Background of Legislative Principles and Law Making Process

“As force is always on the side of the governed, the governors have nothing to support them but opinion. It is, therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular. The Soldan of Egypt, or the Emperor of Rome, might drive his harmless subjects, like brute beasts, against their sentiments and inclination; but he must, at least, have led his mamelukes, or praetorian bands, like men, by their opinion.” David Hume (force and opinion to keep a regime in power)

“Opinion rules everything.” Napoleon

Law here refers to legislation. Positive law.

Also See, M_eera Kumari Dhungana and others v. Ministry of Law, Justice and Parliamentary Affairs et. al._ NKP 2052, p.462.

In this case, after holding-albeit indirectly-that the then existing provision in the Chapter on Partition of the National Code was discriminatory and unconstitutional, the Supreme Court held that the law was a part of a long held tradition of the Nepalese people and formed a core of the society. Hence, instead of directly changing the law, the society and the people should extensively discuss the issue on the basis of principles of equality and only then the Government should introduce a bill to the house within one year.

Law making process is the process of codification or transformation of principles and ideas into rules or legislation.

In democracy, one of the essences of law making process is the formal, transparent, participatory Law Making process. In addition, public should own the law to ensure effective implementation of the law.

In this context, public opinion ensures transparency, participation in the law making process and allows the public to get a sense of ownership of the law.

Public Opinion not only affects law making process by determining how the legislature votes but also by influencing every process in the way whereby sometimes even killing the legislation. That is, public opinion should not be seen only as a procedure followed during the law making process, rather it may become decisive in determining the necessity of the law, at the first place.

How Public Opinion influences, first, public opinion represents electorate’s aspiration so fear of retaliation in election. Second, moral pressure on the legislatures, doctrine of mandate.

Relevant provisions in the law

The Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2070 (2013)

The probability to create a legislative law increases when (1) powerful interest groups mobilize their members to seek legislative action; (2) the unorganized public becomes intensely concerned with an issue; and (3) there is no pressure to maintain the status quo or opposition to the proposed legislation.

The present public opinion on Truth and Reconciliation Act and even the Constitution.

  1. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

“When we talk of legislative public opinion we should not forget that such opinion may bear a merely negative character, and operate not by making laws but by forbidding their enactment.”

Few points on Public Opinion in England.

  1. First, There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which, taken together, make up the public opinion of a particular era…

Such belief (right or wrong) are strongly and confidently held by the community.

Such belief maybe countered by opposite belief over time.

  1. Secondly, the opinion which affects the development of the law has, in modern England at least, often originated with some single thinker or school of thinkers.
    It is impossible, indeed, to insist too strongly upon the consideration that whilst opinion controls legislation, public opinion is itself far less the result of reasoning or of argument than of the circumstances in which men are placed.

  2. Thirdly, the development of public opinion generally, and therefore of legislative opinion, has been in England at once gradual, or slow, and continuous.

  3. Fourthly, the reigning legislative opinion of the day has never, at any rate during the nineteenth century, exerted absolute or despotic authority. Its power has always been diminished by the existence of counter-currents or cross-currents of opinion18 which were not in harmony with the prevalent opinion of the time.

  4. Fifthly, Laws foster or create law-making opinion.

This assertion may sound, to one who has learned that laws are the outcome of public opinion, like a paradox; when properly understood it is nothing but an undeniable though sometimes neglected truth.

Something I found in the internet, worth noting. Will be helpful in exams, I guess.

  • Public opinion is not the unanimous opinion but there is a general agreement on the issue.
  • It may change with the circumstances, time and new information.
  • Public opinion is not always related to political matters. It may even be formulated on economic, social and cultural matters.
  • Public opinion is logical and considered view of a section of society.
  • Public opinion is subject to process of modifications, consolidation and clarification until it takes a definite shape.
  • Public opinion necessarily reflects diversity of opinion.
  • There is no fixed territory or area for public opinion.
  • Public opinion ensures democratic communication.

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