Law and Justice

Posts Tagged ‘Constitution’

The word constitution is derived from the Latin constituere means an action of decreeing or ordaining. According to The Oxford English Dictionary (London, 1933, 2:876), “It is a decree, ordinance, law, regulation usually one made by a superior authority, civil or ecclesiastical.” In the broad sense, a Constitution is a body of rules governing the affairs of an organized group.

It is within the core of the Ismaili doctrine that the Imam guides his followers according to the developing conditions of time and society. This outlook is what made Ismailism fluid. Earlier, the traditional council, known as justi dealt the community affairs on good faith. Imam Sultan Muhammad Shah formed The First Ismailia Committee in 1900 in Karachi with a set of rules and abolished the working of the justi. The founder members of the Committee were Varas Ibrahim, Varas Basaria, Mukhi Muhammad Ali, Ali Ghulmani, Kamadia Rahmatullah Lutf Ali, Kamadia Talab, Mukhi Hashuani, Mukhi Ramzan, Ali Muhammad, Asani, Fakir Muhammad, Wali Muhammad and Mukhi Muhammad Ladha Sajan. Finally, the first Ismaili Council in Bombay, comprised of 20 members, came into existence on April 9, 1906 with Varas Ibrahim Muhammad Rawjee (1862-1911) as its first President and Alijah Ahmed Devji (1859-1925) as a Hon. Secretary. Varas Ibrahim Muhammad Rawjee ordained the Constitution of the Ismaili Council on March 4, 1910, whose draft was a splendid testimonial to his scholarly mind. Thus, the Constitutions for different areas of India with certain variations were prepared. It was confined to the workings of the Ismaili Councils in different areas, but was a milestone, which sought to lay the foundation of the progress of the community. The Ismaili Council was a peculiar mixture of a semi-judicial and semi-arbitration body. It was a judicial forum because its aim was to do justice. It was a arbitration board in the sense that it tried to give quick justice without stress of techanicalities and formalities.

In Africa, it would appears from a Civil Case no, 89 of 1894 in Zanzibar, vide Zanzibar Protectorate Law Reports (London, 1919, p. 46) by William Murison and S.S. Abrahams that adjudication of communual disputes rested in the hands of a traditional council (justi) of elders, who were considered authoritative as to the Ismaili customs. Imam Sultan Muhammad Shah was reported the need of the community rules during his first East African visit in 1899. On his second visit to East Africa, the Imam issued the first Ismaili Constitution on September 9, 1905 – a set of written rules and regulations, known as The Rules of the Shi’a Imamia Councils of the Continent of Africa. The Imam said, “I have framed rules and regulations for you, which are the token of my memory. If you follow it, you will acquire great benefit. I entrusted you these rules and regulations behind me as if my tongue, so follow it. If you violate the rules, it will mean you have cut my tongue” (Zanzibar, 17/9/1905). This Constitution foresaw a new administrative organization in the form of a hierarchy of councils; it also established rules for governing the personal relation in the community, especially with respect to marriage, divorce and inheritance. With the Constitution of 1905, the Ismaili community had proved itself capable of providing stability in the midst of an ever-changing and progressive community. Around the same time, the first Ismaili Council was founded in Zanzibar. This Constitution was not published in printed form until 1922 when it appeared in English and Gujrati, then in Germany. By the early 1920s, new centers of economic activity had appeared on mainland East Africa, where the Ismailis had gradually moved. Having lost its importance as the main commercial center of the region, Zanzibar had also ceased to be the seat of the Ismaili community. It was in recognition of these changes, the Imam revised the first Constitution in 1914, 1925 and 1937, instituting separate central councils in the three territories of Tanganyika, Kenya and Uganda. The original council in Zanzibar continued for some time to co-ordinate the activities of the Territorial Councils in matters of common interest. These central functions were later delegated to a Supreme Council, separate from the council in Zanzibar. During the final three decades of the Imam’s Imamate, the hierarchical system of councils, with its subsidiary bodies, was further developed on the basis of periodical revisions of the Constitution for the East African jamats; the revision occurring in 1937 with the formation of the Executive Council for Africa, Ismailia Supreme Council for Africa, Provincial and Local Councils. It was further revised in 1946 under the title of Constitution, Rules and Regulations of His Highness the Aga Khan Ismailia Councils for Africa. The Constitution was again revised in 1954 after the Imam had called a special conference of the East African councilors at Evian in July, 1952 for making necessary amendments in the existing Constitution of the councils. It however remained in force until 1962 when they all were revoked and replaced by The Constitution of the Shi’a Imami Ismailis in Africa. This Constitution was ordained on the 26th of June, 1962 and came into operation on the 11th of July of the same year. It remained operative for 25 years. Accordingly, the administrative hierarchy was headed, after the Imam, by a Supreme Council for Africa, an international body that directed, supervised and co-ordinated the activities of the three Territorial Councils. The Supreme Council, with its changing headquarters in Nairobi and other major cities of East Africa, was also empowered to act as judicial tribunal of the second degree, the highest judicial authority being the Imam himself. The 1962 Constitution also established an Executive Council for Africa with the main function of allocating funds to various organizations. It was once again amended in 1974 to meet the new demands in the society. The constitutional revision was more than anything else an attempt to coordinate local interests as the Ismaili society became more complex.

When India was partitioned in 1947, a separate but still similar Constitution and council system was developed for Pakistan. On March 21, 1961, the Ismailia Federal Council for Pakistan came into existence. Another Constitution was put into effect for the Ismailis of Pakistan on July 11, 1962.. On the basis of the Constitution of 1962 for Pakistan, each Supreme Council was responsible for supervising the activities of some of the 23 Divisional. District and Local Councils throughout the country.

In India, the Federal Council, located at Bombay directed the affairs of four Regional Council for Maharashtra, Gujrat, southern India and eastern India. At the bottom of the hierarchy, there were 28 Local Councils in India, for south Bombay, north Bombay, Jamnagar, Kutchh, Surat, Hyderabad, and so forth. On March 21, 1968, a third Constitution was promulgated in India. During his visit to India, the Imam said on February 23, 1969 in Bombay that, “Last year a new Constitution was introduced for my jamat of India. Many of you may not know that the earlier Constitution was dated 1946, that is for 22 years, our jamat implemented the same Constitution. It was my view, and it is my view, that circumstances have changed sufficiently so that a new Constitution should be introduced. If I have seen fit to introduce a new Constitution in 1968, this means that I may see fit to introduce a new Constitution in 1970, or 72, or 74. This means that no Constitution for our jamat is a firm, solid, immovable document. It is a document, which is created to assist the jamat to administer its affairs satisfactorily and in keeping with the times. Thus, I wish my spiritual children to understand that if through the implementation of this Constitution, it is found that certain matters could be better pharsed, could be amended, could be improved, the Constitution will be continuously amended. The Constitution of our jamat here in India, like in East Africa, like in Pakistan, is a living document and where it is not in keeping with the tradition of the jamat, or in keeping with what the times require, amendment will be introduced.”

The Constitutions of East Africa, Pakistan and India were alike in spirit, but differed in several points according to the different circumstances prevalent in these countries. This was explained by the Present Imam upon his sanctioning The Constitution of the Councils and Jamats of Shi’a Imami Ismaili Muslims of Pakistan that, “Look to the spirit and not the letter of the Constitution.”

On July 11, 1977, a Syrian delegation led by President al-Haek of the Syrian Council visited France. The Imam gave them a special message for the Syrian jamat, in which the Imam said, “On the occasion of Imamate Day, I will be introducing for formal application from now onwards, a new Constitution for my jamat in Syria. I believe this Constitution will assist in improving the administration of my jamat.”

The New Constitution of 1986

The Ismailis are spread in all over the world in different culture and society, and a need arose to ordain one universal Constitution applicable in common for all the Ismailis to improve the organizational structure of the institutions. In March, 1964, the Imam formed a Constitution Review Committee (CRC) under Wazir Anil Ishani (Convenor) with the members, Wazir Mohammad Jaffar, Wazir Ashiqali Hussain, Wazir Abdul Mohammad Furniturewala, Wazir Amirali Rahimtoola, Wazir Zaher Ahmed, Wazir Amir Bhatia, Wazir Zool Nimji and Huzur Mukhi Mahmood Ahmed. The CRC started its working in April, 1984 with a number of field visits in different countries. It submitted reports of its working regularly to the Imam after firs discussing them with the jamati leaders and group of the Imam’s secretariat at Aiglemont. CRC had ten meetings with the Imam, culminating on December 13, 1986, the 50th Salgirah of the Imam with the ordaining ceremony at Merimont, Imam’s secretariat in Geneva. The members of the Imam’s family, including Begum Salimah, Princess Tajudawla, Mata Salamat, Prince Amyn Muhammad and Princess Zahra were present in Geneva during this historical ceremony. The members of CRC and those members from the secretariat at Aiglemont also participated. At 11.00 a.m., the Imam ordained, signed and sealed The Constitution of the Shi’a Imami Ismaili Muslims.

Before the ceremony, the Imam sent his message to the jamat on December 10, 1986, and said, “On the 13th December, I will ordain a new Ismaili Constitution, which will be known as The Constitution of the Shi’a Imami Ismaili Muslims. The Ismaili Constitution will be applicable throughout the world, linking all members of my jamat wherever they are to the Imamate. Islam is a community of faith and throughout the 1400 years of our history, our jamat has lived by the rules and practice of our tariqah as a frontierless brotherhood of men and women. The permanent bond, linking the murid to the Imam and subsisting irrespective of the geographical location of the individual murid, has been and will continue to remain the cornerstone of our jamat’s identity. In our tariqah, the Imam of the Time has always concerned himself with the spiritual advancement as well as with the improvement of the quality of life of the jamat. In this century, in accordance with the needs of the time, my grandfather gave during his Imamate, and I have given in the past 30 years, Constitutions to the jamat in different areas of the world. The ordaining of this Constitution has been preceded by detailed examination of the existing separate Constitutions of the jamat, all of which will be superseded, when the Rules and Regulations applicable to the respective countries come into force. I have recognized that in view of the change in the demography of the jamat, it is necessary to establish new councils and for the same reason to discontinue others. This has been done. In providing the new Constitutional structure, I have also taken account of recent significant developments, such as the increasingly international dimension of the jamat’s settlement and especially my aspiration for the jamat to play an even more active part than in the past in the mainstream of life in the societies in which it lives.” The Imam also said, “It is my belief that the Ismaili Constitution will provide a strong institutional and organizational framework through which my jamat will be able to contribute to the harmonies development of the ummah and of the societies in which the jamat lives.” Besides, the Imam said, “The Ismaili Constitution recognizes and addresses many of the jamat’s present and future needs, but it is to be expected that some adjustment will need to be made in the practical application of the Constitution to meet local circumstances. These adjustment will be made on a case by case basis, in the rules and regulations which will be provided in respect of each country. I am confident that the Ismaili Constitution will give stronger integrated identity to my jamat worldwide, and that in abiding by it in letter and spirit, the jamat will achieve greater peace, unity, happiness, security and well-being.”

The New Constitution is a single unified paramount constitution, which applies to all Ismailis wherever domiciled or resident and superseded constitutions applicable to Ismailis in different countries. The jamat in individual countries, however, have their own rules and regulations by virtue of the Constitution, which makes detailed provisions for their governance and their institutions.

The Preamble to the new Constitution affirms all the fundamental Islamic beliefs and then clearly focuses on the doctrine of the Imamate. It sets out the essence of the Ismaili beliefs as Shi’a Imami Ismaili Muslims who affirm the Shahadah and that the Prophet Muhammad (peace be on him) is the last and final Prophet of God, and that Islam, as revealed in the Koran, is the final message of God to mankind, and is universal and eternal. The Preamble states the authority of the Imam in the Ismaili tariqah and that allegiance to the Imam unites all Ismaili Muslims worldwide in their loyalty, devotion and obedience to the Imam within the Islamic concept of universal brotherhood. It further states that from the time of Ali bin Abu Talib, the Imams have given rules of conduct and constitutions in conformity with the Islamic concepts of unity, brotherhood, justice, tolerance and goodwill.

Complete at Source:

http://www.ismaili-net.com/modules.php?name=Encyclopedia&op=content&tid=252

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If you’ve read it, you may have noticed that the U.S. Constitution, in designating how representatives were to be apportioned by population, excluded “untaxed” Indians, and counted each black slave as three fifths of a person. That’s in the first couple paragraphs, by the way. Fortunately it was changed when the 14th amendment was ratified.

Obviously the writers had the prejudices of the times they lived in. The lesson here is that we cannot create a perfect constitution that will stand the test of time. To think so is to think we have nothing to learn. Any document that is so important will need to be changed as we learn more and progress in our political and moral ideas.

Of course it could be dangerous to create an entirely new constitution, given the politics that would go into writing and ratifying it. Still, if we were to do so, what should it include? I can think of many changes that I would like to see, including an electoral process that is less based on geography and more on citizens political beliefs. In such a system, representatives would be elected not by districts but by voters across the country who share common political causes or goals.

But apart from the specific provisions throughout a new constitution, there is one important change that I would like to see right up front: A declaration of purpose and intent. The current document governing the United States is vague enough that there are many “gray” areas. The result is laws that may or may not be unconstitutional, based on differing interpretations. Differing interpretations are inevitable to some extent, but a clearer statement of purpose would resolve much of the confusion. An example follows.

A New Constitution – Preamble

“The government of the United States has only the powers specified in this constitution, and may not do anything which is not explicitly authorized by this document. The intent of this document is to protect the rights of individuals within the country, both citizens and all others, and that is the only valid purpose of government. When the United States government acts outside its borders, it must still act in accordance with this constitution, and refrain from violating the rights of individuals. This is in recognition that rights are not a gift of government, or an earned privilege, but are inherent in every human being.”

The idea here is to state plainly what the intent of the constitution is and what the proper purpose of the government is. This makes it much easier to determine when a law is allowable or unconstitutional. Combined with the clear enumeration of powers laid out in the rest of the document, there would be much less room for mis-interpretation than there currently is.

It also makes it clear that rights are not a matter of citizenship. Any and all who are within the jurisdiction of the government are to have their rights respected and protected. Also, the government cannot violate an individual’s rights just because that person is not within the borders of the country.

Finally, this preamble states that government power is limited. The current United States Constitution is supposed to do this as well, but is vague in many ways. A new constitution should state plainly what the government is allowed to do, and should require that all new laws specify the constitutional clause that authorizes them. This will prevent much of our useless legislation, and help prevent an abuse of power on the part of the government.

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A constitution is the supreme law of a free country. It is the system by which a government of a country functions. Constitution of India was adopted in the in the constituent assembly on 26th November 1949. It is document that contains set of instructions and policies that a government in power of India must follow. Indian constitution came into force on 26th January 1950, the republic day of India, defining India as a republic union of states. Indian constitution also defines the fundamental rights, directive principles and fundamental duties of a citizen of India. Constitution of India declared India as a state to be sovereign, democratic republic but later in the amendment of constitution of 1976 the India was added to be a socialist and secular state.

The constitution of India is the longest written official book than any other of an independent country. Indian constitution is considered the best constitution that an independent country has in the world. It is a well drafted book that is a result of research of years. India is still a young independent country and hence the makes of India constitution have adopted several effective articles and laws from different constitutions of other countries. It has given a permeable that is just a complete crux about it. Preamble of India is again considered the best in the world. It contains 22 sections including 395 articles, 12 schedules and 83 amendments.

The committee that drafted the constitution of India was headed by Dr. B.R. Ambedkar and other six members as Jahwahar Lal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee. All these members were great politicians and major scholars of India. Indian constitution is written in the hand writing of Dr. Ambedkar.

Indian constitution is the best official draft one must read to know how a democratic and independent republic nation works. It will provide a deep insight of the laws and principles that Indian government follows to run the union of India.

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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

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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:

To establish a test for valid law in the applicable legal system, To confer validity to everything else in the applicable legal system, and To unify the laws in the applicable legal system.

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.

Incoming search terms:

“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.

<b>David Barton Argues Against<br>

Separation of Church and State</b>

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.

<b>Thesis Is Flawed</b>

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.

<b>Innocuous Civil Religion</b>

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.

In 1966, Lyndon B. Johnson lauded that “it is the genius of our Constitution that under its shelter of enduring institutions and rooted principles there is ample room for the rich fertility of American political invention.” This leeway for “political invention” is what makes the US Constitution a living document, since not only do its contents change with the years, but also its interpretation.

Of the over 8,000 words in the Constitution today, only about 4,500 of them are from the original 1787 document. The first ten amendments, known as the Bill of Rights, weren’t added to the Constitution until 1791 and an additional seventeen have since been added. That being said, the fact that the US Constitution is not only the supreme law of the land, but also an extremely powerful symbol of America makes it extremely difficult to know when, why, and how to amend the dang thing.

In 1856, Abraham Lincoln – the go-to president for great quotes and warm, fatherly feelings – warned: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” Which is more than a little ironic coming from a guy who not only suspended the writ of habeas corpus (which protects citizens against illegal imprisonment) just five years later, but also added the 13th Amendment to the Constitution during his short presidency. Lincoln clearly didn’t believe that maintaining the integrity of the Constitution meant serenading it to the tune of “Don’t Go Changin’.”

This opens up the nasty can of worms that is the letter of the law vs. the spirit of the law. Those who interpret the Constitution strictly argue that it was written by some of the brightest and best minds in American history, who thought long and hard about their exact word choice so that future generations wouldn’t have to. Those in favor of a more elastic interpretation, however, cite the document’s various instances of “historical flavor” to argue that the Constitution must be interpreted in accordance with the times; for instance, up until it was stricken from the document after the Civil War, part of Article I Section 2 of the Constitution referred to a slave as 3/5 of a person for census-taking purposes.

Of all the amendments added to the Constitution, only one was ever considered a bad enough idea to merit annulment. Passed in 1917 after years of hard campaigning by the temperance movement, the 18th Amendment legalized prohibition nationwide. Not only was the ban on alcohol completely ineffective, but it actually fueled a powerful underworld of crime and bootlegging (à la Great Gatsby) that give rise to mafia criminals such as Al Capone. Nevertheless, it took over 14 years before the 18th Amendment was repealed via the 21st Amendment.

In general, the more contentious parts of the Constitution are altered not through sweeping written changes, but through differences in interpretation. In 1907, New York mayor and future Supreme Court Justice Charles Evans Hughes famously said that “the Constitution is what the judges say it is.” Pretty hard to argue with, considering the historical context; since the 1880’s, the Supreme Court had been interpreting the word “people” in the Equal Protection clause of the 14th Amendment to include corporations, thereby severely restricting the government’s ability to regulate the abuses of big business.

The Supreme Court’s huge influence over constitutional law is the reason why all Supreme Court nominations undergo such harsh and prolonged scrutiny before being accepted to the bench. Perhaps Supreme Court Justice Hugo Black best expressed our ongoing concern over judges when he insisted in 1970 that the “Constitution was not written in the sands to be washed away by each wave of new judges.”

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.