TyroCity: Law Making Process Notes

Law as an instrument of social change

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

The conversion of Rome from republic to empire could not have been accomplished except by means of explicit legal decree buttressed by the doctrine of imperial sovereignty. Law, far from being a reflection of social reality, is a powerful means of accomplishing reality – that is, of fashioning it or making it.

The Soviet Union succeeded in making enormous changes in society by the use of law.
In Spain law was used to reform agrarian labor and employment relations.
China also managed to moderate through law its population growth and as a result devote more of its resources to economic development and modernization.

The law, through legislative and administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly not only articulates but sets the course for major social change. Attempted social change, through law, is a basic trait of the modern world. Many authors consider law as a desirable necessary and highly efficient means of inducing change, preferable to other instruments of change. In present-day societies, the role of law in social change is of more than theoretical interest. In many areas of life such as education, race relations, housing, transportation, energy utilization, protection of the environment, and crime prevention, the law and litigation are important instruments of change. Law plays an important indirect role in social change by shaping various social institutions, which in turn have a direct impact on society. [eg. Mandatory school attendance upgraded the quality of the labor force, which in turn played a direct role in social change by contributing to an increased rate of industrialization. The law interacts in many cases directly with basic social institutions, constituting a direct relationship between law and social change]. Social change through litigation has always been an important feature in the US. Whether the change produced by such action is considered ‘constructive’ or ‘destructive,’ the fact remains that law can be a highly effective device for producing social change.

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.

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.

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.

Legislative Principles and Law Making Process

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

General Concept of Legislation

Use of Legislation as a state’s tool of power on people in autocracies

Use of Legislation as a State’s tool power to administer governance

Law making, Social Change Social Control

Law making for Social Change and Social Control

Utilitarianism

Law making for Social Change

Importance of Public Opinion in the Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

Instrumentalities that influence Social Behavior and Law Making Process

The law-making process

Drafting Principles

Law Making Process in Nepal

Legislative Drafting/Bill Drafting

Importance of Legal Research in Law making process

Role of Law Commission

Behavior and Accountability of Law maker

Behavior and Accountability of Law makers

Legislative Terms

Legislative Terms

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.

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

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

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.

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

Legislative Drafting/Bill Drafting

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

The process of converting new policy into legal rules.

-Dickerson has defined it as 1st thinking and 2nd comparing of Legislation.

B.R. Atre defines- The Drafter must not lost sight of a fact that the legislative drafting is a science and also an art and he must be familiar with all intricacies of this art.

– Science: – Universal application of certain set of rules.

– Art: – Sense of the use of language of skill + art.

The basic Principles of Legislative/Bill Drafting:

Pre-publication of draft to public and Parliamentarian: – For transparency and public reaction to the draft.
Principle of Equality: – Equal voting right is to be provided to all the parliamentarian.
Rational and Essential Procedure are to be followed.
Neutrality of House speaker as “Referee”.
Respect and response to the minority parliamentarian.

Types of Bill: –

Basically Bill is divided into 3 categories:

According to the subject matter: –
Economic Bill: – Bill is relation to governmental finance tax, audit of government account.
Ordinary Bill: – Rest other ordinary bill.

(b)According to the Bill passing procedure:

Government Bill: – Financial Bill, Bill concerning security agencies Nepal Army, APF, Nepal Police, Act. 84.
Private Bill: – Bill presented other than by Government Ministers. Act. 84.

(c)According to the objective: –

(i)Main Bill: – Based on some certain subject matter.

(ii)Dependent Bill: – Bill dependent to main bill.

(iii)Amendment Bill: –

(iv)Constitutional time increment Bill: –

(v)Ordinance: – Act. 88.

Importance of Legislative Drafting:

This systemizes the process.
This balance between substantive and procedural part.
This turns policy into law.
This helps to create relationship between policymaker, drafter and interest group.

Bill Drafting and Passing (Bill Passing Procedure)

There are 4 major steps in Law making process:

(1)Pre-drafting stage: –

(a)Initiation: –

It should be initiated in the related department to the subject matter in case of Government bill. Individual Parliamentarian should initiate private bill.

(b)Requirement: –

-The drafter should have background and sound knowledge to the issue.

-They should analyze the problem.

-It should have need basin assessment.

(c)Necessity: –

– Research is to be carried out (what, how and when?)

-consult with public about the legislative problem.

(d)Functions: –

-Formation of Legislative proposal.

-Consultation with Ministry of Law and Justice.

-Approval of the cabinet.

-Further process of drafting after cabinet decision (Principally approve).

(2)Drafting Stage:

(a)Structure of Draft: –

(i)Long title

(ii)Preamble

(iii) Enacting formula

(iv) Short title

(v) Commencement and extent

(vi) Definitions

(vii) Substantive Provisions

(viii) Institutional/Administrative forms

(ix) Punishment and Compensation

(x) Miscellaneous Provisions

(b) Approval of draft from the concerned ministry.

(3)Parliamentary Stage/Procedure for passage of bill

(Act. 85. legislature-Parliament Act 2063, chapter 12.)

(a)Any member, who wants to introduce a private bill in the house, should have prior notice of 7 days to the secretary General of the Legislature-Parliament.

Prior 5 days notice for Government bill.

(b)Copies of bill should be available to all members, 2 days before introduction of bill.

(d) The clause-wise discussion in the house or in the concerned committee. Report of the Committee.

(e) Amendments to Bill.

(f) Withdrawal of the bill, (Act 86)

(g)Bill passes by simple majority of the total number of the member of the house.

Post Introduction Stage:

Certification of the Bill (Act 87): –

Bill passed by house shall become an Act after certification by the speaker of the Legislative Parliament. And authenticate by President.

Committee Hearing: – (Act 85, (4), (5)), sent to it, if we clause-wire discussion by speaker.

(a)Legislative Committee: –

Members of the Parliament or any governing body given responsibility for legislation and overnight on a particular subject.

(b)Committee will have authority to forward question to the presentator, consult with experts and provide the committee report, whether to amend, approve on the bill, within 24 hours.

(c)Bill may be set twice to committee.

Plenary Discussion: –

(a)It includes introduction of bill in the house

(b)Amendments

(c)Committee

Final Adoption: –

Call for voting whether to pass or reject the Bill.

By-Law Making Process: –

(a)Supreme Legislation has authority to make by laws like rules, regulations for the fulfillment of procedural aspects and enforcement. (Not tax and punishment)

(b)By-laws, indirect legislation should be within the scope of direct legislation (made by parliament).

(c)It should be draft by concern Institutional/administrative body. It has same drafting process as of ministrative body.

(d)The concern department should approve and certify it, If require the certify through concern Ministry.

Ordinance (Act 88):

(a)If government render the necessary of any act during absence or suspention of parliament. Then the government may promulgate any ordinance.

(b)An ordinance has some force and effect on Act.

(c)It should be passed within 60 days in the next session of parliament.

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.