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Sources of Law

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sources of law

  1. 1. Chapter 01 Sources of Law 1. Define law according to Holland. 3, Jan.10 2. Define law both in commercial and general perspective. 5, Jul.13, Jan.12, Jul.08 3. What are the sources of law? 5, Jul.13, Jan.12, Jul.08 4. ‘No man is above law.’ Discuss. 6, Jan.11 5. ‘He who seeks equity must do equity.’ Explain. 5, Jan.13, Jul.11 State briefly the distinction between Equality and Equity. 5, Jul.08, Jul.06 6. Discuss the relationship between Law and Society. 5, Jan.10 Discuss about society and law. 6, Jan.11, Jan.10 7. What do you understand by the rule of law? 6, Jul.10, Jan.10 8. What are the three Rules of Law? 12, Jan.10 9. What are the benefits of the rule of law? 7, Jul.10 10. ‘All are equal in the eyes of law.’ Discuss. 7, Jul.10 1 EL I_GCL 102
  2. 2. Chapter 01 What do you mean by law. Law: In a layman's language, law can be described as' a system of rules and regulations which a country or society recognizes as binding on its citizens, which the authorities may enforce, and violation of which attracts punitive action. These laws are generally contained in the constitutions, legislations, judicial decisions etc. Some definitions of law: 1. Aristotle defined law 'as an embodiment of reasons whether in individual or the community'. 2. Jereny Benthan defined law as a collection of signs declarative of a volition conceived or adopted by the sovereign' 3. Jurist John Austin defined law as a body of rules determined and enforced by a sovereign political Authority. 4. Rosese Pound defined law as an organised and critically controlled body of knowledge both of legal institutions and legal precepts and of the legal order, that is, of the legal ordering of the society. 5. Joseph Raz says law consists of authoritative positivist considerations enforceable by the courts. 6. Holland defined law as a rule of external human action enforced by the sovereign political authority. Therefore, law is the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision. Major functions and purposes of law are: a) to deliver justice b) to provide equality and uniformity c) to maintain impartiality d) to maintain law and order e) to maintain social control f) to resolve conflicts g) to bring orderly change through law and social reform Define law according to Holland. 3, Jan.10 Law: According to Holland, law is a rule of external human action enforced by the sovereign political authority. He entails three essential characteristics of law: 1. Law is a general rule relating to the actions of human beings. 2. Law attempts to take cognizance of external actions of human beings. 3. Law is enforced by determinate authority, which authority is human, and among human authorities, is that which is paramount in a political society. 2 EL I_GCL 102
  3. 3. Chapter 01 Define law both in commercial and general perspective. 5, Jul.13, Jan.12, Jul.08 Law: Commercial perspective Commercial law, also known as business law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales. [1] It is often considered to be a branch of civil law and deals with issues of both private law and public law. Commercial law – body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law. It is also called business law. Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and partnership. It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law. Law: General perspective Law is defined as any act, ordinance, order, regulation, bye law, notification or other legal instrument and any custom or usage established in a community in order to govern behaviour of its people that is made by legislatures through legislation (resulting in statutes), the executive through decrees and regulations, or judges through binding precedent and jurisdictions. The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people. Law is the most explicit, institutionalized, and complex mode of regulating human conduct. It plays only one part in the congeries of rules which influence behavior, for social and moral rules of a less institutionalized kind are also of great importance. 3 EL I_GCL 102
  4. 4. Chapter 01 What are the sources of law? 5, Jul.13, Jan.12, Jul.08 Sources of law: Sources of law mean the origin from where law or the binding rules of human conduct come into existence. It also refers to the sovereign or the state from which the law derives its force or validity. Although there are various claims and counter claims regarding the sources of law, it is true that in almost all societies, law has been derived from similar sources. For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Natural law school considers nature and human reason as the source of law, while theologians consider the religious scripts as sources of law. Classification of sources of law: Sources of law can be classified into- 1. Formal sources 2. Material sources 3. Non-formal sources 1. Formal sources: Formal sources are the sources from which the law derives its force and validity. Of course the only authority from which the law can spring and derive forces and validity is the state. Formal sources include: a) Legislation (supreme and subordinate: executive, judicial, municipal and autonomous) b) Judicial precedents (original, declaratory, authoritative, persuasive precedents) c) Treaties 2. Material sources: Material sources refers to the various processes, which result in the evolution of the materials, which are the constituents of law. Material sources include: a) Legal sources (statute law, case law and customary law) b) Historical sources (juristic writings, literary works and foreign decisions) 3. Non-formal sources: Non-formal sources include custom, standards of justice, equity, good conscience). Write short note on legislation and judicial precedent. Legislation: The term 'legislation' is derived from the Latin word ‘legis’ which means 'law' and ‘latum’ which means "to make" or "set". Therefore, the word 'legislation' means the 'making of law'. It is the source of law which consists in the declaration of acts, legal rules enforceable by a competent authority. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him. 4 EL I_GCL 102
  5. 5. Chapter 01 To legislate is to make new laws in any fashion. Legislation includes every expression of the will of the legislature. Every Act of Parliament is an instance of legislation. Legislation may be either supreme or subordinate. 1. Supreme legislation is that which proceeds from the supreme or sovereign power in the state i.e., Parliament, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority. 2. Subordinate legislation is that which proceeds from any authority other than the sovereign power. Such legislation is subordinate in that it can be repealed by, and must give way to, sovereign legislation. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority. Different forms of subordinate legislation: a) Executive: The rule making powers under the statues is conferred on the executives. They are vested with the responsibility to implement the laws enacted by the legislature. Executive legislation is resorted to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore, it is sometimes considered as a necessary evil. 5 EL I_GCL 102
  6. 6. Chapter 01 b) Judicial: Judiciary is conferred with the power to make rules for their administrative procedures. The superior courts have the power of making rules for the regulation of their own procedures and administration. For instance, under the Constitution, the Supreme Court and High Courts have been conferred with such kinds of power to regulate procedure and administration. c) Municipal: The Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the areas under their control. The enactments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal. d) Autonomous: When a group of individuals recognized or incorporated under the law as an autonomous body, is conferred with the power to make rules and regulation, the laws made by such body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated companies etc. fall in this category of legislation. Judicial precedents: Judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. These are important sources of law in modern society and judges do play a significant role in law-making. It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority, which explicitly or implicitly lays down a legal proposition, constitutes a general and formal source of law. The practice of following precedents is necessary to secure the certainty of and predictability of decisions. This creates confidence in the minds of the litigants and administration of justice becomes fair. Judicial precedents can be divided into following two parts: 1. Ratio decidendi (Reason of Decision): 'Ratio decidendi' refers to the binding part of a judgment. 'Ratio decidendi' literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law. 2. Obiter dicta (Said by the way): An 'obiter dictum' refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value. Different forms of judicial precedents: a) Original precedent means a precedent that creates and applies a new legal rule. An original precedent is made when there is no previous judicial decision on a point of law. When the court has to form an original precedent, a judge will come to their decision by analogy. That is, by 6 EL I_GCL 102
  7. 7. Chapter 01 considering the cases that are nearest to it in principle. The decisions in the referred cases are not binding on the court but they may be persuasive. b) Declaratory precedents are those that merely declare or apply the same pre-existing legal principle on a similar case. c) Authoritative precedent is one in which judges must follow it whether they approve of it or not. It may further be classified into absolute and conditional. Absolutely authoritative precedents are binding on lower courts irrespective of however erroneous it may be. Conditionally authoritative precedents are usually binding on all ordinary cases, however in one special case its authority may lawfully be denied if the wrong and unsound nature of the law is proved. d) Persuasive precedent means precedent which a judge is not obliged to follow, but is of importance in reaching a judgment, as opposed to a binding precedent. It assist the decision maker in determining a case. Decisions of lower courts and foreign courts can be persuasive precedents. 7 EL I_GCL 102
  8. 8. Chapter 01 Legal sources: Legal sources are those which are recognized as such by law itself. They are authoritative and are allowed by the law courts as a right. Examples include constitutions, statutes, executive orders, administrative regulations, ordinances, charters, by-laws, treaties, judicial precedents etc. Historical sources: Legal sources are those which are lacking of formal recognition by law. They are persuasive. They influence extensively the course of legal development but they speak with no authority. Historical sources are law destitute of a legal recognition and are unauthoritative, e.g., a book written by a jurist. Examples include customs or customary law, standards of justice, natura rerum, individual equity, public policies, moral conviction and social trends. Formal sources: Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters. It also refers to the sovereign or the state from which the law derives its force or validity. Examples include legislation, statutes, precedents. Executive orders, treaties etc. Non-formal sources: Non-formal sources include custom, standards of justice, equity etc. Austin refers to the term ‘sources of law’ in the following three meanings: 1. Direct or Immediate Author: The immediate author of law is the person or body of persons by whom the rule was originally formulated, giving it the force of law. The immediate sources are: (a) the sovereign acting as legislature or judiciary; (b) a political subordinate acting either as a legislature or judiciary; (c) the persons whose conduct forms a custom; and (d) the persons who by contract submit themselves to a rule of conduct towards cache other. 2. Historical Documents: The earliest extant document in which the rule of the body of the law can be found, e.g., the Digest Code of Justinian in Rome, but not the commentaries on them. 3. Causes: Causes lo which the laws owe their existence, such as legislation, adjudication, custom, religion, equity, etc. Dr. Allen objects lo the use of the term ‘source of law’ in the sense assigned by Austin. According to him, a source of law is that from which law 1s derived. In the sense used by Austin customary law cannot be said to have been derived from the Slate or sovereign. Such law from rules of conduct or practices of the people long observed and the State only superimposes a formal sanction. 8 EL I_GCL 102
  9. 9. Chapter 01 According to Holland, the obscurity, which has involved the whole subject of the original law, is largely due to the ambiguous uses of the term ‘sources’. Such uses are fourfold; viz., (i) sometimes the word is employed to denote the quarter whence we obtain our know ledge of the law, e.g., whether from the statute-book, the reports, or esteemed treatises; (ii) sometimes to denote the ultimate authority which gives them the force of law, i.e., the stale; (iii) sometimes to indicate the causes which have brought into existence, rules which have subsequently acquired that force, viz., custom, religion, scientific discussion; and (iv) sometimes lo indicate the organs through which the Stale either grants legal recognition to rules previously unauthoritative, or itself creates new law, viz., adjudication, equity, legislation. Salmond originally divided the sources of law into formal and material. According to him a formal source is that from which a rule of law derives its force and validity. The material source is that from which is derived the matter and not the validity of the law. It is in the material sense that the expression is to be understood here. Material sources are divisible into two classes legal and historical. The legal sources are those which are recognised as sources of law by the law itself through the mouth of the courts of law (e.g. Law of Contracts, Indian Evidence Act, Indian Penal Code), precedent (judge-made law), customary law and conventional law. Historical sources are law destitute of a legal recognition and are unauthoritative, e.g., a book written by a jurist. The learned editor of the 10th edition of Salmond’s book on Jurisprudence has excluded the formal sources altogether on the grounds that the words ‘formal source’ convey nothing and there is difficult to attach the will of the State to this expression. He has maintained only the legal and historical sources of law. Salmond has classified the legal sources of English Law into four divisions (1) Enacted Law, or Statute Law, having its source in legislation; (2) Case Law having its source in princely; (3) Customary Law, having is source in custom; and (4) Conventional Law, having its source in agreement. Professor keel on also uses the term “Source of law” to mean the materials out of which the law is eventually fashioned through the activity of judges. He regards the following sources of law as important, viz. (i) legislation, (ii) judicial precedents, (iii) custom, (iv) principles of morality or equity and (v) professional opinion. The first three are binding sources, while the last two terms as persuasive sources. Law, like the State itself, is the product of history. In every country it has passed through various stages of development and several factors have contributed to its evolution. All these factors are described as the “sources” of law which may be outlined as follows:- 1. Custom: Custom is one of the earliest sources of law. In the primitive society all disputes were decided in accordance with the prevailing social customs. In the beginning, when the social organisation was simple, customs were based on the general usage of the family, clan or tribe. 9 EL I_GCL 102
  10. 10. Chapter 01 No one can say exactly when and how custom arose, “except that it was shaped by the cooperative action of the whole community and not by any kingly or legislative command.” But one thing is clear, that customs are accepted and followed as a matter of habit. Their sanction is utility or the general desire of men for order and justice. Sometimes people choose to do a certain thing as a matter of convenience. When it is repeated, it becomes a habit and passes from one generation to another till its utility is lost to the community. Sometimes a custom may grow accidentally and people begin following it. The various schools of jurisprudence are in substantial agreement upon the importance of customs as a source of law. Customs are not laws in the political sense of the term. But when the State recognizes these customary rates as binding, they acquire the status of law. No State can afford to ignore the customs of the land, not even conquerors that impose new legal systems on defeated countries. If it does, the people who follow these customs will revolt against the authority of the State. “In the great book of law”, says Maclver, “the State merely writes new sentences and here and there scratches out an old one. Much of the book was never written by the State at all, and by all of it the State itself is bound, save as it modifies the code from generation to generation. The State can no more reconstitute at any time the law as a whole than a man can remake his body.” The common law of England consists mainly of customs and the courts take due cognizance of it. Customary law is also an integral part of the legal framework in India. 2. Religion: In the primitive community custom was law and law was religion. Law and religion were so inextricably mixed up that the rules of life had a religious sanction. The institution of, first, the magician and, then, the priest-king, in the early stages of the development of the State, is a clear illustration of the relation between religion and politics. “Indeed,” as Woodrow Wilson points out, “the early law of Rome was little more than a body of technical religious rules, a system of means for obtaining religious rights through the proper carrying out of certain religious formulas.” The most influential basis of the Hindu Law in India is the code of Manu. The Mohammedan Law derives itself from the Quran and the Shariat. Islamic law now forms the basis of the legal system of the Islamic Republic of Pakistan replacing the prevailing laws by those ordained by the Quran and Shariat and evolving an Islamic Jurisprudence. President Zia- ul-Haq, for instance, replaced the wealth tax and agriculture produce laws by Zakat and Usur. Religion, thus, is an important and in some the only source of law, as in the Arabian countries, Iran and Afghanistan. 3. Judicial Decisions: 10 EL I_GCL 102
  11. 11. Chapter 01 Gettel says that the State “arose not as the creator of law, but as the interpreter and enforcer of customs.” When men live in society disputes are sure to arise. In primitive society disputed points were referred to the wisest men in the community and their decisions were accepted and made precedents for similar cases. When social organisation became more complex and tribes intermixed either for the purpose of trade or matrimony, conflict of customs became more usual. At that time the necessity was felt to supplement custom by interpretation. Whenever custom failed to give a just solution or was obviously not suited to the case, the dispute was decided according to commonsense. Such decisions became judicial precedents. In the beginning they were oral and unwritten and passed from generation to generation by tradition. But in order to make them more definite they were later reduced to writing. In Britain, before the rise of Parliament, judges went on circuit and were responsible for evolving uniformity in the law. By comparing decisions and by basing new decisions on preceding ones, they developed the Common Law. This was not a characteristic only of early law. In our own times a judge, while applying the law, interprets it, and in doing so he modifies or explains it either subconsciously or deliberately. Customs, too, are to be fitted to dynamic conditions of society and their rigidity is lubricated by the progressive social forces. Even a written law requires filling in the gaps. This is done by judges, and Justice Holmes, of the United States Supreme Court, gave us a bare truth when he said that judges do and must make laws. Thus, law in its most characteristic form is the case-law or judge-made law. 4. Scientific Commentaries: Scientific discussions by eminent jurists also modify and develop law. In every country the greatest importance is attached by both judges and lawyers to the opinions of legal luminaries. The jurists collect and arrange in logical form past customs, decisions, and laws. They discuss and elaborate the existing law and make it clear where it is ambiguous. In this process they express their opinions as to what the law ought to be and its effect on society. On the basis of the past and the present law, they are able to arrive at general principles which may guide future legislation and indicate in broad lines the gaps that need filling in. The opinions of the commentators are not decisions. They are only arguments. When these arguments are repeatedly recognized, they amount to accepted decisions. To sum up: “The commentator, by collecting, comparing, and logically arranging principles, customs, decisions and laws, lays down guiding principles for possible cases. He shows the omissions and deduces principles to govern them.” 5. Equity: The term equity means equality or fairness. The function of a judge is to administer justice. But law can never fit in every case. At many points it may be silent and at others it may be ambiguous. When the existing law does not provide any relief, principles of equity are applied and cases are decided according to commonsense or fairness. Moreover, positive law, with the lapse of time, becomes 11 EL I_GCL 102
  12. 12. Chapter 01 unsuitable for new and changed social conditions. To make it suitable, either the law should be changed by the law-making authority, or there should be some informal method of changing it. Equity is an informal method of making new law or altering old law, depending on intrinsic fairness or equality of treatment. Thus, equity is intended to provide relief where the existing law affords none. It aims at securing equality or justice and it is based on what earlier writers used to describe as the law of nature, that is, law guided by reason. The interference of equity with law, according to Sir Henry Maine, is open and avowed. Equity not only supplements law, but it also makes law flexible. It is an informal method of making new law and altering the old one. Equity, too, is a kind of judge-made law. But there is one important difference between the two. In case- law, the judge interprets the existing law. In equity, he adds to the law what is missing therein and creates a new one in order to make it suitable for the changed conditions. 6. Legislation: In addition to selecting customary usages for enforcement, Kings issued decrees concerning new matters. This practice was the source of legislation, which became the primary concern of the legislative assemblies with the emergence of a representative government. But the approval of the King or President is as much there now as it was in the past. Legislation is, now, the most prolific and direct source of law. Law is regarded as the expression of the will of the people and the will of the people is expressed through legislative assemblies which are representative bodies. All other means of making laws have now been swallowed up by this modern method of legislation. Custom and equity are being replaced by definite legislative acts. The codification of law has limited the scope of judicial decisions, and scientific commentaries are used simply to discuss cases. Legislation has, thus, tended to supplant other sources of law. But we cannot ignore the practical utility of customs, equity, religious practices and judicial decisions. Though all these forces have not remained direct sources of law, yet they constantly influence its formulation. Woodrow Wilson has beautifully expressed his views on the process of the development of law. He says, “Custom is the earliest fountain of law but religion is a contemporary, an equally prolific, and in the same stages of national development, an almost identical source. Adjudication comes almost as authority itself, and from a very antique time goes hand in hand with equity. Only legislation, the conscious and deliberate organisation of law, and scientific discussion, the development of its principles, await an advanced stage of its growth in the body-politic to assert their influence in law-making.” 12 EL I_GCL 102
  13. 13. Chapter 01 4. ‘No man is above law.’ Discuss. 6, Jan.11 According to Dicey, rule of law means that, “no man is above law”. Every man whatever his rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals. “What is law-legal right and legal obligation for people must hold equally as such for all citizens. In other words, Rule of Law means- a) equality before the law b) every citizen is subject to the ordinary law of the land and c) the citizen has to face trial in the same law courts, irrespective of his status or position in the society. No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women. 13 EL I_GCL 102
  14. 14. Chapter 01 5. ‘He who seeks equity must do equity.’ Explain. 5, Jan.13, Jul.11 State briefly the distinction between Equality and Equity. 5, Jul.08, Jul.06 Equity vs Equality One of the differences is the fact that equality obviously denotes that everyone is at the same level, whereas equity, in business parlance, denotes the ownership of the shares of a company. Equality alludes to the identical apportionment where dealings, values or qualities are concerned. Equity represents fairness, or what may be termed as the equality of outcomes. This involves factoring in aspects of the system that have put particular groups at a disadvantage. An example, which would bring out the principal difference between the two, would be how a turkey may be carved up at at family’s dinner table. Equality would mean that everybody ‘“ father, mother and children – would get a piece of the same size. Equity, on the other hand, would mean that they take the sensible option, and divide it according to their needs, i.e. larger sized pieces for the adult and smaller pieces for the children. When we say equity, we refer to the qualities of justness, fairness, impartiality and even handedness. When we talk about equality, we are talking about equal sharing and exact division. A perfect example of the practical demonstration of the difference between the two concepts, is the feminist movement. Now, if women demand they should be treated in the same way as men, that would not be possible – equality would not be possible – because women and men are different, and cannot be treated in exactly the same way. However, if they demanded equity in how the world treats them, it would be a genuine demand, because now they are demanding that they be given the same rights as men have as human beings. It is equity that is desirable, not sameness. Once again, in business parlance, equity denotes the value of something. Suppose I bought a laptop for $500 a year ago, and tried selling it today. It would probably fetch around $250. That is its equity value. Equality, of course, only means exact distribution. Really the difference between the two alludes to the old debate about the preference of quality over quantity. If one were to take a classical example to distinguish between the two concepts, one could go back to the days of the cold war when the communist block countries tried to practice equality by paying everyone the same, irrespective of their station in life. The capitalist block, on the other hand, paid according to merit and productivity. The efficacy of the later approach, is brought out by the subsequent collapse of the communist order. Therefore, although seeming to be similar, equity and equality are indeed very different kettles of fish. Summary: 1. Equality denotes that everyone is at the same level, whereas equity in business parlance denotes the ownership of the shares of a company. 2. Equity refers to the qualities of justness, fairness, impartiality and even handedness, while equality is about equal sharing and exact division. 3. Equality equals quantity, whereas equity equals quality. "Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice in accordance with natural law." 14 EL I_GCL 102
  15. 15. Chapter 01 "Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws, with no individual or group having special legal privileges." Equity connotes making sure that following the letter of the law doesn't result in an unfair outcome. Equality connotes making sure that no one is "above the law." "Equality" means everyone is treated the same. In law, this means everyone get the same punishment for a crime. People are treated as equals. The basis of "equality" is treating everyone the same. "Equity" means everyone is treated as they deserve based on the circumstances, which means, in turn, that everyone does not get the same punishment for similar crimes. A first-time criminal, for example, may receive a lighter punishment than a long-time criminal who commits the same crime. The basis of "equity" is treating people fairly according to their individual needs. 15 EL I_GCL 102
  16. 16. Chapter 01 6. Discuss the relationship between Law and Society. 5, Jan.10 Discuss about society and law. 6, Jan.11, Jan.10 Law is a system of rules that are enforced through social institutions to govern behaviour. Laws can be made by legislatures through legislation, the executive through decrees and regulations, or judges through binding precedent and jurisdictions. A society is a community or group of people united together by some common bond and involved in persistent interpersonal relationships such as social status, roles and social networks, or a large social grouping sharing the same geographical or social territory, typically subject to the same political authority and dominant cultural expectations. The formation of common bond in society depends on some uniformity of factors like nearness, nature of the people, habit, custom, inhibition, beliefs, culture, tradition etc. It helps the members to form the rules of social behavior. The punishment (generally excommunication or ostracism) of disobeying the social rules is come in the form of social disapproval. Whereas law unlike social rules is made as well as enforced by the State. It is a rule of external human action enforced by the sovereign political authority. The objective of law is to bring order in the society with a view to ensure progress and develop with some sort of security regarding the future. The legal system of a country reflects the rules of society. If there is a change social rules then we can say that a change in social law just occurs. Conversely, change of law leads to change of the rules of society. For example, when Bangladesh Nationalist Party (BNP) forms the government they change the law against political unrest and under the new law lead to the parliamentary democracy in the country in 1990. Law is a social science characterized by movement and adaptation. Laws are neither created nor applied in a vacuum, on the other hand they created and used time and again for a purpose. Laws are intended to move us in a certain direction that we assume is good, or prohibit movement in direction that we believe is bad. So, we can say that laws had to be change according to the roles of the society. Law and society are related to each other. Nothing can explain without any of them. Society becomes the jungle without the law. Law also needs to be changed according to the changes the society faces, because without the necessary changes law cannot keep pace with society. Without the control of the law, the society became the jungle or at least barbaric. So, to keep the society peaceful, we need to create a harmonious relationship between law and society. The law affects every aspect of our lives; it governs our conduct from the cradle to the grave and its influence even extends from before our birth to after our death. We live in a society which has developed a complex body of rules to control the activities of its members. There are laws which govern working conditions (e.g. by laying down minimum standards of health and safety), laws which regulate leisure pursuits (e.g. by banning alcohol on coaches and trains travelling to football matches), and laws which control personal relationships (e.g. by prohibiting marriage between close relatives). 16 EL I_GCL 102
  17. 17. Chapter 01 7. What do you understand by the rule of law? 6, Jul.10, Jan.10 Rule of law: The Rule of Law is one of the most fundamental aspects of modern legal systems. Simply said, the rule says, 'howsoever high you may be; the Law is above you'. It specifies that the Law is supreme and that no human being is higher than the authority of Law. The concept was introduced by Chief Justice Sir Edward Coke during the James I rule. Sir Coke said that the King is under God and the Law and that the Law is supreme over executive. The term 'Rule of Law' was derived from the French phrase la principe de legalite (the principle of legality) The principles of Cole are developed by Dicey and are written in his book Law and the Constitution (1885). The Oxford English Dictionary has defined "rule of law" as ‘the authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes’. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials. Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. What are the three Rules of Law? 12, Jan.10 Dicey's Rule of Law: A V Dicey stated three principles to the term 'Rule of Law'. 1. Supremacy of Law 2. Equality before Law 3. Predominance of Legal spirit 1. Supremacy of Law The Rule of law states that, “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.” In other words, (a) There must be supremacy of law. Law is the absolute supreme and predominant as opposed to influence of arbitrary power or discretionary power. (b) No one shall be punished except for definite breach of law. (c) The breach of law must be proved in a duly constituted court of law. No citizen can be arrested or imprisoned, unless he violates specifically any law of the country in force and is accused of a charge by the court. Thus the rule of law implies equal protection of law. Wade states that Government is a subject of the Rule of Law, rather than the law being a subject of the Government. 2. Equality before Law 17 EL I_GCL 102
  18. 18. Chapter 01 In the second place, rule of law means that no man is above law. Every man whatever his rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals. “What is law-legal right and legal obligation for me- must hold equally as such for all citizens. In other words, Rule of Law means (a) equality before the law, (b) every citizen is subject to the ordinary law of the land and (c) the citizen has to face trial in the same law courts, irrespective of his status or position in the society. There is no need for extraordinary tribunals or special courts to deal with cases of Government and its servants. Of course, Dicey accepted that administrative authorities are exercising 'judicial' functions though they are not 'courts'. 3. Predominance of Legal spirit In the third place, the rule of law is the result of statutes and judicial decisions determining the rights of private persons. Thus the constitutional law of the country follows from the ordinary law of the land. The rights are a result of court judgements rather than from being enshrined in the Constitution. a) The Constitution is a consequence (and not the source) of the rights of the individuals. b) Thus, Courts are the guarantors of the liberty c) Rights would be secured more adequately if they were enforceable in courts rather than just being written in the Constitutional document. d) Mere incorporation in a written constitution is of no use in the absence of effective remedies of protection and enforcement. Criticism The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many jurists, including I. Jennings, H. Laski and W.A. Robson. The main criticisms are summarized below: 1. The emergency of Administrative Law: With the increase of constitutional complexities, the government departments have made many rules framed under various acts. This is known as Administrative Law. There are also special tribunals for the settlement of professional disputes. At the time of Dicey (19 th century Great Britain) there existed separate military courts and courts for churchmen. The executive department often uses the arbitrary and prerogative power in day-to-day’s work and for the purpose of performing the administrative work applies the discretionary power in most cases. Therefore, it is apparent that the Rule of Law is breached and the power of the government is far- reaching. 2. Economic Inequalities: In order to ensure legal equality Prof. Laski emphasizes the need of economic equality. Punishment for the same offence varies because police enforcement is frequently partial. Therefore, from the standpoint of law, the word ‘equality’ is meaningless, unless there is economic equality followed by social and constitutional equality. 3. The supremacy of the Legislature: The third principle of the Rule of Law is the supremacy of common law. But, in fact the principal basis of the constitution of England is the supremacy of Parliament. The sovereignty of Parliament in Britain has not been established by the county. Although the fundamental Rights of a citizen are established upon the basis of conventional rules and the Court is the protector of those rights, yet Parliament of Britain is the sole authority to bring any change over or to nullify the existing rules. Therefore, is understood that Parliament is the fundamental basis of the 18 EL I_GCL 102
  19. 19. Chapter 01 Constitution of England and judging from the standpoint of modern age, the concept of the Rule of Law is only a theoretical idea. This, however, does not apply to India because the constitution of India is written and there is a provision of fundamental rights in the constitution. Disadvantages of Dicey thesis: • Dicey thesis was not completely accepted even in his era. • Even at this time, there was a long list of statutes which permitted the exercise of discretionary powers of the Crown which could not be called to the Court. • Dicey instead of not just disallowing arbitrary powers has also insisted that administrative authorities should not be given discretionary powers. • He failed to distinguish between 'arbitrary powers' to 'discretionary powers'. • He misunderstood the real nature of droit administratif which was successful in France. What are the benefits of the rule of law? 7, Jul.10 The beneficial effect of the law upon society to a considerable extent from the fact that it creates and maintains a sphere of security for individuals in certain basic conditions of life. The law protects the life, bodily integrity, property transactions, family relations, and perhaps even the subsistence and health of the members of the body politic. It makes it unnecessary for people to set up private systems of protection against invasions of their privacy. It promotes the growth and maturing of human personalities by creating ordered conditions beneficial to the development of their mental and spiritual powers. It curbs physical or social adventure by those whose nature drives them to seek mastery and arbitrary power over others. By stabilizing (within the limits set by the unruly aspects of human nature) certain basic layers of conduct, the law helps to free the performance of the higher tasks of civilization from constant attention to problems on the lower levels, which may interface, with an adequate discharge of these higher functions. Furthermore, the law sets up institutional frameworks to provide means and proper environments for carrying out the manifold political, economic, and cultural tasks, which a progressive society must accomplish in order to achieve satisfaction of the demands of its members. By performing these functions, the law helps the creative, life-affirming powers latent in the social body to flow into constructive channels, and it thereby proves to be an indispensable instrument of civilization. Benefits of the rule of law: 1. It protects the liberty and rights of citizens. 2. It creates an atmosphere of peaceful living. 3. It enhances the caliber of citizens, legislatures and voters. 4. It helps to make administrative authorities confine to their limits. 5. It becomes a yard stick to test administrative actions. 6. It helps for the recognition and the growth of the concept of administrative law. 19 EL I_GCL 102
  20. 20. Chapter 01 10. ‘All are equal in the eyes of law.’ Discuss. 7, Jul.10 20 EL I_GCL 102
  21. 21. Chapter 01 An analysis of the above definition reveals that law is a general rule of human action. Laws, the author and upholder of which is superhuman, are not within the scope of the term law as understood here. They are within the province of quite a different science. The use of the term ‘law’ here does not express the uniformities of the physical world, but is confined to the world of human beings. Law as a rule of human action is a general rule. A rule applicable -to a particular individual commanding has obedience is not law within the definition of Holland. The term law as defined by Holland is again distinguishable from morality. We have seen above that law is a general rule of human action. Such general rule of human action is again external. Law is not concerned with thoughts, motives and inner feelings as such unless they are manifested in external actions. Law, therefore, deals with a general rule of external human action such actions which are exhibited externally. In this sense law is quite distinct from morality, which considers what a man thinks and feels along with what he does. Then such general rules of external human action are enforced by a determinate authority. Law is thus distinguished not only from all rules which, like the principles of morality and the so-called laws of honour and of fashion, are enforced by an indeterminate authority, but also from all rules enforced by a determinate authority, which is cither, on the one hand, superhuman, or, on the other hand, politically subordinate. Such determinate authority is human, who is a sovereign political authority. Rules set by such ah authority are alone properly called laws. In order to emphasise the fact that laws, in the strict sense of the term, are thus authoritatively imposed, they are described as ‘positive laws.’ Hobbes also distinguishes positive law in this sense from external law by observing that positive laws are those which have not been from eternity, but have been made laws by the will of those that have had the sovereign power over others. Holland’s approach to law is in keeping with the Auslinian tradition’ of the analytical school and the same criticisms which have been levelled against Austin’s theory of law apply with some force to Holland’s concept of law. In the first place, it is historically inaccurate to regard Jaw as commands of the sovereign. It ignores customary law. From early times law has been obeyed as a divine command or as a custom of the land. In the second place, it ignores ethical aspect of the law and makes no reference to the end and purpose of law. The aim of law is lo secure the ends of justice, which aspect has been excluded from Holland’s definition of law. In the third place, obedience to laws cannot always be attributed to fear. Law is primarily just and it is obeyed in a large measure because it is right and just. And, lastly, Holland imputes the capacity to frame laws only to sovereign political authority; denies the full connotation of the term ‘law’ to not-full sovereign States. This is inaccurate. 21 EL I_GCL 102