Rabindra Kr. Pathak
Setting the Stage
Jurist is a word of lexical ambiguity evoking many a forensic imagery. Every lawman is well acquainted with this invisible yet omnipresent creature, very much like the reasonable man of the common law. Indian constitution gives due recognition to “jurist” under article 124 without defining it. But this has given rise to a multitude of predicaments, foremost one being: who is a jurist? Answer to this question may well address many other ancillary riddles. The wide conceptual canvass of the term makes it a tad difficult to decipher the import of what it exactly implies. A layman’s understanding of the term “jurist” is bound to be different from that of a lawmanreason being a journalistic appreciation of the term as we find in newspapers and electronic media. Can anyone who has been associated with law be assigned the tag of “jurist”? What does the term, constitutionally speaking, imply? Present paper tries to explore such other questions, and the constitutional ripples the expression seemingly creates in view of its continued ignorance.
Jurist: A Semantic Sojourn
“The word ‘jurist’ is much debased in India; we have developed a tradition where knowledge, virtue and even wisdom come ex officio, to a point that every judge, sitting or retired, every attorney and Advocate General, other law officers, chairpersons of Bar Council and Associations, law ministers, senior members of the Bar, and even their leading munshis, are described as ‘jurist’!”.[i] It is this misuse or overuse that has added to the ambiguity of the term. Be that as it may, Baxi defines jurist as one who seeks to usher in the jurisprudence of fresh start(s’) or as today most of us would name, perhaps, too readily as an ‘epistemological break.[ii] They are essentially “legal experts, and they belong to eras in the development of the law in which a special class of experts exercise a predominant influence upon the evolution of the law.”[iii] Stone describes a jurist as a “secular man learned in law”.[iv] “In England, this word is reserved for those having made outstanding contributions to legal thought and legal literature. In the US, it is rather loosely applied to every judge of whatever level, and sometimes even to non-scholar practitioners who are well respected.”[v] According to Allen, however, the “expression is not confined to ‘jurists’ in the sense of learned writers upon legal topics; it includes all those whose special function is to expound and apply customary law.”[vi] He cites example of ancient societies where the expression would comprise “semi-fabulous code-makers and law-givers.”[vii] Historically, to use the words of Allen, the very word ‘jurists’ suggests “that remarkable group of men who, during the first two centuries of the Roman Empire, built an imperishable legal document.”[viii] The period of classical jurists ran from the first century BC to the middle of the third century AD.[ix] Jurist was the central figure in the Roman Legal System, since statute law was relatively unimportant in the private law, and neither magistrate nor judge was necessarily or normally learned in law. The jurist influenced the law at every point.[x] The Roman jurists were not judges, and their involvement in adjudication was very indirect. Jurists were individuals of high social rank who devoted themselves to the study, exposition and analysis of private law.