TyroCity: Legislative Principles and Law Making Process

Features of Public Opinion

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

(a) Temporary but efficient in law making.

(b) Modern form of Constitutionalism.

(d) It also empowers people to engage in public affair and debates as being unit of society.

(e) It is a democracy beyond voting.

In the Canadian Case of Marshall V. Canada Communication, Case No. 205(1986); In this case the issue was brought before UN Committee on human rights which held that public participation in the form of public affairs in an emerging right such as public equality freedom of speech and association.

Doctors for life international V. The speaker of the National Assembly and other (2006) Constitutional court of South Africa stated that “Institutionalization of public participation is so much crucial stage for the nation that is going through law making process and it also makes an obligation of every state.

Drafting Steps and Principles

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

There are 4 steps of Legislative Drafting. They are as follows:

1)Role of Interest group

The research is to be carried out by some group of people. This group of people is termed as interest groups. The interest groups may be (a) Concerned Political parties (b) Concerned Stakeholder (c) Concerned Experts (d) Concerned Local or effected community (e) Civil society.

Outcome of research are to be discussed to Interest groups. Interest groups have to have some constructive feedback and complements on it. They have to play major role for lobbing those research outcome to formulate it as a policy first and secondly for legislation. At first these are to be developed in the form of policies to cross check its pros and cons in society. After having positive response in society than they should be given Legal form (Legislation).

2)Identification of legislative problem: –

To formulate the policy, research is to be carried out to the concern stakeholder and take feedback from then. What kind of effect it may produce? Is it necessary or not? Whether the problem is there or not? Whether the problem can be solved or not? Is it necessary to be in legal form or not?

After answering these above questions legislative will be capable enough to find the research problem for legislative body. Research Problem here means to find out the social wants/ social interest.

For Ex: Is the lack of practical education cause for the poverty or unemployment in Nepal? Now legislative has the subject matter (research problem), which is to be address by law making (Legislation).

3)Framing of legislative policy: –

Among all the diverse issues raised by the interest groups, the legislative has to figure out which of the policy is essential to establish welfare-state. These kinds of policy are the legislative policy which is to be taken into parliament to enact it as legislation.

4)Identification of policy alternative: –

If that policies fails than the possible alternative should be formulated.

Policy

Definition

To address changing need of aspiration of people…For people’s welfare.
According with national interest.

Source of law

It is the source of law.
During Government rule, nation or state need different kinds of rule to govern the people at this they use policy as a tools.

Basis or group

Geographical, political, historical, economical, social, cultural, people level of awareness (civic sense)

Types of Policy

Nation/State policy: -Not easily changeable. Example: -Nepal commitment and foreign policy.
Government policy: -During the governance of state. It is comparatively changeable.
Political party policy: -Political party policy should be acknowledged and rectify by the government.

Effects of policy

i)They are the guideline for the government :-acts as directive to government.
ii) Source of law should turn into legal form: -Individual, social interest into law.
iii)Not necessary to be turn into legal for: -Foreign policy, Agricultural policy, foreign aid policy.

Law as a policy instrument

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

Yehezkel Dror contends that law by itself can’t bring directed social change but it is one component of many policy instruments that must be used in combination. In the case of social problems like drug abuse, race relations, law can be used effectively as a policy instrument. But, sometimes in order to bring change law should be an ingredient of a larger policy (the Act of Economic Opportunity that attempted to decrease poverty in US). Usually law is used as an instrument of social change outside of a broader policy framework in reform oriented litigation, such as the restrictions of 1992 on abortion. But, broader issues concerning environmental or natural resources management issues should be reformed using broader policy making frameworks.

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.

Conceptual Framework

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

The power and strength of government come from the people in a democracy. The word “democracy” comes from two Greek words: “demos” meaning “people” and “kratos” meaning “power” or “authority.” The Nepal has a democracy.

Some countries have autocratic governments. The word “autocracy,” the opposite of democracy, comes from the Greek words: “autos” meaning “self” and “kratos” meaning “power.” In an autocratic government, one person or group holds all the power, without the participation, or sometimes even the consent, of the people. Autocracy is a form of government in which the political power is held by a single self-appointed ruler who holds all the political power. In a democracy, the extreme control is held by the people under a free electoral method.

An autocracy is a form of government in which one person possesses unlimited power. An **autocrat **is a person (as a monarch) ruling with unlimited authority. The term autocrat _is derived from the word _autokratōr (αὐτοκράτωρ, lit. “self-ruler”, or “one who rules by himself”). Compare with oligarchy (“rule by the few”) and democracy (“rule by the people”). Today the term autocrat is usually understood as being synonymous with despot, tyrant and dictator, although each of these terms originally had a separate and distinct meaning.

Autocracy is not synonymous with totalitarianism, as the latter concept was forged in 1923 to distinguish modern regimes from traditional dictatorships. Nor is it synonymous with military dictatorship, as these often take the form of “collective presidencies” such as the South American juntas. However, an autocracy may be totalitarian or be a military dictatorship.

The term monarchy also differs in that it emphasizes the hereditary characteristic, though some Slavic monarchs, specifically Russian Emperors traditionally included the title “autocrat” as part of their official styles. This usage originated in the Byzantine Empire, where the term autokratōr was traditionally employed in Greek to translate the Latin imperator, and was used along with Basileus to mean “emperor”. This use remains current in the modern Greek language, where the term is used for any emperor (e.g. the Emperor of Japan), regardless of the actual power of the monarch. Historically, many monarchs ruled autocratically but eventually their power was diminished and dissolved with the introduction of constitutions giving the people the power to make decisions for themselves through elected bodies of government.

The autocrat needs some kind of power structure to rule. Very few rulers were in the position to rule with only their personal charisma and skills, however great these may be, without the help of others. Most historical autocrats depended on their nobles, the military, the priesthood or others, who could turn against the ruler and depose or murder them. As such, it can be difficult to draw a clear line between historical autocracies and oligarchies.

Jean Baptine Rascine (1639-1699) (French Play Writer), “Autocrat are tired of making himself/herself loved, he want to make him/herself feared.”

Winston Churchill (1874-1965) (British Prime Minister and Writer), “Dictators ride to and fro upon tigers which they dare not dismount. And the tigers are getting hungry.”

Autocracy is a political system under which one ruler wields unlimited power, restricted by no constitutional provisions or effective political opposition. the autocrat need some kind of power structure to rule, like laws (legislation)-mostly martial laws.

Without any legal authority no state authority either autocrat are entitle to run its governance or the rule. But this may not had been happened in ancient period but it is must in modern era that there need to be of any legal authority to establish themselves as a ruler. So, they use legislation /law as their weapon to establish themselves as ruler.

Example:

Nepal:

King Mahendra, seized absolute control of government by proclaiming a new constitution in 1962; that banned the formation of political parties and allowed for the autocratic rule.
King Gyanendra dismissed Deuba, dissolve parliament and assumed full power over the government, based on Art 127 of Nepalese Constitution 1990.

Europe:

Between 1925 and 1931, The Fascists consolidate power through a series of new laws that provided a legal basis for Italy’s official transformation into a single-party state.
Nazi government issued Nazi style of law name “anti- Semitic Laws”. These new laws denied that Jews being German and was used totally against the Jews by Hitler.

These all events proves that autocrat use the legislation as tool to improve their autocracy. By using law they can pronounce any activity which is against them as illegal. Legislation is the effective instrument to govern the society in autocracy. This is an important tool as compare to other law making bodies. In autocracy the legislation is made to fulfill the interest of elite.

Public Opinion, Introduction and Importance

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

Public opinion is shaped by relatively permanent circumstanced and by temporary influences.

Permanent circumstances such as race, religion, geographical location, economic status and educational level can strongly influence the public opinion. (Individuals or a particular group)

Temporary factors such as impacts of current events effects of main communications media, propaganda and concerned campaigns of public relations professionals.

It is a survey research in sociology, means collection and analyzing responses of large samples of people.

Public opinion in Nixon’s Vietnam war policies, polls showed that 60% of US people considered war as “immoral” and 70% demanded immediate withdraw from Vietnam.

Importance of Public participation(People’s voice) in Law making process

-Constitution and other law making is not an easy task.

-In societies in which sharply divergent aspirations are present and a common life cannot be assumed, constitution making is difficult task at best.

-It cannot be supposed that clever-drafting can solve the problem by merely writing around it.

-In countries with socio-economic, cultural and geographical diversity as well as with diverse aspirations and needs of people it is even more taken as challenging job.

-Hallmark of present day constitution making process is to ensure maximum participation in law making process.

This is newer form of constitutionalism in order to make law legitimate.

Apparently, it is important in Nepalese context to strengthen democracy and actual justice.

This don’t form an individual’s stand point view but from wider sense.

In contemporary Nepalese constitution building phase, the relationship between people and law is needed; it can be built through it.

-People’s voice is to have their say in different affairs.

It is a participatory democracy, which is accepted on the quite genius democracy.

It’s not only a constitution but entitles public spaces and direct engagement of people.

It is not an end but means to change and develop society.

-Public hearing, consultation, etc.

-Representative from different diverse sector facilitate the process.

Built on a belief that citizens can be trusted to shape their own future, participatory development uses local decision making.

Constitution : role and significance Of Constitution

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

The word “constitution ” is derived from latin word “constitute” which means to form or to establish.

CFStrong:

constitution is a collection of principles according to which the powers of government, the rights of the governed and the relationship between the two are adjusted.

Constitution is a basic political document which explains the nature of government, confers fundamental rights to the citizens and regulates the relationship between the government and the citizens.

Constitution is an aggregate of fundamental principles or established precedent that constitute the legal basis of policy, organization or other type of entity and commonly determine how that entity is to be governed.

Constitution provide scope for good government, while at the same time placing limitation on the power of governors.

constitution defines how the government operates it defines the power of government while also limiting the government from power prohibited to its and reserved to all the states or to the people.

Constitution forms the basic structure of government constitution is base on the fact that it lays down all the legal and cultural aspects under which it people and governmental bodies will be governed and that too when there are foreign interactions in personal affairs every now and then by international organization.

Constitution: Constitution is a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.

Constitution is a set of legal political rules that are binding on everyone in the state including ordinary law making institutions and are based on widespread public legitimacy.

The Constitution is the body of fundamental doctrines and rules of a nation from which stem the duties and powers of the government and the duties and the rights of the people.

The Constitution is harder to change than ordinary laws( two third majority votes for referendum is needed in order to change it). The Constitution majorly concerns the structure and operation of the institutions of government, political principles and the rights of citizens. The constitution as a minimum should also meet the internationally recognized criteria for a democratic system in terms of representation and human rights.

A Constitution of a country is a set of written rules that are accepted by all people living together in a country. The constitution is the supreme law that determines the relationship among people living in a territory and also the relationship between the people and government. A constitution performs several functions:

(i) It generates a degree of trust and coordination that is necessary for different kinds of people to live together.

(ii) It species how the government will be constituted, who will have the power to make which decisions.

(iii) It lays down limits on the powers of the government and tells us what the rights of the citizens are.

(iv) It expresses the aspirations of the people about creating a good society.

The Constitution can declare and define boundaries of the political community. These boundaries can be both territorial and personal. Thus, the country’s constitution often distinguishes between those who are inside and those who are outside the policy.

The Constitution can declare the official religious identity of the state and democratic relationship between sacred and secular authorities. This is particularly important in societies where religious and national identities are interrelated.

The constitution entails about the emergency state of the country or when one country reaches the phase of emergency. Precisely speaking the constitution talks about both derogable and non- derogable rights of the citizen during the time of emergency. President announces the emergency state.

The notion of inclusivity at its peak as we can see women, dalit, children, disable, senior citizens,etc are given priority and have been adopting the principal of substantive equality.

Moreover, the constitution provides the jurisdiction power within the legal system of the country. It allows the different courts of law to handle different cases for example there are 5 writs and among them 2 of the habeas corpus and prohibition can be heard by the district court whereas the other 5 can be heard directly either at supreme court or high court.

Every state has the obligation to respect, protect and fulfil Human rights. The constitution of Nepal respects the human right by including it in the fundamental rights from 16 to 46 and equally protects the rights by providing the constitutional remedy in article 46 assuring the justice to the general public with the substantial amount of treatment when violation of rights. Simultaneously, the fulfillment part comes when the court of law renders satisfactory justice to both victims while punishing the offenders.

The word constitution is derived from the word “constitute” which means “formally establish”. The Constitution is a set of laws and rules that establishes the machinery of a state’s government and describes and determines the relationships between the executive, legislature, judiciary, central, and local governments. It is a state or country’s Supreme Law that lays out the process for establishing legislation or rules, as well as the state’s administration. It is the foundation of any government.

The Constitution provides a basic set of rules and regulations for smooth functioning of the administrative system.

Role and Significance of the Constitution are listed down below:

It has a system of check and balance which prevents the misuse of the power vested in the government.
It regulates the relationship between the various organs as well as between citizens and the government.
It gives the valuable information about the composition of the government regarding its structure, organs, duties and responsibilities.
It also defines the country’s political system.
It protects the rights of the minorities from the suppression forced on them by the majority.
It guarantees several fundamental rights and other constitutional rights to citizens in order to protect them from facing any injustice.
Constitution creates the organs of the state ( i.e. Legislative, Executive and Judiciary) and confers power upon the organs created by it.
The Constitution explains the nature of the government.
The Constitution may incorporate the principle of separation of power between the legislature, executive and judiciary.
The constitution lays down the National goals and values of a Nation.
It contains the provision of power transfer at the time of National Emergencies.
Constitution establishes the laws.
The constitution creates the organs of the state and confers power upon the organs created by it.
the constitution guarantees fundamental rights in order to protect them from any injustice faced by them.
constitution explains the nature of government.
the constitution contains the directives to run the government.
the constitution limits the power of government so that it doesn’t become arbitrary.
The constitution guards our right as human as a citizen.
Provides for the independence of each organ i.e legislative, executive and judiciary.
It upholds the sovereignty of the nation.
It checks errors in administration and Mishandling of power.
It projects the form of government in the country.
It ensures the fundamental rights to its citizens.
It directs the states in making legislation.
It lays out the procedures for several functions, administrations, legislation, execution of the government machinery.
It provides for the separation of Powers.
The Constitution projects the form of government in the country.
It ensures the fundamental rights of its citizens.
It directs the states in making legislation.
It lays out the procedures for several functions, administrations, legislation, executive of the government machinery.
It provides for the separation of power.It provides for accountability of the government to the people of the country.
It provides for judicial review in case of laws violating the supreme procedure established by the laws(i.e constitution).
It gives people ideas/knowledge on the existing laws.

It depicts the country’s government structure.

It protects its citizens’ basic rights.

It gives states guidelines for enacting laws.

It lays out the procedures for a variety of functions, including administrations, laws, and government machinery execution.

It establishes a separation of powers.

It guarantees the legislative, executive, and judicial branches’ independence.

It protects the country’s sovereignty.

It serves as a check on mismanagement and abuse of authority.

It establishes the government’s accountability to the people of the country.

It allows for judicial review in cases where laws violate the law’s established Supreme procedure (i.e. Constitution)

The Constitution is a collection of rules and principles which set out how a state will be governed.
It acts as a framework for every decision the government makes, particularly the legislature, executive and judiciary. (courts)
People’s rights and will are included in the constitution. So, It establishes a relationship between the government and the people.
It acts as an apex body as it is superior to all laws of the country which means any law or provision that is circulated in the nation is passed down from the constitution itself.
The constitution lays down the national goal and helps the country reach it.
It is an important document that controls the transfer of power during national emergencies.
It ensures fair representation of public opinion in any state decision.
It ensures that the ones who exercise the power are held accountable for the people.
It guarantees the rights and freedom of the citizens.
It protects the identity of the state.
It ensures the protection of human dignity, equality, and liberty.
The Constitution provides a national government consisting of a legislative, an executive and a judiciary branch, with a system of check and balance among the three branches.
The constitution is an aggregate document which acts as a guiding principle to the nation.
The constitution imparts a blueprint for peace, justice, harmony that was freely negotiated and accepted by parties.
The constitution makes a clear demarcation of the responsibility assigned to each of them by applying the doctrine of separation of powers.
The constitution works as an instrument to bring changes on economic, social and political according to the needs of people.
The constitution provides scope of good governance and provides accountability of government to the people of the country.
It expresses the aspirations of the people about creating a good society.
It protects individual freedom.
It lays down the limits on the power of government.
It is a roadway to other laws.
It promotes equality among people and bars unfair discrimination of any kind.
The Constitution is the law of a state, which is supreme in nature defining the political and legal nature of a state.
It sets objectives for the state, its government, and governing institutions.
The Constitution not only creates a government empowering them with rights but also requires them to fulfill their obligations.
It places sufficient institutions and instruments to control or stop the misuse of authority.
The Constitution ensures that those who make decisions on behalf of the public fairly represent public opinion.
The Constitution contributes to the basic powers of its citizens and the legal benefits of its other inhabitants.

Resistance to Change

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

In most cases laws face resistance by members of society who find different reasons for their resistance such as their values, customs, or even the cost of change and sometimes because people feel threatened by the change. Knowing the conditions of change helps in the implementation of laws. The factors that are a barrier to change are separated into social, psychological, cultural, and economic factors and all are interdependent.

Social factors

Vested interests

Change is opposed by individuals or groups who fear they will lose their power, prestige or wealth when the new law is introduced. Examples are vested interests of residents in a community who oppose zoning regulations or interstate highways, vested interests of faculty in getting research money, etc. Also, the efforts of the Soviet Union to assert independence of Moslem women against males were opposed by bands of males who murdered women that obeyed the law.

Social class
In highly stratified societies, people of upper classes oppose changes because they fear losing privileges over the lower classes. Ex: in Pakistan people of different classes can go to the same schools, draw water from the same well etc. generally working class people supports changes while the lower and upper classes resist changes.

Ideological resistance

It is quite widespread. Example: resistance of Catholic Church to laws and legislation on the removal of some restrictions on abortion and birth control. In 1982 a pill that ended pregnancy within weeks was developed in France. By 1990s it was available in France, Sweden, and Britain. But protests of antiabortionists and threats of US citizens no to use products of the company that sold the pill stopped its spread. From 2000 this pill has been approved in US. Usually religious assumptions, interpretations on power, security are not open to change.

Organized Opposition

Sometimes individual resistance to change can be organized and channeled into social movements or lobbyists. Ex: John Birch Society has opposed acceptance and legal protection of pornography. The lack of opposition can be fatal as the example of Jews who didn’t organize resistance.

Psychological factors

Habit

Habits are behaviors that people are accustomed to and are comfortable with and as such habits resist change. Customs are collective habits of a society and trying to change them requires a reorientation of values and behaviors of society. Ex; introducing the metric system in US was resisted.

Motivation

Is very important in accepting change through law. Some motivations are related to culture and may allow change and some focus on preserving status quo. Some motivations are universal such as the desire for prestige and economic gain but if those are threatened, change is resisted.

Ignorance

Is often the cause of prejudice and is related to the fear of the new. Ex: many individuals assumed that citrus fruit caused problems to the digestive tract. Once it was proved otherwise, the resistance to citrus fruit faded.

Selective perception

Even though law is intended to be universal, the perception of people on law is selective and varies with economic, cultural and demographic variables and also with attitudes, needs and values of people. A change is accepted easily if it is related to the interests of people and supports their values. Ex: in India law provides distribution of family-planning info and supplies. But many villagers refuse using contraceptives because they think the law aim to stop birth completely. The laws should be formulated clearly so there in misunderstanding by people.

Moral development

The obedience to law relies highly on a sense of obligation. Moral codes are another factor. Lawrence Kohlberg defines 6 stages of moral development:

Obedience and punishment– involves respect to superior authorities and avoidance of troublepremoral stage.
Instrumental relativism– people try to satisfy needs by negotiating with otherspremoral stage.
Personal concordance– people adhere to prevailing norms and comply with the majority.
Law and order– people respect those in authority and focus on doing their duty.
Social contract– contracts are used for commitments and people respect them.
Individual principles– include conscience, mutual trust and respect as principles of behavior.

If this theory is true, the law is limited on the stage of moral development of citizens which should be considered depending on their social class. If the majority is stages 1 and 2, institutional enforcement is used to maintain order. In stages 3 and 4 law is more limited and in 5 and 6 even more limited. But this depends on the conformity of law with beliefs and values of society.

Cultural factors

Fatalism

In many cultures people believe they have no control over their lives and God or evil spirit causes everything. They don’t use fertilizers because they believe God is responsible for their success. They resist change because it is human-enacted and not from divine origin.

Ethnocentrism

Some people consider themselves “superior” with the only rights ways of thinking, etc. This causes ignorance towards others’ ideas and methods and resistance to change. Ex; whites that consider themselves superior have hindered integration of other races in many institutions.

Incompatibility

When the proposed law and change is contradictory to the system of the target group change is hardly implemented. Ex: in Israel the law of reducing legal marriage age for girls to 17 was not applied by Jews and Arabs that allow marriage even at lower ages.

Superstition

Which is a belief not substantiated by facts, can hinder change. Ex: In some places a baby is not given water for many months after birth because it is believed water’s cold nature upsets the baby’s heat equilibrium. In Zimbabwe women do not eat eggs because they are believed to cause infertility.

Economic factors

Limited economic resources and high costs are often a barrier to change. Change through law is very costly because of the instrumentation of legislation, administrative ruling or court decisions that are all costly. For ex. federal regulations have increased the costs of institutions of higher education thus, resist further changes and require modification of current regulations. The distribution of costs and benefits also effects resistance. If they are equally distributed there is little resistance but if benefits are low and costs are concentrated, resistance is high.
Generally economic factors are decisive in affecting resistance to change. No matter how much somebody wants something if economic sacrifice is too great or they can’t afford it, change doesn’t occur.

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.

Disturbances to Utilitarian

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

Ascetic Principle: Utility can be disturbed by this principle. This can be for monk, priest because they believe in heaven. They have their own goal, interest and are separated from society.
Arbitrary Principle: that is sympathy (the feeling or expression of pity or sorrow for the pain or distress of somebody else) and antipathy (strong hostility or opposition toward somebody). By virtue of sympathy and antipathy they can be ignore.

AFTER BENTHAM

Other notable exponents were the British jurist John Austin and the British philosophers James Mill and John Stuart Mill. Austin set forth a strong defense of the utilitarian theory in his Province of Jurisprudence Determined (1832). James Mill interpreted and popularized the theory in a number of articles contributed for the most part to the Westminster Review, a periodical founded by Bentham and others to promote the spread of the utilitarian philosophy. John Stuart Mill, who made utilitarianism the subject of one of his philosophical treatises (Utilitarianism,1863), is the ablest champion of the doctrine after Bentham.

His contribution to the theory consists in his recognition of distinctions of quality, in addition to those of intensity, among pleasures. Thus, whereas Bentham maintained that the “quality of pleasure being equal, push-pin [a child’s game] is as good as poetry,” Mill contended that “it is better to be a human being dissatisfied than a pig satisfied,” that is, human discontent is better than animal fulfillment. By this statement Mill seems to have rejected the identification of the concept “happiness” with “pleasure and the absence of pain” and the concept “unhappiness” with “pain and the absence of pleasure,” as found in Bentham’s works and in his own earlier formulations.

The British philosopher Henry Sidgwick, a contemporary disciple of Mill, gave a comprehensive presentation of Mill’s utilitarianism in his Methods of Ethics (1874). Somewhat later, the British philosophers Herbert Spencer and Sir Leslie Stephen, the former in his Data of Ethics (1879), the latter in his Science of Ethics (1882), sought to synthesize the utilitarian theory with the principles of biological evolution as expounded in the works of Charles Darwin.

Libertarianism, political philosophy emphasizing the rights of the individual. The doctrine of libertarianism stresses the right to self-ownership and, by extension, the right to private ownership of material resources and property. Advocates oppose any form of taxation and favor a laissez-faire economic system. Libertarianism is an assertion of individual liberty in the face of growing government involvement in all aspects of life.

Both the American philosopher and psychologist William James and the American philosopher, psychologist, and educator John Dewey were influenced by utilitarianism. Dewey substituted intelligence for pleasure, or happiness, both as the supreme value and as the most reliable method of achieving other desirable values.

Legal Research

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

S.R. Myneni: – The systematic investigation of problems of and matters concerned with law such as codes, acts, etc.

-To obtain better knowledge and understanding of any problem of legal philosophy, legal history comparative study of law, or any system of law international and municipal.

-Discovering new legal facts and verification of the old ones.

Components of Research: –

Manipulation of things, concepts or symbols.
For the purpose of generalization.
To extent, correct or verify knowledge.
The knowledge may be used for construction of theory or practice of art.

Objectives of Legal Research: –

Evaluative: –
To find out how a legal rule came into being and what it is.

Explanation: –
To ascertain the nature, scope and source of law in order to explain, what law is?

Identificatory: –
To ascertain for whose benefit legal research is made.

Impact Analysis: –
Impact analysis of Legislation.

Projective or Predictive: –
To find out the degree of social acceptance to the anticipated or propose legislation.

Need of Legal Research for Making Laws

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

The following three reasons necessitate the legal research for the purpose of making laws

Legal research is crucial to the learning and practice of law: law is associated with social facts and it is impossible to learn about laws without its relation with facts
The law is changing constantly: law functions to serve the purpose, so that it has to change with the pace of the society.
You need to ensure your information is current: law is applicable in practical life, and the law which is based on the true information of the realities, its’ making is dependent on current information concerning requirement

How Act is Made

The last century has seen an enormous growth in legislative law making. Proposals for changes to the law can come from a number of sources including:
Pressure groups
Governments who want to implement their own policies
Changing community needs
Recommendations from Law Reform Committees and Royal Commissions of Inquiry
Irrespective of the reason behind the legislative changes the process for making laws follows a predictable path.
Act of Parliament begins its life as a bill. Most bills are introduced into the Parliament by the proposing Minister and have to pass through prescribed readings in each House of Parliament.
If both Houses pass the bill it receives Royal Assent and its provisions become law. Fortunately for a researcher, a bill’s progress through both houses of Parliament is recorded in the Parliamentary Debates.
For the legal researcher, the most important and interesting stage of a bill is the second reading. At this stage, the Minister responsible for the bill explains its purpose and the general principles of the bill are debated.