Hart’s Concept of Law and the Indian Constitution

July 15th, 2009 at 08:56am Under Constitutional Law

Introduction

It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austin but most of the legal experts agree that the version of legal positivism given by H.L.A. Hart is the most appropriate one for the modern constitutional system. Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. For Hart, legality is not something which is politically imposed but is evolved through a growing complex system of different kinds of rules.

Before the advent of modern period legal theory was basically dominated by the natural law ideology which was the touchstone for testing the State law. In the modern period, Hobbes for the first time divorced positive law from natural law and made the State law independent of any external criteria. However, Hobbes did not fulfil the task of positivism fully as he did not distinguish between the actual law (”is law”) and the ideal law (”ought law”). His State-made law was not only an existing law but also an “ought” law.

The task was accomplished by John Austin. Austin divorced the State law fully from any external criteria and pretensions of validity on the basis of “ought”. His theory of legal system is based on his theory of sovereignty. According to Austin, a legal system exists if

(a) its supreme legislator is habitually obeyed.

(b) its supreme legislator does not habitually obey anyone.

(c) its supreme legislator is superior to the law subjects relative to every law.

For Austin, legal system was set of all the laws enacted directly or indirectly by one sovereign. His criterion for membership of a law in a system is that a law belongs to a system if and only if the sovereign who enacted all other laws of that system enacted it.

Austin has very little to say about the structure of the legal system – which can consist of internal as well as external relations. Punitive relations are perhaps the most important internal relations implicitly recognized by Austin. A law containing an imperative part only is not an independent law at all, unless there is a corresponding punitive law. At best, it is an imperfect law to be interpreted perhaps as a part of another law, and having the effect not of imposing duty but of permitting an act. Another kind of internal relation recognised by Austin is what is called as genetic relation, that is, the relation between subordinate law and the obedience law which authorised its legislation. Austin’s theory may be said to be based on the principle of independence

A theory of legal system is based on the principle of independence if according to it there is no logical necessity for a legal system to have an internal structure. It is based on the notion that every law can be an independent unit, the existence, meaning or application of which is not logically affected by other laws

The demand of personal obedience in Austin’s theory means that the span of the life of the legal system determines the period of existence of the laws of the system and hence also of the legal system itself. Austin came out with the solution of “tacit” command for the problem of continuance of old laws. In fact, Austin’s theory of a legal system is at best an explanation of a momentary legal system which contains all laws of a legal system valid at a certain moment.

There is not a moment at which a legal system exists but has no laws valid at that moment. Austin’s theory does not satisfy this prerequisite

Kelsen’s theory improved upon Austin’s theory. In his theory, laws derived their validity not from the sovereign but from grundnorm. His theory could provide an internal structure of the legal system as well as an explanation for its continuance. Apart from these two aspects, Kelsen’s theory was the same as that of Austin. It was based primarily on sanction and efficacy and was imposed from the top. Kelsen never clearly stated what grundnorm was and what was the validity of the grundnorm. At one point he said that grundnorm was the general acceptance that this legal system should exist and its validity was its efficacy. Thus, in this way Kelsen’s theory was not very different from Austin’s theory except in that a person or a body of persons was replaced by a norm which was basically a psychological factor.

These defects were largely rectified by H.L.A. Hart whose theory of legal system based on the combination of primary and secondary rule is regarded as the “high point of legal positivism The Concept of Law  was first published in 1961. It is considered useful and essential for understanding a theory that it is examined in its social background. Peter Wagner reflects on the social situation at the time of publication of The Concept of Law  He sees the period around 1960 in Western Europe as the culmination of “organised modernity” which

“developed a particular kind of reflective self-understanding as conveyed in its social science…. Organised modernity was characterised by the integration of all individuals inside certain boundaries into comprehensively organised practices. No definite places in society were ascribed to individual beings according to pre-given criteria. Social mobility existed and was part of the liberties this society offered. This configuration achieved a certain coherence, or closure at about 1960 … it appeared as a naturally ‘interlocking order”

Reflecting the social and political conditions of his time, Hart’s concept of law is based on general social acceptance of law or legal system”

Hart’s Perception towards Law

Deriving inspiration from linguistic philosophy of J.L. Austin and Wittgenstein that words should be understood in the context they are used, Hart concluded that law is what people practising it mean it to be. This is what he calls as internal aspect of the law. Although Hart did not go to the extent of Duguit in contending that laws derive their validity from social acceptance and he made the rule of recognition

A central part of Herbert Hart’s theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or “what counts as law”) within that system. He articulates its application thusly:

“

…to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition.

”

— H. L. A. Hart

In Hart’s view, the rule of recognition arises out of a convention among officials whereby they accept the rule’s criteria as standards that empower and govern their actions as officials.[1] The rule is cognizable from the social practices of officials acknowledging the rule as a legitimate standard of behavior, exerting social pressure on one another to conform to it, and generally satisfying the rule’s requirements. To this end, as explained by Hart, the rule has three functions:

According to Hart, any rule that complies with the rule of recognition is a valid legal rule. For example, if the rule of recognition were “what the Queen says is law”, then any rule the Queen spoke would be a valid legal rule.

His criteria of validity but he accepted that there should not be a general disregard for the system among common people and officials. Although Hart was aware of the role of coercion and conflict in the universe of law but he tried to downplay the role of command and coercion and violence by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligations. “Hart spoke of the shared acceptance of rules. The law it seemed belonged to us all; legal rules were not to be seen as external forces upon us but as our resources.

As stated earlier, for Hart legal system is a combination of PRIMARY AND SECONDARY RULES.

Primary rules are rules of obligation while secondary rules are parasitic upon primary rules and are rules about primary rules.

These secondary rules provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones or in various ways determine their incidence or control their operation.

While primary rules impose duties, secondary rules confer power, public or private. Secondary rules are necessary to cure the defects which a simple social system may have to face due to static nature of the primary rules, their uncertainty and their inefficiency regarding dispute resolution. The introduction of the remedy for each defect is a step from pre-legal into legal world; since each remedy brings with it many elements which permeate law, “certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system”.

The thesis made Hart to conclude that international law is a law because nations feel an obligation to comply with it but it still lacks the character of a legal system because of lack of secondary rules. In recent years the development of the principle of jus cogens in international law can be called a development towards the formulation of secondary rule of recognition.

Thus, the three defects of pre-legal system are cured by “rules of recognition”, “rules of change” and “rules of adjudication”. Rules of change and rules of adjudication are again related to rules of recognition because it is with reference to it that a particular rule is identified. Thus, for Hart, the existence of a particular rule does not depend upon the command of the sovereign but on the fact that a rule is recognised as valid by rule of recognition and courts have declared it to be valid.

Indian Concept Acc. to Hart’s Ideology

The Indian legal system is a fairly developed system and consists of both primary and secondary rules. The Constitution of India is the ultimate rule of recognition. Although under Article 51 of the Indian Constitution, it is provided that the State shall endeavour to promote international peace and security and respect its international obligation yet no rule of international law which is in conflict with the Indian Constitution can be binding on the Indian people and courts.

Primary rules of obligation in the Indian legal system include customs which are recognised by courts and various statutes

This is evident from the changing status of customs. Although before independence the Privy Council in Collector of Madura v. Matoo Ramalingaa  ruled that in Hindu law a clear proof of custom overrides the written text of law, the situation has changed after independence. Only the customs which are recognised and accepted by Parliament or the courts have the force of law.

Pre-constitutional laws are given recognition by Article 372 of the Indian Constitution “but subject to the provisions of … Constitution”.

Hart criticises Austin’s definition of law as a command of the sovereign backed by sanctions. He contends that a legal system does not resemble a gunman situation writ large. A person may succumb to a gunman’s threats and FEEL OBLIGED TO do or obey his order. But he is not UNDER AN OBLIGATION TO obey the order. But under a legal system he may feel that he is under an obligation to obey the rule although there is no chance of being detected.

One of the criticisms against the Indian Constitution is that it was not framed by a Constituent Assembly which could be treated as representing all Indians and that most of the provisions of the Constitution are borrowed from outside and are not rooted in Indian tradition. It is also contended that the Constitution was never put before the people for ratification. Therefore, it signifies an imposition on the people rather than their acceptance giving validity. The criticism is not, it is submitted, justified because the members of the Constituent Assembly were people in whom the general population had confidence.

It is evident from the results of elections conducted under the new Constitution. It is also true that people have accepted the Constitution and its philosophy because so far there has not been any general opposition of its not coming directly from the masses. The people of India not only feel themselves under an obligation to obey the Constitution but they are also in fact seeking remedy from the Constitution against existing laws and circumstances.

This is clear from the decision in Supdt., Central Prison v. Dr Ram Manohar Lohi  this case a pre-Constitution law was opposed and the right to oppose it was sought from Article 19(1)(a) of the Constitution of India. The fact that new rights are recognised as fundamental right under Article 21 of the Constitution and that the courts are being approached to recognise and enforce the directive principles of the Constitution proves the contention that people of India have accepted the present constitutional system and it is not imposed on them from above.

Hart emphasised on INTERNAL AND EXTERNAL ASPECTS OF A RULE.

 An external aspect of a rule, which is also present in social habits, consists in the regular uniform behaviour which an observer can record. Internal aspect of the rule distinguishes a rule from social habit. When a habit is general in a social group, this generality is merely a fact about the observable behaviour of most of the group. In order that there be such a habit no member of the group need in any way think of the general behaviour or even know that the behaviour in question is general; still less need they strive to teach or intend to maintain it. By contrast, a social rule sets the standard to be followed by the group as a whole. In order that a social rule exists some must look upon it as to be followed by others, deviation from it is criticised, demand for conformity is made upon others.

There need not be any feeling of “being bound”. There is no contradiction in saying that people accept certain rules but experience no such feelings of compulsion. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and this should display itself in criticism (including self-criticism), demands for conformity and in acknowledgement that such criticisms and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must” and “should”, “right” and “wrong”.

Again, the government action subsequent to the Supreme Court decision in Mohd. Ahmed Khan v. Shah Bano Begum was criticised on the ground that it is against the spirit of the Constitution being in contravention of Article 14 and Article 44 of the Constitution of India.

RULE OF RECOGNITION according to Hart forms the foundation of the legal system.

Such a rule is accepted by both private persons and officials and is provided with authoritative criteria for identifying primary rules obligation. These include reference to authoritative text, legislative enactment, customary practice and general declaration of specified persons or to past judicial decisions in particular cases.

In a modern legal system where there are a variety of sources of law, the rule of recognition is correspondingly more complex. The criteria for identifying the law are multiple and commonly include a written constitutional enactment by a legislature, and judicial precedents. In most cases, provision is made for possible conflict by ranking this criteria in an order of relative subordination and primacy. There is a difference between “subordination” and “derivation”.

In the day-to-day life of a legal system, rule of recognition is very seldom expressly formulated as a rule. For most part, the rule of recognition is not stated but its existence is shown in which particular rules are identified either by courts or other officials or private persons or their advisors.

The use of unstated rules of recognition by courts and others in identifying particular rules of the system is characteristic of the internal point of view. Those who use them in this way thereby manifest their own acceptance of them as guiding rules and with this attitude there goes a characteristic vocabulary different from natural expressions of the external point of view.

Under the Indian legal system, although the Indian Constitution is the ultimate rule of recognition, it presents certain baffling complexities—

— It allows the existence of parallel legal systems in the shape of personal laws many of which still derive their validity from religious institutions. Article 372 of the Indian Constitution allows continuance of pre-constitutional laws. It includes personal laws also. Article 44 of the Constitution provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. These provisions may be interpreted to mean that the Constitution for the time being recognises their existence. But it may be relevant to note that the laws which conflict with provisions of the Constitution that are thought to be part of the basic structure like Article 14 are still tolerated.

Fluctuations by way of the Interpretation

— There is a hierarchy of rules of recognition and the Constitution is at the top. But there are perplexing exceptions-

(i) Under Article 240(2) the President can override parliamentary legislation in relation to Union Territories. The President may make regulations for any purpose for which Parliament could make law.

(ii) Under Schedule (5) Part (5) parliamentary legislation in relation to tribal areas in certain matters can be modified. State’s power to legislate on certain specified entries is subject to power of Parliament under the Union List, e.g. Entry 23 of State List subject to Entry 54 of List I, Entry 24 of List II is subject to Entries 7 and 52 of List I.

(iii) Parliament can by its own law effectively alter the distribution of powers. Articles 2 to 4 can be amended by ordinary parliamentary legislation which conflicts with the principle of federalism which the Constitution seeks to protect.

However, since these provisions are part of the Constitution itself they cannot be said to be in conflict with Hart’s theory of ultimate rule of recognition. Moreover, in Indian Aluminium Co. Ltd. v. Karnataka Electricity Board it has been said that the entries in the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such. This conflict in the Constitution brings us to the question of basic structure. Parliament has the power to amend the Constitution. But the power is subject to substantive as well as procedural limitations.

While procedural limitations are given in Article 368, substantive limitations are pointed out by the Court in Kesavananda Bharati v. Union of India as the principle of basic structure. Basic structure in simple terms can be said to indicate what Parliament, a creation of the Constitution, cannot do. In other words, power of Parliament to amend the Constitution is only limited to the areas outside the sphere of basic structure. It is the core of the ultimate rule of recognition. It tells what the ultimate rule of recognition does not give to Parliament. Normally, basic structure is said to be the grundnorm of the Indian legal system. But the analogy will be erroneous because then most of the provisions of the Constitution itself will become invalid when tested against the basic structure, e.g. the above-mentioned provisions conflict with separation of powers and federalism and to hold this will be beyond the powers of the judiciary under the ultimate rule of recognition.

One question, which is normally posed is, what gives the judiciary power to say what the basic structure is? Is the existence of basic structure dependent on the decision of the judiciary? The answer can be given by drawing an analogy from Hart’s minimal rules. According to Hart, these rules are minimal conditions for the persistence of social groups i.e. if certain rules did not exist the social group would not “survive”. Thus, we can say that there are minimal rules for the existence of a legal system. If these rules do not exist the legal system would not survive and by enunciating the basic structure the judiciary is only pointing towards these rules.

However, from the inefficiency of a particular rule general disregard for the system should be distinguished. One who makes an internal statement concerning the validity of a particular rule of a system may be said to presuppose the truth of the external statement of fact that the system is generally efficacious. For the normal use of internal statements is in such a context of general efficacy. Thus, while in Supdt., Central Prison v. Ram Manohar Lohia limited right of civil disobedience was granted under Article 19(1)(a) it cannot be so exercised as to threaten the legal system and the sovereignty and integrity of the country. Thus, it cannot be so exercised as to generate a general disregard for the system but opposition and criticism of certain laws is permissible because of the democratic framework of the country.

Hart’s idea of OPEN TEXTURE OF LAW is his another important contribution to legal theory. He recognises the limits of rules and accepts that since all conditions cannot be anticipated, there cannot be predetermined rule to suit every situation in society. Thus, legislators lay down the rules according to the aim of the law. These rules can regulate the clear cases of the paradigm. But there are indeterminate cases which the legislators could not visualise in the beginning. For these indeterminate cases the core meaning of the rule has to be extended to the “penumbral” meaning where the Judge performs an extra-legal function and makes a choice. Thus, according to Hart, in such cases the Judge has to exercise his discretion and a prudent Judge tries to accommodate the prevalent social conditions while interpreting the words. According to Hart, even if the Judge does not extend the meaning of the word and sticks to the “core” meaning, he is still exercising the discretion though making a conservative choice.

, While in interpreting Article 12 the Supreme Court extended the penumbral meaning of any other authority to include instrumentalities of the State within the meaning of the term “State”, they also came up with the principle of basic structure pointing out the principles on which the Indian Constitution is based which cannot be violated by the legislature. Taking guidance from the general structure and aim of the Constitution the Supreme Court has given a totally new interpretation to Articles 14 and 21.

Hart in agreement with Hobbes thought that these conditions are the foundation on which society is based. Men have come together for these reasons. Thus, if these truisms will be ignored the foundation of society and the legal system will be lost and the system will lose its base and efficacy. Thus, although these truisms do not validate the rules, rules cannot ignore them if general efficacy of the system is to be maintained.

In the Indian legal system, although the Supreme Court in A.K. Gopalan v. State of Madras and A.D.M., Jabalpur v. Shivakant Shukla  maintained a strict positivist attitude, in Golak Nath v. State of Punjab , Maneka Gandhi v. Union of India   it adopted the natural law tone and has in Article 14 and Article 21 introduced criteria like “reasonableness”, “anti-arbitrariness” and “due process” for testing the validity of laws which can be called external criteria.

Grounds of Morality

Finally, what is the role of law and the legal system in an individual’s life? What should be the sphere of law? Should law enforce MORALITY on its subjects? Hart differs from Devlin in this respect. Devlin contends that society has the right to enforce morality because a “recognised morality” is as necessary to society as a recognised government and that society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential for its existence. Although Devlin accepts that a balance should be maintained between rights and interests of the society and rights and interests of the individual, there are certain principles which the legislature should bear in mind while legislating.

Hart contends that while public morality should be enforced because its absence amounts to nuisance to another person, care should be taken while enforcing private morality and a balance has to be maintained between individual liberty and morality. According to Hart, the private morality should be made effective by means of persuasion, dialogue and debate rather than coercion.

The Indian legal system does not totally approve of Hart’s theory in this regard. In fact the Indian Constitution is not only a formal text but also a dream and an instrument to bring about social reform. Thus, Article 17 penetrates into private lives of citizens by abolishing “untouchability” in any form. Under the “Protection of Civil Rights Act, 1955″ passed by Parliament under Article 35 of the Constitution, discrimination on the ground of untouchability has been made a punishable offence not only in public places but also in privately owned places of worship and the State Governments are empowered to impose collective fines on the inhabitants of an area involved in or abetting the commission of offences related to “untouchability

In Saroj Rani v. Sudarshan Kumar Chadha  and in Gian Kaur v. State of Punjab  the Supreme Court enforced private morality.  A Constitution Bench overruled the earlier decision of the Division Bench of the Supreme Court in the case of P. Rathinam v. Union of India  by holding that the right to die cannot be included in the right to life under Article 21.. Morality is expressly mentioned in Articles 25 and 26 as a ground for restrictions. Under Article 25 the Constitution guarantees freedom of conscience and freedom of profession, practice and propagation of religion subject to public order, morality and health. In the same way under Article 26, every religious denomination or any section thereof has the right to manage its religious affairs subject to public order, morality and health. Therefore in Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta  the Court held that tandava dance in procession or at public places by Anand Margis, carrying lethal weapons and human skulls, was not protected by Article 25 or 26 as it was against public order and morality.

Even under Article 14 the Supreme Court under the new concept of arbitrariness, enforces the prevailing morality by striking down a law as unreasonable. Thus, in Air India v. Nergesh Meerza  the Air India Employees Service Regulations were challenged on the ground that they provided for different service conditions for Air Hostesses and Assistant Flight Pursers (AFPs) and it was alleged that they were discriminatory against women. The Supreme Court found that Air Hostesses and AFPs worked under two different categories of services and the Air Hostesses on the whole were not discriminated against. However, even though it found that there was a reasonable classification and no violation of the principle of equality, the Court struck down a regulation providing for termination of services for Air Hostesses on the first pregnancy as arbitrary because it insulted the Indian motherhood

. However, in R.K. Garg v. Union of India the majority of the Supreme Court spoke in a different tone. In this case the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and the Act which replaced it was challenged. The Act granted certain immunities to persons who had invested unaccountable money in the Special Bearer Bonds. They were not required to disclose the nature and source of acquisition of the Special Bearer Bonds. It prohibited the commencement of any enquiry or investigation against such person. The Court by a majority of 4 to 1 upheld the validity of the Act on the ground that the classification made by the Act between persons having black money and persons not having black money was based on intelligible differentia having rational relation with the object of the Act. The object of the Act was to unearth black money for being utilised for productive purposes. Bhagwati, J. speaking for the majority, refused to strike down the law on the ground of morality, saying that:

“It is necessary to remember that we are concerned here only with the constitutional validity of the Act and not with its morality. Of course, when we say this we do not wish to suggest that morality can in no case have relevance to the constitutional validity of a legislation. There may be cases where the provisions of a statute may be so reeking with immorality that the legislation can be readily condemned as arbitrary or irrational and hence violative of Article 14. But the test in every such case would be not whether the provisions of the statute offend against morality but whether they are arbitrary and irrational having regard to all the facts and circumstances of the case. Immorality by itself is not a ground of constitutional challenge.”

Gupta, J., however, gave dissenting opinion saying that:

“The concept of reasonableness does not exclude notions of morality and ethics. I do not see how it can be disputed that in the circumstances of a given case considerations of morality and ethics may have a bearing on the reasonableness of the law in question.”

Conclusion

Based on the general acceptance of the people, Hart’s legal system comprises of primary rules of obligation and “secondary rules of recognition”, “rules of adjudication” and “rules of change”. Existing within the framework of certain minimal rules this legal system has enough flexibility to adapt itself to the changing needs. Except for the five truisms, Hart’s legal system like Aristotle’s Politics is amoral. Principles of morality are no touchstone to test the validity of the rules of legal system. They can, however, become legal rules after passing through the process prescribed by the legal system.

The Indian legal system is a fairly developed legal system comprising of both primary rules of obligation and secondary rules of recognition, adjudication and change. While the primary rules consist of various statutory laws and recognised customs, secondary rules are contained in the Constitution of India. The Constitution of India is based on the philosophy and principles debated and accepted by the people of India during the national movement. Hence, it is “We the People of India” who have framed the general legal framework of our country and therefore feel under an obligation to comply by it. The general legal framework is the source of validity or the “rule of recognition” for other rules and governmental action. While the Constitution has enough inbuilt flexibility to change itself to the changing needs there are certain minimal rules termed as “basic structure” whose sanctity has to be respected as they comprise the basic framework or identity of our legal system.

As for the “rules of adjudication”, the Indian legal system contains a very integrated judicial structure with the Supreme Court of India at the top. The Supreme Court of India and High Courts of the States have the authority to interpret the Constitution also. In the exercise of this power, while basing their judgments on general principles, structure and aims of the Constitution, they have moved beyond the “open texture of law”. A clear example of this is the replacement of “procedure established by law” under Article 21 by the “due process of law”.

However, it is on the question of morality that the Indian legal system seems to clearly disagree with Hart’s thinking. Thus, not only morality is explicitly used in Articles 25 and 26, and implicitly in Article 19(1)(g), even while judging the validity of particular laws against the Constitution of India the Court takes into account moral principles. What is important here is not the actual decisions which can be either way, given the fact that morality is largely subjective, but the consideration of moral principles as part of constitutional values by the courts. This is clear from the views of the judiciary on the two issues of restitution of conjugal rights and the right to die.

Tips To Write Custom Law Essay

July 15th, 2009 at 02:56am Under Constitutional Law

Custom Law Essays require a certain style and format if they are to be written effectively. In a Law school essay, you need to present your reasons to admissions officers tactfully. You need to keep in mind that admission officers tend to receive essays with sentences that don’t really help applicants and are far too familiar. If you have to write a Law school essay on the theme ‘Why I Want to be a Lawyer’, you need to provide solid reasons for you wanting to pursue becoming a lawyer. You can’t just say that you want to become a lawyer. The first thing is to clarify the subject matter so that you identify the area of law that is being addressed. Sometimes this will be obvious as when the question asks about the differences between an offer and an invitation to treat which will direct you towards the law of Contract. However, sometimes the question is more obscure and this requires more effort in determining what the subject matter is and might involve looking at more than one area of the law. If a question asks about the terror laws, then this may well span human rights and constitutional law too. This is absolutely vital when answering a question. Often the essay will ask you to evaluate something; reflect on something; write a critique; discuss a particular statement; reflect on a judge’s particular statement in a case, or discuss the impact of a case on an area of law. If a question asks you to compare more than one thing, then you must identify the similarities and differences between them, and ideally reach a conclusion as to which one you think is preferable. If a question asks you to discuss something then you must study and comment on it from all viewpoints, and reach your own conclusion. The structure of the essay is extremely important. If a custom essays exceeds 10,000 words, a contents page and chapter headings should be included and, even in shorter essays, it might be appropriate to set out chapter headings. Chapters are relevant where the answer straddles a wide area of law and addresses several areas. Chapters help focus both the writer and the reader on what is being discussed and maintain focus. One major criticism of law custom essay writing is that they drift from the main topic and angle that they are meant to address, and the thread and point are lost. Another criticism is that the writer tends to just list the legislation and discuss the topic without containing any incisive opinions of the writer. An introduction and conclusion should be included. Make sure that your sources are current; this is vital because quite often questions are written which are impacted by recent changes or even proposed changes in the law. So a question on Control Orders should be looked at in the light of the proposed increase in detention periods and the impact on human rights. The correct referencing should be used consistently throughout. It is vital to give credit when quoting someone else; otherwise the essay may be plagiarized. It is never acceptable to cut and paste from the internet. Neither should you copy directly from a book unless you give the appropriate credit. Copying huge sections, even if credit is given, will not be looked upon favorably. The examiner will be looking for the writer’s comments and own views and opinions, based on a sound interpretation of the law and thorough research. The examiner will be looking to see that the writer has researched several resources. References to case law must be relevant and illustrative. Remember to include a full bibliography.

The Law Practice in Los Angeles

July 14th, 2009 at 08:56pm Under Constitutional Law

A lawyer’s role varies significantly across legal jurisdictions.

In a general perspective, lawyers are people learned in the law. They are those who belong to the privileged few whom, after having completed the educational requirement and have passed the bar examinations, are granted licenses to practice law.

As the society grows, a lawyer’s role expands as well. A lawyer’s duties and responsibility to the court, the public, to the profession and to their clients are increasing.

Lawyers owe their title to society. In their oath, they vouch to give justice to all man. Doing falsehood and bringing malicious suit and unfounded claim in the courts of law are some of the actions that should be avoided by a lawyer being an advocate of justice.

Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems. The job of a lawyer involves the public interest. They are also bound to observe fair and honest dealing in the law.

A lawyer must have an intact moral well-being, must value the profession and uphold its bounden duty to do justice to all man. The aforementioned are continuing requirements being a member of the bar.

In almost all jurisdictions, lawyers are very much visible. Some of them are manning a huge corporation, some are politicians, and some have a lucrative practice in any areas in law of their likings

In Los Angeles alone, lawyers have played a significant role, most particularly in the proper dispensation of justice. Some of them held an executive position in big businesses, some serve as advisors to corporate clients, some becomes charming politicians, and some becomes judges and law professors.

A significant number of Los Angeles lawyers have practiced their profession and made a huge name in the law circle. Some became authorities for a particular branch of law.

Most of the lawyers who does legal practice specialized on some branch of law of their choice. Some of these specialized areas are law on torts, business law, employment law, criminal law, constitutional law, environmental law and tax law.

In today’s setting, it is no longer possible for one single lawyer to handle every aspect of every client’s legal needs.

A vast number of today’s lawyers are specifying the types of clients and cases that they will serve. Specialization had become the trend in the legal profession.

Los Angeles lawyers are very much active in the rendition of legal services to their clients. They welcome all people who wish to employ its services. Lawyers in Los Angeles made the law and rules work.

Most Los Angeles lawyers have been successful in the path they have chosen. The primary reason can be traced to the quality of legal service they offer their clients.

Worthy to consider is the manner of treatment they have shown to their clients.

In some instance, their satisfaction of the legal career they pursue also played a huge part in their success. It is manifested by the extent of their interests and the type of clients their serve.

Our Los Angeles lawyers are highly skilled in handling cases involving personal injury, employment law, social security and business law. For your inquiries, do visit our website to know more about our law firm.

An End Run Around the Constitution

July 14th, 2009 at 08:56am Under Constitutional Law

Jonathan M. Feldman, in The U.S. as a “Failed State” (http://www.counterpunch.org/feldman09032005.html), writes, “It’s obvious that the New Orleans tragedy has revealed that urban areas, particularly those housing the poor and African Americans, are regarded as disposable by corporate and government elites. . . . The U.S. went into Iraq to “save it” and now can barely save itself. . . . We now must ask ourselves, isn’t the U.S. a failed state?” And he obviously believes that the answer is, “Yes.” He goes on to say, ”The solution to this crisis requires several forms of remedial action. One such action would be intervention by a consortia of European States who provided not only economic aid, but some kind of political intervention (in the form of think tanks, grants and other material support) to promote and extend democracy in America.”

Bernard Chazelle, in “The Case for a New Progressive Creed” (http://www.counterpunch.org/chazelle04022008.html) provides a great deal of evidence to support the view of America as a failed state: “By virtually any measure, the United States is the least progressive nation in the developed world. It trails most of Western Europe in poverty rates, life expectancy, health care, child care, infant mortality, maternity leaves, paid vacations, public infrastructure, incarceration rates, and environmental laws. The wealth gap in the US has not been so wide since 1929. The Wal-Mart founders’ family owns as much as the bottom 120 million Americans combined. Contrary to received opinion, there is now less social mobility in the US than in Canada, France, Germany, and most Scandinavian countries. The European Union attracts more foreign students than the US, including twice as many from China. Its consensus-driven polity, studies indicate, has replaced the American version as the societal model to which the developing world aspires.” And he provides these neat comparisons:

* (a) The US is the world’s richest nation; (b) the US outranks only Mexico in child poverty among OECD countries.(28)

* (a) America’s GDP per capita is 11 times higher than Sri Lanka’s; (b) life expectancy for African-American men is 3 years shorter than for males in Sri Lanka.(29,30)

* (a) African-Americans have been the force behind this country’s most influential musical genres; (b) one third of all black men will go to prison at some point in their lives.

* (a) The US scoops up more Nobel prizes in medicine than any nation on earth; (b) 18,000 Americans will die this year for lack of health insurance.

But things are really far worse. Not a single political or social institution in America works. The Congress cannot pass effective legislation, the criminal justice and judicial systems routinely convict the innocent, Social Security and Medicare are grossly inadequate and the commercial health insurance system is dysfunctional. The War on Drugs is stalemated. Our borders are sieves. Immigration control is non-existent; not only is illegal immigration prevalent; many who come here legally merely overstay their visas and no one knows who or where they are. We incarcerate more people per capita than the U.S.S.R. placed in gulags. Only about half of our school children graduate. The university system is open to the stupid wealthy but not the bright poor, and it absolutely fails to instill reverence for truth and goodness in the students it graduates. Scholarships go to athletes who are not scholarly, and scholarly students are graduated with heavy burdens of debt. Our churches instill neither piety nor compassion nor moral behavior. Racism, although perhaps regressing, is still a major denier of civil rights. The infrastructure is in severe disrepair, and the business community can neither manufacture nor market products of high quality. Salesmen regularly argue over who can sell products that don’t work best. Governmental agencies, ostensibly created to protect the public, instead protect the very people Americans need to be protected from. When hazardous products are imported from China, there is a hue and cry but not much action. The Chinese, on the other hand, have banned imports of cheese from Italy because of one batch that was poisoned. The Federal Reserve aids and abets fraudulent financial institutions, and when their fraud is exposed and they are about to collapse, it commits taxpayer dollars to bail them out. The press routinely reports governmental lies and fails to report the news that Americans really need to hear. What the president says is reported even when its significance is no greater than reporting that Leona Helmsley’s now famous dog barked, but the number of Iraqi civilians killed by the American invasion goes unreported. Whenever Hamas kills an Israeli, we are told about it, but we’re rarely told how many Palestinians have been killed by the Israelis. We’re also never told how much America is borrowing from China and other countries to pay the aid we give to Israel. We’re aiding foreign governments with borrowed money and fighting two wars with it too. Official lying has become a common practice, and documents are classified not to protect national security but the hide the malfeasance of officeholders. And our electoral process is regularly corrupted by its complexity and inefficient practices; yet we have the audacity to criticize other nations for their corrupt practices.

Those are the facts, and the United States of America is, by every definition, a failed state. It is a nation built around an 18th Century ideology trying to become a 19th Century empire in the 21st Century.

Yet no one has isolated the reason for this failure. It is that the American Constitution has been nullified by an end run by non-constitutional institutions that have taken control of the nation—faction, which the Founding Fathers thought they had rendered ineffective, lobbying which is erroneously justified by citing the Constitution’s right of the people to petition the government for the redress of grievances, not advantage, and by the Supreme Court’s decision that makes political contributions a form of speech, thereby making metaphorical interpretation an accepted practice. So much for strict construction!

How could this have happened? After all, the Federalist Papers more than adequately demonstrated the dangers of faction. Why did those in government who succeeded the Founding Fathers ignore entirely their teaching and arguments?, a question which, of course, is impossible to answer. But the way of fixing America is not through the intervention of foreign nations, it lies in merely controlling these three misguided institutions.

Faction is the Dark Vader of constitutionalism. The Founding Fathers wrote into the Constitution what they thought was a system of checks and balances, but when one faction controls all three branches of government, there are no checks and therefore no balances. When the need for money to finance political campaigns is predominant, Congressman are easy marks for the corrupting influences of special interest. The government then ceases to function as one “of the people, by the people, and for the people.” But even controlling the influence of faction, lobbying, and campaign financing is not sufficient. The Congress must change its ways.

Membership in the Congress is predominantly held by members of the legal profession. Not a single one of these attorneys would advise a client to sign a contract without reading all of it’s fine print; yet they routinely vote on legislation they have not read. This practice is absurdly insane! Laws that the Congress produces are so voluminous that no one can be expected to have read them. Certainty and promulgation are necessary characteristics of law if it is to be effective. But no one who hasn’t read a law can be certain of its provisions, and huge laws can never be adequately promulgated. Being told to obey laws that no one knows the provisions of is an oxymoronic absurdity. Such laws provide the unscrupulous with an infinite number of possible ways to game the system. And indeed the system has been gamed, the Constitution has been subverted, and the result is that America is a failed state.

No, foreign intervention can not change things. What’s needed is seriousness on the part of Americans. As long as we allow factionalism and its consequences to endure, as long as we allow the Congress to enact legislation that is ineffective even in form, the nation’s future will be grim. Unfortunately seriousness does not appear to be a characteristic of American culture.

© 2008 John Kozy

How to Identify the Wall of Separation Between God and State in the U.s. Constitution

July 14th, 2009 at 02:57am Under Constitutional Law

“Original Intent” is a book by David Barton about Supreme Court rulings that have stripped the Constitution of the founders’ original meaning.  It was published in 2000 by WallBuilders of Alemedo, Texas.

David Barton Argues Against

Separation of Church and State

The book emphasizes religious aspects of the Constitution, especially the doctrine of separation of church and state.  Mr. Barton attempts to show this was not part of the original intent of the founding fathers.  

The author discusses eight Supreme Court landmark religious liberty cases which followed the 1947 Everson case.  The latter introduced the “wall of separation” terminology.  In these he claims the Supreme Court rewrote the original intent of the founders. 

Later chapters demonstrate how the new subjective standard of judicial opinion is altering the Constitution and Constitutional law in fundamental ways. The law is in a state of flux because the Constitution has become whatever the justices say it is. This new era of positivistic law began in the 1930s and 1940s.

Thesis Is Flawed

The problem with the book is a flawed thesis. The founders did in fact intend to separate the new government from the authority of biblical law.  Surprisingly, David Barton actually applauds this.

David Barton states that “there is simply no historical foundation for the proposition that the Founders intended to build the ‘wall of separation’ that was constitutionalized in Everson…” (p.179).  The actual words, “wall of separation” do not appear, but the wall is nonetheless set in place by Article VI, Section 3.

This provision disestablishes Christianity as the “coin of the realm” so to speak.  When the Constitution says that “no religious test shall ever be required for any office…,” it makes it illegal to require an officeholder to swear to govern by the Bible.  It thus established the U.S. Constitution as a pluralistic and secular document.  This is clearly a “wall of separation,” divorcing the legal system from its religious foundation.

David Barton alludes to Article VI, but praises its effect. He asserts that, “…it was therefore not within the federal government’s authority to examine the religious beliefs of any candidate” (p.34). He adds with approval that “The Founders believed that the investigation of the religious views of a candidate should not be conducted by the federal government, but rather by the voters in each state.”

That is the heart of our problem. A declaration of religious neutrality by the Federal government. This would be like Moses coming down from Mt. Sinai and declaring that he wasn’t going to favor any particular religion, but would leave it to the tribes.

On the contrary, it is the primary duty of government to require that its officials are committed to Christ and the Christian religion.  It is cultural suicide to neglect this duty.  The law of God is the only source of justice, and God expects the officeholder to swear to uphold it.  David Barton fails to grasp this most basic biblical principle of civil government.

Innocuous Civil Religion

David Barton and the founders prefer a milquetoast civil religion, rather than undiluted Christianity.  To quote the author, “I agree fully to what is beautifully and appropriately said in Updegraph v. The Commonwealth… — Christianity, general Christianity, is, and always has been, a part of the common law: ‘not Christianity founded on any particular religious tenets’ …(p.70)”

“The Christianity practiced in America was described by John Jay as ‘enlightened,’ by John Quincy Adams as ‘civilized,’ and by John Adams as ‘rational.’” (p.127).  As long as Christianity remains a toothless, feel-good religion, devoid of doctrine, David Barton and the founding fathers are apparently happy with it.

And this leads to another root problem.  David Barton virtually always refers to civil government in terms of what it must not do respecting separation of church and state.  He ignores the responsibility government has to govern pro-actively in submission to Biblical law.  As noted above, his Christianity is toothless when it comes to obligations for the civil magistrate.

This rejection of God and Biblical law as the basis for the new government leads inevitably to disregard for the Constitution we see today.  When they rejected the absolute standard, the founders guaranteed that their posterity would end up adrift in a sea of subjectivity and oppression.

In the end, Mr. Barton calls for a return to the “original intent” of the founders to create a limited government based on Christian principles. But the flaw in his thesis makes this impossible.

Departure from the original intent of the Constitution is not our problem. Rather, our problem lies in the seeds of humanism and religious neutrality that were planted originally in the Constitution and are bearing their evil fruit today.

Law school Questions and Answers

July 13th, 2009 at 02:56pm Under Constitutional Law

A never married dad wants at least joint custody of 3year old daughter in michigan and can not afford a lawyermother is uncooperative and caddy. father makes $30000 per year and can’t afford lawyer, she will not give joint custody willingly, what can father do? Contact a local law school and ask them for the phone number of.Do female lawyers face discrimination in the workplace/school?According to the Princeton Review, as well as several other reputable sources, women can be treated poorly by their male classmates in law school. In fact, the PR includes a list of ‘women-friendly’ universities because this sexism is so widespread. Also, I have read that often women often are passed over.Do judges need to be attorneys?Do appointed court judges need to be attorneys A college degree and work experience is the minimum requirement to be a judge. Most judges have worked as lawyers. In fact, Federal and State judges usually must have worked as lawyers. That means that they need to go to law school. Law school usually.Do Law Students help out in court?and if so, what do they do? There are law school ‘clinical programs’ in which 2d and 3d year students get to represent low-income people in court, under a lawyer’s supervision. There are other programs where the students work as interns in law firms, and get to do some of the research.What are the education requirements for lawyers?*sigh* this is for a project im doing generally, 4 years high school 4 years college three years law school pass the bar exam in the state you want to practice in. – 1 – Graduate high school 2 – Graduate college 3 – Graduate law school And, if they want to.What are the steps to being a Real Estate lawyer or attorney? It’s not so difficult. First you complete your B.A. or B.S. Then you go to law school. It helps if you take some courses in law school that focus on real estate, for example: Real Estate Transactions, Land Use, Real Estate Litigation. Do your best in.What do I need to do to be a Pennsylvania lawyer? And how long will it take? You need to go to college (4to5 years.) You need to go to law school (3 years) You then need to study for and take the Penn Bar Exam. This can take 3 months to forever Shortest amount of time would.What type of career options are available for lawyers specializing in international law?Also, what is the average salary. Is it an in demand field? Please include any other information you can give me about this type of law. I am about to attend law school next year. I am thinking about specializing in corporate law or international law..Whats involved to become a lawyer?Just wondering about possible future careers and would like to know what you need to do to become a lawyer, how many years at university and what you do when you become one? You must take a first degree, then apply to law school. It doesn’t matter what you major in for your.What’s the difference between a JD (juris doctor) and an LLM (’?')?Can I take the bar exam with either? Chances for gainful employment better with one or the other? Which is harder to earn? You receive a JD after successfully completing and graduating from an ABA accredited law school. It takes 3 years day or 4 year evening.Which Law School?Which Law School? I have the option to attend Albany Law (no scholarship costs $35k a year, but is a Tier 3 law school), Western New England Law (Scholarship money will make my out of pocket cost $15k a year but it is a Tier 4 law school located in Springfield Mass) or New England Law.do you think my hopes and dreams will come true for me being a layer?i wanna go to law school when i grow up I always say ‘If you can dream it, you can be it.’ You can be anything that you want to be. With enough hard work and dedication, you can do anything. Keep a positive.Would law schools be more lenient on GPA if I major in Chemical Engineering and aspire to be a patent lawyer?I’m a second-year ChemE major student at UC Berkeley. I want to go to law school and practice patent law, but my GPA is a little less than a 3.0. Do I have a chance? I think you.Any recommendations for a good LSAT book?I’m planning on taking the LSATs and pursuing law school but there are so many LSAT books out there, I don’t know which one to pick. Any really effective LSAT practice books that you guys recommend? The best study guides I found were the Powerscore Bibles (I took the course as well,.Become a lawyer?I’m interested in the law, government and politics. I’m in college studying political science and I do very well and like my major a lot. I also like history. A lot of people tell me I’d make a great lawyer. I have doubts though. How do I decide to go to law school? Do lawyers have.Does anyone know where i can get money to go to law school? Typically, there is less federal assistance available for law school. There are very few grants available for the government, because they expect you to be able to make enough money to pay them back later. But you should be able to take out a combination.Does it make sense to earn a second bachelor’s degree before going to law school?I went to a small ‘no name’ liberal arts college and earned a BS in Computer Science. I earned a MBA online. I am now a math teacher in an inner city public high school. (The same one I went to) Go figure! I.How does Skinner v. Oklahoma 1942 been used to expand the protections of the constitution?or it could be Levy v. Louisiana 1968, Craig v. Boren 1976, and/or Lawrence v. Texas 2003. go to www.4lawschool.com click on case brief bank click on constitutional law briefs then look up each case. I am in law school too.it isn’t that hard.How long do you have to got to school to be a lawyer? 3 years after undergrad if you go full time, 4 if you go part time. – 2 more years after college – Four years of college, two years of law school. – 7 years, but many schools will give life experience credit for a history.How many credits do you need to be a lawyer.? I’m not sure what you mean by credits. To be a lawyer, you must have an undergraduate degree and then attend law school. Law school is usually 3 or 4 years (full v. part time). Each school has different required courses and credit requirements. After you graduate law.How many years do you have to to school to be an Entertainment Lawyer? An American Bar Association approved law school is generally 3 years long. To be admitted to such a school you’ll need an undergraduate degree (i.e. a BA) and to take the LSAT. After going to law school you’ll need to to take the bar.How many years of college does it take to become a lawyer? About 7 years all together when you figure 4 years of college and then 3 years of law school. You can talk to any attorney or go to the law library or any college and they will tell you everything you have to do to become.How to be a lawyer in California?.a step by step walkthrough.? Get good grades in high school and graduate. Take the SAT and get a good score. Go to college, get good grades and earn a BA or BS. Take the LSAT, and score high. Get accepted to a CA accredited law school. Graduate from law school with.I need some info on common law, how can i get it done? I would recommend going to a local law library (and local law school will have one) and using some of the treatises on law. Treatises give the generally accepted rules for the various issues in law and the notable exceptions to those rules. Additionally, they.I want to find a law school in NYC and the price it will cost to go there can anyone help me thank you? There are numerous law schools in New York City. There’s New York University, Columbia, Fordham Law School, Cardozo Law School (a school in Yeshiva University), and New York Law School (different from NYU). St..If you want to work in govt. intelligence do you have to go to law school? No. Usually an analyst has another particular skill such as foreign language experience and a specialty that makes them valuable. For me it was my background in mathematics that attracted their attention. – honestly now.when you think about it what does govt.Fiance is Army officer, got ed. delay for grad. school. Is he considered ‘in the the Army’ while on delay?Fiance and I are getting married while he’s on an educational delay for law school. He was a First Lieutenant prior to entering law school, and I’m trying to figure out the proper way to word our wedding invitation..Has a registered sex offender EVER become successful AFTER.?Has a registered sex offender ever shook off the chains of the scarlett letter and become a succesful and productive member of society? I am not talking about the ones who fail to register and skate by on anonymity or the people who become advocates. I am in law school.Obtaining TWO Juris Doctor Degrees? I recently obtained my J.D. degree. However, my grades were not that hot. However, I definitely feel in retrospect, if I were given the second chance to ‘redo’ law school, I’d be able to do much better. I was just wondering if I had the chance to pursue another J.D. degree, at another.The stuff that happens to prosecutors on TV are fake, right?Prosecutors getting framed, kidnapped, ambushed, murdered by the minions of the criminals they put away, that’s all TV right? Or does it really happen in real life? Because i’m thinking law school right now and being a prosecutor is my main career objective. I have known hundreds of.There is no way i can get to harvord what is a good law school in NORTH CAROLINA?I NEED TO KNOW QUIK Duke? UNC?(any campus) NC State? Appalachian State? – s – Duke – Duke – North carolina state ncs sorry this is my partners suggestion – Duke. One of our own presidents received his law degree from. More law questions please visit : LawFreeFAQ.com

THE COMPETITION LAW,2002 AND ITS DEVELOPEMENTAL FACTORS

July 13th, 2009 at 08:56am Under Constitutional Law

THE COMPETITION LAW,2002 AND ITS DEVELOPEMENTAL FACTORS

BY:

THAKAR FORAM*

INTRODUCTION:

Today, the whole world is facing the thought cut competition and to stand ‘in’; every nation is trying to pull their economy up. The globalization and urbanization is also playing a good role in the same. To have a fair and healthy competition, our nation has set up a body – judicial body which is known as the ‘competition commission of India’ [CCI]. In India there was an act regarding the competition in the market named MRTP Act [Monopolistic & Restrictive Trade Practice Act] but as the time changed this act was not able to prevent the needed defense for the society and market, and thus new act named The Competition Act enacted in 2002 which is widely known as the ‘antitrust act’ in United States. The substance and practice of this act differ from jurisdiction to jurisdiction.

In today’s world this law is being seen as the way to provide better public services. The history of this law was from the Roman Empire.

It is said that the competition act is, “an act to provide, keeping in view of the economic development of the country, for the establishment of a commission to prevent practices having adverse effect on competition in the market, to protect the interest of consumers and to ensure freedom of trade carried on by other participants in the markets, in India, and for matters connected there with or incidental thereto.”

OBJECTIVES:

The preamble of this act states that this is an act to establish a commission, protect the interest of the consumers and ensure freedom of trade in markets in India.

There are some elements or the objectives for the act.

SAFEGUARDING WELNESS PROVIDED BY THE ACT:

What has been prohibited?

This law prohibits the deliberate exploitation of a dominant market position by a firm. it also prohibits the limiting access. And willful acquisition has also been prohibited.

Unlawful monopolization is an offence under the competition law and consists of following two elements:

There has been made an ‘anti-competition agreement’ for the same. It includes;

The question arises is besides of all these why do we need competition in the market? The answer is it makes the enterprises more efficient and it gives a wider choice to the consumers at lower prices, fair competition is beneficiary for all.

LEGISLATIVE DEVELOPMENT:

Now, paying attention to the legislative part, the government has enacted the MRTP Act,1969 is the first enactment to deal with the competition issued and it came into force on 1st june,1970. The MRTP Act was not well adequate for the market; thus, with some new notifications the Act of Competition, 2002 had been enacted.

The competition Act, 2002 received assent of the president of India on January 13, 2003 and was published in the gazette of India dated January 14, 2003. Some of the sections of the act were brought into force on March 31, 2003 and majority of the other sections on July 19, 2003. However, the entire act has not came into force.

The CCI is a body corporate having perpetual succession and a common seal. The members of CCI should be appointed by the central government and the SC penal.

Even under the article 38(1) of the constitution of India, social order on the bases of justice-regarding political, economic and social reviews, this concept has been given. The new clause aims at equality in all spheres of life. It would unable the state to have a national policy on wages and eliminate inequalities in various spheres of life.

And,  the article 39, specifically deals with the principles of policy to be followed by the state for securing economic justice.

This article states:

‘ to ensure that the economic system should not result in concentration of wealth and means of production to the common detriment.’

These both articles embody the jurisprudence doctrine of ‘distributive justice’. The constitution permits & even directs the state to administer what may be termed “distributive justice”. This concept in the sphere of law-making cannot, inter alia, the removal of economic inequalities rectifying the injustice resulting from dealing and transactions between unequal societies.

MAJOR AREAS IN FOCUS:

1.      Anti-competitive agreements.

Section-3.        (1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.

(2) Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void.

(3) Any agreement entered into between enterprises or associa­tions of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which—

(a)  directly or indirectly determines purchase or sale prices;

(b)  limits or controls production, supply, markets, techni­cal development, investment or provision of services;

  (c)  shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;

(d)  directly or indirectly results in bid rigging or collu­sive bidding,

shall be presumed to have an appreciable adverse effect on compe­tition:

Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribu­tion, storage, acquisition or control of goods or provision of services.

Explanation.—For the purposes of this sub-section, “bid rigging” means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding;

(4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including—

(a)  tie-in arrangement;

(b)  exclusive supply agreement;

  (c)  exclusive distribution agreement;

(d)  refusal to deal;

  (e)  resale price maintenance,

shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.

2.      Abuse of dominant position.

Section-4

(a)  directly or indirectly, imposes unfair or discriminato­ry—

   (i)  condition in purchase or sale of goods or services; or

  (ii)  price in purchase or sale (including predatory price) of goods or service; or

        Explanation.—For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or services referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory conditions or prices which may be adopted to meet the competition; or

(b)  limits or restricts—

   (i)  production of goods or provision of services or market therefor; or

  (ii)  technical or scientific development relating to goods or services to the prejudice of consumers; or

  (c)  indulges in practice or practices resulting in denial of market access 2[in any manner]; or

(d)  makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or

  (e)  uses its dominant position in one relevant market to enter into, or protect, other relevant market.

3.      Regulation of combinations

Section-5.                    The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if—

(a)  any acquisition where—

   (i)  the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,—

(A)  either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

  (ii)  the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A)  either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

(b)  acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if—

   (i)  the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,—

(A)  either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

  (ii)  the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,—

(A)  either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores; or

  (c)  any merger or amalgamation in which—

   (i)  the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,—

(A)  either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or

  (ii)  the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,—

(A)  either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores   

CONCLUSION:

India is a country of differences and thus, the US or other model of this act may not work for India. India is waving its own chemistry for politics and social and economic conditions and so it might become a difficult task for India for the setting. And moreover India is also taking the unique challenges from judiciary.

Taking an example;

Mr. Dipak chatterji as the chairman of CCI was elected and the questions raised that he cannot stand above all the SC judges. Government arged that ‘CCI is a body which need a experienced in the field and which cannot be supplied by the judiciary people. But under Article 226 and 32 of the constitution of India the SC and HC respectively able to exhibited such judicial activism and thus, the SC took a firm stand against government in January, the central govt. assured the SC that amendments would be made in the competition act to enable the chair person and the member to be elected by a committee presided over by the chief justice of India or his nominees. The SC on January 20, 2005 disposed off the petition in the view of the submission made by the govt. and thus, govt. made CCI a truly functional body.

Here has given the comparison of both the MRTP and Competition Act: 

1

Based on the pre-reforms scenario

Based on the post-reforms scenario

2

Based on size as a factor

Based on structure as a factor

3

Competition offences implicit or not defined

Competition offences explicit and defined

4

Complex in arrangement and language

Simple in arrangement and language and easily comprehensible

5

14 per se offences negating the principles of natural justice

4 per se offences and all the rest subjected to rule of reason.

6

Frowns upon dominance

Frowns upon abuse of dominance

7

Registration of agreements compulsory

No requirement of registration of agreements

8

No combinations regulation

Combinations regulated beyond a high threshold limit.

9

Competition Commission appointed by the Government

Competition Commission selected by a Collegium (search committee)

10

Very little administrative and financial autonomy for the Competition Commission

Relatively more autonomy for the Competition Commission

11

No competition advocacy role for the Competition Commission

Competition Commission has competition advocacy role

12

No penalties for offences

Penalties for offences

13

Reactive and rigid

Proactive and flexible

14

Unfair trade practices covered

Unfair trade practices omitted (consumer fora will deal with them)

15

Does not vest MRTP Commission to inquire into cartels of foreign origin in a direct manner.

Competition Law seeks to regulate them.

16

Concept of ‘Group’ Act had wider import and was unworkable

Concept has been simplified

END NOTES:

*first year student of B.A.LL.B.(HONS.), Nirma University, Institute of law, Ahmedabad

If Congress Shall Make Any Law?

July 13th, 2009 at 02:58am Under Constitutional Law

Congresswoman Michele Bachmann is rocketing up the Obama Administration’s enemies list because she is asking questions no liberal wants asked and making points they certainly do not want made. Yes indeed she is. For while asking questions of Timothy, smartest man in the room, America cannot survive without him at Treasury, Geithner about past actions and current plans to allow the federal government more power to seize and manage the assets and contracts of businesses it deems, “too big to fail,” Ms. Bachmann no doubt caught the ear of Big Brother himself over in the White House. For you see, Ms. Bachmann did something that always catches the ears of liberals and lefty politicos busily scribbling words on to paper in order to secure themselves more and more power.What is this thing she did? Why, she cited the Constitution of these United States. And for yet another brief moment in a growing long line of brief moments it became clear once again that Timothy Geithner was indeed not the smartest man in the room.You could hear the uneasiness in Geithner’s voice as he was forced to attempt to answer an actual question of substance. You could also imagine at how at the same time as he was trolling for an answer in that vast, empty sea of a brain of his that he was making mental notes about who he would have to contact to make sure no such substantive questions would ever be raised again.Here is how it went down and how Geithner struggled:BACHMANN: “What provision in the Constitution could you point to … to give authority for the actions that have been taken by the Treasury since March of ‘08?”GEITHNER: “Oh, well, the — the Congress legislated in the Emergency Economic Stabilization Act a range of very important new authorities.”BACHMANN: “Sir, in the Constitution. What — what in the Constitution could you point to to — to give authority to the Treasury for the extraordinary actions that have been taken?”GEITHNER: “Every action that the Treasury and the Fed and the FDIC is — is — has been using authority granted by this body — by this body, the Congress.”BACHMANN: “And by — in the Constitution, what could you point to?”GEITHNER: “Under the laws of the land, of course.”Note that not once did Mr. Geithner ever actually answer the simple question posed to him. When asked to cite the Constitutional authority for any of the actions taken by the Treasury since early last year he simply responded that Congress had given the Treasury certain powers and that they are “under the laws of the land.” But his response is a non-response. The smartest man in the room was flabbergasted and unable to answer a question that he knew that if he answered truthfully would doom all the current, past and future plans of he and his fellow travelers. Perhaps he should have borrowed President Obama’s teleprompter and had his remarks prepared for him by a speech writer.But let’s explore his non-answer answer further. Is citing Congress doing something good enough of an excuse? Is Congress’s power to make law absolute under the Constitution? Of course we all know that it is not. If it were then what powers would be reserved to the states and the people under the Tenth Amendment exactly?Geithner’s response, had it been truthful, would have been that there was no such authority for the vast, vast, vast majority of what the Treasury has done in the last year. But to answer truthfully it would mean that he would have to admit that he and his fellow liberals, both Democratic Party socialists and Republican Party socialist-lites, had violated the Supreme Law of the Land. So truthful answers to these sorts of serious questions are never things you will get from the blowhards inside the beltway.We all know that just because Congress makes a law that the law is not de facto Constitutional. If it were, no law would ever be stricken as being unconstitutional. But since many laws have been it puts the lie to any notion that just because Congress decrees from on high that the order should be accepted and obeyed. We can even go very absurd to prove this point if you like. If Congress were to, for example, pass a bill that stated all people who have blond hair and blue eyes were inferior and not subject to the same rights as people with other combinations of hair and eye colors would it be a Constitutional law? Even if everyone accepted the law would it still be Constitutional? No.Now say that we do not have to worry about Congress being so absurd all you like. That is not the point. And besides we all know that many absurd laws have indeed come out of Congress. Add to that the fact that liberals throughout time and all over the world have espoused the same sort of social and economic philosophies and have indeed sought to treat people very differently based on how they looked . The point is that if Congress did make a law stating such it would not be Constitutional just because Congress made such a law.But Mr. Geithner and the liberals in charge of our government probably have little to fear from the American public recognizing this fact. Because they know that most Americans do not have a clue what our Constitution says and that they will not understand the importance of this exchange between Geithner and Congresswoman Bachmann. Instead they will carry on in blissful ignorance as the nation burns and President Obama fiddles.

La Quinta Business Lawyer’s Top Ten Things That Sarah Palin Would Change About the Constitution

July 13th, 2009 at 02:57am Under Constitutional Law

Here is La Quinta Business Lawyer Sebastian Gibson’s Top Ten:

1.The Vice President is in charge of the Senate.

 

2. The President must be a woman.

 

3. No more interviews of politicians.

 

4. The democratic party is outlawed.

 

5. Only one news channel – Fox News.

 

6. Any more fake calls from disc jockeys pretending to be the President of France and Canada is out of NAFTA, whatever those initials stand for in the constitution.

 

7. All turkeys are pardoned.

 

8. Snowmobiles should be used in place of cars throughout the U.S.

 

9. Anytime a woman is elected governor in Alaska, she automatically becomes the President two years later.

 

10. Rewrite the whole darn constitution with PTA moms in charge this time.

 

Now here is everything (well, almost everything) you need to know in businessabout environmental, international law, election and campaign law, consumer law, class actions, constitutional, internet, publishing, advertising, media, food and wine, hotel and restaurant law, estate planning, wills, trusts, water law, agricultural, insurance law, bad faith, psychologist and psychotherapist defense, education law and child accidents.

You can also find all you need to know (well, mostly) in business about personal injury, car accidents, brain damage, wrongful deaths, business, real estate, landlord-tenant, homeowners association law, construction, patents, trademarks, corporations, entertainment law, advertising, copyrights, and litigation by searching for those subjects and adding the words La Quinta business lawyer or La Quinta business attorney to your search terms and looking for other articles by Sebastian Gibson.

 

You can also learn more about any of these business areas of law and how we can assist you as La Quinta business attorneys, or as lawyers in any city, by calling the Law Offices of R. Sebastian Gibson at any of the numbers which can be found on our website at http://www.SebastianGibsonLaw.com  .

 

1. Environmental and Toxic Tort Law in La Quinta – With multi-billion dollar energy companies spending more money to confuse the public on the threat posed by global warming than on research into alternative forms of energy, it will take all of us to sort fact from fiction and solve the growing problem of global warming. An additional danger to all of us comes from exposure to toxic materials in our daily lives from tainted food, to contaminated ground water, to dangerous viruses in the public and in hospitals to lead and mercury poisoning. If you experience unusual symptoms that a doctor can’t explain, you may have been exposed to a toxic substance and have a toxic tort claim that should be evaluated by us or another qualified La Quinta environmental attorney.

 

2. La Quinta International, Shipping and Maritime Law – A La Quinta international attorney with years of international legal education and experience such as you’ll find at our La Quinta law firm, can provide you with a wealth of practical knowledge and the ability to find answers to your international law questions. It is to your advantage to also have a La Quinta international lawyer working in cooperation with foreign counsel in other jurisdictions to ensure that the most cost-effective avenues are pursued to resolve your legal matter. However, many international matters can be resolved with letters between La Quinta international lawyers and foreign lawyers, and international mediations and arbitrations can also be utilized. If you have been injured on a ship or an oil rig you have rights under the Jones Act to be compensated for your injuries, medical treatment, past and future wage loss and care.

 

3. La Quinta Election and Campaign Finance Law – If you are considering running for political office or have already done so and are facing campaign finance legal issues, the time to hire a La Quinta election attorney with election law knowledge is at the first possible opportunity before you get into hot water that can sink your campaign or put your political career into jeopardy.

 

4. La Quinta Consumer Law and Class Actions – If you have paid for an item but have not received it, been promised an action or service that has not come to fruition or are considering ordering services or signing any type of agreement, the time to hire a La Quinta consumer lawyer is immediately in order to avoid being scammed, or defrauded. A La Quinta consumer attorney’s letter drafted forcefully but professionally will obtain the desired result, products or services in a good percentage of cases. Whether you ordered gold bars but did not receive them, were told that your car would be paid off when you traded it in on a new one or were promised that a pool would be completed in your back yard, a La Quinta consumer attorney can and should be hired for a modest fee to write a letter on your behalf and demand the required action, products or services. If you think you are just one of many who have been scammed or defrauded in some way, you may have a class action.

 

5. Constitutional, Publishing and Publicity and Privacy Rights, Internet Law, Advertising and Media Law in La Quinta – Defamation includes both libel and slander. Anyone in the media or publishing or broadcast world or with a web site is at risk of a lawsuit for claims of defamation or false advertising However, constitutional law questions also arise in civil rights discrimination cases, discrimination in employment and a wide variety of other legal matters. If you have been disenfranchised or your constitutional rights abused in any matter or if you have been accused of abusing the rights of others, contact a La Quinta constitutional lawyer as soon as it occurs. If others seek to profit with the use of your name or image you also have a claim for damages.

 

6. Food and Wine Law, Hotel and Restaurant Law in La Quinta – Today, hotels, restaurants, nightclubs, bars and grocery stores face an ever increasing host of new regulations they never faced previously. From the usual licensing problems they face with the Department of Alcoholic Beverage Control for adherence to and violations of ABC rules, to new state regulations involving menus and calorie counts in fast food restaurants and new rules requiring groceries to show the country of origin in labels on most of their produce and meat. The worst case scenario today for an establishment serving alcohol, is to serve a minor alcohol who later dies in an auto accident. Such an establishment will need legal representation by a La Quinta food, alcohol and restaurant lawyer before the ABC as well as legal defense of civil lawsuits filed against it.

 

7. La Quinta Estate Planning, Wills and Trusts – The current estate tax in 2008 affects only people who die with an estate in excess of two million dollars. In 2009, that amount will increase to three and a half million dollars and in 2010, the estate tax is repealed. That’s the good news. If, however, the estate tax repeal is not extended by 2011, the estate tax will kick in again. The worse news is that in 2011, if the estate tax repeal is not extended, the estate tax will kick in at one million dollars. The current federal estate tax rate is a whopping 47 percent. That stays the same in 2009. But other current provisions in the tax code change or end in 2010. In light of this, it is more important than ever to hire a La Quinta estate planning lawyer to draft your will and evaluate the need for a living trust to avoid probate fees ensure your estate goes to the beneficiaries you want it to go to. If you don’t have a will or trust at death, the state will determine who gets your estate, but it will usually be your spouse and children, of if you have none, your closest relatives.

 

8. Water, Agricultural and Natural Resource Law in La Quinta – It is hoped by American farmers and meat producers that the new Country of Origin Labeling Law taking effect in groceries will cause food shoppers to seek meat and produce from the U.S. over food items from other countries. But it is the water shortage in California that has California farmers faced with dire consequences. In 2008, the California Governor formed a Water Bank to stave off mandatory water rationing, but if California has another dry winter, or more fires that draw upon California’s precious water reserves, or if the state legislature does not address the state’s delta environmental problems and expand the state’s water works, with a bill that has been tied up while the legislators haggled over a budget, rationing across the state could become a reality. If you have a water or agricultural issue, the time to call a La Quinta agricultural lawyer with knowledge in this areas is before the issue becomes critical.

 

9. Insurance Law, Bad Faith, Psychologist, Psychiatrist and Psychotherapist Defense in La Quinta – As insurance companies feel the pain of the stock market crash and face the reality of the value of their own investments decreasing, we expect to see insurance companies delaying settlements, and flirting with violations of the insurance bad faith statutes. As the public becomes more and more depressed with the sinking stock market, loss of jobs, reduced income and less enjoyment out of life, we also see the likelihood of greater use of psychiatrists, psychologists and psychotherapists. When claims are made against these professionals without justification, our La Quinta law firm stands ready to defend them

 

10. La Quinta Education Law and Child Accidents – A recent court ruling in California has given temporary relief to parents homeschooling their children. However, we still expect further court rulings to make guidelines that will govern when or under what circumstances homeschooling of children will be permitted in California. Children, as any parent knows, can be injured any time, anywhere. What should not happen is any injury to a child that is the result of the negligence of another. To that end, our La Quinta personal injury lawyers championed protection for children and convinced at least one court and encouraged other personal injury attorneys to do the same, to uphold a new tort for negligent endangerment of a child.

 

If you have a legal matter in La Quinta, Palm Springs, Palm Desert, Coachella, Rancho Mirage, Indio, Indian Wells, Cathedral City, Desert Hot Springs, Thermal, Yucca Valley, Joshua Tree, Twentynine Palms or anywhere in the Coachella Valley, our La Quinta law firm has the knowledge and resources to be your La Quinta Lawyers and your La Quinta Attorneys. Be sure to hire a Coachella Valley law firm with experience in Personal Injury, Car Accidents, Drownings, Brain Damage, Catastrophic Injuries, Wrongful Death, Business, Real Estate and Landlord Tenant Law, Homeowner Association Law, Construction, Trademarks, Patents, Corporations, Entertainment, Sports Law, Marketing, Advertising, Media, and Copyright Law, and who will endeavor to ensure that your rights are properly represented.

 

Additionally, if you have a legal matter which involves Environmental and Toxic Tort Law, Litigation, International, Shipping and Maritime Law, Employment, Election and Campaign Finance Law, Consumer Law and Class Actions, Constitutional, Publishing, Publicity, Privacy Rights, Internet Law, Advertising and Media Law, Food and Wine Law, Hotel and Restaurant Law, Estate Planning, Wills and Trusts, Water, Agricultural and Natural Resource Law, Insurance Law, Bad Faith and Psychiatrist and Psychotherapist Defense, Education Law or a Child Accident in La Quinta or anywhere in Southern California, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com  and learn how a La Quinta attorney from our offices can assist you.

How to Write a Law Essay

July 12th, 2009 at 08:56am Under Constitutional Law

How To Write a Law Essay

Law Essays require a certain style and format if they are to be written effectively.

Be Clear

As with most essays, it is critical to read and understand the question and be clear what you have been asked. This may sound obvious but all too often essays are given low marks because the question is not actually answered.

Identify Subject Matter

The first thing is to clarify the subject matter so that you identify the area of law that is being addressed.

Sometimes this will be obvious as when the question asks about the differences between an offer and an invitation to treat which will direct you towards the law of Contract.

However, sometimes the question is more obscure and this requires more effort in determining what the subject matter is and might involve looking at more than one area of the law. If a question asks about the terror laws, then this may well span human rights and constitutional law too.

Identify the Approach

This is absolutely vital when answering a question.

Often the essay will ask you to evaluate something; reflect on something; write a critique; discuss a particular statement; reflect on a judge’s particular statement in a case, or discuss the impact of a case on an area of law. If a question asks you to compare more than one thing, then you must identify the similarities and differences between them, and ideally reach a conclusion as to which one you think is preferable. If a question asks you to discuss something then you must study and comment on it from all viewpoints, and reach your own conclusion.

Prepare the Structure

The structure of the essay is extremely important.

If an essay exceeds 10,000 words, a contents page and chapter headings should be included and, even in shorter essays, it might be appropriate to set out chapter headings. Chapters are relevant where the answer straddles a wide area of law and addresses several areas. Chapters help focus both the writer and the reader on what is being discussed and maintain focus.

One major criticism of law essays is that they drift from the main topic and angle that they are meant to address, and the thread and point are lost.

Another criticism is that the writer tends to just list the legislation and discuss the topic without containing any incisive opinions of the writer. An introduction and conclusion should be included.

Sources

Make sure that your sources are current; this is vital because quite often questions are written which are impacted by recent changes or even proposed changes in the law. So a question on Control Orders should be looked at in the light of the proposed increase in detention periods and the impact on human rights.

Citation

The correct referencing should be used consistently throughout. It is vital to give credit when quoting someone else, otherwise the essay may be plagiarised. It is never acceptable to cut and paste from the internet. Neither should you copy directly from a book unless you give the appropriate credit. Copying huge sections, even if credit is given, will not be looked upon favourably. The examiner will be looking for the writer’s comments and own views and opinions, based on a sound interpretation of the law and thorough research.

The examiner will be looking to see that the writer has researched several resources.

References to case law must be relevant and illustrative. Remember to include a full bibliography.