The existence of proper law and the machinery for enforcing it including the sections behind the law are two basic pillars for the establishment of public liability-illustrate & explain
Introduction
Every state has its own law system and also has the mechanism of enforcing the law. Law of the country can enforce its citizens to do something and not to do something. In a state constitution is the supreme law and in Bangladesh there is also a supreme law which is named as the constitution of Bangladesh. The constitution of Bangladesh said that if the is any inconsistency between the constitution and any other law than that law will be void. The concept of proper law is very difficult and it’s vary from state to state and it’s actually depends on political, social, cultural, economy and religious situation of a country. Like death penalty is prohibited by many states and others states recognized death penalty. So it’s a matter of research to find out what law will be appropriate to find out a proper law and the law which was appropriate about 20 years ago is it appropriate at this time it is also difficult to find out. So law makers can find out this difficulties and its solution as well as and will enact a new law or can amend the existing law. So what is proper law for a particular state? It is the responsibility of the law makers to find out the solutions. If a murder is punished only for two year imprisonment in a law system of a state what will happen in that state can anyone imagine it?
Enforcement mechanism is also very important because if there is no implication of law violation of law will raise in that state. Legislature, judiciary, executive department has responsibility for the making proper law and implementation of law. Proper administration system is also responsible for implementation of law. Actually judiciary system is mostly responsible for the implementation of law. Law ministry, the court of the country, police is responsible for implementation of law.
Proper law
Proper law, its concepts normally apply or come into effect when there is a conflict of laws. The application of proper law could also occur when there is a dispute concerning more than one country, state, or body of law. Within a country, proper law helps to determine which branch or area of government or governing body should have jurisdiction over the conflict.
One situation when proper law is applicable is when two or more countries are concerned. If there is a dispute concerning goods for sale internationally, for example most times the proper law is the law or laws of seller’s country. In orders, the jurisdiction is directed to the body of law of the seller, rather than the consumer.
This situation of conflict can be a complicated and difficult matter, because there nearly always involves several parties of different areas and with different representation. It is possible that both bodies of law and government feel that they should have jurisdiction. Conversely both governments may feel that they are not responsible for settling a dispute in a particular area. There are conflicts of this sort because even within the branches of a government, polices and interpretations are different and thus, cases are handled and decided differently. Proper law determined under whose jurisdiction the conflict or case should be both forth.
Proper law can be determined the validity of a case. The doctrine of proper law functions by examining the actions and intentions of the party under question, how those intention were expressed or implied, and the most real or valid connection with the situation, conflict, or contract.
The hard factors of the conflict or dispute are also taken into account under proper law, including where any interaction, agreement, disagreement, or communication occurred, which language was used in communication or contracts, the flag or emblem of any ship or vehicle, the currency used, and the place of residence of any parties involved, including insurance company or third parties. Proper law generally applies lex fori, in other words, the decision applies when a contract or dispute was performed rather than when a contract was created. The law is not divided or split unless under highly compelling and conflicting circumstances.
In conflict law suit, one or more state laws will be relevant to the decision making process. If the laws are the same, this will cause no problem, but if there are substantive difference, the choice of which law apply will produce a different judgment. Each state therefore produces a set of rules to guide the choice of law, and one of the most significant rules is that the law to be applied in any given situation will be the proper law. This is the law which seems to have the closest and most real connection to the fact of the case, and so has the best claim to be applied.
All laws to a greater or lesser extent are reflections of public policies of the state that enacted them the more important policy to the society and the greater the claim of the relevant law to be applied. Thus if laws exist to protect citizens the law of the place where loose or damage is sustained might have a strong claim to apply.
E. g. in a traffic accident two cars collide because of faulty maintenance and both drivers are injured- the local law exist to provide some degree of protection for all those who use the road in that state, setting minimum standards for the design and maintenance of vehicles, specifying what levels of insurance should be carried, setting the minimum age and qualifications for the right to drive, etc.
But the problem with accepting the claim of any one state to have its law apply is that the result may be somewhat arbitrary. So, in the example given, if neither driver had a residence in the state, and the car were both maintained outside of the state, the law of other states may have an equal or better claim to apply. The advantage of the proper law approach is that it builds[1] in flexibility rather than offering a mechanical rule.
The general rule is that the proper law is the primary system of law which governs most of the factual situation giving rise to the dispute. This does not imply that all the aspect of the factual circumstances are necessarily governed by the same system of law, but there is a strong presumption that this will be the cases
Machinery for enforcing proper law:
Law is for the betterment of the society, country and state. Without law these can’t run properly. A law establishes when any types of occurrence or incident occur. But most of the tile there might be enforcement to establishing the law. The machineries for enforcing the law are legal institutions like judiciary, legislature, executive, military and police, bureaucracy etc.
The main institution of law in industrialized countries is independent courts, representative parliaments, an accountability executive, the military and police, bureaucratic organization the legal profession and civil society itself. John Locke, in his two treatises of government and Baron de Montesquieu in The Spirit of the laws, advocated for a separation of powers between the political, legislature and executive bodies. Their principle was Thomas Hobbes’ Leviathan.
Max Weber and other reshaped thinking on the extension of state. Modern military policing and bureaucratic power over ordinary citizen’s daily life pose special problems for accountability those earlier writers such as Locke or Montesquieu could not have foreseen. The customer and practice of the legal profession is an important part of people’s access to justice, whilst civil society is used to refer to the social, communities and partnership that law’s political basis.
A judiciary is a number of judges mediate dispute to determine outcome. Most countries have system of appeal courts, answering up to a supreme level of authority. A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpret the constitution and all other laws.
While organizations have existed as long as government itself, the idea of a standing police force is a relatively modern concept. The first modern police were probably those in 17th century Paris, in the court of louis15, although the Paris performance of police claim they were the world’s first uniformed policemen.
The etymology of bureaucracy derives from the French word for office and the ancient greek for word power. Like the police a legal systems government servants and bodies that make up its bureaucracy carry out the directives of the executive.
Why do the machineries needed for the establishment of public order?
All these are involved in the enforcement of the proper law. These institutions generally work to help the government and judiciary to implement their laws to whom their law should be implementing.
For an example:
In Bangladesh for those people who are corrupted in different sector, “DUDOK” is established. This could be machinery for the enforcing of proper law. It identifies the corrupted persons and arrests them by the help of police. Then “DUDOK” handovers them to the judicial board to take decisions against them. Then court takes decision against them by the law in which section his punishment is written.
Conclusion:
After all of my research and study I can come up with a point that public law could not be established without two basic things. For any public order there is a compulsory thing that is proper law. Laws came from different incidents. For any kinds of judgment or decision a judge follow the proper law to make that decision. And to implementing that order different machineries should be used. Because a victim person never wants to follow the law and they should have to enforce to obey to the law. So without proper law and the machinery for enforcing it including the sections behind the law, a public order could not be established.
Bibliography
https://wisegeek.com/videos/517289198.htm
http://en.wikipedia.org/wiki/Law
Article Written by: P.M. Willers & Edited By: Allegra J.Lingo
Daniel J. Solove and Chris Jay Hoofnagle, A Model Regime of Privacy Protection (Version 3.0), 2006 Universityof Illinois Law Review 357 (2006), http://ssrn.com/abstract=881294.
Weber, Max (1978). “Bureaucracy and Political Leadership”. Economy and Society, Volume I (Translated and edited by Claus Wittich, Ephraim Fischoff, and Guenther Roth
Mattei, Ugo (1997). “The Distinction between Common Law and Civil Law”. Comparative Law and Economics. University of Michigan Press
^ “About Bills, Resolutions, and Laws”. LexisNexis. 2007. Retrieved 2008-09-04. “About Public Laws”
Cappalli, Richard B. The Disappearance of Legal Method, (1997) 70 Temp. L. Rev. 393
Moufang, Rainer. The Concept of Ordre Public and Morality in Patent Law, in Geertrui Van Overwalle (Ed.), Patent Law, Ethics and Biotechnology, Katholieke Universiteit Brussel, Bruxelles, (1998)
^ THOMAS. How Our Laws Are Made: IV. Forms of Congressional Action. U.S. Congress.
^ “About Bills, Resolutions, and Laws”. LexisNexis. 2007. Retrieved 2008-09-04. “About Public Laws”