20 Dec 2007

Law follows society ???

"The theme of his book is that law follows social and economic changes. It responds to the needs that people in society assert. At the beginning of the 21st Century, we live in a large, pluralistic, technologically complex, impersonal and interdependent country." writes Robin Friedman, reviewing 'Law in America: A Short History'.

I couldn't have agreed more. "Law follows the society". I am firm believe of this fact and principle. [Perhaps my earlier posts will also testify that, where I invariably link the origin and growth of law as a need to regulate human behaviour.] Other reasons might be advanced to support this proposition and I am open to that.

Want to verify this assertion? Take any law. Start reading it. Most of the times the statute will carry a Preamble which will discuss the need and background for its enactment. Always a safe guide of interpreting statutes. This will reveal an urgently (or may be not so urgent later on when you are reading) felt need to define a particular behaviour and regulate or mould it. Thus any enactment presupposes the existence of a particular behavioural trait and the enactment is a reflection of the manner the legislature conceives the best way to regulate it.

Still not convinced? Let us take illustrations and to start with, easier ones. Laws which we all know what their purpose are, from the name of the enactment itself, say Sarbanes Oxley Act. Why was it enacted? What purpose does it serve? Well, it was enacted as an aftermath of the Enron debacle and the need felt by the US Congress to prevent re-happening of such incidents.

Similarly, why criminal laws? Who is State to tell another that something is a crime and punish for it? They say law agrees by consent of the citizens and a law without citizen backing is a bad law. The Constitution says that the citizens are sovereign and law emanates from them. I did not consent to criminal law and therefore its a bad law and I am not bound by it!!!

Nice argument really but workable? I do not think so. If the majority would have agreed with this argument, there would not have been such law. But the fact that such law exists, means the majority wants such law to exist. And since such law exists, it means that the majority (as represented by the legislature) does not want certain conducts to take place in the society and therefore banishes them or prohibits them by providing legal sanctions against them. Therefore we have criminal law. This relates us back to our premises that certain behaviour is identified as non-desirable and therefore provided against, describing exactly the factum that law follows the society.

Then we can take another illustration, say contractual laws. Why was the Contract laws enacted when it is widely acknowledged that it rests on the premises of 'party sovereign' i.e. parties are free to define the manner in which they want themselves to be governed. If thats the case, why a law at all??? Because, all the parties, at all the times, are not in a position to determine and protect their best interests. So the law needs to intervene and define the rules of fair-play, in-conformity to which the transactions shall take place.

There may be an argument that certain laws are prospective i.e. there is no such comparable human behaviour existing, as contemplated in the law but still provided for by the law. So law always does not follow the society. Right? Wrong. Wrong because the very fact that the law is providing for such a behaviour is indication sufficient enough that it conceives certain behaviour and wants to either promote it or denounce it from ever happening. To give a technical example, this often happens in case of financial laws. The law gives opportunities and incentives to trade in particular sectors (heard of tax holidays? special economic zones?). Now that would be an illustration of such a law. Like not much trade takes place in a particular backward area so the law provides tax relief for those trading in such area. So the law is prospective. Right?

Wrong again. Wrong because this is not a prospective event. This is also based on the human behavioural traits acting in financial streams which seek to achieve monetary gains. So the law-makers are relying on an existing behavioural trait to make a law to influence a future occurance of events. Thus law is in fact following the social mores (making monetary gains in this case) and thus follows society.

No comments: