevalent as a means to ease the transition from one leader to the next, avoiding frequent challenges to legitimacy and wars of succession. Law evolved as an instrument to manage the politics of conflict, to replace violence with understandings reflecting authorized basic decisions about social order. Coercive rule based on force of arms was progressively replaced by notions of authority based on a written text and backed by the implicit threat of coercion. Money too played a central role in the transition from violence to social order. As governance and law evolved, coercion gave way to social custom, conscious legislation and jurisprudence as the dominant means of managing conflict and resolving disputes. This transitionfrom violence to law continues today in both national and international contexts. Law involves an implicit acceptance and internalization of authority by the collective, and establishes a major expectation about the shaping and sharing of human values. Unless the community accepts the authority of its rulers and the laws they pronounce, the rulers may be compelled to resort to coercion to maintain themselves. Thus, the ultimate determinant of law will be the major expectations that the community holds about the exercise of authority and control in the common interest. The individual plays a key role in this process. This has profound implications for the evolution of both national and international law and emerging expectations of justice and value.
The search for a new rule of law paradigm must be driven by an approach which integrates disparate discourses, and incorporates scientific views of change and a global view of justice, fairness and human dignity. The work of former WAAS President Lasswell and Fellow McDougal is the closest approach that is compatible with the fundamental values and interdisciplinary orientation of the World Academy and can serve as a useful starting point for a WAAS project.
Winston Nagan and Garry Jacobs
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