Tuesday, November 13, 2007

Necessity & Concept of Law

Over the last few years, the waters have reversed their flow. The very essence of law is that it develops within society of its own vitality.

"The evil in this world has roots so vast and deep that law cannot be sufficient defence against it." (Del Vecchio)

For whilst lawmakers undoubtedly had influenced our society it is equally true that the society now demands greater influences on the application of law to ensure that justice is not only said but seen to be done, and that the balance needs to be addressed with a more even hand.

Thus Shu-hsiang wrote to the prime Minister of Cheng in 536 B.C. as follows:

"...Anciently, the early kings conducted their administering by deliberating on matters as they arose; they did not put their punishments and penalties into writing, fearing that this would create a contentiousness among the people which could not be checked. Therefore they used the principles of social rightness to keep the people in bounds, held together through their administrative procedures, maintaining good faith and presented them with benevolence.

"When the people know what penalties are, they lose their fear of authority and acquire a contentiousness which causes them to make their appeal to the written words of the laws...

"Today sir, you have built dykes and canals, set up an administration which evokes criticism and cast books of punishments. Is it not going to be difficult to bring tranquility to the people in this way?

"...As soon as people know the grounds on which to conduct disputation, they will reject the accepted ways of behavior and make their appeal to the written word, arguing to the last over the tip of an awl or knife. Disorderly litigations will multiply and bribery will become current. By the end of your era, Cheng will be ruined.

"I have heard it said that a state which is about to perish is sure to have many governmental regulations."

All contemporary evidence suggests, despite the blind faiths of politicians, that the way to the millennium is not likely to be paved with more statutory control and using it to oppress and suppress the citizens.

"If we could stand off from the world and view it at the moment, what would we see? Would we observe a society in the early infancy of man, or would we see already signs of degeneracy and decay?"

When power is assumed by a ruler, it still has an almost supernatural content; and then, by instinct, men realize that it must be tempered by wisdom. Wisdom seeks righteousness, and righteousness seeks certain stable values and principles. We aspire to justice, but the best we can contrive, and all we can hope from any legal system is to minimize injustice.

Legal rules, based on an instinctive respect for life, freedom, truth, fairness, harmony and justice, are at the core of all human law. Society, when faced with an extraordinary situation, must survive by finding a solution, or fall into anarchy.

(ref: R.H. Hickling; An Introduction to the Concept of Law in Malaysia, Pelanduk Publication, 2001)

Lord Denning's famous quote:

"... it's now an incoming tide flowing up the estuaries. It is now like a tidal wave bringing down our sea wall and flowing inland over our fields and houses - to the dismay of all."

1 comment:

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