TyroCity: Legislative Principles and Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

The topic of this lecture is bit odd. It aims at exploring the influences of Education, Media, Religion, Morality, Economic Structure, Political Structure, Social Structure and Societal Value system on the law making process. It seems the intention is to study the influences on law rather than the law making process. It is hard to imagine how the law making process can be influenced by morality. The course assumes law making process in a democratic society, where legislature makes law. Therefore, in our lecture we are going to focus on the influences of the above instrumentalities on law, while also touching upon their influence on the law making process, when possible.

Morality

Barely universal or coherent notion. Some may regard something moral while others may regard very thing immoral. And even when a universal principle of morality is discovered, there may be disagreement as to their status or relation to the rest of human knowledge and experience.

Hart: apart from Primary Rules identified through official system with the help of secondary rule, other rules also continue to exist in society, which are termed as non-legal rules including moral rules.

are arbitrarily and subjectively created by society, philosophy, religion, and/or individual conscience.
ideal code of belief and conduct which would be preferred by the sane “moral” person, under specified conditions.
is synonymous with ethics.

Issues of morality are normally decided by conscience and instinct. So morality is something that comes natural to a person, of course society, values, norms on which that person grows and matures can have big role.

Lon L. Fuller

Attempted to distinguish ‘the morality of aspiration’ and ‘the morality of duty’. The former is concerned with the desired norm of human conduct, independent of human activity; the latter involves the standards followed by human beings in social relations in particular circumstances. Fulfillment of the morality of aspiration necessitates a legal system which will assist in this task by the recognition and maintenance of social order. The morality of duty will involve the creation of acceptable codes of conduct which the law will seek to enforce. Further, law itself must have its own morality.

Positive and Critical Morality

Positive Morality are those social conventions that created by man. So positive morality may become ‘immoral morals’.

Critical morality being the standards by which those social conventions can be judged. But then finding such standards can be like a dog following its tail. Anyways, some people argue morality and its coherence can be tested in the public domain. And that morality too shall be, subject to stringent requirements of rationality. FOR INSTANCE LORD Devlin’s Litmus test/reasonable person test (No Clapham Omnibus)

However, morality based on unreasonable, irrational and unfair grounds slowly but surely loose their strength and identity and wither away as morality. For Example, Sati, Homosexuality (at least in case of justification provided by the Emperor Justinian, who disapproved homosexuality because it caused earthquakes) and so forth.

So what is then the place of Morality in Law?

No one denies that morality can figure in legal argument and legal practice.

So debate lies somewhere else. First there lie many important variants in the claim itself that there is a necessary connection between law and morality. Second there is debate on the issue of extent of influence of these two standards. Merger or intersection – Hart Fuller Debate.

As far as the issue of variants in the claim, Natural, Positive School (Inclusive and Exclusive Legal Positivism)

Classical Natural School – first there are certain principles of true morality of justice, discoverable by human reason without the aid of revelation even though they have a devine origin. Second, that man-made laws which conflict with these principles are not valid law. Lex iniusta non est lex.

Sometimes moralities are enforced by law.

Examples, Interim Constitution of Nepal Articles 12 (3) (1) & (3), 15 (1)

Where Constitution qualifies the application of right to freedom of opinion and expression, right to form political party, union and associations, on assurance that such freedom do not go against public morality.

Public Offence Act 2027, Section 2 (c), (c1), (h)

The Act prohibits acts such as, swearing in public, presenting vulgar materials or signs in public, behaving improperly in public and so forth.

Emanuel Kant, Regarded laws prescribe external conduct whereas morals prescribe internal conduct, that is, morals alone are concerned with subjective factors, such as motive.

The Law may be too cumbersome an instrument to justify legal intervention in some spheres, and might thus do more harm than good, as in the case of some sexual irregularities, or it may be felt that certain moral duties are best left to the individual conscience, as, for instance, the duty to rescue a drowning man. Again, many legal questions are morally indifferent, for instance, the rule of the road, or where a choice is to be made whether a loss is to fall on one or other of two innocent persons.

Is abiding by a law moral?

Is abiding by a bad, discriminatory and unjust law immoral?

Hart – differences between moral and legal responsibility is due to substantive differences between the content of legal and moral rules and principles, rather than in semantic distinctions, eg, there may be important differences in the criteria applied, as for instance, where the law may rely upon concepts of strict or even absolute liability, which are hard, if not impossible, to reconcile with our present concept of morality.

Hart…similarities between Moral and legal rules

They are alike in that they are conceived as binding independently of the consent of the individual bound and are supported by serious social pressure for conformity
Compliance with both legal and moral obligations is regarded not as a matter for praise but as a minimum contribution to social life to be taken as a matter of course
Both include rules governing the individuals recurring in situations constantly recurring throughout life rather than special activities or occasions, and though both may include much that is peculiar to the real or fancied needs of a particular society, both make demands which must obviously be satisfied by any group of human beings who are to succeed in living together

Hart – Devlin Debate

Report of the Committee on Homosexual Offences and Prostitution, Wolfenden Report

“It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behavior, further than is necessary to carry out the purposes we outlined.”

Hence, the Report suggested the decriminalization of specific homosexual acts between consenting adults in private, and stressed the significance of two particular principles. First that the function of the criminal law, in the area with which the Report had been concerned, was to preserve public order and decency, to protect the public from that which was injurious or offensive and to safeguard the vulnerable against corruption and exploitation. Second there must remain a realm of private morality which is not the law’s business.

The report argued that unless a deliberate attempt is to be made by society acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.

So, the Report sought to differentiate between Private and Public Morality, and exclude private morality altogether from the criminal law’s purview.

Devlin in his 1958 lecture criticizes the Report in following terms

Certain moral principles which our society does require to be observed; their breach can be considered as an offense against society as a whole. The law does not punish all immorality; it does not condone any immorality. Further, Lord Devlin asks following questions;

Has society the right to pass judgment at all on matters of morals? Ought there, in other words, to be a public morality, or are morals always a matter of private judgment?
If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it?
If so, ought it to use that weapon in all cases or only in some; and if only in some, on what principles should it distinguish?

In answering first question, Lord Devlin gave a resounding yes. Lord Devlin argued that public morality is important in keeping a society together and if and when public morality are relaxed, then members of society will drift apart.

In answering second question, Lord Devlin argued that it is not possible to set any theoretical limits to the government’s power to legislate against immorality. A society has an undeniable right to legislate against internal and external dangers. The loosening of communal bonds may be a preliminary to total social disintegration and therefore a society should take steps to preserve its moral code. Hence, a society is entitled to use the law in order to preserve its morality in precisely the same way that it uses the law to safeguard anything else considered essential to its existence.

To the last question, Devlin devises a ‘reasonable man test’ in determining the extent of immorality that law should address. Under this test first Lord Devlin suggests tolerance of the maximum individual freedom consistent with society’s integrity. Secondly, when any activity goes beyond this tolerance limit such activity is punishable, this in-turn is determined by the ‘intolerance, indignation and disgust’ created in the mind of the reasonable man. Thirdly, Privacy must be respected and balanced against the need to enforce the law. Finally, since law is concerned with minima, not maxima, society should set its standards above those of the law.

Hart then criticized Devlin in the following line. First Hart argued that breach of morality will not necessarily affect the integrity of society as a whole. Second, criminal sanction for private morality is in all likelihood disproportionate in inflicting misery and pain to the ‘offender’. Thirdly, the reasonable man test which judges on the basis of ‘intolerance, indignation and disgust’ is vague and legislature can never be expected to formulate law to such effect. Furthermore, since the degree of ‘intolerance, indignation and disgust’ may change from society and time there will be lack of predictability and coherence in law, if Lord Devlin’s arguments were to be supported.

Economic Structure

Economic policy and structure have great influence on law and law making process. Law acts as a tool to transfer economic principles into practice. For example, liberalization legal tools, WTO related Laws. In addition, many laws have to speak to the economic structure of the society and interpreted accordingly. For example, Competition Law.

Political Structure

Many political institutions such as the parliament and their nature, form of governance, structure of the state, influence of pressure groups, lobbyist have influence on law and the law making process.

Media, Education, Religion, Social Structure and Societal Value System also influence the law making process by mooring the process on the foundation of social values and popular aspirations. In addition, such instrumentalities, allows accountable, predictable and democratic procedure of law making.

Seven standards for people’s voice or public participation

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

The public should have to say decisions about the actions that affect their life.
Public participation includes the promise that a public contribution will influence the decision.
This process communicates the interests of people and meets the process of all participants.
The process seeks out and facilitates the involvement of people potentially affected by the proposed decision.
The process involves the participants in defining how they will participate, thus the process will be structure.
The public participation process provides participants with the information they need to participate in a meaningful way.
The public participation process communicates to participants how their input affected the decisions.
Public hearing is basic form of people’s participation.

Types of Acts

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Not all Acts of Parliament are the same and each type of Act has a particular function and name.

Electronic Acts

Principal Act: also called an ‘original Act’, is an Act that deals with an area of law which has not been dealt with before.

Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended. These Acts usually have the word “Amendment” in their title.

Consolidated Acts (Electronic): are found in databases such as LAWLEX & AustLII. Here the database vendors have incorporated the amendments into the principal Act so that it reads as one Act. Consolidated Acts are not authorized reprints.

Hard Copy Acts

Principal Act: also called an ‘original Act’, is an Act that deals with an area of law which has not been dealt with before.

Amending Acts: identify specific sections of the principal act that are to be repealed, inserted or amended. These Acts usually have the word “Amendment” in their title.

Reprinted Acts: An act may be amended numerous times over the years. To aid the researcher to find the current law, acts are reprinted. The reprinted act incorporates the principal and amending acts, so that it reads as one act. This will state the law as it exists at the time of the reprint.

Structure of an Act

To carry out legal research you must become familiar with the structure of an Act. The structure of Acts within the Nepalese jurisdiction follows a common pattern. Note the important parts in the consolidated Act below:

Evaluate your Search

You need to evaluate your search results for relevance and quality. Depending on your evaluation you may need to revise or modify your search strategy.

Some evaluation criteria:

Relevance
Is the information relevant to your topic, question or purpose?

Quantity
Are you finding enough information? Are you finding too much or too little?

Quality
Is the information from reputable sources?

Timeliness
Is the information up-to-date? Does it cover the desired time period?

Scope
Is the information comprehensive? Is it too narrow or too broad?

Modify your search

Once you have performed a search, you may need to modify the search if too many or too few results have been retrieved.

Too many results?

Add more terms to narrow your search and be more specific.
Consider using narrower terms
Consider phrase searching (often by putting the phrase in quotation marks e.g. “native title”)

When modification takes place, consider to

Add alternative terms if needed
Consider using broader terms
Check spelling, typing errors and variations
Consider truncation if not already used

Advantages of law in creating social change

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

In many instances, the state of the art of social change endeavors is not methodologically sophisticated enough to distinguish clearly among casual, necessary, sufficient, and contributory conditions to produce desired effects in society. The advantages of law as an instrument of social change are attributed to the fact that law in society is seen as legitimate, more or less rational, authoritative, institutionalized, generally not disruptive, and backed by mechanisms of enforcement.

Legitimate Authority

A principal advantage of law as an instrument of social change is the general feeling in society that legal commands or prohibitions ought to be observed even by those critical of the law in question. To a great extent, this feeling of obligation depends on respect for legitimate authority and the perception of power. Webber says that there are three types of legitimate authority:

1. Traditional authority bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order, but rather a matter of personal loyalty [Rule-of-elders].

2. Charismatic authority cases its claim to legitimacy on devotion to the specific and usual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. The charismatic leader is obeyed by virtue of personal trust in his or her revelation or exemplary qualities [Moses, Christ, Mohammed, Gandhi].

3. Rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority ti issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order. “Rational” people “voluntarily” make a “contract” that generates the impersonal legal order.

The binding force of law

Law is binding because most people in society consider it to be. Some consider the content of the law to command obedience, which, in turn, is seen as a compelling obligation. The law achieves its claim to obedience, and at least part of its morally obligatory force, from a recognition that it receives from those, or from most of those, to whom it is supposed to apply. Even when laws are against accepted morality, they are often obeyed. The extermination of more than six million Jews in Nazi Germany, clearly the most extreme instance of abhorrent immoral acts, was carried out by thousands of people in the name of obedience to the law. Milgram contends that the essence of obedience is that individuals come to see themselves as instruments for carrying out someone else’s wishes, and they therefore no longer view themselves are responsible for their actions. Under certain conditions many people will violate their own moral norms and inflict pain on other human beings, and that succinctly underlines the notion that most people willingly submit to authority and, by extension, the law.

Sanctions

Sanctions for disobedience to the law are surely among the primary reasons that laws have binding force. “The law has teeth; teeth that can bite if need be, although they need not necessarily be bared.” Sanctions are related to legal efficacy and are provided to guarantee the observance and execution of legal mandated to enforce behavior.

Importance of Legal Research in Law making Process

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

To formulate new Legislative: –

Existing law or Legislative mechanism does not serve such modern necessity, new aspiration and desire.
Therefore to co-up-with the change and problem new legislations are formulated.
For the enactment of new legislation, adequate knowledge, information and appropriate remedy to combat is required.

(i)** To make new legislation effective, the following aspects must be kept in mind**:

(a)Identification of problems: –

Fact finding operation, survey study, which is generally conducts to access the opinion, behavior of society.

Example: – To be aware of crucial problems of the society, prostitution.

(b)Explanation of causes: –

To find out the reason or causative factor of the problem.

Example: -To find out the cause of prostitution.

(c)Formulation of policies/legislation: –

Example: -If the root cause of prostitution is poverty, then legislation is to draft to alleviate poverty.

(d)Critical Functions: –

Find the weakness and the strength of formulated act.

(ii)Method of formulating new legislation: –

(a)Analytical Research Method: –

-1st, researcher should have knowledge of law making.

-2nd, the researcher should have sound knowledge of several statute.

-3rd, the researcher has to locate the needed statutory material.

-4th, a researcher should study prevailing customs.

-5th, a researcher has to study case law on particular legislation.

-6th, a researcher has to make a choice between 2 or more conflicting views and select the best one.

(b)Historical Research Method: –

1) It provides social insight.

2) Historical oriented (facts and events to be studied in the historical perspective)

3) Historical evolution of law

(c)Comparative Research Method: –

-Comparison of International and National Law

-Comparison of one country law to other.

(d)Ethical Research Method: –

Moral values, principle.

(e)Statistical Research Method: –

Use of different tools and technique of collection of data, questionnaire, interview, etc.

(f)Critical Research Method: –

Collect the data from secondary source and use own wisdom and experience to it.

(2)To reform existing Legislation: –

Law is not static but a dynamic one.
It is reformed according to need of society, time and country.

(3)To find the situation of application and acceptance of existing legislative: –

Legal research helps to find out

(i) Consequence of existing legislation.

(ii)Shortcoming of existing legislation

(iii)Level of understanding of legislation in society.

Law Making Steps

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

With respect to legislative bills introduced by the Cabinet(“Cabinet-introduced bills”), the following chart illustrates the process in which they are drafted, approved, and promulgated.

(Note: For the sake of simplicity, the chart assumes that the cabinet-introduced bill is approved by the Diet without any amendment.)

Outline of the chain of events from the drafting of a legislative bill to be introduced by the Cabinet, to its approval and promulgation.

(1) Drafting of a legislative bill

A legislative bill that is to be introduced by the Cabinet is drafted by the ministry having the jurisdiction. A ministry draws up the first draft of a legislative bill, once it decides either to enact a new law or to amend or abolish an existing law in order to achieve a policy goal set in the performance of its administrative duties.
On the basis of this first draft, consultations take place with other ministries concerned and the political party(ies) in government. In addition, where necessary, procedures are followed for its referral to advisory councils or to public hearings. Once all of the above has been completed and the legislative bill is considered ready, the ministry in charge puts the draft into a proper statutory form. The final draft of the legislative bill has now been prepared.

(2) Examination by the Cabinet Legislation Bureau

All legislative bills that are to be introduced by the Cabinet are examined by the Cabinet Legislation Bureau before being brought before Cabinet meetings. In principle the examination of a bill by the Bureau should begin only after the request addressed to the Prime Minister for a Cabinet meeting relating to the bill is sent by the ministry in charge. In recent practice, however, a way has developed whereby the Bureau conducts a “preliminary examination” of the bill for which the necessary consultation has been completed. The request for a Cabinet meeting therefore is sent on the basis of the bill for which the Bureau’s preliminary examination is completed.
During the examination by the Bureau, the bill is examined from all angles, legally and technically. The points examined include the following. :
- The relationship between the proposed bill on one hand and the Constitution and other existing laws on the other, as well as the legal appropriateness of the contents of the bill;
- Whether or not the intentions of the proposed bill are accurately expressed in the text;
- Whether or not the structure of the bill (e.g. the order of articles.) is appropriate;
- Whether the usage of letters or words is correct.
Once the preliminary examination is completed, the state minister in charge of the legislative bill follows the procedure for sending to the Prime Minister the request for a Cabinet meeting regarding the submission of the bill to the Diet. The Cabinet Secretariat, which receives the request, sends it on to the Cabinet Legislation Bureau, which then conducts a final examination, considering the results of the preliminary examination already conducted, makes any revisions as necessary, and returns the result back to the Cabinet Secretary.

(3) Cabinet decision to submit the bill to the Diet

As to the legislative bill for which a Cabinet meeting has been requested, the Director-General of the Cabinet Legislation Bureau gives its outline explanation at the Cabinet meeting, and if the Cabinet decides in favor without objection, the Prime Minister submits the bill to the Diet (either to the House of Representatives or to the House of Councilors). The administrative work related to the submission to the Diet of a bill intoroduced by the Cabinet is conducted by the Cabinet Secretariat.

(4) Examination by the Diet

When a legislative bill is submitted to either the House of Representatives or the House of Councilors, the leader of the House (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors), in principle, refers the bill to an appropriate committee. The committee then conducts an examination, starting with an explanation by the state minister in charge regarding the reason for proposing the bill. The examination itself largely follows a question-and-answer format (with the committee asking questions about the bill, and the state minister answering). When the committee completes its questioning and deliberation, its chair person declares, and a vote is taken on, the issue of whether or not to approve the bill. When the committee finishes its examination, deliberation continues at a plenary session of the House concerned.
When the legislative bill passes both the committee and the plenary of the House to which it was first submitted, it is sent on to the other House (i.e. it is sent from the House of Representatives to the House of Councilors or vice versa). The same procedure involving deliberation and decisions both by a committee and a plenary is then followed by the second House.

(5) Enactment of a new law

Except otherwise provided by the Constitution, a legislative bill becomes a law when it passes both the House of Representatives and the House of Councilors. The leader of the House that examined the bill second (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors) then submits the new law to the Emperor via the Cabinet (the Emperor’s approval is a formality).

(6) Promulgation of the new law

The newly enacted law must be promulgated within 30 days from the date on which the leader of the House that examined the bill second submits it to the Emperor via the Cabinet. As to the promulgation, it is done after a Cabinet decision to do so, and by publication in an official gazette . (An outline of the law is also published in the gazette to serve the general public’s understanding of the law. )
Promulgation is to ensure that a newly enacted law becomes widely known by the public. In other words, it is an act whereby the people is enabled to know the law. A law must be promulgated before it actually takes effect.
A law is said to “come into effect” or “come into force” when it generally and actually takes effect and starts to apply. Laws usually stipulate in their attached clauses when they come into effect.
When a law is promulgated, it is given a serial number and signed by both the state minister responsible for the law and the Prime Minister.

Introduction

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Utilitarianism (Latin utilis, “useful”), in ethics, the doctrine that what is useful is good, and consequently, that the ethical value of conduct is determined by the utility of its results. The term utilitarianism is more specifically applied to the proposition that the supreme objective of moral action is the achievement of the greatest happiness for the greatest number. This objective is also considered the aim of all legislation and is the ultimate criterion of all social institutions. The utilitarian theory of ethics is generally opposed to ethical doctrines in which some inner sense or faculty, often called the conscience, is made the absolute arbiter of right and wrong. Utilitarianism is likewise at variance with the view that moral distinctions depend on the will of God and that the pleasure given by an act to the individual alone who performs it is the decisive test of good and evil.

British philosopher and economist Jeremy Bentham (1748-1832) was the originator of the doctrine known as utilitarianism. He declared that in order to come into accord with the laws of nature, government and citizens should act to increase the overall happiness of the community. The utilitarian principles of Bentham and others who shared his beliefs, including British philosopher-economists James Mill (1773-1836) and his son, John Stuart Mill (1806-1873), helped to bring about social and political reform in Britain.

In the Introduction to the Principles of Morals and Legislation, Bentham advanced utilitarianism as the basis for reform. He claimed that one could scientifically ascertain what was morally justifiable by applying the principle of utility. Actions were right if they tended to produce the greatest happiness for the greatest number of people. Happiness was equivalent to pleasure. Through a kind of moral-mathematical calculation of pleasures and pains, one could tell what was a right or a wrong action. If all pleasures and pains were of the same order, then a utilitarian evaluation of moral, political, and legal activities would be possible. Also, Bentham argued, if values were based on pleasures and pains, then theories of natural rights and natural law were invalid. John Stuart Mill, severely modifying some of Bentham’s principles, discounted Bentham’s method for calculating quantities of happiness.

In Britain, liberalism was elaborated by the utilitarian school, chiefly the jurist Jeremy Bentham and his disciple, the economist John Stuart Mill. The utilitarian reduced all human experiences to pleasures and pains, maintaining that the only function of the state was to increase pleasure and reduce pain and that legislation was acceptable as an evil designed to reduce worse evils. Utilitarian liberalism had an especially beneficial effect on the reform of British criminal law. Bentham demonstrated that the harsh penology of the 18th century was uneconomical and that leniency was shrewd as well as decent. Mill defended the individual’s right to act freely, even to the person’s own detriment. His essay “On Liberty” (1859) is one of the most eloquent defenses of free speech.

WORK OF BENTHAM

Utilitarianism was enunciated in its most characteristic form by the British jurist and philosopher Jeremy Bentham in his Introduction to the Principles of Morals and Legislation (1789). In Bentham work, utilitarianism is as illustrated in his definition of virtue as the “doing [of] good to mankind, in obedience to the will of God, and for the sake of everlasting happiness.” Bentham employed the utilitarian theory as a foundation, not merely of an ethical system, but also of legal and political reforms. He maintained the necessity of sacrificing smaller interests to greater, or, at all events, of not sacrificing greater interests to smaller, and so posited as the ethical goal of human society the greatest happiness of the greatest number.

Bentham sought to illustrate the doctrine of utilitarianism by counterpoising it to the doctrine of asceticism on the one hand and to the theory of sympathy and antipathy on the other. Asceticism he defined as the principle that pleasure should be forfeited, and pain incurred, without expectation of any recompense. The theory of sympathy and antipathy he held to be based on the “principle which approves or disapproves of certain actions, not on account of their tending to augment the happiness, nor yet on account of their tending to diminish the happiness of the party whose interest is in question, but merely because a man finds himself disposed to approve or disapprove of them: holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the necessity of looking out for any extrinsic ground.”

In his exposition of the theory of utilitarianism, however, Bentham postulated “four sanctions or sources of pain and pleasure,” namely, the physical, the moral, the religious, and the political. The physical sanction, according to Bentham, is the basis of all the others. He sought further to devise a scale of pleasures and pains, rating them in terms of their intensity, purity, duration, propinquity or remoteness, certainty, fruitfulness, and the extent to which pleasure and pain are shared among the greatest number of people.

Autocracy Vs. Democracy

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Democracy is a form of government in which the people either directly or indirectly, take part in governing. However, the term is also used as a measurement of how much influence a people has over their government, as in how much democracy exists. A modern democracy implies certain rights for citizens:

Right to elect government through free and fair elections
Freedom of Speech
The rule of Law
Human Rights
Freedom of Assembly
Freedom from discrimination

Is Democracy the Best System?

There is much debate on the ability of a democracy to properly represent both the ‘will of the people’, and to do what is right, but to quote Winston Churchill;

“Democracy is the worst form of government except for all those others that have been tried”.

This is because there is no system that can ideally order society. Traditionally, the purpose of the democracy is to prevent tyranny (the accumulation of too much authority in the hands of one or few. Thus, if the democracy cannot give us a good government, it puts limits to the abuse of power.

What is Autocracy?

In simple tone, an autocracy is a system where the ruler rules the people with too much accumulation of the power, or there is no kind of limits on abuse of power. Autocracy signify lacking of people’s representation or participation in the governance process.

Despotism: Autocracy might be imposed by a single person or a group. When a singular authority –either a single person or tightly knit group-which rules with absolute power is know as “despotism”. Despotism implies tyrannical rule; it suggest a form of government which exercises exacting and near absolute control over all its citizens.

Totalitarianism: Totalitarianism is any poetical system in which a citizen is totally subjected to state authority in all aspects of day-to-day life. It goes well beyond dictatorship of typical police state measures, and even beyond those measures sustain total war with other state. It involves constant brainwashing achieved by propaganda to erase any political for dissent, by anyone, including most especially the state’s agents.

Dictatorship: Dictatorship is a government headed by a dictator or more generally any authoritarian or totalitarian government. It is often equivalent to a police state, but the term dictator refers to the way the leaders gain and hold power, but not the watch kept on the people.

Police State: A political condition where the government maintains strict control over society, particularly through suspension of rights and often with use of a force of secret police.

Authoritarianism: The term authoritarianism is used to describe an organization or a state which enforces strong and sometimes oppressive measures against population. This is distinguished from totalitarianism both by the degree and scope, authoritarian government being less intrusive and in organization not necessarily backed by the force.

Autocracy in general implies an ideology or concept of regime ‘which tends to or rule by accumulation of power without being accountable to people’. People are subjected to the authority of the state. This sate of condition implies that:

People have not freedom electing government.
People exercise no freedoms
Government interferes in all aspects of life of the people.
Police measures are used to contain the people.

Legislation is Used to Rule People

Law is effectively used to:

Remove the limits of power, and prevent abuse of power. Legislation in such regime is used to empower the rulers to accumulate powers or authority.
Restrict the people to dissent. People rights to freedom of speech and assembly is restricted or marginalized.

Features of Legislation in Autocracy

Prescriptive: Legislation prescribes the duties for people to support the ruler without any question.

Regulatory: Legislation is regulatory, so that behaviors of all people are strictly regulated, deviation being punishable.

Punitive: Legislation is punitive for violation of the prescription or regulation.

Centralization of power: Governance power is centralized. The devolution of the power is effectively negated. Centralization of power weakens the authority of the Parliament, the law making body.

Legislation is abstract and ambiguous or maintains possibility double standard.
Legislation empowers executive for rule making through regulation or ordinance or bye-laws.
Legislation provides absolute power for interpretation of the statute.

Behavior and Accountability of Law makers

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

A Legislator:

Person who writes and passes the law.
Usually politician, often elected by people
Different names are provided to it like Parliament, Diet, Legislative Assembly, Congress.

When there is room for interpretation, the intents of the Legislator will be questioned, and the court is supposed to rule in the direction, that it judges to fit the legislative intent the best, -which can be uneasy, in the case of conflicting laws or constitutional provisions.

Formulating new legislation is not an easy task. In fact, it requires comprehensive study done by legislators, regarding various issues.

There is question, whether the criteria education requirement and training is required for legislators or not?

Constraints

Legislator should be confine between some constraints while formulating law or fulfilling their role and responsibility.

(a)Constitutional Constraints:
Some constraints are mentioned in constitution like no death penalty, no exile to anyone, no prohibition to political parties, etc.

(b)Legal and Natural Principles Constraints:

Like: – rule of law, natural justice, fair trial right to hearing, appeal, Judicial review

(c)Self-restrained limitation:

Like: – Law should be reasonable, rational, judicious, good conscience.

Authority

(a)Legislature with absolutely define authority:

– Legislature has authority to formulate law on fixed and defined subject.

– Not other than that.

– American Congress can only formulate law in monetary, finance, public welfare and altogether 18 issues.

(b)Legislature with absolutely non-defined authority:

– Like: -British Parliament, New Zealand Parliament and Italian Parliament.

– There is non-defined authority to make legislation on any issues.

(c)Legislature with relatively defined authority:

– India and Germany parliament.

– Indian federal parliament has some authority to make law.

Legislator must keep in mind

Draft or passing of any law should be contextual.
Knowledge about other related prevailing laws.
Precedent.
Use of simple word.

Weapons for Legislator for law drafting and pairing

(a)Constitution

(b)Policies

(c)Law on Interpretation

(d)Precedent

(e)Foreign Laws

(f)Legal dictionary

(g)Convention, treaties

(h)Prevailing Acts

(i)Articles of Jurist and experts.

Social changes as causes of legal changes

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

In a broad theoretical framework, social change has been slow enough to make custom the principal source of law. Law could respond to social change over decades or even centuries. Today the tempo of social change accelerated to a point where today’s assumptions may not be valid even in a few years from now. The emergence of new risks to the individual as a result of the decrease of the various family functions, including the protective function, has led to the creation of legal innovations to protect the individuals in modern society. Eg provisions of workers compensation, unemployment insurance, old-age pensions. Many sociologists and legal scholars assert on the basis of a large amount of accumulated data that technology is one of the great moving forces for change in law in three ways: (read page 335 paragraph 3). The computer and easy access to cyberspace, especially internet, also have inspired legislation on both the federal and the state levels to safeguard privacy, protects against abuse of credit information and computer crime. Change in law may be induced by a voluntary and gradual shift in community values and attitudes. [eg. People may think that poverty is bad, and laws should be created to reduce it in some way.] Alternations in social conditions, technology knowledge values, and attitudes then may induce legal change. in such cases law is reactive and follows social change. However, changes in law are only one of many responses to social change. Additionally, laws can be considered both as reactive and proactive in social change.

Process of Law Drafting inside Law Commission

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Initiation of tasks:
Commission may initiate drafting and law reform on referral of the concern ministry or on its own.

It may receive a proposal from stakeholder, i.e. individual, non-governmental organization, civil society and community organization.

Formation of working team:
Commission decides annual program on the basis of the priority, and for WORKING TEAM involving experts to act on approved area by providing clear mandate and time frame.

Preparation of Consultation paper:
WORKING TEAM carries out in-depth study, research of the issue.

WORKING TEAM may invite experts, stakeholder and Government official for consultation. WORKING TEAM prepares a consultation paper and make available to anyone interested.

Organizing Seminar/Workshop:
WORKING TEAM may organize seminar/workshop inviting prominent scholars, activists and other key stakeholders to have well-versed comments on draft prepared by WORKING TEAM.

Final Report and draft bill and Submit to Government:
Report and draft bill are submitted to the Government or concern ministry by finalizing it, for the further action on draft Bill.

Morality and Values

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

The cause and effect relationship between law and change is very difficult to identify because the ability of law to produce change isprobabilistic, contingent and sequential because even though some changes can occur, other factors such as the morality and values of society affect the efficacy and time lag of laws in causing change. On certain issues like truth, individual liberty, etc., a shared morality and shared values are essential to unify the society. However, not all values are essential and those should be able to change. To cause change, a law should be supported by the society. Its efficacy in change is limited on moral issues in society. Examples are the ineffectiveness of laws prohibiting adultery, homosexual marriage or sexual abuse. The laws prohibiting many drugs, especially marijuana, have been called the “new prohibition” to underline similarity with laws prohibiting alcohol usage. It seems that laws on important drives are more difficult to apply than those on less compelling drives. Marijuana is seen a source of pleasure for many people therefore control should be imposed only against polluted merchandise. Morris Grinsberg suggests that laws should deal only with acts that can be precisely defined and with external observable acts; and the laws should as far as possible respect privacy.

Thus, laws most likely change external behavior, which are consequently later on followed by changes in attitudes, values and morals. So the range of the “external” is enlarged and sometimes affects personal preferences and tastes. In contrast, William Graham Sumner said that laws can regulate only behavior and not values, morals and attitudes. Examples are laws asserting equality for blacks which were not accepted by whites for many generations. On the other hand, this law that required change in behavior has gradually changed attitudes too. Today, the idea of racial superiority is no longer characteristic of whites. The law can change morality and values under specific conditions. Even though there aren’t enough empirical studies, it is true that the efficacy of law depends on it adaptation to morality and values if it aims change.