TyroCity: Legislative Principles and Law Making Process

Law making for Social Change and Social Control

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

Background

Savigny: “Law is found but not made.”

Particular society themselves develop legal system by sense of common consciousness (Volkgeist).

HLA Heart:

He made a bridge between primitive society and modern society.

In primitive society there were some rules and principle to govern the society but there are de-facto rules.

Therefore, secondary rules for him made effective to those primary rules by (i) recognition (ii) change (iii) adjudication

Roscoe Pound

The purpose of law is to achieve ultimate goal of society, this ultimate goal can be achieve by balance of conflicting interest.

Individual interest: Fundamental rights
Public interest: -Right claim by a state to be a real state.
Social Interest: -Directive principles

So, all the source of law making is society. It is the institution felt by law makers for the society.

While making law, social order is to be considered, if not done then law can be oppose by the society: –

samajik byabahar sudhar ain

Law making for the Social change and Social Control

Law makers should make law addressing need of society not interest of elite group.

Changes through a law mean void changes. This can be as follows:

Changes in attitude, psychology, behavior and power structure (law against untouchability).
Changes brought by the present court.
Through this constitution, you can claim the right against state.
Like equality, sovereign power is people.
Pursuing equality in the land of Hierarchy, (Attitude in feudalistic pattern change into socialist)
Jurisprudential foundation of reservation.
Empowerment of woman.
Social Action and Public Interest Litigation.
Secularism
Sometime if alternative are not given and absolutely imposed.

There may be high probability of disobedience. So, alternative is to be provided to enjoy law.

Social reform Act, Consumer protection Act failed due to disobedience of society.

Cyber Law came into existence with the felt of need of it by law makers and cope up with the change in technology and human knowledge.

Other laws enacted and amended due to WTO regime, Human Right regime.

If the law is against international legal order then it will be condemned internationally.

Things that are to be considered by law makers I law making for social change are: –

First thing is that, the law should be made according to societal interest.
Purpose of law is to make people empower (capable).

For this we can make affirmative discrimination.

Law should not exceed legal principle and international norms of standard.
Law should be according to the social psychology and social fact.

Cyber law wasn’t debated but Communication ordinances was debated because it has taken dignity of media and media personal.

If any misconfusion occurs between law makers and society then either society or law can’t function.

From the historical period to modern society like Mundhum, Manab Nayab, Sartha, Muluki Ain, Constitution has brought number of changes in society.

Sati abolition, Child marriage, Birta Unmulan, etc.

Because of the advancement of democracy, science and technology. (Climate change)

Law makers are to be update through research to meet the societal interest as a whole

The efficiency of Law as an Instrument of Social Change

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

As an instrument of social change, law entails two interrelated processes: the institutionalization and the internalization of patterns of behavior.

Institutionalization of a pattern of behavior refers to the establishment of a norm with provisions for its enforcement (such as desegregation of public schools).
Internalization of a pattern of behavior means the incorporation of the value or values implicit in a law (eg. Integrated public schools are ‘good’). The extent to which law can provide an effective impetus for social change varies according to the conditions present in a particular situation. Evan suggests that a law is likely to be successful to induce change if it meets the following seven conditions:

Law must emanate from an authoritative and prestigious source
Law must introduce its rationale in terms that are understandable and compatible with existing values
Advocates of the change should make reference to other communities or countries with which the population identifies and where the law is already in effect
Enforcement of the law must be aimed at making the change in a relatively short time
Those enforcing the law must themselves be very much committed to the change intended by the law
The instrumentation of the law should include positive as well as negative sanctions
The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to lose by violation

Legislation and Legislative

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

Legislation
Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.

Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.

Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.

Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.

Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God’s law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.

Legislature
Legislature, branch of government empowered to make, change, or repeal its laws and to levy and regulate its taxes. Most modern legislatures are representative: composed of many members who are chosen directly or indirectly by popular vote. Legislatures that provide direct representation are usually considered more democratic in practice because they are less susceptible to being dominated by a single faction.

Nearly all modern governments have a bicameral, or two-house, legislature. The so-called lower house is generally elected on a basis of direct representation; and the upper house commonly on a basis either of indirect representation or of direct representation limited to certain occupational, territorial, or hereditary categories. The traditional theoretical justification for an upper house is that it can exercise moderation and delay on legislation by the lower house and thus restrain the effects of impulsive or excessive fluctuations of public opinion. A few governments, however, including that of the state of Nebraska, have unicameral, or single-house, legislatures.

The various legislatures throughout the world are known by different names, such as Congress, Parliament, Knesset, Diet, and Assembly. Most are limited in their powers by the Constitution or organic law of the government of which they are a part. The enactments of the U.S. Congress, for example, can be vetoed by the president, and the Congress must approve by a two-thirds majority any bill it wishes to pass despite a presidential veto. The British Parliament, on the other hand, chooses its own prime minister and cabinet, who are ultimately responsible to it for all their administrative actions. Being legislative as well as executive or administrative leaders, these officials have considerable power to initiate and influence legislation desired by their administrative departments. The tendency in most modern governments has been toward increasing assumption of legislative powers by administrative officials, with a consequent weakening of the legislatures. Many political scientists ascribe this to growing public impatience with the uncertainties of party politics within legislatures. The trend is also attributed to the increasing complexity of modern government, which requires the use of people with specialized skills, often not found in publicly elected legislatures, for the drafting of laws.

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.

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.

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.

Law making for Social Change and Social Control

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

Background

Savigny: “Law is found but not made.”

Particular society themselves develop legal system by sense of common consciousness (Volkgeist).

HLA Heart:

He made a bridge between primitive society and modern society.

In primitive society there were some rules and principle to govern the society but there are de-facto rules.

Therefore, secondary rules for him made effective to those primary rules by (i) recognition (ii) change (iii) adjudication

Roscoe Pound

The purpose of law is to achieve ultimate goal of society, this ultimate goal can be achieve by balance of conflicting interest.

Individual interest: Fundamental rights
Public interest: -Right claim by a state to be a real state.
Social Interest: -Directive principles

So, all the source of law making is society. It is the institution felt by law makers for the society.

While making law, social order is to be considered, if not done then law can be oppose by the society: –

samajik byabahar sudhar ain

Law making for the Social change and Social Control

Law makers should make law addressing need of society not interest of elite group.

Changes through a law mean void changes. This can be as follows:

Changes in attitude, psychology, behavior and power structure (law against untouchability).
Changes brought by the present court.
Through this constitution, you can claim the right against state.
Like equality, sovereign power is people.
Pursuing equality in the land of Hierarchy, (Attitude in feudalistic pattern change into socialist)
Jurisprudential foundation of reservation.
Empowerment of woman.
Social Action and Public Interest Litigation.
Secularism
Sometime if alternative are not given and absolutely imposed.

There may be high probability of disobedience. So, alternative is to be provided to enjoy law.

Social reform Act, Consumer protection Act failed due to disobedience of society.

Cyber Law came into existence with the felt of need of it by law makers and cope up with the change in technology and human knowledge.

Other laws enacted and amended due to WTO regime, Human Right regime.

If the law is against international legal order then it will be condemned internationally.

Things that are to be considered by law makers I law making for social change are: –

First thing is that, the law should be made according to societal interest.
Purpose of law is to make people empower (capable).

For this we can make affirmative discrimination.

Law should not exceed legal principle and international norms of standard.
Law should be according to the social psychology and social fact.

Cyber law wasn’t debated but Communication ordinances was debated because it has taken dignity of media and media personal.

If any misconfusion occurs between law makers and society then either society or law can’t function.

From the historical period to modern society like Mundhum, Manab Nayab, Sartha, Muluki Ain, Constitution has brought number of changes in society.

Sati abolition, Child marriage, Birta Unmulan, etc.

Because of the advancement of democracy, science and technology. (Climate change)

Law makers are to be update through research to meet the societal interest as a whole

Use of legislation as a state’s tool power to administer governance

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

In simple language, ‘what government does is governance’. Governments are empowered to establish and regulate the interrelationships of the people within their territorial confines, the relations of the people with the community as a whole, and the dealings of the community welfare.

The word government may refer to the people who form the supreme administrative body of a country, as in the expression “the government of Prime Minister Churchill.”

The system or manner of government is governance, which is run by the administrative law of the nation or state. Administrative law is the area of law dealing with the affairs of agencies of the executive branch of a government, and with the judicial review of public bodies generally.

Administrative bodies or government agencies (VDC, Municipalities, Forest department, CDO office, Tax Revenue office, etc.) are created as the government’s agencies and given power by federal or state legislation.

The administrative law is basically concerned with whether proper standards are applied by government’s agencies in exercising their powers and in making and enforcing regulations. If an agency does not apply the proper standards, its failure may be redressed by application to the courts.

Government require to maintain peace and security, generate and control the economy etc. there are many function of democratic government, therefore to run and regulate these action a government requires different legislation as ‘administrative laws’. Administrative Law is body of law applicable to the operations of agencies established by the legislature to carry out the functions of the executive branch of government. Administrative law are used in a way to maintain peace and security crime control act, police act; to regulate the economy income tax act, VAT, Nepal Rastriya Bank act and other banking acts; for regulation of industrial and other business activities there are company act, contract act etc.

Legislative just promulgate the constitution and act which determine the substantive or principle aspects like the framework, structure, jurisdiction, role and responsibility. But legislative can’t determine procedural aspect of each and every activities, it is not practicable to determine each and every procedure of an act. That’s why legislative provided delegated legislative authority to executive. For ex: there is ‘Forest Act’ which is enacted by legislative. This ‘Forest act’ provided the substantive aspect to run forest and forest administration, they are administrative power- authority to forest office, administrative discretionary power to forest officials, administrative adjudication (quasi-judicial) authority, etc. But in case of its procedure to run an administration, ‘Forest act’ provides delegated legislative authority to forest office to formulate its own procedure by formulating ‘Rules and Regulation’ by forest office themselves.

In this way government use the legislation (use of administrative law) as a state’s tool power to administer governance like forest department use ‘Forest act’ as its tool to administer forest governance.

Two major aspects arises (i) why? And other is (ii) how?

Answer to Why?

To protect individual right and liberty (Fundamental rights).
To maintain Rule of law
- Control the behavior of the people through criminal laws.
- Reform and adopt new laws with the social change.
- Public welfare
- Strengthen democratic process
To establish government of people
Separation of power with effective check and balance
Equality before law

Answer to how?

Through administrative laws like: Local government Act and regulation, Civil service Act and regulation etc.

Elements to Administer governance are:

1.By delegated legislation

Allowing minor laws (rule) making authority under the scope provided by act and regulation.

2. By administrative power and authority

Executive has an authority to govern and enforce. For ex: Village Development Committee and Municipality are autonomous to govern themselves.

3.Administrative discretion

The freedom or authority to judge something or make a decision about it by an executive authority is an administrative discretion. Ex: traffic police and tax official discretionary power to impose the amount of fine.

4.Administrative adjudication

Resembling power of court by an executive body, it describes decision making power of executive that are similar to court. Ex: Quasi-Judicial body.

5.Control over administrative abuse of power and authority by supreme source of law (Constitution)

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.

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.

Role of Law Commission

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

Background:

– The Nepal Law Commission was first constituted by an executive decision in 1953.

– 2nd, 3rd, 4th, 5th commissions were constituted respectively. These all were temporary in nature.

– Till the 5th Law Commission, it is constituted by the executive decision.

– NLC was given permanent status only in 1984.

– In the year 2007, the commission was given statutory body under the “Nepal Law Commission Act, 2007.”

Establishment of The Nepal Law commission:

(1) The Nepal Law Commission
has hereby been established for drafting and codification of laws, amendment, unification and review of prevailing laws as well as to conduct study and research on law and justice.

Composition of the Commission:

(1) The Commission shall be constituted as follows.

(a) A person appointed by the Government of Nepal from among those who has served as already a Justice of the Supreme Court a person being qualified for the same post Chairperson.
(b) A person appointed by the Government of Nepal from among those having already discharged the duty as a
Gazetted Special Class of Nepal Judicial Service, or a person having worked as a law-practitioner in the capacity of Senior Advocate or Advocate at least for fifteen years, or a person having gained experience of teaching, research, drafting of law or in the sector of law or justice at least for fifteen years. Vice-Chairperson
(c) Three persons, in maximum, having at least one women nominated by Government of Nepal from
among the persons qualified under clause (b) above. Member
(d) Secretary, Ministry of Law, Justice and Parliamentary Affairs. Member
(e) Secretary (law), Office of the Prime Minister and council of ministers. Member
(f) Deputy Attorney General, Office of the Attorney General Member
(g) Secretary Member Secretary

(2) There shall be a Recommendation committee to recommend the name for the appointment and nomination of chairperson, Vice-Chairperson and Members of the commission to the Government of Nepal, as follows:

(a) Minister for Law, Justice and Parliamentary Affairs Coordinator
(b) Chairperson, House of Representatives, law, Justice
and Parliamentary Affairs Committee Member
(c) Chairperson, Nepal Bar Association Member

Honorary Member: Government of Nepal may appoint five experts, in maximum, as Honorary Member from among the outstanding experts relating to the subjects deemed necessary by the Commission

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.