The law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions. Explain & illustrate
1. INTRODUCTION:
The ‘law’ word is used in many different ways as per different countries like a word in a language has no meaning in other language. Lord Bryce writes: “The law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions.” To establish peace, order and civilization the law in a state is very necessary. For each one of us our beliefs constitute our facts.
I would analyze the quotation from two perspectives in this essay. My first perspective would be to analyze the different sources of law, nature of law and its different types. Next I would discuss it on our country’s perspective. Secondly I would analyze whether the codification of law is common sense or not.
2. THE KEY CONCEPT OF LAW:
(a) Define ‘Law’:
In Thurman Arnold’s word:” Obviously, law can never be defined.”<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]The word ‘Law’ is a general which differs from person to person as per meaning. Such as- (1) A citizen may think of ‘law’ as a set of rules which he must obey, (2) A lawyer who practices ‘law’ may think of law as a
vocation, (3) A legislator may look at ‘law’ as a something created by him, (4) A judge may think of ‘law’ as a guiding principles to be applied in making decisions.
Law is defined by many schools of law from different angles. Such as- on the basis of its nature, concentrate on its sources, its effect on society, the end or purpose of law. But a definition of law proves imperfect if it does not cover multiple areas of law. The definition of law can be found in Article 152 of the Constitution of Bangladesh.It includes- Act, Ordinance, order, rule, regulation, bye-law, notification and custom or usage in the law of Bangladesh. Whatever is not enforceable is not law.
(b) Separation of powers:
Separation of powers play vital role as an element of democracy. Aristotle in his ‘Politics’ differentiated state activity into three categories: (i) deliberations concerning common affairs, (ii) decisions of executive ministers, (iii) judicial rulings. Then British philosopher John Locke in his work Two Treatises of Civil Government recommended separation of powers among legislative, judiciary and executive branch In his ‘Second Treatise of Civil Government’ after observation he then came into decision that all these three organs of state should not be given in one hand as it is human frailty to grasp the power and misuse it. Both of them failed to assign separate organs. At last French philosopher and jurist Charles Louis Montesquieu first made modern division among these three. In his book ‘The Spirit of Laws’ he proposed that in order to maintain liberty judiciary power should be separated from the legislative and the executive. After Philadelphia Convention of 1789 the separation of powers had been adopted.
(c) Object of law:
The object of law is an abstract and general concept. It is not related to any of the branch of law. To ensure peace, order, civilization and uniformity, law in a state is mandatory. Law in a state is specific and predetermined about which every citizen should have knowledge and abide by it. It helps to ensure one’s position and relationship with others in the society.
(d) Need for the knowledge of law:
The maxim “Ignorantia juris non excusat” is very popular. Its meaning is “ignorance of law is no excuse.” Law is required to ensure a secure future. Fair and non-discrimination in judgment reflects a characteristic of a civilized and ordered society. It is the citizen’s benefit to know the rules implemented by the state and abide by them for their own good.
3. KINDS OF LAW:
Law has been classified by various persons from various angles. Law can be classified broadly in two types:
(i) Public law:
Public law is related to the relationship between individual and the state. It also regulates the relationship between individuals and organizations like company, partnership etc.
(ii) Private law:
Private law is related to the relationship between private persons. As for example: law of contract. It regulates the property we own and use, the injuries we inflict or avoid inflicting, the contracts we make or break.
Sir John Salmond refers to eight kinds of law:
(a) Imperative law:
Imperative law includes rules by society of states and imposed upon states. Being imperative is one of the natures of law and must be obeyed. Otherwise breach of law will be punishable. According to Salmond there are two essential characteristics of imperative law. The first characteristic is the command of the sovereign must be universal to every individual without any exception. The second characteristic is that the law should be enforced by the machinery of the state on which the pleasure of the people depends. On the basis of the authority from which they precede laws are either divine or human Human law has three sub-classes: civil law, law of positive morality and law of nations or international law.
(b) Physical or Scientific Laws:
Physical or Scientific laws are laws of nature about general principles of expressing the uniformity and regularity which can be observed I the operations of natural activities, as for example, the law of tides. Human laws change over time and country but physical laws never change.
(c) Natural Law or Moral Law:
Natural law or moral law has many other names like divine law the law of reason the universal or common law, rational law and eternal law It is unwritten law imposed upon men by God. It exists only in an ideal State which is opposed to positive law of a State. The principles of morality are universal to every State mean to say common to every State. Natural law- for men is- moral law, because men obeys or disobeys it freely.
(d) Conventional Law:
Conventional law is a form of special law which refers to any rules or agreement between parties who subscribes it. The laws of cricket or any other game or rules in clubs are some examples of conventional law. Sometimes conventional laws are enforced by State thus we call it civil.
(e) Customary Law:
Customary law is a special kind of law under civil law and one of the important sources of law. Sometimes person takes any rules or custom with uniformity of actions. It can be done voluntarily but still to be considered as a law. When this particular custom is enforced by the State then it is considered customary law. It is mainly brought under law because or some traditional and conservative people. Prior to 1955, Hindu law regarding marriage, succession, minority and guardianship, adoption and maintenance which was based on custom is codified and governed by appropriate statutes. The main evidence of customary law can be found in the actual practice of State. One thing should be clear here custom cannot override statute law in any situation.
(f) Practical or Technical Law:
Sometimes rules are enforced to attain certain ends such as- the laws of health, the laws of architecture, laws of music, laws of style etc. These are called practical or Technical law.
(g) International Law:
International law is the laws that bind upon one nation with another in mutual relationships by the treatises, resolutions, declarations that both the nations recognize. It gives importance to the whole nation rather than any private citizen. It has three distinct legal disciplines: (a) Public International Law, (b) Private International Law or Law of Conflicts, (c) Supranational Law. International laws are based on international agreements. International laws can be either expressed as in treaties and convention or implied as can be found in custom or practice of the States. Most of the international laws are conventional.
(h) Civil Law:
According to Salmond, civil law is “the law of the State or of the land, the law of lawyers and the
law courts”. The uniformity of civil law is established by judicial precedents. It is territorial and enforced within the territory of a State. It is imperative in nature mean to say breach of law is visited by punishment. Common lawyers use the term “civil law” to refer to the entire legal system in nations falling within the civil law tradition.
The whole body of law can broadly be divided into two parts: General Law and Special Law. General laws are ordinary law of the State. As for example, law of contract under Indian Contract Act, the penal law of India in the Indian Penal Code. Special laws are other bodies of legal rules which are exceptional in nature and outside of general laws and the court will not recognize. As for example, laws regarding prohibition of gambling. Special laws are different from statute laws in a sense that the courts are not bound to know special laws. A special law legalizing official acts done without authority, is valid since in such case a general law could not be made applicable. Special laws have seven different kinds: (i) Local Law, (ii) Foreign Law (iii) Conventional Law, (iv)Autonomic Law, (v) Martial Law (vi) Prize Law, (vii) Mercantile Customs
Common law:
Te general law of England has three parts one of which is common law. According to salmond the common law is the entire body of the total corpus juris angliae with three exceptions, namely (1) statute law, (2) equity and (3) special law in its various forms. Common law is the decision of the judge rather than the influence of either legislative or executive branch. In modern times some of common laws like statute laws have been codified. Most of the common laws are precedents. In common law we can find the solution of all the problems that can arise in future.
4. SOURCES OF LAW:
The usage of the term “sources of law” changes from time to time and person to person. In order to find out the relation of the word sources with jurisprudence Prof. Fuller stated like that-“ In this sense, among the sources of law will commonly be listed statutes, judicial precedents, custom, the opinion of experts, morality and equity”.
Among all other classifications of sources of law Salmond’s classification of sources of law depending on his approach of the particular definitions of law has two main sources.
(a) Formal source of law:
A formal source of law is a kind of rule of law which has been derived from its force and validity. Formal sources can be found in an authoritative legal document. The chief examples of such formal sources are Constitutions and Statutes, Executive orders, administrative regulations, Ordinances, Charters and by-laws of autonomous or semi-autonomous bodies and organizations, treaties and certain other agreements, and Judicial precedents.
(b) Material sources of law:
Materialistic source of law are those forms of law which are derived from matter rather than validity. It refers to various processes which cause the evolution of the materials.
§ Legal sources:
Legal sources are those organs of the State through which legal rules are created. New principles find their entrance into the realm of law through these legal sources. They are found in authoritative form. They are allowed as of rights by the law court. Legal sources were legislation, precedent, custom, agreement and professional opinion.
Ø Legislation:
The term ‘legislation’ is a portmanteau of two Latin words- legis (law) and latum (to make, put or set) which etymologically means the making or the setting of the law. Austin tells us-“There can be no law without a legislative act.” There are two types of legislation: Supreme Legislation and subordinate legislation. Legislation is called supreme when it proceeds from the supreme and sovereign power – Parliament or the State legislator. Legislation is called subordinate when it proceeds from any other authority rather than the supreme authority of the State. There are five forms of subordinate legislation: executive, judicial municipal, autonomous colonial.
It also promoted the belief that the ‘control of government’ by the democratically elected legislation will adequately replace the traditional limitations.
Ø Precedent:
Precedent has high authority among the sources of law. A precedent is purely constitutive in a sense a judicial decision can make law but cannot alter it. As there is a fixed law, the duty of the judges is to follow that law. They cannot introduce their decision in any codified law. But in precedent the judicial law is presumed to be correct. Decisions can only be taken from expert judges of the study of law. The decision on the basis of precedent emphasized the fact of prior dealing with the current predicament.
Ø Custom:
Some ancient, reasonable, and not opposed to any statutory rule were bound as customary rule. After accepted by a court and incorporated in a judicial decision a custom becomes legally recognized. Custom was pieces of positive law, but special distinct as reflecting the common consciousness of the people…. custom therefore is the indicator and not a ground of origin of positive law. Customs are very influential in case of the legal system of a state. Because of it, we can be able to uproot bad customs like Sati, Polygamy, and Dowry etc from the State.
Ø Agreement:
Many international laws have been established through international agreements. So agreement is an important source of law. One of the major examples of it is the Geneva Conventions on the conduct of war or armed conflict. In other cases international laws also have been established by agreements implemented by other international organizations including the ILO, the WHO, the UNESCO, the WTO etc. Agreements are considered to be with great influence in the realm of international relationships.
Ø Professional opinion:
Professional opinion is taken in case absence of any solution in statute laws. Expert opinions are only taken from the experts of the study of law.
§ Historical sources:
Historical sources are rules those are found first in unauthoritative form and then turned into legal principles. They are not allowed as of rights by the law court and operate indirectly. As for example- juristic writings, literary works, foreign decisions. All rules of law have historical sources but not all of them have legal sources.
5. CODIFICATION OF LAW:
The term ‘Codification’ is a portmanteau of two Latin words ‘Codex’ (book) and ‘fecere’ (to make).Code is a systematic and comprehensive compilation of laws, rules, or regulations that are consolidated and classified according to subject matter. All the States have their own official code of law. A state may have different kinds of code such as- civil code, corporation code, education code, evidence code, health and safety codes, insurance code, labor code, motor vehicle code, penal code, revenue and taxation code etc. Codification is the systematic process through which the whole body is reduced into a code into enacted law. In order to present the general principles and rules of the whole body of law in a form of systematic, clear and precise way collection, compilation, systematization, methodical arrangement is needed which we term as “Codification”. Bentham and Austin believed in legislation and hoped for an ultimate codification.
Codes exist in our society from ancient times. As for example- The Indian Code (Code of Manu, the Codes of Brihaspati, Narada and Parashar), The Roman Code (Justinian), The Jewish Code, the Chinese Code, The Code of Hammurabi etc. There are three conditions which lead to codification by Roscoe Pound: (i) In order to protect the existing legal materials in case of matured legal institution, country with no juristic past for the exhausted time being, (ii) Any existing law with unwieldiness, uncertainty, and archaiccharacteristics, (iii) The need for one uniform law over many divergent local laws.
Codes may be of three categories:
(i) Creative code: A code by which a law is first made without any reference of the past laws. This kind of code works out through legislation. As for example, The Indian Penal Code.
(ii)Consolidation code: Consolidating code is that code which before declaring consolidates the whole law (i.e. statutory, customary and precedent) on a particular subject matter. It is systematized and simplification of laws. As for example, the code of Justinian, the Indian Transfer of Property Act, 1882.
(iii) Both creative and consolidating:
It includes both making of a new law and consolidating of any existing law. As for example, The recent legislation in India on Hindu law.
Sir James Stephen said that well designed legislation is the only possible remedy against quibbles and chicanery and all evils which are created from legal practitioners can be averted by this method.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]There are many advantages of codification of law.
(a) Certainty:
Codification makes a law certain. Certainty in law derives confusion among the public of a State. It is mainly derived from precedent or custom. Equity is prevented from coming to the rescue because of the value put on certainty and clarity, two of the major virtues of codification.
(b) Simplicity:
Codification simplifies law in order to make understanding to every individual of the State. By codification law becomes particular so that every citizen of the State can abide by the law and become aware of their possible rights in the State.
(c) Logical Arrangement:
For avoiding inconsistency among different provisions of law codification is needed. As the law becomes logically coherent there is no chance of any kind of conflict.
(d) Stability:
After codification there is no chance of any constant change in law. Codification makes the law stable. It helps the people to be confident about the law.
(e) Planned Development:
As codification stable the change of law it helps in the planned development of the country. It brings uniformity in the whole law.
(f) Unity:
Codification turns the law into uniformity. So the people of the State bind with the same law enforced for all.
(g) Protection against Arbitrary, Biased and Dishonest Decision:
As law provides equality among all by doing so, codification gives protection against arbitrary, biased and dishonest decision.
(h) Impartiality:
Law is equally enforceable for all. This provides equality among the entire citizen. As the laws are fixed so it becomes easier for the judiciary department to enforce equal law for all.
(i) Protection from the Error of Individual Judgment:
Sometimes personal judgment cannot be correct. Codified laws have the opinion of the community lawyers and judges. So, if judges follow this in time of judgment there will be a little chance of error.
(j) Reliable than Individual Judgment:
As it is human frailty to grasp the power, so individual judgment cannot be reliable all the time. So, it is more reliable than individual judgment.
With all these advantages codification is not perfect. Thus have some disadvantages as well.
(a) Rigidity:
Law should be changed with the pace of the change in the society. But once any law becomes codified it becomes difficult and time-consuming to change. Codified law can be changed only by amendments making of which is very tough.
(b) Incompleteness:
The codes remain always incomplete as it does not contain the problem in laws which will arise in future.
(c) Hardship:
Codification ensures same law for all. It creates hardship as there is no variation on the grounds of convictions, customs and habits of the individuals.
(d) Formalism:
It is too formal rather than moral right of wrong.
(e) Complexity:
As codification is written document it creates problem among the people who cannot read.
6. REASON WHY LAW IS NOTHING BUT SOME CODIFIED COMMON SENSE:
Codification can be broadly used as the process of drawing up compilation of written documents of laws on the basis of legal significance. The main purpose of codification is to use a systematic, organized way to collect laws. The record in the history shows most of the codes came from legislation. Codification came to be seen as one of the great engines of legal and social change.The modern codification of law has its root in common law. As we known earlier common law is mostly precedent which are the decisions made by judges in order to solve problems in the future and not mentioned in the statutory law. Once a decision is made through precedent it is codified and followed later judgment. Thereafter, the new decision becomes precedent, and will bind future courts.So, law is actually common sense of those expertise judges in different cases in future. When they are codified in statutory law thus considered as law.
7. CONCLUSION:
All law in England is grounded upon common law. According to Sir John Davies (1569-1626), “it was nothing else but the Common Custom of the Realm” quoted in Preface to Reports, (1612).The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. After the sufficient description of the sources of law and codification of law it has already been cleared that all the laws are common sense of human being. It is recognized as law after the codification.
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