Change in law: Need of the hour

The well-known saying “Change is the only constant” advocates the necessity to regularly update ourselves with the changing conditions and to constantly be in tune with the world and avoid staying outdated. This article would focus on the need to change the laws along with a brief process to change the same

Introduction:

The definition of law is a rule of conduct developed by society over a territory. Law follows certain practices and customs to deal with crime, business, social relationships, property, finance, etc.

Law is the subject of jurisprudence since it deals with the study of law. Austin thought it is necessary to define law to establish the province of jurisprudence. The history of the concept of law discloses that jurisprudence has dissimilar meanings and hence it is difficult to attempt a singular definition of the same.

Laws are acknowledged to be very queer things; baffling questions about them arise on every side. Nowhere, in the thicket of intellectual difficulties more tangled than it is about the concept of law in jurisprudence. Some of the questions that require answers are:

(1) What is the law?

(2) What is the legal system?

(3) What are the criteria for good laws?

(4) Who or what is the authority behind the law?

Many of the troubles which a philosopher of law is appropriate to encounter, initiated by a tendency to confuse two or more of these questions.

Law can be said to be a principle and regulation established in a community by an authority and applicable to its people, whether in the form of legislation or policies recognized and enforced by State authority.

The following are the identified sources of law: legislation, custom, precedent, juristic opinion, international convention.

Schools of jurisprudence:

The schools of jurisprudence have defined law in various aspects. Many jurists have attempted to define law. The concept of law shall be mentioned in detail under the following schools:

Natural Law Theory

There is no consensus about the definition and the exact meaning of Natural Law. The term Natural Law in jurisprudence implies those standards which should have started from some preeminent source other than any political or common specialist. It symbolizes the Physical Law of Nature-dependent on moral standards which has all-inclusive relevance at all places and terms.

Hindu legal system is the most ancient legal system in the world. The Hindus established a logical and comprehensive law in early times. According to the Hindu understanding, Law owes it to God. Law is provided in ‘Shruti’ and ‘Smritis’. The king is to execute that law, and he is bound by it, and the king is disobeyed if it goes against this law. The Puranas are full of occasions where the kings were dethroned when they went in contradiction to the law.

Analytical/Positive School of Jurisprudence

Legal positivism is seen in legal jurisprudence around the globe as one of the important schools of thought. The jurists have substantial differences of opinion, but the prevalent concept that all the above-mentioned jurists have is to analyze the law as it is. Therefore, they have the objective of helping people understand the law as it is and not as it ought to be.

Historical School of Jurisprudence

The historical school follows the human-made law. Law is framed for the individuals and by the individuals ‘ means, the law should be in tune with people’s evolving requirements. The Historical School of Jurisprudence’s source is people’s habits that change according to their requirements and needs. The historical school has emerged as a response against the theories of natural law.

Philosophical/Ethical School of Jurisprudence

This School is not concerned with what the actual law of the past and the present is. Their effort is to develop justice as an ethical principle

The jurists of the Philosophical School have always considered law as an abstraction. A law, as such, is removed from objectivity whereas it ought to be definite.

Sociological School of Jurisprudence

Comte used the word “Sociology” and defined it as a positive social facts science. He said society is an organism, when it is guided by Scientific Principles it could advance. This is making excellent attempts to use the law as an instrument through which human society retains itself and advances.

Sociological School’s concept is to explain the law-society relationship. Law is a social phenomenon and there is a relationship between law and society. There are two distinct elements to each request or idea namely sociology and legal.

Marxism School of Jurisprudence

It is historical in part and sociological in part. Marxist theory of law’ differs from other theories of law. Positivism is mainly based on current legal institutions on which and from which an assessment of the law and the system can be drawn. The primary characteristic of the ‘ socialist legal theory ‘ is that a legal system must be based on Karl Marx’s and his successors ‘ political and economic philosophy.

Since a class struggle lies at the base of social conflict and social and economic development, the typical stages of a community’s development must be traced out. In a primary stage of the exploitation of men by men, there is slavery.

Realist Theory of Law

Realists think there can be no certainty about the law as its predictability depends on the collection of facts to be decided by the tribunal. They do not favor formal, logical legislative strategy. They lay greater stress on the psychological approach to the proper understanding of law as it is concerned with human behavior on the evictions of the lawyers and Judges.

The importance of legal terminology is opposed by realists. It assumes that law is intimately connected with society, and since society changes faster, they can never be certain about the law. There is no place for idealism in law and therefore, the law as it ‘is’ must be completely divorced from the law as it ‘ought’ to be.

Procedure to amend the law:

As per the procedure under Article 368 for amendment of the Constitution, an amendment can be initiated only by a Bill in either House of Parliament. The Bill must then be passed in each House by a majority of the House and by a majority of not less than two-thirds of the members of that House present and voting. There is no provision for a joint sitting in case of disagreement between the two Houses.

The Bill, passed by the majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States.

Introduction of the bill in

Lok Sabha/ Rajya Sabha

Discussions + Voting

More than half of the total members

Or

Not less than 2/3 of present

In case of a tie

The presiding officer casts his/her vote

Must be passed by both houses

If passed,

Then sent for President's assent

(He is bound to sign)

Bill becomes act

Reasons for amendments:

Changing community values as the values of society change, so too must the law. Otherwise, the law does not reflect the society it governs.

• Changing expectations of the legal system

Historically, communities have expected the law to regulate behavior. Recently, these expectations have expanded. For instance, the Government has introduced legislation to protect people, and ensure their safety, rather than regulate them. Compulsory bike helmets, seatbelts in cars, while driving are all examples of the law assuming a protective role.

• Changing community awareness

People are more aware of their rights responsibilities currently. Therefore, the question of law and demand change. To accommodate perceived increased awareness, governments have established new methods of dispute resolution.

• Changing technology

The law needs to change to meet demands due to new technological development. State governments need to globalization these technologies to protect the rights of others.

• Changing foreign relations

One of the impacts of globalization, particularly post-WWII, is that nation-states have entered into significantly more international agreements (treaties). When Australia enters a new treaty, legislation must be passed to fulfill treaty terms.

Reference

www.mondaq.com

www.ceew.in

www.lexology.com

www.barandbench.com

www.legalservicesindia.com

Author - Devyani Bhati

MKES college of law