Laws: Prescriptive and Proscriptive

Laws and lawmaking is an interesting(and exhausting) subject of study. Not surprising given the variety of ideas as to the nature of public association people have held over time. There have been hundreds and hundreds of legal systems, each in a different time and place practised as the "true" and perfect system by thousands of people. Thorough analysis needing a Montesquieu to come by, a simplistic picture can always be drawn: the major systems can all be classified under two heads - the "Prescriptive" systems and the "Proscriptive" systems. As the name suggests, Prescriptive systems tend to list out all the possible things that can be done legally. They are the manuals the television company prints out so you know what exactly can be done with the black box on your table. Most ancient laws, being in essence laws derived from religion, including the Hindu Smrithis, the Hebrew Torah, the Islamic Koran, all fall into this category; while modern examples include the Fascist and Communist Constitutions, which are similar to the religious books in that their purpose is to exalt a demigod in the form of the State or the Dictator. Proscriptive Laws, on the other hand, are not mere rulebooks or manuals but serve an altogether different function. Their purpose is more cautionary than hortatory and they tend to serve like the maps a pioneer uses in his exploration of new land: marking off whirlpools and quagmires while leaving large tracts blank and open to investigation. Modern laws, on the whole, tend to be proscriptive rather than prescriptive, given that it is unrealistic to make a codebook for all the variety of human experience in modern life; ancient republican laws, secular and mercantile aspects of medieval justice and most practical private transactions belong to the class of Proscriptive laws where certain acts are forbidden under penalty whereas any others may be chosen freely unless they are themselves forbidden as the system evolves. The development of Science and the spread of a questioning and agnostic intelligence has ensured that Proscriptive Law seems obviously rational whereas there are pros and cons to both. The biggest advantage that Prescriptive Law has over its Proscriptive counterpart is that it is comprehensive. It is extremely simple and complete. This is also is its biggest disadvantage as there are only so many things that are possible. On the other hand, the Judge cannot possibly err and there can be no controversies once the system as a whole is accepted. X has to do Y and if he does anything else he is punished. The punishment itself might depend on what he does actually but really it is that simple. There is no need to change the books except, if necessary, to add or modify the penalties for specific acts. Proscriptive Laws, on the other hand, are very general and nebulous. If X does Y, he is punished but what if he does Z? The potentialities of man being practically boundless, there is constant need for revision and updating of the rulebooks. Subjectivity becomes key and decision-making abilities in the Judge are tested severely as he effectively becomes Lawmaker or his accessory(in the other system, there was need for just one Just and Able Lawmaker). This idea is inherently logical in a democratic system where the Law is made by the people and it is absurd to expect an unchanging Law to be accepted over succeeding generations along with unending progress. New situations do and will demand new regulations and any imaginative Prescriptive Lawmaker will be hard put to provide for everything. There are thus things to be said for and against both systems in their simple elemental forms. In practice, however, any system is bound to be an admixture of both philosophies, the dominant element merely serving to help in classification and giving an indication of the tendencies of the judge and the judiciary. These dominant elements are what jar and clash in the march of time as progress brings in new problems to be solved and a necessity for uniformity is recognized as part of the new global community. Details can always be modified and adjusted to suit new discoveries within a system but an international law will have to address the fundamental difference in philosophy between, for example, predominantly Prescriptive Islamic Laws and the predominantly Proscriptive Western ideas of Democracy. This is a problem that needs to be solved before integration can be achieved across cultural legal boundaries.