The words covered in this article are obviate, prospective, retrospective, subsume, circumvent, and augment. Previously done words that will reoccur today are conception, promulgation, presumption, imply, undermine, unintelligible, explicit, and rescind.
“The very idea of obedience presupposes knowledge of that which is to be obeyed, without which knowledge there could be only the coincidence, never the obligation, of obedience. If human relationships are to be calculable, the people of a community must know, and know in advance, the rules by which they are to act and by which they may expect other men to act. Here is a proposition of such obvious force that any conception of legal obligation is almost bound to deal with it as an ethical obstruction to law enforcement which must be obviated by promulgation and a supplemental overall presumption that “everyone knows the law.”
Gilbert Bailey, The Promulgation of Law
Obviate
The verb obviate means to prevent (a difficulty), by taking precautions in advance.
Gilbert Bailey writes that citizens’ ignorance of laws is an ethical roadblock to law enforcement; it does not seem fair to arrest someone for violating a law he could not really have known. Lawmakers can prevent this roadblock by making good effort in promulgation. But this alone would not suffice, Bailey implies. No matter how loud or hard to miss the announcement of a new law is, if the citizens do not pay attention to it, they will remain ignorant of its content. So, by presuming that everyone knows the promulgated laws, the legal system gives the citizens a reason to make the necessary effort to understand what is being announced. Self-interest is a great motivator.
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As we have discussed many times, the enforcement of an unpromulgated law that is utterly unknown to the people to whom it will apply seems so unethical that it seems appropriate to call it not ‘law’ but ‘tyranny.’ What other aspects of a law might make its enforcement seem unethical?
Lon L. Fuller (1902 – 1978) was an American legal philosopher whose book The Morality of Law was hugely influential in legal jurisprudence. In this book, he described the “morality that makes law possible.” He wrote:
“Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute.”
So, in Lon Fuller’s conception of the rule of law, for laws to be moral, they should have the following desired qualities:
- Laws must be applicable generally; the pattern and the principle behind prohibiting or permitting certain kinds of behaviors should be clear, so that even if there is no explicit law at present for a certain situation, one can easily judge what course of action in that situation would be legal and what illegal.
- Laws must be widely promulgated.
- Laws must be applied only in a prospective manner.
- Laws must be clearly understandable so that the citizens have no doubt whatsoever about the do’s and don’ts required of them.
- Laws must be non-contradictory. One law should not allow what another law prohibits.
- A law must not ask for the impossible. An unobeyable law is no law.
- The body of laws must remain relatively stable so that people can adjust their behavior and social norms according to it.
Prospective
The adjective prospective means looking towards the future. ‘Prospective in-laws’ would refer to people who are not your in-laws at present but are going to be so in the future.
Origin: Latin pro-, forward + specere, to look. The word ‘spectacles’ is also from the same root. They are called so because they help one see. Another word from this root is ‘spectacle’, a sight worth seeing.
Laws must be written prospectively – this means that if a law is passed today that declares action X to be illegal and specifies a punishment for it, this law cannot be applied to a man who committed X yesterday.
The requirement of prospectivity is also described in the following judgment by a 5-judge Constitution Bench of the Supreme Court of India (Commissioner of Income Tax v. Vatika Township Pvt. Ltd. (2015)):
“A current law should govern current activities. Law passed today cannot apply to the events of the past.
If we do something today, we do it keeping in view the law [in force] today . . . and not tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset.
This principle of law is known as lex prospicit non respicit: law looks forward not backward.”
Retrospective
The adjective retrospective means looking at or directed to the past.
Origin: Latin retro – , back + specere, to look => ‘to look backwards.’
A retrospective law is one that is passed today but that changes what was legal or illegal yesterday. Such laws create a situation in which it was impossible yesterday for people to respect and obey the law and, therefore, undermine the moral power of the law itself to command respect and obedience from all citizens.
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Returning to Lon Fuller’s checklist of the requirements that a law must fulfil for it to be considered moral, scholars have wondered if all the other requirements cannot in fact be subsumed under the requirement that law not be impossible to obey.
Subsume
The verb subsume means to make (an idea, case, term etc.) a sub-part of one that is more general. The noun form of the word is subsumption.
Can we not simply say that a moral law is one that it is possible for people to obey? Fuller himself considered the possibility of collapsing all the qualities of a moral law under the one heading of ‘obeyability’:
“The question may be raised at this point whether most of the other desiderata that make up the internal morality of the law are not also ultimately concerned with the possibility of obedience. There is no question that the matter may be viewed in this light. Just as it is impossible to obey a law that requires one to become ten feet tall, so it is also impossible to obey a law that cannot be known, that is unintelligible, that has not yet been enacted, etc.”
Lon L. Fuller, The Morality of Law, at 70 n.29
But Fuller ultimately decided to keep listing the desired qualities separately. His goal for this work was to develop a set of legal standards for the guidance of lawmakers, and from the lawmaker’s standpoint,
“there is an essential difference between the precautions he must take to keep his enactments consistent with one another and those he must take to be sure that the requirements of the law lie within the power of those subject to them.”
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You might wonder about why Lon Fuller, or the Supreme Court judges quoted a little above, even needed to write about the need for prospectivity in laws. It seems common-sensical, doesn’t it, that you should not punish a person for disobeying yesterday a rule that you have only passed today. You’ll be surprised to know that such laws have indeed been passed.
Here is one example.
In 2007, the British telecom firm Vodafone, which wanted to enter the Indian market, acquired an Indian telecom company named Hutchison-Essar through a $11.2 billion deal executed overseas in Cayman Islands. The Income Tax Department of India issued to Vodafone a capital gains tax bill of INR 11,218 crore (approximately $2.4 billion as per the then-conversion rate between USD and INR) for this acquisition. Believing that the Indian government could not tax a transaction that took place overseas and between foreign companies (Hutchison, which had the controlling stake in Hutchison-Essar, was a Hong Kong based company), Vodafone took the government to court, and in January 2012, won the case in the Supreme Court of India, which pointed out that no existing law in India allowed the levy of capital gains tax for any indirect transfer of Indian assets, as was the case here.
The government responded by passing the Finance Bill, 2012, which amended the Income Tax Act 1961 retrospectively: the amendments made in 2012 were deemed to be effective from 1962. These amendments closed the legal loophole that the Supreme Court had pointed out; India now had a law that was supposed to exist in 2007 when Vodafone had acquired Hutch-Essar.
Having circumvented in this manner the Supreme Court’s verdict that Vodafone owed no taxes to the government for the 2007 deal, the government renewed its tax demand of INR 11,218 crore from Vodafone. This amount was later augmented to INR 22,100 crore by adding fines and interest.
Circumvent
The verb circumvent means to go around; to avoid. Noun form: circumvention.
Origin: Latin circum, around + venire, to come => ‘to get around something instead of engaging with it directly, to bypass.’
Augment
The verb augment means to increase (in size, strength, quantity etc.).
Aggrieved by this retrospective taxation, Vodafone approached an international tribunal for justice, which, in 2020, ruled in the company’s favor, and directed the Government of India to not only stop seeking the tax dues but also imposed a legal liability on it of around INR 85 crore, to be paid to Vodafone.
The passage of the Finance Act of 2012 and its retroactive effects had greatly undermined the confidence of foreign investors about the tax stability of India. In a bid to undo some of this damage and restore investor confidence, the government of India finally rescinded the retrospective taxation that had been introduced by the Finance Act of 2012, by passing the Taxation Laws Amendment Bill in 2021.
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Here are some other common English words from the Latin word venire (the parent root of circumvent):
- Prevent/Prevention: To ‘prevent’ somebody from dying means to come before his Death. Latin pre- means ‘before.’
- Venue: The place where everybody ‘comes’ to for a pre-decided event is called the Venue’ of that event.
- Intervene/Intervention: These words mean to come in between. Latin inter- means ‘between.’
- Convene: means to call together. Latin con- means ‘together.’
- Convention: This word etymologically means ‘a coming together’ and is commonly used for ‘a meeting; a practice on which everyone agrees.’ An action that is in agreement with social conventions is described as ‘conventional.’ The opposite of this would be ‘unconventional.’
This is it from my side today. See you in Day 27, but before you go, here are a few more usage examples of the words you learnt today.
- Smoking undermines health.
- China intensified its efforts to subsume Taiwan as a province.
- “Even the small satisfaction of writing letters was denied us. It came to this: not only had the town ceased to be in touch with the rest of the world by normal means of communication, but also—according to a second notification—all correspondence was forbidden, to obviate the risk of letters’ carrying infection outside the town.” Albert Camus, The Plague
- A renowned educationist proposed the setting up of one national commission for higher education that would subsume all the bodies that currently regulated different types of higher education in the country. For example, there was one authority for universities, another for engineering colleges, and still another for law colleges etc.
- “It is a grave injustice to a child or adult to insist that they stop crying. One can comfort a person who is crying which enables him to relax and makes further crying unnecessary; but to humiliate a crying child is to increase his pain and augment his rigidity.” Alexander Lowen, The Voice of the Body
- It is common practice in many companies to find and use legal loopholes to circumvent or manipulate regulations.
- Retrospective laws seriously undermine the principle that we are entitled to know what the rules are when entering into transactions of any kind.
- The land ceiling act limits the maximum amount of land that a family may hold. But big landowners circumvent the rule by registering their excess land under their trusted servants’ names.
- “I have no right, by anything I do or say, to demean a human being in his own eyes. What matters is not what I think of him; it is what he thinks of himself. To undermine a man’s self-respect is a sin.” Antoine de Saint-Exupery
- “As the years wash over us and new generations march into the future, family histories are subsumed into the greater narrative. We become, simply, Americans.” Alex George, A Good American
- “The natural tendency of things [is] to approach the chaotic state. [It is] the same tendency that the books of a library or the piles of papers and manuscripts on a writing desk display . . . unless we obviate it [by putting them back in their proper places each time we handle them].” Erwin Schrödinger, What is Life?