Nature, law and historical transformation : A comparative study with particular reference to China and India.

Abstract

This thesis examines historical transformation through the prism of legal transformation. The central question it addresses is: what is the nature of historical and legal transformation? Making demonstrative reference to recent legal change in China and India, and after setting that change within the broadest historical context, the thesis shows that both jurisdictions manifest a gradual though powerful trend towards legal uniformity through the remarkably similar developmental trajectories they each disclose. This it takes to connote a wider trend within the culture of advanced modernity, one that involves a systematic departure from the basic precepts of the natural law. Observance of these precepts, it argues, represents an ineliminable guarantee of maximal individual freedom and cultural diversity. Explaining these conclusions, the thesis distinguishes three normative orders each allowing a different degree of human volition: the linguistic, the physical and the legal. The third of these orders, the legal, is characterised as an admixture of the other two. Its particular distinguishing feature is that it is in some manner pressure bearing. Amongst the varieties of normative social pressure, a general movement can be detected towards greater formalisation. As legal norms become more formalised, they become less like the norms of language and more like those of physical nature. The degree to which this shift takes place is an indication of the extent to which society has been denatured. This process of denaturing is rooted in a deeper process of materialisation. The human being is an irreducibly material and immaterial composite whose consequent material and immaterial inclinations need to be satisfied in an ordered fashion giving priority to the former. To the extent that choices are made which try to satisfy immaterial needs with material goods, fundamental distortions arise. The principal significance of the thesis is that it demonstrates the fruitfulness for comparative analysis of traditional natural law thinking. On this basis it offers a new model for understanding social and legal change.