Savigny: “Law is found but not made.”
Particular society themselves develop legal system by sense of common consciousness (Volkgeist).
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
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.
- 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