Indian Adventures

There are, for the legally minded of you, two posts on this site which you may be interested in. They have emerged from the Supreme Court of India. The first issue concerns the evolution of an Indian legal approach to negligence. The second issue that caught my eye concerns when it may be right, in the interests of peace, to suppress speech in the form of a book and when not.

Negligence is an odd tort. In the twentieth century, both the US almost absolutely and England and Wales partially embraced it. This led to a sort of judicial assertion of a doctrine of rights in the common law world that had only previously used the language of liberties. In the USA, the courts became the focus of questions that congress simply avoided. They became an engine of change.

This had always been more usual in the US than England, which at various times has tried to freeze the higher courts approach to rights and to restrain judicial wishes to legislate through the creation of duties and causes of action. But it became a feature of the legal profession in British and American style systems that lawyers became legislators and social philosophers at the same time as gaining in status and income as a result. It is remarkable that it was only this week, though, that Congress decided to challenge the US Supreme Court and allow cameras to record the arguments in action.

Torts--civil breaches of duty owed to another which result in damage to the other caused by the breach-- and breaches of contract are very much near the heart of the left on both sides of the Atlantic. They both form part of the law of obligations. Trade Unions, slavery abolitionists, anti-nuclear campaigners, and abortionists have all at various times used consumer and property-based conceptions of the law to advance their causes and argue their cases. In the US, this process is almost ridiculously easy. Many US politicians have effectively been courtroom politicians, like Willie Brown and John Edwards.

It is interesting that a similar vibrant culture exists in the world's biggest democracy, India. It would also be amazing if many did not see it as the worrying development of ambulance-chasing legal pettifogging. Looking beyond that caricature though, it is from distance good to see law becoming more than a ditch but still in lands which are very far away from me providing a forum for the control of power and the punishment of bad behaviour.

I personally favour a different balance of tort and statute. However, what I urge readers to do who are interested in social change is to try and understand how this is encouraged or restricted through the business of law.


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