Corpus Juris: The Order of the Defender of Arabia

By Dr Amrit Rattan K Baidwan Macfarland

Dr Amrit Rattan K Baidwan- Macfarland presents three essays, the first is on Jurisprudence, entitled; what the law is and what the law ought to be. The complex nature of Jurisprudence based on the original natural justice theory, is examined as well as other theories, which have since been postulated by contemporary jurists. Supreme court decisions are cited to elucidate how natural justice principles engage modern cases today.

The second part explores the concepts contained within the original Sanskrit Indian Arthashastra document on diplomacy, used for governance and international affairs, by two of the most famous emperors of India, Chandragupta Maurya, and his successor Ashoka.

Finally, the contemporary debate on Israel, Palestine, Syria, Golan Heights, and Jerusalem is presented using key knowledge and contemporary concepts, established by historians and International relations academics.


Dr Amrit Rattan K Baidwan-Macfarland – studied public law and governance, international relations, as part of her legal studies. She is a qualified scientist-Jurist- Lawyer, with an interest in public law and foreign affairs and trained in criminal litigation, human rights with her law firms in Scotland, and did a short secondment to India shadowing members of the Attorney General’s department and gaining insights into commonwealth legal systems. She also undertook the study of American legal subjects involving comparative analysis, between two jurisdictions, Scots and American. She gained deep insights in theoretical and pragmatic foreign policy, relations, and affairs, from her academic engagements, with the universities in Scotland, as well as universities in Washington, USA. She enjoyed her research in conflict studies, peace, and security as part of the contemporary living history modules. Through these subjects, the evolving character of global and supra national institutions could be gleaned, as well as the interpretation of civic societies and international diplomacy, exploration of juristic constitutionalism at national and international levels, peace, conflict and the role of religious principles in the Arabian peninsula.

AUTHORHOUSE - ACADEMIC PRESS

• Language: English
• Publisher: AuthorHouse UK
• Release date: Oct 18, 2020
• ISBN: 9781665581097

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© 2020 Dr Amrit Rattan K Baidwan- Macfarland. All rights reserved.

Copyright Art of Arabia by Dr A Macfarland

No part of this book may be reproduced, stored in a retrieval system, or

transmitted by any means without the written permission of the author.

Published by AuthorHouse 10/16/2020

ISBN: 978-1-6655-8110-3 (sc)

ISBN: 978-1-6655-8111-0 (hc)

ISBN: 978-1-6655-8109-7 (e)

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Contents

Jurisprudence – what law is what law ought to be?

The Arthashastra – Chandragupta Maurya to Ashoka

Palestine to Israel, Jerusaleum and the Golan Heights – League of Nations 1948 – 2020.

Bibliography

About the Author

About the Book

This book is dedicated to

The President of India -Pranab Mukherjee – (1935-2020) Bharat Ratna – the Highest Civil Order of Excellence.

Emeritus Professor of Jurisprudence – David Carey-Miller, School of Law, University of Aberdeen, Scotland, U.K.

And…

Distinguished Professor C Pieters of the USA Constitution and Laws, University of Maryland -American Carey School of Law, Washington USA.

Distinguished Emeritus Professor, Gareth Powers, Constitutional laws, and Unconstitutional Takings Clause – Property laws, Carey School of Law, University of Maryland, USA.

Jurisprudence – what law

is what law ought to be?

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Dworkin was a critic of Hart’s legal positivism and rejected Hart’s positivist theory on every conceivable level. He rejected the premise that theories of legal systems can identify law without recourse to its moral merits, for law must first be moral he said and he vehemently rejected the institutional flaws of positivism – Dworkin did not refute Hart’s law as an integrity – and stated categorically that Judges must interpret the law in terms of consistent moral principle – right and wrong – justice and fairness – there must be coherence in principle and law – Law must have integrity to have moral authority – moral principles are the foundation and bedrock of just laws. Positivism leads to wrong results, as laws operations deliver validity by enactment by authority, without recourse to moral considerations.

Natural Justice begins with the Ought question and what is right and what is wrong – Proponents, Socrates, Aristotle, Plato, Roman -Christ-Augustine and Aquinas, India’s emperors -Chandragupta Maurya – Ashoka, accessing the absolutes of natural justice, Truths, Right versus Wrong.

The nature of Jurisprudence is complex, it was originally based on the natural law theory, and from these many theories were postulated by legal jurists, most were theoretical alternatives to the command models of law, such as positivist theories of law, utilitarianism, rights and the law, various notions of law –how law sits within society and legal theories to address issues in society. But how did law begin, develop, and evolve?

What is law’s juristic history, what then is law, what is legal philosophy and thinking behind law and what is the analytical basis for law, i.e. what the law is in the present and the fundamental question that must be posed, what the law ought to be. The word jurist, jurisprudence, pertains to law, the first is a legal thinker, scholar, and philosopher, who states or writes about the norms of law. The word jurisprudence is derived from, two Latin words, juris – meaning of law and prudence – meaning skilled and prudent in law. The term is not meant to be used for possessing mere knowledge of law or to the description of the analysis of fundamental legal phenomenon. Jurisprudence in strict terms can be articulated, as assigning to law, its true nature, what are its original sources, where does it arise from as it then touches all spheres, of social life, economics, politics, sociology and psychology – and the aim of jurisprudence then is very specific that by, understanding the purist nature of higher laws, the place and role of law can be situated in a practical way within society.

All laws must be just for devoid of this, the law itself becomes the outlaw. Jurists have built a large amount of scholarly thought to address the nature of law and what law ought to be. Stemming from these two questions jurisprudence can then analyse what this law is, and how this law ought to be. The nature of law then can be seen, as actually addressing two questions, - what is the law, and what law ought to be. These questions enter the paradigm of jurisprudential enquiry – through both analytical thinking and normative thinking, through the original thesis and its evolving forms, and its activities in opposition to good laws – that is the framing of otherwise bad laws. There are many divisions within each, in the province of Jurisprudence, and are constantly determined. Legal philosophy never sits still, and it by nature, examines the divisions and subdivisions of law and legal theory as they expand into numerous fields.

The Value of Jurisprudence lies in the norms.

The work of legal philosophers or Jurists must impact different subject matters, of law, its divisions, and subdivisions, as they arise and take form. Jurists engage scientific analysis of concepts and the arising legal structures formed from these and the empirical exercise then is involved with discovering and elucidating the foundational principles, upon which old and new laws rest, giving rise to a constitution of laws and hence legal systems. Jurists also constantly analyse, evaluate legal rules and legal structures based on original norms or standards, the ideals – and through these the specific criteria or norms which translate into or constitute good law. The questions asked are always what law ought to be before law is given the green light or it is stopped, given a red-light signal, if it becomes good law or is later rejected then as a bad law. Jurists undertake the abstract analysis of laws and focus scientifically through analysis of their structures, functions and equally the impact of such laws in a legal system or society.

The study of laws through its historical development, growth, or changes, is always referred to, as the original ideal or thesis and critical studies intend to move laws towards the ideal norms, established by thinkers and jurists. Jurists through their in-depth knowledge of all jurisprudential thought and ideals, examine laws and provide necessary changes to legal systems. They constantly seek to clarify links between higher laws, natural justice, and formation of new laws and how law energizes society to move and stay focused on these norms and ideals.

Jurists observe scientifically how law changes and creates social changes which are good for the society as a whole or if law creates aberrant phenomena, and determine the extent to which the creation and operation of laws degrade and affect social norms in a destructive way.

Laws touch all aspects of moral, philosophical and economic interests within society and Jurists investigate these effects on the creation and application of laws on various societal phenomena, including economies, such as the private ownership of property and company, commercial trade and international laws underpinning foreign affairs and the international relations that stem from them, in all spheres of global activity.

Jurists are both essentially scientists and hence philosophers pertaining to the study of law. Jurists claim that cognitivism is not only essential but mandatory in the making of laws, such that it is possible to know the absolute truth about things, as Justice is primarily about absolute truth, moral right and wrong and this comes by deeper examinations of law through cognitivism.

The assertions and assumptions made without reference to the absolute truth, based on the premise that human society is often based on social contracts, whether that contract is seen as a genuine historical fact or whether it is hypothesized as a logical presumption, for the establishment of economic activity and maintenance of other social engagements, but creativity can be flawed if it is devoid, of cognitivism and is merely based on a contractarian ideal. For Jurists and legal scientists or philosophers, it is essential to take a philosophical approach to all reality – as reality and nature of reality are essentially characterised by contradictions between opposites, there is in nature and its realities; the presence of societies, principles and human forms.

See how Bentham’s positivism led to Austin’s – the same command theory of law, the command, the sovereign, the attachment of sanctions, the Benthamite concept of law, the viability of such a command theory, that led to the question of international law, the censorial Jurisprudence –

A struggle between these opposites, results in new and higher forms, these can then in turn be challenged, anew by other evolving opposites – and thus it is the original thesis of scientists, philosophers that all new existence results from; pure thought which may be coined as higher thought, ideals, based on a collective consciousness – and the struggle between these ideas leads to the development of laws and changes in laws, even sciences and in all things – disciplines that pursue absolute truth and cognitivism. The dialectic is well known to all scientists, legal scholars and jurists or philosophers, that it takes the form of a thesis, i.e. an existing idea or norm, this is in turn challenged by the anti-thesis an opposite and contradictory norm, and this results in an ensuing struggle and becomes a union and interpenetration of two opposites and this then gives rise to the synthesis of the two opposites, newer and higher forms result, which must contain qualitatively superior principles/elements of the two opposites.

This synthesis is a new norm, and never remains stable and by nature it is inevitably challenged by newer and opposite ideas and a new thesis arises, not by itself but accompanied by its antithesis. The dialectic is adopted and always has been a philosophical model and the emphasis remains that this struggle which constitutes a dialectic is always at first between ideas, norms as these are reflected forwards and backwards between nature, natural phenomenon and so social phenomenon, and ultimately impact on social and economic societies, around the globe. This dialectic its impact is from the intangible sphere into the tangible and material forms and must thus be as close. to the ideals of higher laws or the gold standard.

See Natural justice, versus Hart’s gunman and the critique of command theory, the importance of rules, obligation and internal aspect of rules, public international law in Hart’s theory, moral analysis of law, abuse of law, the ultimate enforcement of morality.

Higher laws, gold standards, ideals, norms, impact on judicial decision making, since the time of the Caesars and kings of old, and philosophers, when Rome gave the notion of true justice, to the world, west and east.

There is a supposition that judges involved in decision making will have access to clear principle, guidance and a clear rule of law, but often