July 15th, 2009 at 09:03am
Under DUI Law
A very unfortunately common problem that is found in the United States as well as the rest of the world it the problem of drunk driving. Driving under the influence or DUI as it is known in the U.S. is the act of driving a motor vehicle under the influence of alcohol or in inebriated condition. Driving under the influence is a fatal problem as well because 41 percent of total traffic deaths are caused by drunk drivers, and this is a very large number that should not exist at all.
And this is why DUI laws in the US have become extremely strict. For example, the California DUI offense laws have given way to approximately 200,000 DUI arrests every year. The California DUI offense law has enforced strict and stringent measures against people who have found to have a blood alcohol count of 0.08% or more.
California DUI offense laws are so strict that the state leads the nation in DUI arrests. These laws are meant to reduce the number of DUI cases. And victims and survivors of drunk-driving crashes have supported the California DUI offense law. It is crucial to have strict DUI Laws so that drunk drivers are not allowed to put the lives of others at risk
California DUI offense laws include specifics such as blood alcohol content level test, license suspension or revocation, checking of ignition interlocks device in the vehicle, field sobriety test to assess physical and mental alertness, and many others.
First time offenders charged under the DUI law could be sentenced to jail with minimum fine. However second offenses occurring within seven years of the first are dealt with more harsh law. It could be a minimum of ten days of jail and fines up to $10,000 and suspension of driving license for not less than three years. Similarly DUI schooling may also be recommended and this may range from 15 weeks to 18 months. And the state of California can also sale your vehicle or impound it with the proceeds going towards charity.
California DUI offense laws have severe criminal penalties based on the severity of the outcome of DUI related crash.
California DUI offense laws have changed over the years in order to curb the increasing number of deaths and injuries occurring due to DUI related accidents. California DUI offense laws have been argued to be unconstitutional in that by automatically finding drivers guilty, a person loses his or her right to have a trial by jury. However at the same time it has been argued to be ‘legal per se’. It is a very unfortunate fact that DUI accidents take an innocent life every thirty minutes, so it is argued that DUI laws should allow for impartial jury trials.
Based on the California DUI offense law, a person under the influence of alcohol is charged on two counts, a Vehicle Code section 23152(a) count, driving impaired by alcohol and 23152(b), driving above 0.08% blood alcohol content
Statistics have proved that since the enactment of the 0.08% blood alcohol count California DUI offense law, the DUI arrests have decreased by an assenting rate of 45%. And also the number of deaths and injuries has shown a 50 percent decrease. These are positive indications, which prove that to an extent, the imposition of fines and punishments has shown affirmative results.
By Law Article
July 15th, 2009 at 09:02am
Under Drunk Driving Law
“Mothers Against Drunk Driving (MADD) was founded in 1980 by Candy Lightner, whose daughter was tragically killed by a drunk driver who was a repeat offender. The goal of MADD was to reduce drunk driving traffic fatalities and the organization has been highly effective in raising public disapproval of drunk driving. The proportion of traffic fatalities that are alcohol-related has dropped dramatically, in part because of MADD’s good efforts. MADD is a single-issue non-profit anti-drunk driving organization in the United States and with a branch in Canada (see MADD Canada). MADD is based in the Dallas-Fort Worth Metroplex suburb of Irving, Texas.
MADD’s Goal: Is it Neo-Prohibitionist?
Mothers Against Drunk Driving stigmatizes light or moderate alcohol consumption, even when it isn’t associated with either being underage or driving. For example:
1. MADD sells a graphic showing two empty glasses of alcohol surrounded by the words assault, drowning, burns, rape and suicide.
2. MADD sells a graphic that equates beer with heroin by depicting a beer bottle as a drug syringe.
3. MADD sells a television ad insisting that “”if you think there’s a difference”" between heroin and alcohol, “”you’re dead wrong.”"
Mothers Against Drunk Driving has clearly become not simply anti-drunk driving or even anti-impaired driving, but anti-alcohol. MADD’s temperance orientation expresses itself in many ways, as seen in Is MADD Neo-Prohibitionist?
Mothers Against Drunk Driving (MADD) began with the admirable goal of reducing drunk driving traffic fatalities by educating the nation about the devastation caused by drunk drivers. For the first 15 years, this strategy paid off: MADD’s public relations campaigns played a key role in changing the nation’s attitude about drunk driving, resulting in a huge drop-off in drunk driving deaths. MADD was so successful that it reached its goal for 2000 (to reduce alcohol-related deaths by 20%) in 1997.
MADD’s campaign to make adult beverages more expensive through drastically increased taxes is another major tactic in their war on responsible drinking. MADD says these tax hikes are a way to reduce underage drinking — but lacks real evidence that taxes are more likely to reduce underage drinking than moderate consumption by responsible adults.
MADD founder Candy Lightner has broken ties with the group. In 2002, she told the Washington Times, “[MADD] has become far more neo-prohibitionist than I had ever wanted or envisioned … I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”
In the 1980s, MADD had success in helping change public attitudes and laws regarding driving under the influence (DUI). Since 1980 (the year Mothers Against Drunk Driving was founded), alcohol-related traffic fatalities have decreased by about 44 percent, from over 30,000 to under 17,000 and MADD has helped save over 300,000 lives.
”
By Law Article
July 15th, 2009 at 09:02am
Under Divorce Law
Residency
In order to file a divorce case in Hawaii, strong residency requirements should be met for the court to consider the case. The residency requirements Hawaii are: The partner filing a divorce must be living in Hawaii for at least three (3) months. Final divorce approval will be given only when one partner has been Hawaii resident for at least six (6) months. Parties should file a divorce in: (a) the judicial district where the applicant resides; or (b) the judicial district where the both partners last lived.
Documents required for filing divorce
Complaint for Divorce and Final Decree of Divorce – these are the vital documents required to initiate and finalize a divorce case.
Distribution of Property
Hawaii is considered as equitable distribution state, so according to laws, martial properly is divided equally among the parties. If the parties are unable to reach and conclusion about how to distribute property, then court will use three step process for appropriate distribution. First of all court will decide what property is marital. Second, according current real state value, court will determine a value of the marital property. In last, court will divide the marital property in an appropriate way, not necessarily equal, instead what is considered to be fair.
Change of Name or Restoration of name
After filing for a divorce case and if requested either party can restore it name to former name.
Mediation Counseling
The court can delay the case proceedings up to sixty (60) days and can ask the spouses to get appropriate counseling, if one of the spouses does not accept that there has been a severe or significant breakdown of the marriage.
Alimony
Hawaii courts can order permanent or temporary alimony during case proceeding if it feels it is appropriate. The court has the authority to award both spouse maintenance, for both (or anyone), for an unspecified period or a limited period.
Child Custody
Child custody (Joint or Shared) is getting more popular with the Hawaii courts. If parties request to have shared or joint custody, it will most likely be granted, in almost all cases. Joint or Sole custody can be awarded to both parents based on child’s best interests.
Child Support
To settle the problem of child support, both parents can get help from Hawaii court. The court will announce its own decision based on merit, financial situation, burden and other aspects of case.
Minnie Davidson is an experienced writer working as free lance for different companies, including Writing Services Company. Writing services company provides study aids for college and school students. You can visit website here:
College Term Papers
By Law Article
July 15th, 2009 at 09:02am
Under Uncategorized
When it comes time for a California labor attorney to choose which state or federal agency the California labor attorney should file a complaint with for harassment, discrimination, or retaliation on behalf of a client, and a California labor lawyer has a tough choice. Equally tough are the short statutes of limitation a labor lawyer in California has to file age discrimination complaints.
If you’ve been the victim of discrimination, harassment or retaliation in your employment in California, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.
Despite the economy and the current economic condition of the State of California, the Department of Fair Employment and Housing, the EEOC and the Department of Labor Standards Enforcement (DLSE) division of the Department of Industrial Relations still advise California labor attorneys that they have the resources to investigate complaints.
Employees who have signed arbitration agreements or who have received threats of legal action if they file a claim with any of these agencies should first contact a California labor lawyer but should also note that the State of California and the Federal Government generally will not recognize such restrictions on California and U.S. employees. Indeed, attempts to restrict employees from having government agencies investigate wrongdoing by employers may undergo severe scrutiny.
Generally, valid waivers of rights must specifically refer to the rights or claims that are being waived. They may not generally waive rights or claims that may arise in the future without additional language. And they must advise the individual in writing to consult an attorney before signing the waiver.
The position of the EEOC, for instance, is that even a valid waiver of rights by an employee does not affect the EEOC’s rights and responsibilities to enforce the law. While a valid arbitration agreement may require arbitration between an employee and an employer, it does not bar the EEOC from seeking judicial relief on behalf of an employee.
Indeed, retaliation against an employee after she reports harassment or discrimination by terminating the employee, and then a company’s further retaliation either by threatening legal action or by termination may constitutes a separate claim on top of the original claim for harassment or discrimination. Unfortunately, employees without the benefit of counsel from a California labor lawyer may be taken in by such threats.
Both the DFEH, the EEOC may handle a discrimination, harassment and retaliation claim and the DLSE/DIR’s Sacramento office which enforces retaliation laws, may act simultaneously, so long as the matters are timely filed with each agency within the appropriate statutes of limitations.
With the DFEH, once the employee or ex-employee makes an appointment to start the process, the wheels will begin turning but the statute of limitations is not tolled until a complaint is filed by the employee. With the EEOC, once the employee files an intake questionnaire and an affidavit describing the discrimination, the filing requirement will be met with the EEOC, after which the EEOC will notify the employer of the filed charge. After the EEOC receives the charge, they are obligated to conduct an investigation and they have the power to issue subpoenas in connection with their investigation. If the EEOC finds unlawful discrimination, they have the power to eliminate such unlawful practices. Even an enforceable agreement binding an employee to arbitrate disputes with the employer does not affect the EEOC’s power to sue the employer to enjoin further violations. Nor does it bar the EEOC from seeking victim-specific relief, including money damages.
If the EEOC is unable to secure a conciliation agreement with an employer within 30 days after a charge is filed, the EEOC may file a civil action against the employer and may seek temporary or permanent relief.
If the DFEH decides to pursue a matter themselves, they may issue an accusation and prosecute the claim before the Fair Employment and Housing Commission (FEHC). Like the EEOC, the DFEH has the power to issue subpoenas, take depositions and serve written interrogatories. If they find a violation, they will seek to eliminate it.
The DFEH has the authority to issue cease-and-desist orders, and to award reinstatement, backpay, front pay, emotional damages, and an administrative fine. The amount of that fine is determined by factors which include willful, intentional or purposeful conduct, refusal to prevent or eliminate discrimination, conscious disregard for the rights of employees, commission of unlawful conduct, intimidation or harassment, conduct without just cause or excuse and multiple violations of the FEHA.
While the amount awarded for emotional distress may not exceed $150,000 for each person, an additional amount of $150,000 may be awarded for intimidation. The FEHC may also award reasonable attorney fees, including expert witness fees to the prevailing party. However, the award to the prevailing party is discretionary and the courts generally do not require a losing plaintiff to pay the employer’s California labor attorney’s fees and costs.
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color, as well as national origin, sex and religion. It applies to employers with 15 or more individuals. It is unlawful for an employer to discriminate against any individual, even if that discrimination is prompted by the racially motivated actions of other employees.
Title VII prohibits offensive conduct that is unwelcome and offensive, and that is severe or pervasive. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Employers may not fire or otherwise retaliate against or take an adverse action against an individual for filing a charge of discrimination.
Adverse actions include an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Prohibited acts of retaliation can occur after termination and receive the same scrutiny by the DFEH whether they occur before or after termination.
Protected activities of employees include complaining to anyone about alleged discrimination against oneself or others, taking part in employment discrimination proceedings, and filing a charge of employment discrimination.
While the amount of damages that can be awarded for compensatory and punitive damages recoverable under Title VII go up to only $300,000 against companies with 501 or more employees, there are no such limits under the FEHA. Even under Title VII, damages for emotional distress may be awarded. Title VII specifically authorizes compensatory damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses.
Before the Civil Rights Act of 1991, neither compensatory nor punitive damages were recoverable under Title VII. By contrast, both types of damages were and are available under the FEHA. Punitive damages are also now available against nongovernmental entities under Title VII for cases of intentional employment discrimination, including cases proved by disparate treatment where the respondent engaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual. The standard is similar with the FEHA.
One of the recurring themes employers use to justify the termination of an employee they have harassed or discriminated against to California labor lawyers, is that the termination was part of a planned reduction in employees. However, under the law, even if good cause exists for a reduction in force, an employer’s decision to lay off certain employees while retaining others may be challenged by a California labor attorney under applicable anti-discrimination laws. A case involving just this situation receiving a great deal of national publicity involves the lay offs of a disproportionate number of women from Wall Street institutions.
Employers are bound by state laws that provide greater protection for employment than comparable federal laws, which is the reason most employment claims are filed with the FEHA.
When it comes to harassment and retaliation, the California constitution prohibits harassment based upon factors which include race, color, sex, national or ethnic origin. Discrimination based on physical or mental disability, marital status, a medical condition (including pregnancy and child birth) and sexual orientation is also prohibited. The FEHA also requires employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
With the DFEH, the interviewing consultant drafts a formal complaint. If the complaint is accepted for investigation, the complaint is also filed with the EEOC. After the DFEH issues an accusation, the DFEH may litigate the case in a public hearing before the Fair Employment and Housing Commission. If emotional distress damages or administrative fines are sought, the employee can have the case moved to a civil court. If the case is moved to court, the DFEH prosecutes, but the complainant is the real party in interest.
Government codes section 12965(b) requires that individuals must exhaust their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit. The DFEH, however, will accept requests for an immediate “right-to-sue-notice” from persons and from their California labor lawyers for clients who have decided to proceed in court. A DFEH complaint must be filed within one year from the last act of discrimination or you may lose your right to file a lawsuit.
Once a “right-to-sue-notice” is received from the DFEH, the employee has one year to file a civil lawsuit. Failure to do so may again cause you to lose your right to sue.
Common mistakes by harassment victims are not telling the person doing the harassment to stop, not documenting the harassment by that person, not reporting the harassment to your superiors, not making sure the employer is taking action to end the harassment, not obtaining medical or psychological help when needed, not realizing that retaliation is illegal, accepting the word of your employer that you do not have a case for harassment or discrimination, not filing a DFEH, EEOC or DLSE/DIR complaint within the time allowed, not having an attorney assess whether any arbitration agreement is binding, and not consulting with an attorney.
A complaint to the EEOC under Title VII of the Civil Rights Act of 1964 must be made within 180 days from the date of the incident. This period, however, is extended to 300 days if the employee also files a complaint with the DFEH. Complaints of discrimination commonly include discrimination based on race, color, religion, sex, national origin, age, handicap, sexual orientation and retaliation or reprisal. That time period, however, can be reduced to as little as 30 days after a complainant receives notice that a state agency such as the DFEH has terminated its processing of a charge. It is thus best to contact the EEOC immediately whenever discrimination is suspected because of its short statutes of limitations.
In addition, many governmental agencies require that for an employee or applicant for employment to preserve their rights under EEO laws, they must contact an EEO Counselor within 45 calendar days of the alleged discriminatory action. There are exceptions and grounds for extending this period, but neither a complainant nor his or her California labor attorney does not want to be in a position to be having to argue those grounds as the complaint may be deemed too late to be accepted.
Once a complaint is filed with the EEOC, if the EEOC finds substantial evidence of discrimination, it will file a lawsuit. If the EEOC does not find sufficient facts to support the complaint, it dismisses the complaint and issues a “right to sue” letter to the complaining party. A lawsuit must then be brought by the complaining party within 90 days of receiving the Right to Sue letter from the EEOC.
A much less publicized and less known agency, even among California labor attorneys in the State of California at which complaints for retaliation and discrimination can be filed is with the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR). An employee or job applicant alleging violation of any law under the jurisdiction of the Labor Commissioner must file a complaint with the DLSE within six months of the adverse action. Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, refusal to hire or promote and other actions. There are, however, some exceptions to the 6-month deadline, but again, it is best to file a complaint as soon as possible to ensure that it is timely.
Filing a complaint with the Labor Commissioner does not prevent a person or their California labor lawyer from filing a private lawsuit.
Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been the victim of harassment, discrimination or retaliation in your employment in California.
Finally, an employee or job applicant who alleges retaliation for having complained about a workplace health or safety issue has the right to file a concurrent complaint with the federal OSHA within 30 days of the occurrence of the adverse action.
By Law Article
July 15th, 2009 at 08:57am
Under Consumer Law
THE CONSUMER PROTECTION ACT, 1986, a basic focus-
The Consumer Protection Act, 1986 (68 of 1986) is a milestone in the history of socio-economic legislation in the country. The main objective of the new law is to provide for the better protection of the consumers unlike existing laws, which are punitive or preventive in nature. The Act intends to provide simple, speedy & inexpensive redresses to the consumer’s grievances.
In India various Acts intended to protect the consumers against different forms of exploitation were enacted, such as, the Indian Penal Code, I860; Indian Contract Act, 1872; Drugs Control Act, 1950; Industries (Development and Regulation) Act, 1951; Indian Standards Institution (certification marks) Act, 1952; Drug and Magic Remedies (Objectionable Advertisement) Acts, 1954; Prevention of Food Adulteration Act, 1954; Essential commodities Act, 1955; Trade and Merchandise Marks Act, 1958; Hire purchase Act, 1972; Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975; Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980: Essential commodities (Special Provisions) Act, 1981; Multi-State Cooperative Societies Act, 1984; Standard of Weights and Measures (Enforcement) Act, 1985; and Narcotic Drugs and Psychotropic Substances Act, 1985. Some significant consumer protection enactments of pre-independence time are the Sale of Goods Act, 1930; Agriculture Produce (Grading and Marketing) Act, 1837 and Drugs and Cosmetics Act, 1940.
The Consumer Protection Act is an alternative and cheapest remedy already available to the aggrieved persons/consumers by way of civil suit. In the complaint/appeal/petition submitted under the Act, a consumer is not required to pay any court fees or even process fee. Proceedings are summary in nature and endeavor is made to grant relief to the parties in the quickest possible time keeping in mind the spirit of the Act, which provides for disposal of the cases within possible time schedule prescribed under the Act.
Who is a Consumer?
A consumer is any person who buys any goods for a consideration and user of such goods where the use is with the approval of a buyer, any person who hires/avails of any service for a consideration & any beneficiary of such services, where such services are availed of with the approval of the person hiring the service. The consumer need not have made full payment. Goods mean any movable property and also include share, but do not include any actionable claims. Service of any description is covered under C.P.Act & includes Banking, financing, insurance, transport, processing, housing, construction, supply of electrical energy, entertainment, amusement, board and lodging, among others.
Who can file a complaint?
A complaint on a plain paper either handwritten or typed, can be filed by a consumer, a registered consumer organization, central or State Government & one or more consumers, where there are numerous consumers having the same interest. No stamp or court fee is needed.
Consumers can make complaints against which of the things?
A) Any unfair trade practice or restrictive trade practice adopted by the trader.
B) Defective goods.
C) Deficiency in service.
D) Excess price charged by the trader.
E) Unlawful goods sale, which is hazardous to life and safety when used.
Where to file a complaint?
The Consumer Protection Act has provided for a three tier system popularly known as “Consumer Courts” :-
A) District Forum: For claims up to Rs.20 lakhs.
B) State Commission: For claims above Rs.20 lakhs but less than Rs.1 crore.
C) National Commission: For claims above Rs. 1 crore.
The nature of complaint must be clearly mentioned as well as the relief sought by the consumer. It must be filed in quadruplicate in District Forum or State Commission (as the case may be) if there is only one opposite party. Otherwise, additional copies are required to be filed. Generally complaint should be decided within 90 days from the date of notice issued to the opposite party. Where a sample of any goods is required to be tested, a complaint is required to be disposed off within 150 days.
What are the reliefs available to consumers?
Consumer courts may grant one or more of the following reliefs:-
A) Repair of defective goods.
B) Replacement of defective goods.
C) Refund of price paid for the defective goods or service.
D) Removal of deficiency in service.
E) Refund of extra money charge.
F) Withdrawal of goods hazardous to life and safety.
G) Compensation for the loss or injury suffered by the consumer due to
negligence of the opposite party.
H) Adequate cost of filing and pursuing the complaint.
I) Grant of punitive damages.
What Is The Legislation That Ensures All These Rights?
It is the Consumer Protection Act, 1986. The act seeks to promote and protects the interest of consumers against deficiencies and defects in goods or services. It also seeks to secure the rights of a consumer against unfair or restrictive trade practices, which may be practiced by manufacturers and traders. There are various levels of ad judicatory authorities that are set up under the Act, which provide a forum for consumers to seek redressal of their grievances in an effective and simple manner.
What Are The Other Advantages To The Consumer Under This Law?
The consumer under this law is not required to deposit advalorem court fees, which earlier used to deter consumers from approaching the Courts. The rigors of court procedures have been dispensed with and replaced with simple procedures as compared to the normal courts, which helps in quicker redressal of grievances. The provisions of the Act are compensatory in nature.
So we can see that The Act has come as a panacea for consumers all over the country and has assumed the shape of practically the most important legislation enacted in the country during the last few years. It has become the vehicle for enabling people to secure speedy and in-expensive redressal of their grievances. With the enactment of this law, consumers now feel that they are in a position to declare âsellers be awareâ whereas previously the consumers were at the receiving end and generally told âbuyers be awareâ.
Subhojyoti Acharya is a 5TH & final Yr. student of B.A.LLB(Hons) in the prestigious Department of Law, Calcutta University, India. His career objective is to excel in the field of law and to become a part in this dynamic growth oriented profession and meet new challenges in life.
By Law Article
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.
Prateek Shanker Srivastava, Student, IInd Year, Dr RML National law University, Lucknow, U.P.
By Law Article
July 15th, 2009 at 08:56am
Under Construction Law
Despite the Department of Work and Pensions stating that fatalities have been cut since the 1970’s by two thirds; 250-300 construction site workers are still killed every year and 35 million working days are lost each year to occupational health issues. Showing the number of deaths and injury in the workplace remains at an alarming high number.
The main cause of accidents on construction sites are:
• Scaffolding Accidents
• Lifting equipment failure
• Welding accidents
• Trench Collapses
• Falls from roofs
• Crane Accidents
• Forklift truck accidents
• Electric Shock Injury
• Trench collapses
• Accident caused by fire or explosion
• Road Traffic Accident
• Compressed Gases Accidents
• Falls from ladders
• Unsafe safety harnesses
• Electrocutions
• Accidents from faulty machinery
• Power tool accidents
• Holes in flooring
You are six times more likely to be killed as a construction employee than an employee of any other occupation. Working at a construction site is one of the most dangerous occupations in the UK.
If you are injured on a construction site, you should take action as soon as possible, including:
• Reporting the accident immediately
• Seeking immediate medical treatment on site or go to a hospital or GP as soon as possible
• Obtaining names telephone numbers and addresses of any witnesses
• If possible make sure the accident scene is photographed
• Identify the main/principle contractor/s or subcontractors on the job site responsible your injury
• Do not make written statements or discuss you accident with anyone without first speaking to a qualified personal injury specialist.
There have been 2,800 fatalities in the last 25 years due to building and construction accidents. Employers have to, by law, protect their employees. Most building/construction workers do not realise that it is within their rights to ask supervisors for regular breaks when using heavy duty equipment. If you feel that equipment needs replacing or feel that health and safety hasn’t been properly addressed you should report it to your employer who can take the necessary steps to make the workplace more safe.
If employers fail to enforce health and safety, they can be left liable for compensation claims.
The workplace should be kept in a safe and tidy condition. Suitable workstations and chairs should be provided to employees and floors and corridors should be clean and free from hazards as well as doors and gates, nothing should become an unnecessary obstruction in the workplace that could become a danger to the employees that work there.
All employers are required by law to be provided with any safety wear they require to complete their jobs, such as goggles, hard hats, ear guards, dust masks, safety gloves, safety boots or high-visibility jackets.
Also by law, employees are to be highly trained in whatever task they have to undergo, such as operating a fork lift truck, manually handling heavy objects or operating any form of machinery.
If you are currently working in a construction job you should make sure that your employer has explained health and safety to you and that health and safety is being abided by in your place of work to prevent accidents from happening.
Helen Cox is the web master of Accident Consult, experts in
Construction Accident Claims
This article is free to republish provided this resource box remains intact.
By Law Article
July 15th, 2009 at 08:55am
Under Computer Law
The EPO define a computer implemented invention as an invention that works by using a computer, a computer network or other programmable apparatus. To qualify, the invention also needs to have one or more features which are “realised wholly or partly by means of a computer program”.
Before the European Patent Convention 1973, the implementation of the specific provisions relating to computer related inventions was generally left to the EPO, member states and national courts to resolve. It was felt that as technology developed a specific definition of what would qualify as a patentable invention could potentially restrict or omit emerging technologies. Also there was much disdain towards the US treatment of Software Patents and wariness about letting the practice infiltrate to Europe.
Finally, it was also widely believed that copyright and database right were sufficient protection for software code, and that allowing patenting of a computer program might lead to double protection, which would fall foul of competition laws.
While some countries grant patents for software, the patent practice in Europe requires an applicant to show their invention actually makes a contribution in a technical field.
The European Patent Convention 2000 (as amended), the legislative instrument governing the grant of European Patents at Art 52 (1) ‘Patentable Inventions’ states that “European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.” The section then lists a few groups of exclusions at Art 52 (2), namely:- (a) discoveries, scientific theories and mathematical methods; (b)aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; and (d) presentations of information. However, it goes on to include a clause that the subject matter relating to these exclusions shall be excluded from patentability “only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such”.
Over the years there has been much banging of heads about what the true meaning of the ‘…as such’ – especially because the EPO has not provided a clear indication as to what the words mean in relation to ‘computer programs’. The only explanation has been that for computer implemented inventions to be patentable, they must have technical effect/ character, and solve a technical problem, in addition to the other requirements of patentability. However, this simply begs the questions what is, or isn’t technical character and what is or isn’t a technical problem.
Case law is where one hopes to find the answers to these questions. However, the EPO has been somewhat inconsistent.
In Vicom/Computer-related Invention [1987] the EPO said that a claim directed to a technical process which is carried out under the control of a program (to be implemented in hardware or software) cannot be regarded as relating to a computer program as such as it is the application of the program for determining the sequence of steps in the process for which in effect protection is sought and that such a claim is allowable under art 52 of the EPC.
Then came Merrill Lynch’s Application [1989] establishing that there must be “some technical advance on the prior art in the form of a new result.” Although Vicom established that programs running on known hardware were patentable, many applications for such programs had been hopelessly unsuccessful.
Fujitsu’s Application [1996] was for a method of modelling crystal structures for designing inorganic compounds by manipulating the images of known structures, a process that had previously been done by linking bits of plastic. The examiner decided that the invention fell within the exclusions, being nothing more than a computer program and a method for performing a mental act. On Appeal to the High Court it was found that the invention was “in substance of a scheme or method for performing a mental act” The Court of Appeal dismissed the subsequent appeal that followed, concluding that the important question was whether the invention produced a technical contribution, not if it provided a new tool.
Thus, in the UK, computer implemented inventions are not patentable if they fall within the exclusions of the Patent Act 1977 Section 1(2), which has similar provisions to those of Art 52.
The current practice however comprises a ‘four step test’ that originates from the principles in Aerotel/ Macrossan’s case which involved a new automated method of acquiring the documents necessary to incorporate a company. It involved a user sitting at a computer and communicating with a remote server, answering questions. The four steps were:
(1) properly construe the claim
(2) identify the actual contribution;
(3) ask whether it falls solely within the excluded subject matter;
(4) check whether the actual or alleged contribution is actually technical in nature.
In comparison with the EPO’s approach, and in light of cases such as Astron Clinica Ltd {2008], the practice has been challenged and even dismissed as incorrect, especially because, some of the UK decisions have not been clear in identifying the technical contribution, or indeed what comprises technical character. Although some judges have tried to interpret the four step test as being in line with the EPO approach, the judgement in Macrossan’s also appears to reject the fundamental principles set out in other earlier judgements for example the Fujitsu’s Application, a judgement that suggest the UK Courts should seek guidance from the case law of the EPO.
On 22nd October 2008, the President of the European Patent Office (EPO), Alison Brimelow, made a referral to the Enlarged Board of Appeal (the EPO’s Supreme judiciary body) on several questions pertaining to the Patentability of Computer Implemented inventions. With patent applications for computer-based inventions experiencing the highest growth rate among all patent categories filed at the European Patent Office (EPO) over the past few years, it will be interesting to see what the response from the Enlarged Board of Appeal will be.
By Law Article
July 15th, 2009 at 08:54am
Under Civil Rights Law
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By Law Article
July 15th, 2009 at 08:54am
Under Child Custody
10 Steps To Help You Gain Child Custody If you are currently going through a divorce, one thing that is probably weighing heavily on your mind is how are you going to gain child custody? Well, I’m sure you already know that ultimately the end result will be determined by a judge’s decision. However, there certainly are steps you can take to help ensure that the results turn out as you are hoping for. In this article, I am going to list 10 steps to help you better your chances.1. If you are the one moving out, make sure that you find a safe living environment for you and your children. This is going to be a major factor that the judge will look at.2. If at all possible, try and stay in the same school district. 3. If your work schedule does not fit your child’s routine, ask your employer to adjust it or you may have to find another job with a schedule that does.4. Be sure to avoid cohabitation too early in a new relationship.5. In all aspects of your life, make a special effort during this time to find or keep stability.6. Even if you have decided to hire a lawyer, do your research and educate yourself on everything about the process of how to successfully gain child custody. 7. I know there is currently a lot of pressure on your part, but remember to put your child’s needs first over this battle.8. Do everything you can to not involve your child in the custody battle.9. Facilitate your ex spouse’s custody as much as possible.10. Be aware of your own limits and needs.Attempting to gain child custody can be a difficult and ugly process if you simply rely on your attorney and your ex spouse’s cooperation. Your child is what is at stake here, and it is absolutely essential that you do your own research and learn everything you can about how to win your child custody battle and what could also potentially jeopardize your case. Don’t take any chances! Learn about some of the most common mistakes parents make by visiting this website Gain Child Custody
Rin
By Law Article