Challenges of Social Development and the Limitations of Law

Download Challenges of Social Development and the Limitations of Law

Post on 18-Aug-2015




2 download

Embed Size (px)


Social Development


Challenges of Social development and the Limitations of LawSuparswa Chakraborty, Lecturer (PT) ,Siliguri Commerce CollegeDipankar KarmakarbstractThis paper is anattempt tounderstandthelimitations of this legal mechanisminhandlingthechangeprocess of dynamic institutional systems likesocio-cultural orpolitico-legal systems. What the paper seeks to aimat is an exposition of socialphenomenonwhichhas its owndynamic andanylawthat seeks toafect certainchangesintoit without takingintoconsiderationthefundamental realitiesaroundisbound to result in failure.!ntroductionSixty eight years ago when India began the journey it was easier to describe its destination and the route for the pri!ilege of describing it lay without much contestation with a small section of " India#s westerni$ed elite. %ll of them did not think alike but theirdiferences were not unbounded. There was a signi&cant o!erlap underlying the !arious diferences of ideologies and social contexts. The model of Indian democracy was founded on that consensus. Since then the number of those who wish to participate in the process of de&ning the Indian model has increased phenomenally thanks no doubt tothe success of the processes initiated by the original inheritors to the legacy of the 'ritish (aj. %t &rst sight the initial design of the Indian democratic enterprise might not look originalat all. The attempts to articulate the !ision of democracy in an independent India appear as a desire to imitate the experience of liberal democracy in the West. The speeches andthe writings of the nationalist leadership and the debates of the )onstituent %ssembly are full of fond references to the democracies in the West. Indeed the basic design of theIndian )onstitution was consciously borrowed from the *uropean and the %merican tradition. % large number of the pro!isions of the constitution retained !erbatim the corresponding pro!isions in the +o!ernment of India %ct of ,-". the political design e!ol!ed by the colonial masters. /et the Indian constitution which is the code book for the law makers in India was not a simple imitation of the 'ritish model or any other existing constitution for no attempt at copying can be free of !alue addition. *lements picked up from !arious Western models 0parliamentary system from 'ritain judicial system and bill of rights from the 1S 2irecti!e 3rinciples from Ireland and so on4 were combined together in a uni5ue mix .The Indian elite chose to pursue multiple goals simultaneously6 to make democracy work7to create a single political community in a large and di!erse society7 to pursue Western style economic de!elopment7 and to bring about fundamental changes in the society through the rule of 8aw. *!erything changes except the rule of change. %nd the life of a nation or a socio-politicalsystem is not an exception to this rule. They are essentially dynamic li!ing and organicsystems. The political social and economic conditions change continuously. Social moresand ideals change from time to time creating new problems and altering the complexionof the old ones. This change is not essentially always in positi!e directions there couldalways be changes which are not desirable and are essentially negati!e in character. The!icissitude of life process mo!es in strangest of ways. 'ut does that mean that humanagency just does not ha!e a part to play in this process of change9 2oes the changeprocess happen independent of the will of human agent9 The way law and state ha!ebeen organi$ed it does not gi!e that indication. The law in the broad sense and the wholelegal systemwithits institutions rules procedures remedies is society:s attemptthrough state to control this change process and gi!e it a desired direction. This logicputslegal institutionsandthestateatthecoreof all social discipline. Intheorytheso!ereign power the ultimate legal authority in a polity can legislate on any matter andcanexercisecontrol o!er anychangeprocess withinthestate. Indeedinahighlycentrali$ed political system with ad!anced technology and communication apparatus itistakenforgrantedthatlegal inno!ationcanefectsocial change. ;i;ii


View more >