Bipin Adhikari
Comparative Jurisprudence
LLM First Year/ Tribhuvan University Faculty of Law
(Notes of Guest lecture given to LLM First Year Students of Comparative Jurisprudence of Tribhuvan University Faculty of Law, 2011.) (Student notes /not to be quoted/cited for any purpose other than at classrooms)
The Unit 4 of Comparative Jurisprudence course aims at exploring social dimensions of law on the basis of the theory of social engineering and balancing of interests; explaining law as an Instrument of social change and control, the participatory law making process; and the themes of public interest litigation and alternative dispute resolution (ADR).
The broader context of the issue before hand is provided by the 1968 book of Julius Stone on human law and human justice. The 1979 book of Joseph Raj deals with the issues involving authority of law. R Cotterrell’s thesis on the sociological concept of law of 1983 has also been prescribed. There are two additional reading materials of the 1990s. They are David M. Trubek’s “Back to the Future: The Short and Happy Life of the Law and Society Movement”, 18 Florida State University, L. REV, 1 at 1, (1990) and Ellen S. Cohn & Susan O. White’s “Legal Socialization Effects on Democratization”, published by International Social Science Journal of UNESCO in 1997. They emphasize that the rule of law ideal in the West has meant at least the following: the primacy of law over arbitrary uses of political power, the primacy of the individual through the protection of individual rights claims, and the primacy of universalism over particularism through the abstraction of the individual ‘before the law’ from social characteristics. W Friedmann’s Law in Changing Society (2nd ed), Maxwell, Universal Book Traders (1997) is another prescription.
Sociology of Law
The relations between individual, society and state have been changing and various theories regarding it have been given from time to time. August Comte (1786-1857) was the first to use the term “sociology” and by some jurists he is considered to be the founder of the science of sociology. Comte’s method may be called ‘scientific positivism’.
This relationship was further explored in the seminal works of both Max Weber and Emile Durkheim. For Max Weber, a so-called “legal rational form” as a type of domination within society, is not attributable to people but to abstract norms. He understood the body of coherent and calculable law in terms of a rational legal authority.
Durkheim wrote in The Division of Labour in Society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. Over time, law has undergone a transformation from repressive law to restitutive law. Restitutive law operates in societies in which there is a high degree of individual variation and emphasis on personal rights and responsibilities.
Leon Petrazycki distinguished between forms of “official law,” supported by the state, and “intuitive law,” consisting of legal experiences that, in turn, consist of a complex of psychic processes in the mind of the individual with no reference to outside authorities.
George Gurvitch was interested in the fusion of simultaneous manifestation of law in various forms and at various levels of social interaction. His aim was to devise the concept of “social law” as a law of integration and cooperation.
The sociology of law became clearly established as an academic field of learning and empirical research after the Second World War. After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of the Talcott Parsons, for instance, law is conceived as an essential mechanism of social control. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged.
Critical sociologists, developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society’s needs and had to be approached morally as well. Still other scholars, most notably the American sociologist Donald black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhman, who sees law as normatively closed, but cognitively open system (autopoiesis is discussed below under Contemporary Perspectives). Social philosopher Jürgen Habermas disagrees with Luhmann and argues that the law can do a better job as a ‘system’ institution’ by representing more faithfully the interests of everyday people in the ‘life world’.
Law and Society is an American movement, which was established after the Second World War through the initiative mainly of sociologists who had a vested interest in the study of law. The main difference between the sociology of law and Law and Society is that the latter does not limit itself theoretically or methodologically to sociology and tries instead to accommodate insights from all social science disciplines “Not only does it provides a home for sociologists and social anthropologists and political scientists with an interest in law, it also tries to incorporate psychologists and economists who study law.”
The sociology of law is often distinguished from sociological jurisprudence. The latter is not primarily concerned with debates within mainstream sociology and instead engages with some of the debates within jurisprudence and legal theory. Sociological jurisprudence seeks to base legal arguments on sociological insights and, unlike legal theory, is concerned with the mundane practices that create legal institutions and social operations which reproduce legal systems over time. It was developed in the United States by Roscoe pound and by earlier jurists, such as Eugen Ehrlich and Georges Gurvitch, in Europe.
In contrast to the traditional understanding of law (see the separate entry on law), the sociology of law does not normally view and define the law only as a system of rules, doctrine and decisions, which exist independently of the society out of which it has emerged. The rule-based aspect of law is, admittedly, important, but provides an inadequate basis for describing, analysing and understanding law in its societal context.
Thus, legal sociology regards law as a set of institutional practices which have evolved over time and developed in relation to, and through interaction with, cultural, economic and socio-political structures and institutions. As a modern social system, law does strive to gain and retain its autonomy to function independently of other social institutions and systems such as religion, polity and economy. Yet, it remains historically and functionally linked to these other institutions. Thus, one of the objectives of the sociology of law remains to devise empirical methodologies capable of describing and explaining modern law’s interdependence with other social institutions.
Some influential approaches within the sociology of law have challenged definitions of law in terms of official (state) law (see for example Eurgen Ehrlich’s concept of “living law” and George Gurvitch. “social law”). From this standpoint, law is understood broadly to include not only the legal system and formal (or official) legal institutions and processes, but also various informal (or unofficial) forms of nomativity and regulation which are generated within groups, associations and communities.
The sociological studies of law are, thus, not limited to analysing how the rules or institutions of the legal system interact with social class, gender, race, religion, sexuality and other social categories. They also focus on how the internal normative orderings of various groups and “communities”, such as the community of lawyers, businessmen, scientists, members of political parties, or members of the Mafia, interact with each other. In short, law is studied as an integral and constitutive part of social institutions, groupings and communities. This approach is developed further under the section on legal pluralism. Legal pluralism has occupied a central position in socio-legal theorising from the very beginning of the sociology of law.
The sociological theories of Eugen Ehrlich and Georges Gurvitch were early sociological contributions to legal pluralism. It has, moreover, provided the most enduring topic of socio-legal debate over many decades within both the sociology of law and legal anthropology, and has received more than its share of criticism from the proponents of the various schools of legal positivism.
The criticism directed at legal pluralism often uses the basic assumptions of legal positivism to question the validity of theories of legal pluralism which aim at criticising those very (positivistic) assumptions. As Roger Cotterrel explains, the pluralist conception should be understood as part of “the legal sociologist’s effort to broaden perspectives on law. A legal sociologist’s specification of law might be different from that presupposed by a lawyer in practice, but it will relate (indeed, in some way incorporate) the latter because it must (if it is to reflect legal experience) take account of lawyers’ perspectives on law. Thus a pluralist approach in legal theory is likely to recognise what lawyers typically recognize as law, but may see this law as one species of a larger genus, or treat lawyers’ conception of law as reflecting particular perspectives determined by particular objectives”.
Participatory Law making Process
Generally, law making has traditionally been taken as elite business. The people at large, especially the people affected by concerned laws, are not traditionally taken as stakeholders in this process. They do not understand the legislative process and hence are unable to understand the laws that are a product of this process.
Law can only be effective, if it is understood, accepted and applied by the citizens. They are often unable to link their problems with larger issues, which can be addressed by law and hence do not consider law as a means to solve their problems. Besides that, proactive steps are hardly taken to include the opinion of the common people into the proposed laws. Participatory Law Making (PLM) seeks to remedy this elitist process of law making to improve the lot of legislations, which materially affect a significant portion of the population by facilitating meaningful contributions to decision making through involvement of the public and broadening the range of people having access to such opportunities.
This means that laws should be made in a process of dialogue between the law-makers and the stakeholders in a series of meetings, at various levels, with a free flow of information. In order to make laws that are within reach of the citizens and which correspond to their needs and aspirations, participative law-making may be the best way of achieving the desired combination of new ideas regarding land tenure and land law and existing local practices. In times of profound and rapid change, new laws will necessarily be of experimental character, made by trial and error and subject to change after an experimental phase. Therefore, the need to revise newly made laws should not necessarily be seen as repairing mistakes or shoddy work, but rather as indispensable.
Doctors for Life v. Speaker of the National Assembly (2006 (12) BCLR 1399 (CC) (S. Afr.)
The South African Constitutional Court in Doctors for Life v. Speaker of the National Assembly (2006 (12) BCLR 1399 (CC) (S. Afr.) dealt with three crucial issues in this regard (reproduced hereunder from CZAPANSKIY AND RASHIDA MANJOO, “THE RIGHT OF PUBLIC PARTICIPATION IN THE LAW-MAKING PROCESS AND THE ROLE OF LEGISLATURE IN THE PROMOTION OF THIS RIGHT,” 19 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 1- (2008):
first, the nature and the scope of the constitutional obligation of a state’s legislative organ to facilitate public involvement in its legislative processes and its committees, and the consequences of the failure to comply with that obligation;
second, the issue of timing and scope, i.e., at what stage in the legislative process and the extent to which the Constitutional Court may interfere in the processes of a legislative body in order to enforce the obligation to facilitate public involvement in law-making processes;7 and
finally, whether the Constitutional Court is the only court that may consider the questions raised.
The role of the South African Parliament as a ‘deliberative lawmaking body’ came under scrutiny in the Doctors for Life case, due to the applicant’s allegation of an omission in the legislative process. The seminal value of this case lies in the three bases of the court’s approach to the role of legislatures in promoting human rights and democracy through their public participation processes: international human rights law, a unique and specific mandatory constitutional duty, and a contextual and historical approach to public participation.The case does not focus on the substance of the statutes that were the source of the challenge. Instead, the court, as the enforcer of human rights, examined whether the Legislature denied the enjoyment of one component of the fundamental human right to political participation, the general right to take part in the conduct of public affairs.
The applicant in this case, an advocacy organization called Doctors for Life complained that, during the legislative process leading to the enactment of four statutes, the NCOP and some of the Provincial Legislatures did not comply with their constitutional obligations to facilitate public involvement in their legislative processes. They argued that there had been a failure to invite written submissions and conduct public hearings on these statutes. The court referred to the four statues collectively as ‘health statutes.’The respondents denied the allegations and argued that both the NCOP and the various provincial legislatures had complied with the duty to facilitate public involvement in their legislative processes. The respondents also challenged the applicant’s assertion as to the scope of the duty to facilitate public involvement. Their contention was that, although the duty to facilitate public involvement requires public participation in the law-making process, essentially all that is required of the legislature is to provide is the opportunity to make either written or oral submissions at some point in the national legislative process.
The majority of the Court found that, regarding section 72 (1)(a) of the Constitution, Parliament had failed to comply with its constitutional obligation to facilitate public involvement before passing the Choice on Termination of Pregnancy Amendment Act and the Traditional Health Practitioners Act. Adopting a social and historical context approach, the Court held that certain statutes require mandatory public consultations. Which statutes require such consultations can depend on such things as the nature and importance of the bill, requests received for consultations, and whether or not promises had been made in response to such requests. Public consultations in such circumstances would be an indicator of respect for the views of affected people. Adequate consultation is even more crucial in contexts where the affected groups have been previously discriminated against, marginalized, silenced, received no recognition, and have an interest in laws that will directly impact them.
Furthermore, in terms of the Traditional Health Practitioners Act, the Court recognized the critical role played by traditional health care providers in the communities that they served, the standing and status that they held in such communities, and also the historically demeaning treatment of this sector in South Africa.
In relation to the Choice on Termination of Pregnancy Amendment Act, the Court held that this was not an uncontroversial matter, that great interest had been demonstrated by interested groups asking the NCOP to hold public hearings, and that undertakings were made by the NCOP to get the provincial legislatures to hold public hearings. Independent of such requests, the NCOP was also of the view that public hearings were necessary on this particular Bill. The NCOP was notified about the failure of some of the provincial legislatures to hold hearings, despite its undertaking to interest groups. Unfortunately, the NCOP did not take any action to remedy the situation, including the mandatory obligation to hold public hearings at a national level.32 The Court held that “[T]he NCOP is not a rubber stamp of the provinces when it comes to the duty to facilitate public involvement. It is required by the Constitution to provide a ‘national forum for public consideration of issues affecting the provinces.’”33 The Court concluded that both the Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Amendment Act were adopted in a manner inconsistent with the Constitution and both were declared invalid.34 Taking into account the fact that the statutes had come into effect, and recognizing the adverse consequences of an immediate order of invalidity, the order of invalidity was suspended for a period of 18 months to enable Parliament to re-enact these statutes in a manner consistent with the Constitution.
The Court’s interpretation of the Constitutional mandate to ‘facilitate public participation’ was premised on many factors, including amongst others: provisions in human rights instruments, the use of both an historical and a social context approach, an acknowledgement of the values of dignity and respect that are engendered by public participation in law-making processes, and inspiration from a particular vision of a non-racial and democratic society based on democratic values, social justice and fundamental human rights, in which government is based on the will of the people.
As discussed in earlier sections,36 the Court’s reference to human rights instruments, both international and regional, indicates an awareness of the evolving nature of rights and notions of justice. The Court re- stated a principle enunciated in a previous decision: “[r]ights by their nature will atrophy if they are frozen. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on a new texture and meaning.”37 Historically, the struggles fought against an unjust and undemocratic state included the formation of community structures based on the concept of ‘people’s power.’ In South African communities, the traditional forums for public participation included ‘imbizos, lekgotlas and bosberaads’. These methods of public consultation and participation are used today by the democratic government and include the convening of an annual People’s Parliament. The Court, in recognizing the significance of public participation structures and methods of the past, asserted:
[Traditional forums] were also seen as crucial in laying the foundation for the future participatory democracy that [the people] were fighting for and that we are operating under. This emphasis on democratic participation that was born in the struggle against injustices is strongly reflected in our new democratic Constitution and the entrenchment of public participation in Parliament and the legislatures. On a global level, the Court recognized that the right to political participation dates back to the Middle Ages, and many modern constitutions provide forums for public participation in different forms and through different processes, including the right to petition, present written requests and complaints, and the holding of referenda.
The Court’s focus on the ‘nature’ of South Africa’s democracy involved both an historical examination as well as a contextual interpretation of the Constitution. The merits and values of a participatory democracy in furthering a system of accountability, responsiveness and openness in government were widely discussed in the judgment. In an earlier case, New Clicks, the Court had held that “[t]he Constitution calls for open and transparent government, and requires public participation in the making of laws by Parliament and deliberative legislative assemblies.”
The interpretation of the mandatory obligation on the Legislature to facilitate public involvement was also grounded in the context of the historical exclusion of the majority of people from political processes and the goals in the Constitution to support transformation. The Doctors for Life Court recognized two aspects of the duty to facilitate public involvement: the duty to provide meaningful opportunities for participation in the law-making process and the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided. Hence, “our constitutional framework requires the achievement of a balanced relationship between representative and participatory elements in our democracy.”
Furthermore, the Court pointed to the transformative need for government to respect the dignity of citizens as a way of strengthening its conclusion that a special duty existed as regards to public participation. The legislature can satisfy its duty in any of a number of ways, according to the Court, depending on the particular legislative context. Examples include providing access to Parliament, providing an opportunity to submit representations and submissions, providing a forum for public hearings for oral submissions, and summoning people to Parliament.
