Helmut Goerlich

Law – Sustainability – Implementation – India seen through a Special Lens

16 pages · 3.98 EUR
(April 2013)

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From the introduction:

Lawyers assume to know what law is even though sometimes the respective profession handling its tools knows little about the social functions of them. Sustainability here is used in the sense in which it has been established in English since the Brundtland-Report of 1987. Implementation shall indicate the broad process of filling the gaps between goals, normative requirements and realities of life in which such goals and norms create, as is supposed, intended effects. India is a democratic and secular republic which uses secular law and aims at sustainability of its programs, goals and structures on all levels and in all segments of society. But it seems to be a quite common observation that the success of such endeavours is limited, if not very limited. In this sense, we observe a lack of implementation. And, it might be a reasonable idea to ask a lawyer like me: how come? He or she might be inclined not to stick to simple answers such as the known features one finds in any society to some degree like corruption, influence peddling and egoism of groups and factions in society. But that might not help to develop tools to overcome such results of law-making and law-applying. It might become clear during this undertaking that legal policies have to fulfil some additional requirements to make law more effective. Of course possibly this approach implies the violation of one or the other “taboo” one might meet on the way in India now and then. Elsewhere Helmut Goerlich has tried to make clear that the amount of taboos in a society may be an indicator for the amount of lack of liberty. From the Indian side this view has gained some affirmation. Therefore he feels justified to go on walking on this path. His main concern is not the content of such taboos but what impact the respect for such taboos has for the obedience paid to secular law in general. So the approach is a structural one, not one in substance; and it mainly cares about what we would call “normativity” (Normativitaet) of secular law. On the other hand, this paper does not directly deal with the transcivilisational perspective of law. But this perspective has to be kept in mind if one talks or writes about law and its own relevance or its relevance to sustainability in a given country which experienced a mix of legal cultures and traditions of normativity of different kinds of laws.