No man is above the law and no man is below it, nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor- Explain & illustrate
Blind obedience to the law is an attribute of a good citizen. Conversely, defying law in any form is delinquency, which deserves to be condemned. A law-abiding conformist is an asset for the society while the law breaking contrarian is a veritable liability. Rule of law[1] is to be upheld at all times.
Laws have to earn observance and obeisance. To do so, they have to meet a series of rigorous criteria: they have to be unambiguous, fair, just, pragmatic, and equitable; they have to be applied uniformly and universally to one and all, regardless of sex, age, class, sexual preference, race, ethnicity, skin color, or opinion; they must not entrench the interests of one group or structure over others; they must not be leveraged to yield benefits to some at the expense of others; and, finally, they must accord with universal moral and ethical norms. Most dictatorships and tyrannies are “legal”, in the strict sense of the word. The spirit of the Law and how it is implemented in reality are far more important that its letter. There are moral and, under international law, legal obligations to oppose and resist certain laws and to frustrate their execution.
It is common knowledge that the law is one of, if not the, strongest of instruments in the world. It can be used, and abused, in so many ways. In the Hebrew Scriptures[2], obedience means to ‘hear or listen’ There is no substitute for it, no gaining Gods favor without it.. God has first clain for obedience, since he is the Creator. Obedience is not carried out alone in hearing…it goes hand in hand with ‘doing’. One must submit, do, carry out, all decrees, laws, commands of God. Persons not knowing the Laws of God, carry the Law of Conscience. Those are under “a law to themselves” and and they are ‘accused or excused’ in their own thoughts. The history of God ‘given laws date back to the beginning of creation.
LAW OF OBEDIENCE MEANS:
Don’t try to rewrite the Laws. They are not creations of mankind. You can re-word them to express them, but you can’t change them or make them act in ways that they just don’t act. Denying the Laws will get you nowhere fast. Just because you don’t like the Laws does not make you an exception to their workings.
Being ignorant of the Laws will not get you a free pass or a free ride. It’s up to you to learn and to act in harmony with the Laws–or to pay the terrible price for failing to do so. If you have any beliefs that make you unable to work with any of the Laws, you should examine those beliefs and probably change them or throw them away. The Laws are, literally, beyond belief. Never try to force the Laws to work.[3] They do work, right now. If you’re not getting results you want, you, and not the Laws, are what need to change.
Obedience to that will is the source not only of the duties of care and loyalty, but also of a peculiar but widely ignored obligation. This is the duty of private and charitable trustees to follow the directions of principals who are dead, a duty that gives principals what is known in Anglo-American law as dead hand control[4]. As we shall see, this peculiar obligation occurs outside the principal scope of the prevailing dualist theory. That theory, largely economic in its method, has tended to focus on for-profit organizations, particularly business corporations, and to assimilate other fiduciary relationships, especially private trusts and charitable organizations, to the corporate model. This paper reverses that process of analysis. It shows how a close examination of the law of trusts, charitable as well as private, throws useful light on the law of corporations, both for-profit and nonprofit. Trinitarian theory accounts for both the presence of dead hand control in private and charitable trusts and its absence in business organizations.
IDENTIFYING THE DUTY OF OBEDIENCE
Our first task is to locate the duty of obedience in relation to the two more generally recognized fiduciary duties in Anglo-American law: the duty of care and the duty of loyalty. As a preliminary step, it will be helpful to think of fiduciary duties as having three dimensions: depth, breadth, and length.[5] The following subsections explore these three dimensions in detail. In each dimension, we shall see, the duty of obedience is more extensive than the duties of care and loyalty; the duty of obedience is, in other words, deeper, broader, and longer.
1. Depth
The duty of obedience is often overlooked (7) or included in one of the other two fundamental fiduciary duties, (8) precisely because it is so basic as to be almost invisible. To see why this is so, we need to examine the very foundation of fiduciary duty. The irreducible root of the fiduciary relationship is one person’s acting for (9) another. (10) The duty of obedience derives directly from–indeed, is virtually synonymous with–that basic principle[6]. The root of the fiduciary relationship is this directive from the principal to the fiduciary: Serve the one the principal designates, as the principal designates.
(11) The fiduciary must, at the most basic level, obey that directive; that directive is the duty of obedience. (12)Seen from this perspective, the duties of loyalty and care are derivative from, and grounded upon, the more fundamental duty of obedience.
2. Breadth
We have just seen how the duty of obedience is deeper, more fundamental, than the other two fiduciary duties, care and loyalty. Now we need to see how that greater depth also implies what we will call greater breadth as well. The duty of obedience is not merely tied more directly to the fundamental feature of fiduciary duty, the mandate to serve another; the duty of obedience also has greater reach, a writ that runs into the domains of the other two duties. With respect to the duty of care, the standard has now come to be, both for corporate fiduciaries and for trustees, essentially the same: Act as a prudent person would in the conduct of his or her own affairs. (26) With respect to the duty of loyalty, by contrast, the default rule for the corporate fiduciary is laxer than for the trustee[7]. (27) The former may engage in objectively fair, fully disclosed self-dealing[8]; (28) the latter traditionally may not. (29) With respect to all three duties, the significant thing to note is that this second level is a default mode; it may be varied by the principal’s more explicit directives (as long as those directives do not drop below the first level, the mandatory baseline (30)).
3. Length
There is, finally, a third aspect of the fiduciary duties that we must consider: their duration. To complete our three-dimensional metaphor, think of this last dimension as length. How long do the three fiduciary duties last? At one level of analysis, the answer is again obvious, even tautological. If the three duties are essential to the fiduciary relationship, then they must last, at least at their baseline level, as long as the fiduciary relationship itself. And so they do.
But that is not the end of the analysis, nor by any means the most interesting part. Beyond this definitionally minimal duration, we encounter a most unusual, if not unique, feature of the duty of obedience: in the context of trusts, both private and charitable, the duty of obedience may last beyond the life of the individual to whom it is owed. In that context, mandatory modifications of the default level of the duties of care, loyalty, and obedience will all bind living fiduciaries to the directions of dead principals. That, as we saw at the outset, is the duty of obedience in its strong form, what Anglo-American scholars call dead hand control.
4. Summary
In this section we have compared the duty of obedience with the other two fiduciary duties, care and loyalty, in three dimensions. In terms of depth, we have seen that the duty of obedience lies at the root of any fiduciary relationship, any situation in which one person acts at another’s direction. At that level, it underlies both the duty of care and the duty of loyalty. We saw that the duty of obedience is not only deeper than the other two, but broader as well[9]. Principals can, by exercising their option to vary the default levels of the other two duties, bring them, at their optional levels, within the ambit of the duty of obedience. Finally, in terms of the third dimension, length, we saw that the duty of obedience, in its strong form, has an unusual, if not unique, feature: it can bind fiduciaries to the directions of a principal who is dead.
“Socrates’ views on the obedience to the law were shaped largely by the context his trial and his sentence to death had created. His main idea is that obedience must be exercised in relation to the one entity that can differentiate between right and wrong, and not to the majority which could in any instance decide his future. In this sense, he argues in his dialogue with Crito that “we should not think so much of what the majority will say about us, but what he will say who understands justice and injustice, the one, that is, and the truth itself.” This argument came as he tried to counter Crito’s desire to help him escape the prison the Athenian state had placed him in awaiting his death. “
Rule of law is, therefore, not enough to protect the interest, or ensure the welfare, of common citizens of the country. What is necessary to realise these objectives is good rule of good law. The law has to be pro-people and its application has to be well intentioned. The ruling caucus must adhere to the principle salus populi est, suprema lex (people’s welfare is the highest law). Rule of law by itself does not stand up to this maxim. Good rule of good law does.
Myriads of examples may be cited where breaking the law was eminently justified because the law was against humanity, it was tyrannical, oppressive and brutally against the interest of the common people. Take the case of the apartheid law in former South Africa[10]. We often misconstrue the concept of the “rule of Law” and take it to mean automatic “obedience to laws”. Those soft, largely harmless, drugs continue to be illicit is the outcome of compounded political and economic pressures by lobby and interest groups of manufacturers of legal drugs, law enforcement agencies, the judicial system, and the aforementioned long list of those who benefit from the status quo. Only a popular movement can lead to the decriminalization of the more innocuous drugs. But such a crusade should be part of a larger campaign to reverse the overall tide of criminalization. Many “crimes” should revert to their erstwhile status as civil torts. Others should be wiped off the statute books altogether
This, admittedly, will reduce the leverage the state has today against its citizens and its ability to intrude on their lives, preferences, privacy, and leisure. Bureaucrats and politicians may find this abhorrent. Freedom loving people should rejoice.
CONCEPT OF THE RULE OF LAW
The term ‘Rule of Law’ is derived from the French phrase ‘La Principe de Legality’[11] (the principle of legality) which referse to a government based on principles of law and not of men. In this sense the concept of ‘La Principe de Legality’ was opposed to arbitrary powers. The rule of law is old origin. In thirteenth century Bracton, a judge in the reign of Henry III wrote-
“The king himself ought to be subject to God
and the law, because law makes him king.”
Edward Coke is said to be the originator of this concept, when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in his classic book ‘The Law Of The Constitution.’ published in the year 1885.3 Dicey’s concept of the rule of law contemplated the absence of wide powers in the hands of government officials. According to him wherever there is desecration there is room for arbitrariness. The rule of law is a viable and dynamic concept and like many other such concepts, is not capable of any exact definition. Its simplest meaning is that everything must be done according to law, but in that sense it gives little comfort unless it also means that the law must not give the government too much power. The rule of law is opposed to the rule of arbitrary power. The primary meaning of rule of law is that the ruler and the ruled must be subject to law and no one is above the law and hence accountable under the law. It implies the supremacy of law and the recognition that the law to be law cannot be capricious.
ANTIEQUALITY
The rule of law is an ancient ideal, and was discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.[12]
Likewise, Aristotle endorsed the rule of law, writing that “law should govern”, and those in power should be “servants of the laws.” Cicero wrote, “We are all servants of the laws in order that we may be free.” During the republic, controversial magistrates might be put on trial when their terms of office expired. Under the empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury.
An allusion to the rule of law applying to the Median kingdom is found in the Book of Daniel, where it is stated that not even that king can arbitrarily alter a law he has previously enacted: “The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked.
RULE OF LAW IN THE CONSTITUTION OF BANGLADESH
The rule of law is a basic feature of the constitution of Bangladesh. It can be seen from the preamble that fundamental human rights and freedom, equality and justice, political, economic and social have been mentioned after rule of law. Part II of the Constitution states about the fundamental principles of state policy and in Art. 8(2) it is stated that “The principles set out in this part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws,’ Art. 19 states that the State shall endeavour to ensure equality of opportunity to all citizens[13].
As there is difference of opinion as to the actual meaning of ‘rule of law’, the framers of the Constitution, after mentioning ‘rule of law’ in the preamble, took care to mention the other concepts touching on the qualitative aspects of law, thereby showing their adherence to the concept of rule of law as propounded by the latter viewers. To attain this fundamental aim of the State, the Constitution has made substantive provisions for the establishment of a policy where every functionary of the State must justify his action with reference to law. ‘Law’ does not mean anything that Parliament may pass. Articles 27 and 31 of the Constitution of Bangladesh have taken care of the qualitative aspects of law. Art. 27 forbids discrimination in law or in State action. Article 7 and 26 impose limitation of the legislative that no law which is inconsistent with any provision of the Constitution can be passed. Article 26 declares that all existing law inconsistent with the provisions of fundamental rights of the citizens, to the extent of such inconsistency, shall become void. Fundamental rights have been guaranteed in the Constitution. Which rights are the fundamental rights have been defined in Part III of the Constitution. Art. 27 guarantees equality before law, 28 guarantees that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
CONCLUSION
True liberty cannot and does not suggest the absence of law, but rather quite the opposite. It’s through obedience to law that we are made freer, provided that the laws we obey are true laws and not just man’s restrictions designed to control man. True laws conform to and reflect the truths of the universe in all its forms. Our role as humans is to discover these true laws and model our own laws and our forms of government after them. Obedience to that will is the source not only of the duties of care and loyalty, but also of a peculiar but widely ignored obligation.
BIBLIOGRAPHY
1. Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202.
2. Gordley, James R.; von Mehren, Arthur Taylor (2006). An Introduction to the Comparative Study of Private Law. Cambridge: Cambridge University Press.
3. Feldman, David. Civil Liberties & Human Rights in England and Wales. Oxford University Press. p. 5. l
4. Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh, Lucknow-226001, India, 2001;21.
5. Raz, Joseph. “The Rule of Law and It’s Virtue”, The Law Quarterly Review, volume 93, page 195 (1977); reprinted by Culver, Keith. Readings in the Philosophy of Law, page 13 (Broadview Press, 1999).
6. Mattei, Ugo (1997). “The Distinction between Common Law and Civil Law”. Comparative Law and Economics. University of Michigan Press.
7. Freeman, Michael (2002). Human rights: an interdisciplinary approach. Wiley-Blackwell. pp. 15–17. ISBN 9780745623559.
8. Berman, Harold, Law and Revolution, (Cambridge, MA: Harvard University Press, 1983).
9. David C. Flatto, The Historical Origins of Judicial Independence and Their Modern Resonances, 117 YALE L.J. POCKET PART 8 (2007)
10. www.wikipedia.com
11. www.googlE.com
12. www.bangladeshinfo.com
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[1] Craig, Paul P. (1997). “Formal and substantive conceptions of the rule of law: an analytical framework”. Public Law: 467.
[2] The Journal of Hebrew Scriptures (JHS) is an international, peer-reviewed, open access, journal established in 1996 to foster scholarly research on the Hebrew Bible, Ancient Israel’s History and cognate fields of studies.
[3] Goldsworth, Jeffrey. “Legislative Sovereignty and the Rule of Law” in Sceptical Essays on Human Rights, page 69 (Tom Campbell, Keith D. Ewing, Adam Tomkins eds. Oxford University Press 2001).
[4] Aristotle, Politics 3.16: “it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.”
[5] Combined with a tract entitled The Use of the Common Law, for preservation of our Persons, goods, and good Names, in a book entitled The Elements of the Common Lawes of England, facsimile reprint by Da Capo Press, 1969
[6] Hamilton, Michael S., and George W. Spiro (2008). The Dynamics of Law, 4th ed. Armonk, NY: M.E. Sharpe, Inc.
[7] Olson, David M., Norton, Philip (1996). “Legislatures in Democratic Transition”. The New Parliaments of Central and Eastern Europe. Frank Cass (UK).
[8] W. W. Buckland, A Textbook of Roman Law from Augustus to Justinian, Cambridge: University Press, 1921.
[9] Fabri, Marco. The challenge of change for judicial systems, page 137 (IOS Press 2000): “the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales.
[10] Bielefeldt, Heiner (1998). “Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism”. In David Dyzenhaus. Law as Politics: Carl Schmitt’s Critique of Liberalism. Duke University Press
[11] Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. But there are other views as well. Some believe that democracy is part of the rule of law.
[12] Goldsworth, Jeffrey. “Legislative Sovereignty and the Rule of Law” in Sceptical Essays on Human Rights, page 69 (Tom Campbell, Keith D. Ewing, Adam Tomkins eds. Oxford University Press 2001).
[13] Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.