Editor in Chief: Moh. Reza Huwaida Thursday, December 13th, 2018

The Law Emanates from the Will to Power


The Law Emanates  from the Will to Power

As human societies kept on evolving, the necessity for codified rules and regulations started being felt intensely. With the societies turning more complex and human relations and interaction becoming more frequent and usual, the requirement of marking a difference between what is perceived to be right or wrong became inevitable. The human interactions and attitudes needed to be controlled so as to make them more civilized and keep them on the track that could lead them to the well-being of the society as a whole.

Though, human beings have not always been successful in their designs, yet they have made great difference by displaying their wisdom and creativity. Designing law has been one of the most important aspects of human social and political life, through which they have tried to control human attitude so that it must not violate the basic principles of co-existence. One of the basic sources of law for human beings have been religion.

There have been many societies in the world that have derived their laws from the 'divine teachings'. Apart from that there have been different political and legal theorists and political institutions that have played dominant roles in developing different sorts of legal systems and designing laws for the betterment of human societies. The basic philosophy of law and its proper and just application can really prove very much beneficial for societies and can really play a dominant role in making sure that justice is done to all the people.

To define law circumstantially, we can say that law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator in relations between people. There are different types of laws that are related to different matters and have their different functions.

But all the laws of a state are defined in its constitutions. So, Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual."

Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws and common law systems, where judge made law is not consolidated. In some countries, religion still informs the law. Law provides a rich source of scholarly inquiry, such as legal history and philosophy or social scientific perspectives, such as economic analysis of law or the sociology of law.

The study of law raises important and complex issues concerning equality, fairness, liberty and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature and an accountable executive.

To implement and enforce the law and provide services to the public, a government bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.

The important aspect of law is its philosophy, which is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks, "What should law be?", while analytic jurisprudence asks, "What is law?" John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience." Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature.

The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes. Hugo Grotious, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse – as Aristotle had indicated – and reason.

Immanuel Kant believed a moral imperative requires laws, "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the 'is' and 'what ought to be' problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from 'morality'. Kant was also criticized by Friedrich Nietzche, who rejected the principle of equality and believed that law emanates from the will to power, and cannot be labeled as 'moral' or 'immoral'.

The philosophical discussion of law makes it very much ambiguous and abstract and to ensure its practicality there are different legal institutions and procedures functioning in different states. These institutions and procedures tend to implement the laws in very practical form and make sure that they have their due role in controlling the society as per their expected outcomes. The absence of these factors makes the law nothing more than an abstract concept. Moreover, the possible independence and just functioning of these factors make law available for the service of the people.

In the law-respecting states of the world the law enforcing agencies and institutions are very much independent in their work and they have made law equal for every one. No one stands above the law and no one, who might have committed a crime, can escape a trial.

However, in despotic and aristocratic states of the world (our country Afghanistan also resembles one), laws do not seem to have the strength to go for the trial of the ruling elite, and the powerful can easily dodge it, buy it or even constitute it in its favor, while the common masses remain deprived of their basic rights and requirements, which proves Nietzsche's concept true for such countries that 'the law emanates from the will to power' and if we continue his view we can even add that 'it dies in the feet of the powerful after performing a great service to them'.

Dilawar Sherzai is the permanent writer of the Daily outlook Afghanistan. He can be reached at outlookafghanistan@gmail.com

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