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| Sunday, 27 April 2003 |
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Enriching modern law with ancient wisdom by ASIFF HUSSEIN **** Judge C.G. Weeramantry speaks on the need for modern law to move away from the individualistic, Euro-centric approach it has been engrossed in thus far to a more pragmatic social-based system envisaged by the traditional law systems of Asia, Africa and the Americas. **** The need is being urgently felt for modern law to come to terms with the social realities of the world today. Be it international law governing the relations between independent states or environmental law for safeguarding our life systems, the focus is gradually shifting away from individual-oriented law systems which originally arose in Western Europe to socially-oriented systems which take into consideration not only the interests of the larger society but also of the generations to come. Much of this could be attributed to the work of one man, Professor Christopher Gregory Weeramantry, a Judge of the International Court of Justice in the Hague and a scholar of no mean repute. Prof. Weeramantry who served as the Vice-President of the ICJ from 1997-2000 besides serving as Acting President on many an occasion has in many of his judgements such as the Illegality of Nuclear Arms and the Danube Case between Hungary and Slovakia introduced a new dimension to international law, a multi-cultural approach based on the wisdom of the ancients and of various Third World nations. These judgements have no doubt had a profound impact in shaping modern day international law, so much so that it is coming to be accepted as part and parcel of the law and referred to in legal textbooks as such. Modern law "The basic problem with modern law is that it is very individually-oriented" contends Prof. Weeramantry "Traditional law systems on the other hand are socially-oriented". "You look beyond yourselves to see what the impact of what you propose to do is going to have on the larger society and of future generations. You think of social rights rather than merely of individual rights. This is what modern law lacks". For instance, he points out that the Common Law or the law that evolved in England and was transplanted to the colonies, maintains a principle of 'You mind your own business and let others mind theirs' which means that it is theoretically possible for an individual to walk past a disabled person drowning in a puddle of water and not be questioned or penalised for doing nothing about it. This is not so in other legal systems such as for example Islamic law which recognises the principle of 'Bidding unto good' which means that one is obliged by law to help his fellow men in distress. He noted that even in the Civil Law which is based upon the old Roman Law there exists an idea of social responsibility which is gradually gaining recognition as a legal obligation. That is to say that the evolving legal opinion now holds that 'If you could help a soul in distress without endangering yourself, then you must do so'. Weeramantry points out that that the difference between Common Law and Roman Law is that the former evolved through the decisions of judges in individual cases while the latter evolved through the writings of jurists who considered every possible case and formulated general principles upon which judgements could be based. Thus Roman Law is richer in general principles while Common Law is rich in specific instances, a feature which earned it the poetic description of 'a wilderness of single instances'. Traditional wisdom Common Law or for that matter most modern laws lack another basic principle which becomes especially relevant in environmental issues and that is the trusteeship of land, which is only now coming to be gradually accepted as a new principle of modern environmental law. Weeramantry contends that the idea of trusteeship of land is an old one and is reflected in the traditional wisdom of Asia, Africa, Polynesia, Melanesia and the Americas which all stressed on the need to be conscious of the rights of future generations. This is however not the case with Common Law and other Western legal systems which hold that if one is the owner of a land he could do anything with it, even to the extent of polluting it or laying it waste. Modern environmental law, he stresses, did not arise from the idea of trusteeship of land, but rather from the need to safeguard the rights of the individual to a pure environment which has today come to be recognised as a basic human right. Modern day environmental law has fallen into the quagmire it is presently in because it has continued to follow an individualistic, time-centred, mono-cultural, Euro-centric approach which places the rights of the individual above those of the society at large. He points out for instance that African tradition has an idea of a threefold 'community of humanity' which holds that the community of humanity is threefold, which is to say 'Those who are alive here and now, those who are to come after us and those who went before us'. This tradition holds that one cannot take a proper view of any human problem whatsoever unless one considers the threefold nature of humanity. Similarly, the native Americans or the Red Indians held that one could not do anything in relation to land or alter it without taking into consideration the impact it is likely to have on seven generations yet to come. Thus there exists much which modern law could benefit from ancient wisdom. It merely needs to be given that orientation by the exponents of the law. It is only now that modern law is recognising the importance of the concept of trusteeship of land, a development largely attributable to Weeramantry's judgements, both in the ICJ and out of it. Weeramantry served as the Chairman of the Nauru Commission of Inquiry 1987-1988 which went into the question of the mining of the phosphate lands of the Pacific island of Nauru by the UK and Australia when it was under international trusteeship. The phosphate fields were reduced to a 'desolate moonscape' so to say, as a result of its exploitation under these big powers. Weeramantry and his team studied the environmental practices throughout the Pacific and wrote a compendious report on the injustice done to Nauru which formed the basis of its claims for redress against Australia. The ICJ held in favour of Nauru in regard to the preliminery objections raised by Australia after which the case was amicably settled. Another noteworthy case was the Danube or Gabcikova-Nagymaros Project Case between Hungary and Slovakia in relation to the damming of the waters of the Danube where a question of environmental damage complained of by Slovakia arose. Weeramantry in his verdict on the matter decided in 1997 drew from the experiences of Sri Lanka and other parts of the world to show how much the ancient world had to teach the modern world with regard to environmental rights. His judgements in this case and others where he stressed on the need for sustainable development has contributed to elevating it to the status of law rather than mere aspiration. His views are being increasingly reflected in contemporary judgements and gradually coming to be accepted as a general principle of law. In fact, a centre for environmental studies known as the International Centre for Sustainable Development Law has been established at Mc.Gill University in Montreal, Canada, largely on the basis of Weeramantry's judgements. Nuclear weapons Another interesting insight into Weeramantry's approach was provided when the question of the legality of nuclear weapons was raised by the United Nations in the Mid-1990s. The General Assembly requested the ICJ as the supreme judicial body of the world community to tell the world whether the use of nuclear weapons was legal or not. All the judges who heard the case were unanimously agreed that the use of nuclear weapons was in general illegal, though there was one solitary exception in which they did not express an opinion and that was in the case of extreme self-defence where the very survival of a nation was at stake. Weeramantry however disagreed with them on this matter and declared that the use of nuclear weapons under any circumstances whatsoever was illegal. To illustrate this he employed many multi-cultural examples, one of which was from the Ramayana, where Rama when waging war against Ravana was told by his people of the existence of a hyper-destructive weapon which could be used against the enemy. He was however told that he could not use it until he consulted the sages of the law. The sages when asked for their verdict prohibited him from doing so as such a weapon goes beyond the purposes of war. "In war" stresses Weeramantry "One is authorised to inflict only so much harm and suffering as is necessary for one's purpose, but if one were to ravage the entire countryside, then that goes beyond the purposes of war". Weeramantry who presently heads the International Association of Lawyers Against Nuclear Arms, observed that had nuclear weapons existed in the days of the wise men of yore, then they would have certainly outlawed it. He also pointed out that at the time of the Lateran Council in the thirteenth century when the cross-bow and siege engine were invented, the Church fathers declared that even these went beyond the purposes of war as it inflicted too much suffering. Weeramantry however contends that there is yet much to be done in the area of incorporating traditional wisdom into modern law. It is only such an approach that could positively enrich our legal heritage and that of the world at large. |
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