The main of law is to protect human rights. In ancient times when there was no legal system there was no organized society the principle of might is right used to prevail upon everything. With the passage of time mankind moved from barbarism to civilization. One of the main ingredients of civilization is the evolution of law and legal system. The holy purpose of law has been to protect the innocent and punished the criminals and ensuring these it has been necessary for mankind to establish a state. A state is established to create healthy conditions for its citizens. These can be done only through formulation and implementation of sound laws. Mankind is basically selfish and brutish and that is why we see conflicts between men and men, men and women and between the states. Mainly there two kinds of state – one run by monarchy and the other by constitution. A best example of monarchy is the United Kingdom and a best example of a constitution states is the United States. In the UK laws are evolved mainly through customs usage and tradition. There are however a few parliamentary acts. The purpose of all these written laws or usages is to protest human rights, to protect the weak against the strong, to protect the innocent against the criminal. In a state run by a constitution such as US the laws are all written and formulated by the Congress comprising of the house of representatives and the senate. Bangladesh is another good example of a state run by written laws. We have an elected parliament which passes necessary laws for the government elected by people. In fact all areas of human activity of a civilized modern state are legal areas in the sense that if any action of any citizen or a group of citizen is violative of law it attracts provision of punishment as mentioned in concern law.
When a law is applied first of all facts are obtained and then the lawyer or a judge as it may be distinguishes between relevant fact and irrelevant fact. The irrelevant fact are waded out and the relevant facts are analyzed in relation to the right or wrong action of the men are women concerned and out of these process the concern person is awarded the recompense.
It is not only the formulation of law but also the sound application of it is what is necessary for getting the right fruits of a legal system. The legal principles must be backed by a high sense of morality. If any law suffers from the right sense of morality that law or the application will not wield any good result. The solution to preparation to sound laws lies in an enlighten properly educated a human society. The more a society is educated the better will be its formulation of laws. Correct legal principle is therefore dependent on a human society that is properly educated transparent and honest. It is not only the passage of good laws that will deliver the good but also the implementer or officials who will implement the law that is necessary to get good result of a good legal
system. It is said law will take its own course. But in fact it is a misnomer. If the law is not properly implemented that will take its course but will produce dangerous results. Therefore honest neutral implementation of law is required for achieving good results.
Independent legal research is possible only in a developed civil society usually in a kingdom or in a monarchy independent legal research is not allowed. In many countries independent legal research is absent because of autocratic attitude of the government. Inndependent legal research and a developed democratic society are inter dependent. In the context of present world independent legal research is found only in the UK or USA. Because in these countries the legal researcher is allowed to work without any fear of government interfearence. The intellectual of these countries is allowed to think and speak freely and in such countries legal research bodies are also patronized by government.
The concept of rule of law is capable of different interpretation of different people. It can be interpreted either as a philosophy or as political theory. This concept of rule of law through different political philosopher Arristotle, Cicero, Karl Marx, Joseph raj and A.V. Dicey. Rule of law is to be undertood in contradistinction of rule by individual that is a king or a monarch. In kingship or monarchy the order passed by the king or monarch is the law. He is the parliament and he is the judiciary or the executive. For this reason rule of law is related to growth of democracy and a healthy legislature and a sound judiciary.
If there are know checks and balances rule of law cannot grow. It is necessary to have right ingredient of moral justification of any law in a governmental system. A good rule of law means a challenge to state authority and power which demands that powers both be granted legitimately and that their exercise must be according to law. It demands that power is to be exercised in such manner as it just fair and reasonable and not unreasonable or arbitrary having room for discrimination. That is why Greek philosopher Aristotole stated in his book ‘The politics’ that the rule of law is preferable to that of any individual. Aristotole has propounded that the power of a single individual should not be absolute but should be controlled and limited by the requirement of relevant law. The law should be positive and natural in its course for formulation and operation. A.V.Dicey believes that no punishment should be inflected other than for breech of law. Law is the supreme force in a society having the operation of law and all citizen of state including the president and prime minister are subjected to dictates of law. If a law does not protect the rights and freedoms of citizen that law does not make sense. One of the test of a society based on a rule of law no punishment is inflected on a citizen other than the breech of law. Usually laws are formulated making operable from the date when it is passes by a parliament and is applicable from time onward but in certaian circumstances some laws are gives retrospestive effect to cover certain areas of actions that have happened without any legal basics. This however depends on what areas of action the government wants to give retrospective effect. The concept of equality under law is not easy. It may be said all persons are equal powers and rights but there are many obvious
exceptions. The diplomats have immunity the high court judges and the ministers and the president has special previlage the members of parliament has parliamentary privileges. These are there in written laws. Rule of law in the 21st century is at its heights. As it said earlier it is dependent on a democratic polity it has three organs, the legislature the executive and the judiciary. Now these three organs are mutually proactive. The legislature passes laws, the executive implements the law, and the judiciary examined if the law is properly implemented or not. The judiciary determinants whether the rights of
any citizen has been violated. It also ensures the citizen has been allowed to do whatever the law does not prohibit.
Social choice theory has given considerable recognition to the plurality of reasons, all of which demand our attention when issues of social justice are considered, and they may sometimes conflict with each other. The inescapable plurality may or may not lead to an impossibility result, yielding an impasse, but the need to note of the possibility of durable conflicts of non-eliminable principles can be quite important in the theory of justice.
Perhaps the most important contribution of the social choice approach to the theory of justice is its concern with comparative assessments. This rational, rather than transcendental, framework concentrates on the practical reason behind what is to be chosen and which decisions should be taken, rather than speculating on what a perfectly just society (on which there may or may not be any agreement) would look like. A theory have justice must have something to say about the choices that are actually an offer, and not just keep us engrossed in an imagined and implausible world of unbeatable magnificence.
Another feature of some importance in the way social choice theory has persistently made room for reassessment and further scrutiny. Indeed , one of the main contributions of result’s like Arrow’s possibility theorem is to demonstrate that general principles about social decisions that initially look plausible could turn out to be quite problematic, since they may in fact conflict with other principles which also look, at least initially, to be plausible.
Adam Smith’s thought- experiment on “impartial spectator”, and this differs substantially from the closed impartiality of justice as “fairness”. The basic idea is pithily put by Smith in the “Theory of moral sentiments” as the requirement, when judging one’s own conduct, to examine our own conduct as we imagine any other fair and impartial spectator would examine it.
The insistence on impartiality in contemporary moral and political philosophy reflects, to a great extent, a strong Kantian influence. Even though Smith’s exposition of this idea is less remembered, there are substantial points of similarity between the Kantian and Smithian approaches. In fact Smith analysis of the “impartial spectator” has some claim to being the pioneering idea in the enterprise of interpreting impartiality and formulating the demand s of fairness which so engaged the world of the European Enlightment. Smith’s ideas were not only influential among Enlightment thinkers such as Condorcet who wrote on Smith. Immanuel Kant too know the Theory of Moral Sentiments (originally published in 1759), and commented on it in a letter to Markus Herz in 1771
(even though, Alas Hertz referred to the proud Scotsman as “The Englishman Smith”.) There was some whar earlier than Kant’s classic works, groundwork (1785) and Critique of practical reason(1788), and it seems quite likely that Kant was influenced by Smith.
There is something of a sharp dichotomy between the Smithian approach of the “Impartial spectator”, and the contractarian approach of which Rawlsian “Justice as fairness” is a pre-eminet application. The need to involve how things would look to “any other fair and impartial spectator” is a requirement that can bring in judgements that would be made by disinterested people from other societies as well –far as well as near. In contrast ; the institutionally constructive character of the Rawlsian system restricts the extent to which the perspectives of the “outsiders”can be accommodated within the exercise of impartial assessment. Even though Smith often refers to the impartial spectator as “The Main Within the Breast”, one of the main motivations of Smith’s intellectual strategy was to broaden our understanding and to widen the reach of our ethical inquiry. Smith invoked the reflective device of the impartial spectator to go beyond reasoning that may – perhaps impercepetibly – be constrained by local conventions of thought , and to examine deliberately , as a procedure, what the conventions would look like form the perspective of a “Spectator” at a distance. Smith’s justification of such a procedure of open impartiality is spelt out thus:
We can never survey our own sentiments and motives, we can never from any judgement concerning them ; Unless we remove ourselves, as it were, from our own natural station, and endeavour to view them as at a certain distance from us. But we can do these in no other way than by endeavouring to view them with the eyes of other of people or as other people are likely to view them.
Bibliography:
1.Winner of the nobe l prize in Economics “The Idea of Justice” by Amartya Sen.