TyroCity: Law Making Process Notes

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

Contents to be included while drafting law

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

In modern state the enactment of legislation is primarily a function of the government. Government can not conduct policies of the state in any meaningful sense without the capacity to govern. The executive in essence constitutes source of legislation. Strictly speaking, Legislative Drafting is the drafting of measures intended to become past of statute law. However, it includes the drafting of statutory orders, rules and other institutions issued by departments of the government as well as the drafting of by law of corporations and other firms of sub-ordinate legislation.

At present scenario, introduction of bill is daunting task for an individual Member of Parliament. Serious exercise and sincerity requires for preparation of any draft bill to introduce in the house. Such Member of Parliament must be acquainted with all the pros and cons of the proposed bill, each and every provisions of the bill must be elaborately discussed in the format. Hence, from above discussion what can be summarized is that in the orchestra of law, it is legislation that plays the role of the composer. Legislation sets the music, one may regulate the pitch soften the tone, or choice his octave but can not change the melody.

Concept of Legislative Drafting

Legislative Drafting is even sometime compared or linked to a child’s game of Snakes and Ladders. Snakes and Ladders are game of chance whereas Legislative Drafting is game of skill. We started Legislative Drafting from sheer necessity. Due to the welfarishic philosophy in the governing systems of the country, the state activism led every aspect of human life. The state has to run with those need of the people, it has to carry functions to maintain peace and order, it has to protect weaker section of the society, it has to undertake trade and commerce, it has to run different system, security, health, education etc. All the functions of the state become possible only by making law that is why legislation is necessary in every aspect of human life.

We perceive legislation as source of law that part of law. The term legislation may be used in the wider and narrow sense, which though connected are different. It may connote process of legislation that is the action, which results in the birth of law, or it may signify the result itself, that the law that is born, and Legislative Drafting is moreover concerned with the first sense that with the second.

understanding of problems will help in finding the problem will help in finding the solution but what should bear in mind is drafting is attempt to solve existing problem not like a acute and precise mathematical formula, which brings 100 % result. Moreover, Legislative Drafting is not always imitating one another and there is usually nothing absolutes new in a statute if in case law, the courts look to their own past decisions for the purpose of finding out a rule.

Legislative Drafting is both science and art. It is science in so far as certain rules can be laid universal application to all kinds of measures that come up for drafting and in so far as a certain set of rules are always observed by all drafts men for the purpose of securing method in their drafts.

It is, however, mainly an art; efficiency in drafting comes not by a mere mastery of the rules, by the exercise of a faculty of the mind, which can be described as skill or natural gift. The art of draftmanship consists of a sense of use of language; together with knowledge of the technical interpretations, which are placed by law in certain form of language. The sense of the use of language is the main qualification of a draftsman just as a good artist decides by instinct, the colour to be used for particular part of a picture or a good musician spontaneously fixes up the particular notes to which a part of a song should be set. Similarly, a good draftsman senses the word or group of words to be used to carry out the intended meaning.

Why a law is drafted

When any problems come before the legislatures or before the government, and it is also noticed that, the problem can not be effectively addressed without legislative mechanism or any other mode of address will not last longer to diminish the problem then only any new law or any amendment on existing law is drafted. Sometimes there may be constitutional compulsion that there should be legislation to address particular subjects.

Content of the Drafting

The content or let’s say the nature of drafting exclusively depends upon the nature and purpose for which the bills are to be drafted. For example, the bills for establishment of industry some how or in most of its content differs with bills for regulations of industrial work. Hence, a legislative drafting differs from the very nature, for which kit is to be drafted. Legislative drafting is an extremely onerous, exacting and highly ‘skill task. It is often appreciated that it is difficult task. It is not easy to express in words exactly what is clear in the mind and even if that can be easily expressed it is not easy to do so in such a way that there can be no misunderstanding. It is not a task for amateurs and dabblers. It is highly technical discipline, the most vigorous form of writing outside of mathematics.

A candidate for legislative drafting must have facility in the use of the language of legislative instruments. Experience in legal practice is desirable, so is an interest in drafting. As a systematic mind and an orderliness in the formulation of thoughts, the ability to pay meticulous attention to detail and the ability to work with accuracy under pressure. We can’t rule out the infallibility of human foresight and indeed of language itself, yet parliament must do the best they can to reduce doubt and ambiguity and to bring difficulties to a workable minimum by an intelligent application of knowledge to bear on their drafts. Here is some of the content of the legislative drafting, which is defined briefly.

Title
- Long Title
- Short Title
Definition
Section and Sub-Section
Commencement
Constitutions of Board of Executive Committee
Qualification for Members of Executive Committee
Disqualifications for Members of Executive Committee
Term of Office of Executive Committee, Their resignation and Removal
Powers
- General Powers
- Particular Powers
Constitutional Limitations
- Fundamental Rights
- Equality
- Development
Interpretation Section
Repealing and Amending Provisions
Referential Legislative
Offences and Penalties
Introduction in the house

Title

Long Title

Generally an act has always a long title, which indicates the nature of the legislative draft. It is a device to tell the members of Parliament what the bill is about and even helps to determine the scope of bill when it is being dealt in the Parliament. The title comprises the main theme, which is the pith and substance of the bill. The long title should not be vague and imprecise. It has to a large extent taken the place of preamble and therefore should cover the main theme of legislation.

Short Title

The Short title is the convenient means of citing the act. It is the short name of the act. In the words of Lord Moulton “the short title is a statutory nickname to deviate the necessity of always referring to the act under its full and descriptive title. As the name explains should be short, should be designed with great care and concern for those, who have to use the act.

Definition

It is an attempt to state in precise terms the meaning of a word or of an expression. In legislation, it should be used only as an aid to clarify and to reduce vagueness as much as possible. It should be used when necessary and should be as simple as possible.

Section and Sub-Section

An act of Parliament is divided into Sections and Sub-Sections. A section should contain one idea and therefore one enactment. It should be self explanatory and should be self contained. It should be simple, short and lucid. There should be no ambiguity as to its meaning or be difficult to read. In case of the section turns out to be long one the section should be broken into Sub-Section, all the sub-section read together must form a coherent and consistent whole. They should deal with the same idea, the same subject matter.

Commencement

The commencement clauses in the statute usually run as follows:-

This Act shall come into force on ………………………………………………………….
This Act shall come into force on such date as the ……………………………………
The Act may be made to commence at once in which it comes into force as soon as the last formality for it passing is undergone, instead of commencement of the entire Act in the whole country on one date, it may be necessary to provide for what can be called as partial commencement. Commencement of Act may be partial in respect of parts of an Act, area, subjects, or one or more of these matters.

Constitutions for Board of Executive Committee

Constitution is a document different from an Act of Parliament. It is a body of framework of politics. It aspires all authority and strength, also limit upon their power and function. It is a law regarding their job, it covers several things like eligible members, qualification powers etc. being organic in nature its construction must be beneficial but it’s not a private contract. It is essential to remember that a constitution is a mechanism under which laws are made and not mere Act which declares what a law is to be.

Qualifications for Members of Executive Committee

Certain criteria are remarked by every Act so that it could assume that the assigned job to be done with full efficiency. The criteria or qualifications may be in example like:-

should be at least graduate
should be experience of drafting
sound mentality
knowledge of Constitutional Law
thirty years of age
excellent spoken and written Nepali and English

Disqualifications for Members of Executive Committee

Certain barriers are also pointed which disqualify to be a member of committee, for example

Lunatic
Infant
Not a Nepali Citizen
Criminal background
Educational Qualification

Term if Office of Executive Committee

It specifies the tenure of the working session of the member, which is generally 5 years. It also must mention the provision of removal and regulations with ground for doing so.

Powers

There is found often in legislation power conferred on an authorized to make regulation for the better carrying into effect the purposes and principles of an Act. Power is almost inevitable to carry out the job assigned. There are, however, different aspects of conferring power like general and special powers, which are conferred as per the demand of situations.

Constitutional Limitation

Drafting of Legislation can never outgo from the spirit of constitution. There is certain limitation, which should be considered while drafting. An enactment is void from the begging if it is inconsistence with the constitution or in contravention of the constitution. A constitution brings into sharp focus the theory of Parliamentary and people sovereignty. While drafting legislation a good draftsman always consider.

Issues of fundamental rights: – either it is absolute or relative can it be seized or not, how does it safeguard people rights. Fundamental rights are as old as mankind does legislation respect this liberal idea or not etc.

Equality is perhaps the primary human rights. Fundamental rights are useless unless there is a right to equality.

Development issues: – how it ensures people’s participation.

Interpretation Section

It is now well established that an Act have an interpretation section. Definitions are used in legislation as an aid to clarify, to achieve consistency and as method of reducing vagueness. There is merit in having the interpretation section. At the outset a reader finds a list of terms with their meanings before coming across them later in the Act. The readers mind is prepared that there are certain words, which have specific meaning for the purpose of the Act. On the other hand one does not refer to the dictionary before reading a book thus interpretation is must in process of drafting legislation.

Repealing and Amending Provisions

Provisions, repealing or Amending Acts should be placed towards the end of the Act but before the commencement provision. It is a principle that a parliament can not fatter the hands of subsequent parliament, an Act passed in one session can be repealed by an Act passed in another session.

Referential Legislation

The corporation of the provision of the one Act into other is known as referential legislation, which can be useful or even necessary for example country law when gives signature to the International Conventions.

Introductions of Legislation

Introduction of legislation or bills in the house is the final task of the drafting. After introducing if the bill is not able to get majority the house it shall be again repealed or amended.

Conclusion

Legislative Drafting follows that good lawyer is not necessarily a good draftsman. Knowledge of law is intelligence, memory and judgment while drafting is skill and art. The good draftsman brings to bear upon his work the retentive and analytical faculty of his mind. It is not is should not ever be the matter of debate either legislative drafting is science or an art rather legislative drafting is always made for public good. The process of legislation is thus also a foundation for process of social change. This process of legislation involves changing the existing law where the existing law as perceived by government to longer serves a useful purpose. Thus, as far as the science pf government is concerned the important part of legislation is not only the regulatory aspect but the law making process itself that is the creative and dynamic aspect of government.

Hence, it is clear that legislative drafting is a very challenging job and directly concerned with the public life. It is worthwhile to have some knowledge on legislative drafting. Since the programme of Parliament depends upon legislative programme by government drafting has crucial role to play and promote individual’s rights.

Conceptual Framework in Democratic Governance

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

Democratic “governance”; political organization comprising the individuals and institution
(i) authorized to formulate public policies
(ii) conduct affairs of state.

Government is empowered to establish and regulate the inter-relationships of the people.

The peculiar and essential qualities of the government are:

First, it is representative.
Second, recognizes the liberty of individual citizens.
Third, separation of power accompanying with the check and balance mechanism.
Fourth, implementation (enforcement) of law.

Executive, Legislative and Judiciary are the most essential ingredients of government. They do have own governance system. Whereas, legislative: formulate the laws according to the requirement of society, assimilating current phenomena into law.

Executive: enforcement of law generally. But usually executive branch is fully devoted to administer the country’s law. Executive head or executive power may differ from country to country.

In regard to, judiciary: which check on rationality, objectives of law with interpretation? Protect the constitutional norms and values (Judicial review or judicial activism help to protect liberty and establish remedy).

Nepalese governing system has been adopting up to down approach in authority and delegation of power. Bottom to up approach in responsibility and accountability. Our governance should not be like “army fighting in war without arm and weapon”. Law should be used as a weapon to good governance.

Indeed, Nepalese do expect of good governance; (comparatively good than the present)

Many challenges have been appearing a hurdle to govern the state. Like as follows:

Problem of peace and security
Address issues of excluded groups:
Poverty
Political instability

Despite of these challenges, gain occurred in governance by considerer-able progress with

(a) Tax policy
(b) administrative reform
(c) combat corruption
(d) independence of judiciary
(e) advancement and development of communication system

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

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.

Limitations of Law in Creating Social Change

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

To most people law is imposed externally in an almost coercive way. Today people are characterized by a “crisis of confidence” and alienation from social institutions because of uncontrollable economic conditions. Therefore, law is hardly an expression of their will. Few people participate in the formulation of laws and legislation. One of limitations of law as an instrument of social change is the possibility of prevailing conflict of interest. Other limitations related to the efficacy of law in social change include divergent views on law and the prevailing morality and values. The scarcity of resources causes conflicting interests. Decades ago, Karl Marx and Max Weber said that many laws are created to protect special economic interests. This is because economic interests are strong factors influencing the creation of laws. Weber recognized that besides economic interests law protects other interests too such as personal security, personal honor, and it guarantees political, ecclesiastical, and other positions of authority and social preeminence. Weber emphasizes two points:

Conflict of interests provide the base for the formation of laws that bring change; so the stratification of society and the preferences of those who promulgate the changes determine the role of laws in social change.
Law as an instrument of social change can be seen as the organization of power and processes that protect special interests in society and result in social change.

For powerful and influential people “the law in effect structures the power relationships in a society, maintains the //status quo//and protects various //strata//against each other”. Many legislative enactments, administrative rulings, and judicial decisions reflect the power configurations in society. Even members of legal professions serve to unify the power elite by serving as “professional go-betweens” for principal political, corporate and other interest groups.
Interestingly, a lot of people who are coerced or oppressed by the laws imposed by a ruling minority are unaware of their oppression. They may even strongly support the existing legal system because the ruling party has used its power to confuse them as if they are protecting their true interests. However, a distinction should be made between what people claim as their interests and what their “true” interests are. There are many examples when people are organized to protect what they conceive as their interests. Blacks have been instrumental in the passage of many civil rights laws. Farmers have affected laws dealing with migrant workers, farm subsidies, importation of food items, etc. so it is the division of society into the “powerful” and “powerless” that simple? The mechanisms of change through law include large segments of the population. Even in democratic countries, the large-scale participation of citizens in social change is not feasible; however, the lack of participation doesn’t mean lack of representation.

Autocracy Vs. Democracy

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

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

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

Is Democracy the Best System?

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

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

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

What is Autocracy?

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

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

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

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

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

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

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

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

Legislation is Used to Rule People

Law is effectively used to:

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

Features of Legislation in Autocracy

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

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

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

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

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

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.

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.

How a bill becomes Law

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

Knowing how law is made is important. The steps below describes the basic process.

Step One:

Introduction by a member of the General Assembly and committee referral. A bill may be introduced in the House or Senate. After an initial reading, it goes to a chamber’s Committee on Committees, which refers it to a standing committee.

Step Two:

Committee consideration. A committee can kill a bill by failing to act on it. Or it may issue a report on the bill that is favorable, favorable with amendments, favorable with committee substitute, unfavorable or without opinion.

Step Three:

First reading. Favorably reported bills have their first reading — by title only — on the floor of the chamber. Bills that have been reported unfavorably or without opinion are not likely to go further.

Step Four:

Second reading; to Rules. The bill is read by title a second time and sent to the Rules Committee. This powerful committee can vote to send it back to a standing committee — hindering its chances for passage — or place it on the agenda for a vote by the full chamber.

Step Five:

Third reading and passage. A legislator — usually the majority leader — makes a motion to have the bill “placed upon its passage.” Open debate follows. The bill can be amended on the floor — though each amendment must be found to be related, or “germane,” to the bill’s original subject. To pass, a regular bill must be approved by at least two-fifths of the General Assembly (40 House members and 17 Senators) and by a majority of the members present and voting. (Bills that call for spending or contain “emergency” clauses must be approved by 51 House members and 20 Senators.)

Step Six:

On to the other chamber. Bills defeated on the floor can be reconsidered, if two members who voted against it request its reconsideration and a majority approves. Bills approved on the floor go to the other chamber, where they follow much the same procedure as in the first chamber.

Step Seven:

Concurrence or conference. Both chambers must agree, or concur on the final form of each bill. If either chamber refuses, the differences must be reconciled by a “conference committee” made up of members from both chambers. Such committees can make significant changes in the bills, but their compromises must be approved by both chambers.

Step Eight:

Enrollment. After passage by both chambers, each bill is read carefully to make sure its wording is correct, and then is signed by the presiding officer of each chamber and sent to the governor.

Step Nine:

To the governor. The governor may sign a bill, permit it to become law without his signature or veto it. The governor has 10 days to act on a bill after receiving it.

Step Ten:

Back to the General Assembly. The bill can be passed over a governor’s veto by a majority of the members of both chambers.

Advantages of law in creating social change

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

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

Legitimate Authority

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

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

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

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

The binding force of law

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

Sanctions

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

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