Law in a Changing Society

Who should lead? Law or society?

•Savigny – Law is ‘found’, not ‘made’, now a matter of history

•Bentham – Believed in active legislative instruments effecting social change according to social needs: e.g. electoral reform, social welfare legislation, tax law, reform of justice system, etc.

•Ehrlich –Emphasises on living law of people, based on social behaviour rather than compulsive norm of the state, e.g. religious habits, family life, commercial relations, even if not recognised by the state as living law of the community

•Ehrlich – Compulsive state norm include military organisation, taxation, police administration etc.

•Today legislature is everywhere flanked by administrative agencies and judicial institutions

•Our highly urbanised and mechanised society has become more interdependent

•Creative role of the state as conscious law-making instrumentalities has actively increased

•Interplay of State Action and Public Opinion

•Hegelian philosophy of law and state:

•Fascist theory of Germany and Italy developed the mind and soul of its own as a state

•State is an organised power of the community

•Though state power has multiplied manifold , absolutely and relatively, through modern through modern legislative, administrative and judicial machinery with increasing physical and technical power

•Still, the people as groups and individuals control them as social representatives

•State is used to impose their will through laws, regulations and police action

•There is always interrelation between the state and the social opinion

•Legal remedies are provided against administrative action

•New divorce grounds are example for legal change

•Two factors in determining interrelation: a) the type of political system that controls legal action, and b) the type of social interest as the object of legal regulation in question

•Constitutional Patterns and Legal Change

•Modern dictatorship is a form of old absolutisim

•Concentration of many state functions in the hands of few

•Hostile to separation of powers, e.g. no judicial review of administrative action

•Control of education, healthcare and the media

•Practice of direct decree or pseudo-democratic legislative process

•Change in the system also change the mode of production, ownership and commercial transactions, e.g. former Soviet Union, China and Cuba

•Socialist countries offer limited individual rights, particularly on political matters, and offer more rights on economic and social matters

•They dictate conditions of human life and society

•Capitalist countries offer more individual freedom but almost no guarantee of economic and social rights

•Islamic countries are also going through rapid change due to global economic and social change, commercial transactions and human rights, e.g. Shari’a law being changed towards more equality

•Individual/Activist Role

•Help fulfill the increasing gap between legal theory and social practice

•Although minority, they take up issues of public interests and concerns before the government, parliament and courts

•The coloured people in different countries have pushed for equal rights through protests and legal actions forcing for legislative reform and judicial interpretation

•Patterns of Democracy and Legal Change

•Democracy means the implementation of the will of the majority only with very severe restrictions

•Two party systems are found more effective but less representative of diverse public opinion

•Individual freedom of decision in personal matters is possible mainly in a pluralistic society

•Federalism adopted to balance the power between the centre and the people

•Rigid separation of power is crucial to minimise conflict of interests

•Revolution, Civil Disobedience and Legal Change

•Human history is the result of revolutionary upheavals and they are mostly violent

•Examples, French (1789) and Bolshevik (1917) revolutions violently destroyed existing constitutional and legal structures

•Post-war German and Japanese constitutions are imposed by the victors

•If revolutions fail, the leader and freedom fighters are treated as traitors

•Civil disobedience is an illegal or unconstitutional act but peaceful

•Legal actions can be taken against them but could be retroactively legitimate if the law changed or if the court give clearance

•Famous Civil Rights Act of 1964 was the result of civil disobedience led by Martin Luther King

•Characteristics of Civil Disobedience

•Non-violent but public violation

•Rejection of a specific law or policy

•Expressed in a sense of justice

•Generally undertaken in the name of a presumed higher authority than the law in question, e.g. moral purpose, Nuremberg Charter

•Last resort to change the law

•Intention of accepting penalty under the prevailing law

(Adams, 1970, p. 294)

Civil disobedience …2

•Morally acceptable

•Delicate and complex balance of interests

•Right to break the law

•Violation of law for a vital social purpose

•Brutality is wrong to stop the act

•Contribution to the social good

•Proportionality between the degree of injury and the good accomplished

•Examples, opposition to Nazi Germany and Vietnam War, in Nepal Gyanendra’s dictatorship

Civil disobedience …3

•Powerful instrument to promote or accelerate overdue legal change when public conviction of moral rightness of existing legal system is shaky or divide

•Can lead to legal change without a revolution

•It is a ‘give and take’ between the state and the public

•Forces legal change to meet the social gap

•Wasserstrom asserts that:

‘… a person is never justified in disobeying the law as long as there exist alternative, “peaceful” procedures by which to bring about the amendment of repeal of undesirable or repressive laws’

Civil Disobedience in Asia

•Gandhi’s non-violence movement in India against British

•Overthrow of Marcos regime in the Philippines

•2046 and 2063 people’s movements in Nepal

•Anna Hazare and Ramdev protests in India against corruption and for Lokapal Bill

•Series of protests and demonstrations in Nepal but some are becoming more anarchist and violent

Rule of Law, Individuals and Welfare State, pp. 495-512

•Which is supreme? Individual as a group or state?

•Have we become more freer from the shackles of control and repression, e.g. poverty, ignorance

•Modern Leviathan – not only material existence but also our thoughts and minds controlled by the state

•Other controlling mechanisms: corporations, associations, clubs, universities etc.

•Media control of our minds and thoughts as they are guided by commercial interests and political philosophy of big business

•Private control is even more dangerous

Rule of Law, Individuals …2

•More new duties are added on us

•State has taken more responsibilities from minimum wage standards to social benefits and insurance

•Public law restrictions on freedom of property and contract

•Inequality of bargaining widespread

•Religious controls have weakened, except Catholic divorce and birth control

•There are countervailing power everywhere: manufacturer vs retailer, corporation vs union

Rule of Law, Individuals …3

•Highly powerful small group of people crush individuals and their freedom anytime

•Challenge is how to make a balance between conflicting demands (state vs society)

•Example, safeguards for the protection of individual, both against arbitrary executive power and unchecked power of private groups

•Law today is much more active agent in social evolution

•Progressive societies are guided more and more by contracts, e.g. consumer rights

Rule of Law, Individuals …4

•Even workers, poor and downtrodden community have the opportunity for higher education and development through minimum standards of rights, reservations and privileges

•Modern industrial and urbanised humans have surrendered more of their legal freedom

•Society is being divided between the rich life and total destruction

•New status has emerged – both negative and positive

Welfare State and Rule of Law …5

•Rule of law means organised public power

•How to imply the yardstick of ‘good’ against ‘bad’ law?

•It means different things to different people: absolute integrity of private property, maintenance of private enterprise, free from state control and official regulation, right to work, minimum administrative power, minimum standards for living and security

•Dicey’s formulation of rule of law is no more acceptable as it advocates not only against arbitrary but also wide discretionary power

Rule of Law, Individuals …6

•Dicey’s formulation of rule of law in a decent society: (1) arbitrary power unthinkable, (2) all must be equally responsible before the law, (3) effective judicial remedies more important than abstract constitutional declarations

•Hayek’s formulation of modern rule of law: (1) identifying rule of law with economic and political philosophy of laissez-faire, (2) predicated on the fixity of legal rules and corresponding absence of judicial discretion

•Absolute equality not possible, e.g. adults vs infants, civilian vs military, private citizens vs officials 

Foundations of Democracy

•Equality, liberty and control of government (government under the law)

•Aristotle – justice is about equality of treatment before the law

•There exists inequality of functions but no race, religion, etc-based discriminations

•Minimum requirements for a legal system based on ‘inner morality’ of law (Prof. Fuller 1964): (1) generality, (2) promulgation, (3) prospective legal operation (no retroactive laws), (4) intelligibility and clarity, (5) avoidance of contradictions, (6) avoidance of impossible demands, (7) constancy of law through times, e.g. frequent changes, (8) congruence between official action and declared rule

Meaning of Liberty (e.g. fundamental rights in the Constitution)

•Certain rights of personal freedom secured from state interference

•Legal protection of rights

•Freedom of person and freedom of mind

•Australian Constitution only guaranteed religious freedom and free inter-state trade

•British law only guarantees limited personal freedom in the Bill of Rights (1688) and HabeausCorups Acts, and now Human Rights Act (1998) under the European Convention on Human Rights

•Canadian Bill of Rights is an ordinary statue but has higher status of law (Drybone case)

Liberty …2

•UK Parliament is the supreme law-giver, judge has limited function of interpretation, inconsistency or public opinion is adjusted through legal change (Gurkha rights campaign)

•Principle of control by the people is through elected representations

•But there is a problem declining civil participation, they do not go to vote (voting is mandatory in Australia)

•Switzerland has direct participation system in national processes

•At the time of complexities of modern government, law must be rigorous and vigilant

Five State Functions

•(1) Protector: Defence, foreign affairs, police, judicial administration, limited taxation as the legitimate functions of the state

•Prerogative powers above judicial scrutiny is a detraction from the principle of equality, e.g. state of emergency and abuse of power

•(2) Provider: Social services, minimum standards, employment, insurance, security, etc

•(3) Entrepreneur: Industrial and commercial activities, e.g. autonomous corporations, boards, commissions, state trading, shares in public interests or national plans

•Public and private entreprises co-exist  

Five State Functions …2

•(4) Economic controller: Allocation of resources to reinforce social policy

•(5) Arbiter: Mediator and problem-solver, e.g. between companies/corporations and unions,

•Freedom of association also means freedom not to associate

•Three main tasks: (1) maintenance of a rough balance between contending organised groups and the unusually unorganised consumer, (2) protection of individual freedom of association, (3) safeguarding of overriding state interests

Changing Role of Law in Interdependent Society, pp. 513-525

•Law is setting the course of major social changes through legislative or administrative responses to new social conditions and ideas, as well as through judicial reinterpretations of constitutions, statutes or precedents

•Addressing growing interconnectedness and interdependence of different aspects of social development to promote closer interactions of technological, economic, social, environmental and legal decisions

•In the past, legal response to social change or social evolution was slow as ‘custom’ was the main source of law

•But today the rapid information and technological revolution is changing the society, its structures and human expectations beyond our imagination

Changing Role of Law …2

•Law is one to immediately respond to such changes

•In any system, there is time lag between social change and legal response

•Easy in a totalitarian states as legislature and judiciary are essentially arms of government

•More complex in democratic and pluralistic societies

•Even more complex in federal democracies due to the divisions of functions and legal power between the federal and state entities making swift and unified responses to urgent social needs much more difficult

•Changing Role of Law …3

•Problems of technologically sophisticated, highly urbanised, functionally interdependent society transcend differences of political ideology and organisations, e.g. between ‘communism and democracy’

•Proportion between urban and rural communities (winners vsloosers)

•Interaction between the engineering, environmental, economic, sociological and legal aspects of the situation

•Certain solutions as fines, levies or prohibitions on industrial production

Changing Role of Law …3

•Highways or railways and their impacts on ordinary people and environment

•Competition in ocean bed for minerals and biological resources

•Issue of rights of coastal and other states for sharing benefits

•Need of international regulatory control and their impacts on balance of military power, distribution of wealth among the nations, alternative solutions to minimise the exploitation of living and mineral ocean resources, their effects on international shipping and fisheries and degree of pollution caused

•World legal order for preserving ocean as a common heritage and sharing benefits equally or equitably

Changing Role of a Lawyer

•Important contribution to the legal implementation of social change

•Active role in the continuous process of legislative adjustment

•Participation in state, semi-state and non-state activities as a lawyer, scholar, judge etc. through academic studies or judicial interpretations

•Lawyers in the western world mainly defending establishment order and vested interests

•Private law becoming the most important part of the legal system than public law until recently

•Defending victims’ rights and interests, e.g. protection of ‘due process’ at the time of rising threats to liberties due to growing intolerance, government powers and administrative encroachments of private interests

•Active participation in public law-making which is yet to be developed sufficiently

•Involved in state and community planning with other actors, e.g. economists and engineers, as a guardian of justice

•Majority of lawyers from developed countries are defending the interests of their corporations and investments at the cost of huge exploitation of resources of developing countries

•Lawyers of developing countries have new challenges to defend their national interests and resources from the domination by international investors

•Lawyers need to look beyond the narrow legalistic defence of a specific interest to the wider social, economic and political implications of a problem

•Their active and enlightened role is to stand for struggle for justice for a civilised survival for all

Role of State in Overcrowded Society

•More government control and regulation undeniable at the age of industrialised, urbanised and congested world

•It is more about ‘necessity’ than ‘ideology’

•Development but environmental or ecological disasters – who bears the cost and consequences?

•Enormous amount of carbons, radiations and effects on health – how to control them and provide compensation for victims?

•Minimum demands and standards for survival requires changing priorities so as the role of the state accordingly 

•Some acute problems: Birth control and compulsory sterilisation – only state can regulate, and unlimited and non-essential products – only state can control through levies and fines

•Much more restrictions on freedom of property and contract is this required

•Drastic increase in public regulatory controls – administrative, penal and civil – or direct state participation in public utilities or activities is not a panacea

•Federal states and local authorities are less manageable due to bureaucracy

•Management of society cannot be left to free play of forces anymore

                Conclusions

•Bentham or Dicey time definition of rule of law is outdated

•New rule of law must be based on the realities of contemporary society

•Challenge is how to manage the society so as to develop morally and intellectually responsible persons

•The ideal of social welfare cannot be created without state intervention but welfare and work, without responsibility, can lead to the completely regimented and conditioned society

•Rule of law in a democracy must safeguard the elementary rights of civic participation in governmental process

•There must be adequate protection against the abuse of both public and private power

•Challenge is how to strike a balance between the needs and realities of time and resources

•Social security laws and collective bargaining are effective tools to ensure minimum standards of living and regulation of labour conditions

•Emphasis is thus shifting to safeguards against: administrative arbitrariness, legal immunities of public authority, excessive concentration of corporate power and abuse of union power over the individual

•Minimum guarantee of civil participation in public affairs is crucial

•Law has a vital role to play

•Content of rule of law cannot be determined for all times and circumstances

•Law must be able to respond to the unending challenge of evolutionary or revolutionary changes in society

•Lawyer cannot only remain as a craftsman/woman but must use his/her theoretical knowledge and technical skills with the sense of social responsibility

•S/he must inspire him/herself both as a jurist and a lawyer

            Questions

•Where are we now today in terms of old and modern concept of rule of law?

•What are the biggest social change issues in contemporary Nepal that require legal redressing?

•Who are the main players of social and legal interactions in today’s Nepal?

•How is the gap between the need of social change and adequate legal response?

•How active the judiciary is in filling the gaps between legal implementation and social change?

•Are we fighting for ideology or for a strong and highly regulated efficient welfare state?

•Are lawyers playing the role they are supposed to play given the role that can play and contribution they can play as discussed above?

•How can you define your role as a social changer through legal change?

•Are existing laws and our lawyers able to defend our national interests as against the power of global domination through investment?

•Add as many questions as you want and think about answering them on your own!!!!!! 

•Good luck for your exams and more successful years to come!!

•Ask me any questions by e-mail relating to materials and references as you require as per the prescribe curriculum !!!

•Email: gchintan@gmail.com

•Blog: gchintan.blogspot.com

•Tel: 4419610, 6916296 (cdma)

2069 Bhadra 1 (18 August 2011)