The law is a system and collection of rules. Discuss and place your argument showing any significant difference between the creation and the operation of law?
The law is a system and collection of rules. The principles and regulation established in a community by some authority and applicable people in the form of legislation or of custom and policies recognized and enforced by judicial decision. Law is all so called a formal mechanism of social control. Law is used to govern a society and to control the behavior of its members.
Definition of law:
“According to Holland, Law is a rule of external human action enforced by the sovereign political authority”. From this definition it follows that there are three essential characteristics of law.
· Law is a rule relating to the actions of human beings.
· Law attempts to regulate the external actions of human beings.
· Law is enforced by the state”.
“Anson: Rules regarding human conduct necessary for peaceful living as well as for progress and development. Anson observes as follows: ‘The object of Law is Order, and the result of Order is that men are enabled to look ahead with some sort of security as to the future. Although human action cannot be reduced to the uniformities of nature, men have yet endeavored to reproduce by Law something approaching to this uniformity.”
John Austin (English jurist born 1790)
“A rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.
“A body of rules fixed and enforced by a sovereign political authority”.
Law is the cement of society and also an essential medium of change knowledge of law increase one’s study promotes accuracy of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word, as well as some understanding of social values.
Creation of law and operation of law there are not same thing. There are many significant differences between them.
1) Creation of law:
a) History of law:
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history. Among certain jurists and historians of legal process it has been seen as the recording of the evolution of laws and the technical explanation of how these laws have evolved with the view of better understanding the origins of various legal concepts, some consider it a branch of intellectual history. Twentieth century historians have viewed legal history in a more contextualized manner more in line with the thinking of social historians. They have looked at legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyze case histories from the parameters of social science inquiry, using statistical methods, analyzing class distinctions among litigants, petitioners and other players in various legal processes.
1) Ancient word:
Main articles: Ma’at, Babylonian law, Ancient Greek law, and Leviticus
Ancient Egyptian law, dating as far back as 3000 BC, had a civil code that was probably broken into twelve books. It was based on the concept of Ma’at, characterized by tradition, rhetorical speech, social equality and impartiality.By the 22nd century BC, Ur-Nammu, an ancient Sumerian ruler, formulated the first law code, consisting of casuistic statements (“if… then..”). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as steal, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these setae was discovered in the 19th century by British Astrologists, and has since been fully transliterated and translated into various languages, including English, German and French.
2) Southern Asia
Main articles: Manu Smriti, Yajnavalkya Smriti, Arthashastra, and Dharmasastra
See also: Classical Hindu law, Classical Hindu law in practice, and Hindu law
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from the 400 BC, and the Manusmriti from 100 AD were influential treatises in India, texts that were considered authoritative legal guidance. Manu’s central philosophy was tolerance and pluralism, and was cited across South East Asia. But this Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. Malaysia, Brunei, Singapore and Hong Kong also adopted the common law.
3) Eastern Asia
Main articles: Traditional Chinese law, Tang Code, and Great Qing Legal Code
The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernizing its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. This partly reflected Germany’s status as a rising power in the late nineteenth century. Similarly, traditional Chinese law gave way to westernization towards the final years of the Ch’ing dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek’s nationalists, who fled there, and Mao Zedong’s communists who won control of the mainland in 1949. The current legal infrastructure in the People’s Republic of China was heavily influenced by soviet Socialist law, which essentially inflates administrative law at the expense of private law rights. Today, however, because of rapid industrialization China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.
4) European laws
Main article: Roman law
Roman law was heavily influenced by Greek teachings. It forms the bridge to the modern legal world, over the centuries between the rise and decline of the Roman Empire. Roman law, in the days of the Roman republic and Empire, was heavily procedural and there was no professional legal class. Instead a lay person, index, was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognized. Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges’ decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire, the Emperor Justinian codified and consolidated the laws that had existed in Rome so that what remained was one twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis. As one legal historian wrote, “Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before.”
5) Modern European law
Main articles: Napoleonic code, Bürgerliches Gesetzbuch, and English law
The two main traditions of modern European law are the codified legal systems of most of continental Europe, and the English tradition based on case law.
As nationalism grew in the 18th and 19th centuries, lex mercatoria was incorporated into countries’ local law under new civil codes. Of these, the French Napoleonic Code and the German Bürgerliches Gesetzbuch became the most influential. As opposed to English common law, which consists of massive tomes of case law, codes in small books are easy to export and for judges to apply. However, today there are signs that civil and common law are converging. European Union law is codified in treaties, but develops through the precedent sat down by the European Court of Justice
6) United States
The United States legal system developed primarily out of the English common law system (with the exception of the state of Louisiana, which continued to follow the French civilian system after being admitted to statehood). Some concepts from Spanish law, such as the prior appropriation doctrine and community property, still persist in some U.S. states, particularly those that were part of the Mexican Cession in 1848.
Under the doctrine of federalism, each state has its own separate court system, and the ability to legislate within areas not reserved to the federal government.
Rules of law:
“Law is the set of rules that guides own conduct in society and is enforceable through public agencies”. The concept of law has gradually developed through different philosophers’ like-
· Karl Marx,
· Joseph Raz.
Aristotle (b. 384 – d. 322 BCE):
Aristotle was a Greek philosopher, logician, and scientist. Aristotle did affirm the existence of a “law of nature,” but he was admired by and influenced the American Founders more for his related views on republican government and the rule of law. According to Aristotle ‘The Politics’ that ‘the rule of law is preferable to that of any individual”.
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting: it summons to duty by its commands, and averts from wrongdoing by its prohibitions. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. BC)
Professor Joseph Raz:
In 1977, the influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. Raz’s principles encompass the requirements of guiding the individual’s behavior and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz’s principles are as follows:
- That law should be prospective rather than retroactive.
- Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
- There should be clear rules and procedures for making laws.
- The independence of the judiciary has to be guaranteed.
- The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
- The courts should have the power of judicial review over the way in which the other principles are implemented.
- The courts should be accessible; no man may be denied justice.
- The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.
Many organizations and scholars have advocated the rule of law and have taken positions regarding the interpretation of that concept they prefer.
The concept of rule of law was first written about by the Greek thinkers. Plato, in his work “The Laws” writes “In any great state, the law must be the ultimate sovereign, and not any person whatsoever” exhibiting a clear understanding of rule of law. Aristotle too, in “Politics” says that “the legislator’s task is to frame a society that shall make the good life possible”.
The Magna Carta (1215) contains several clauses that reflect the principles of rule of law among them clause XXXIX – ““No freeman shall be arrested or imprisoned or deprived of his land or banished or in any way molested save by the lawful judgment of his peers or by the law of the land”.
In the modern period John Locked the propounded of one of the Social Contract Theories laid down several principles of the rule of law in the course of his work. Firstly, the same laws must exist for “for the favorite at Court, and the countryman at plough”. Secondly, laws should be designed for the good of the people. Thirdly, the state cannot raise property taxes without the consent of the people. Fourthly, the legislative may not transfer law making power to any other body.
Later, in England, restitution measures were afforded to anyone affected by the excessive and unlawful use of authority. It was also laid down that the state had to be guided by reasonable standards and remain within legally prescribed limits.
2) Albert Dicey
British jurist A. V. Dicey popularized the phrase “rule of law” in 1885. Dicey emphasized three aspects of the rule of law No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
- No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
- The rule of law includes the results of judicial decisions determining the rights of private persons.
3). THE PRACTICAL CONCEPT OF “RULE OF LAW”
A man-on-the-street’s perception of the rule of law operates within a narrow context that the rule of law is a regime that is not governed by the “law of the jungle”, or the “law of the streets” or the “rule of the mob”. He identifies rule of law with “law and order” and ultimately associates the same with the competence and effectiveness of the law enforcers, peacemakers or even the courts. The newspaper and tabloid headlines scream and the average man in society “gets excited” when a controversial figure like Jalosjos gets embroiled in a rape scandal, when a political fugitive like Gringo Honasan is able to elude the authorities under the guise of a woman or when Trillanes fails in his attempt to lead a pseudo “Pied Piper” march from the Makati RTC to the famed Peninsula Hotel. When political or highly controversial figures are made to stand before the law, it is undeniable that the integrity of the judicial process is itself put to judgment by the “law of public opinion” and the “law of the streets”. Broadly conceived, under the rule of law – no politician, public official or private citizen – no one stands above or beyond the control of the law. Both the citizenry and the government are mandated to submit to its supremacy. The relationships between the government and the citizens are bound by a set of rules, with the key element that disputes arising therefrom are decided in accordance with laws that are known, stable, and with equal application to all. This is a simple and practical workable understanding of the rule of law.
4) THE PHILOSOPHICAL AND LEGALISTIC CONCEPTS OF “RULE OF LAW”
The United Nations’ definition of rule of law refers to a principle of governance in which all persons, public and private institutions and entities, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated, and which are consistent with international human rights, norms and standards. A World Bank definition of rule of law is that it is a “legal-political regime under which the law restrains the government by promoting certain liberties and creating order and predictability regarding how a country functions. In the most basic sense, the rule of law is a system that attempts to protect the rights of citizens from arbitrary and abusive use of government power.” A careful reading of both definitions finds a parallel ground lying between two sectors. We have the government in the exercise of its powers and the citizens in the exercise of their rights, with the law having dominion on both sectors.The United Nations’ definition focuses on accountability before the law, while the World Bank definition centers on the protection of citizens against abusive government power.
5) International Commission of Jurists
In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.
6) United Nations
The Secretary-General of the United Nations defines the rule of law as:a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security,child in armed conflict,and the protection of civilians in armed conflict. The Peace building Commission has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programmed of Action also require the rule of law be included in human rights education.
7) International Bar Association
The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or “thick” definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.
8) World Justice Project
As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:
1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable fair, and protect fundamental rights, including the security of personal and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.
Operation of law:
a) “Operation of law” is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies without a will, his heirs are determined by operation of law. Similarly, if a person marries or has a child after his or her will has been executed, the law writes this petermitted spouse or petermitted heir into the will if no provision for this situation was specifically included. Adverse possession, in which title to land passes because non-owners have occupied it for a certain period of time, is another important right that vests by operation of law.
“Events that occur by operation of law do so because court have determined over time that the rights thus created or transferred represent what the intent of the party would have been, had they thought about the situation in advance; or because the results fulfilled the settled expectations of parties with respect to their property; or because legal instruments of title provide for these transfers to occur automatically on certain named contingencies.
Rights that arise by operation of law often arise by design of certain contingencies set forth in a legal instrument. If a life state is created in a tract of land, and the person by whose life the estate is measured dies, title to the property reverts to the original grantor – or, possibly, to the grantor’s legal heirs – by operation of law. Nothing needs to be put in writing to affirm that this will happen. Joint tenants with rights of survivorship create a similar situation. Joint tenants with rights of survivorship deeds are always taken in equal shares, and when one joint tenant dies, the other tenants equally acquire title by virtue of the terms of the conveyance itself, by operation of law.
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior. Laws are made by governments specifically by their legislatures. The law shapes political, economics and society in countless ways and serves as a social mediator of relations between people.”
A general distinction can be made between civil law jurisdictions (including Canon and Socialist law), in which the legislature or other central body codifies and consolidates their laws, and common law systems (including Islamic law), where judge-made binding precedents are accepted. In some countries, religion may inform the law. For example in jurisdictions that practice Islamic law, Jewish law or Canon law.
The adjudication of the law is generally divided into two main areas. Criminal law deals with conduct that is designated dishonest by the government and in which the guilty party may be imprisoned or fined. Civil law (not to be confused with civil law jurisdictions above) deals with disputes between individuals or organizations, in which compensation may be awarded to the wronged litigant.
Under civil law, the following specialties, among others, exist: Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law regulates the transfer and title of personal property and real property. Trust law applies to assets held for investment and financial security. Tort law allows claims for compensation if a person’s properties are harmed. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies. International law governs affairs between sovereign states in activities ranging from trade to military action.
To implement and enforce the law and provide services to the public, a government’s bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.
Law provides a rich source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice. “In its majestic equality”, said the author Anatole France in 1894, “the law forbids rich and poor alike sleeping under bridges, begging in the streets and stealing loaves of bread.” Writing in 350 BCE, the Greek philosopher Aristotle declared, the rule of law is better than the rule of any individual.
In a presidential democracy, the constitution is sovereign and the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. In parliamentary systems, the legislature is sovereign and appoints one of its members as the executive (often called the prime minister). The judicial branch is under the parliament.
Practice of law:
Practicing of is a part of operation of law. The practice of is defined as follows:
“(1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state any subdivision thereof; or
(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, devises or counsels another as to secular law, or draws or procures or assists in the drawing of a proper, document or instrument affection or relating to secular rights; or
(3) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, does any act is a reprehensive capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishments of a right; or
(4) As a vocation, enforces, seculars, settles, adjusts or compromises defaulted, controverter disputed accounts, claims or demands between persons with neither of whom he is in privities or in the relation of employed and employee in the ordinary sense;
Nothing is this section shall be construed to prohibit any person, firm or corporation from attending to and corporation from attending to and caring for his or its own business claims or demands, non from preparing abstracts of title, certifying, guaranteeing or insuring titles to property, real of personal, or an interest therein, or a lien or encumbrance thereon, but any such person, firm or corporation engaged in preparing abstracts of titles, certifying , guarantee ting or insuring titles to real or personal property are prohibited from preparing or drawing or procuring in the drawing or procuring in the drawing or preparation of deeds, conveyances , mortgages and any paper document or instruments affecting or relating to secular rights, which acts are hereby defined to be an act of practicing law, unless such person, firm or corporation shall have a proprietary interest in such property.”
From the above discussion see that creation of law and operation o f law. They are most impotent part of law. They have too many differences, but they are incomplete without each others. Creation of law explains ‘what is law?’ and how does it works. On the other hand operation of law is teaching how to use the law in real life. We say that operation of law is an applied method.
· Sealy, L.S.; Hooley, R.J.A. (2003). Commercial Law. LexisNexis Butterworths.
· Stein, Peter (1999). Roman Law in European History. Cambridge University Press. pp. 32. ISBN 0-521-64372-4.
· Prof. P. Surianarayanan, Development of Rule of Law (1st ed., Madurai: Madurai Kamraj University, 1983) at 3.
· International Commission of Jurists, The Rule of Law and Human Rights: Principles andDefinitions (Geneva, 1966) at 1-4.
· T. R. S. Allan, Constitutional Justice – A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 1-29.
 See Encyclopedia of the Archaeology of Ancient Egypt.*VerSteeg, Law in ancient Egypt
 Bryan Gates; Attorney at law.
 Goldsworthy, Jeffrey. “Legislative Sovereignty and the Rule of Law” in Tom Campbell, Keith D. Ewing and Adam Tomkins 9eds), Sceptical Essay on Human Rights (Oxford: Oxford University Pres,2001),p 69
 What is the rule of law?
 Agrast,M.,Botero,J.,Ponce,., WJP Rule of Law Index2011.Washinton,D.C.: The World Justice Project.(2011).
 See West’s Encyclopedia of America Law, edition 2(The Gale Group, Inc., 2008)