B.A. LL.B. (Five Years) Sem 3 Political Science (State and Political Obligations) 2013 Dec Question Paper with Solutions

What law is

Law is a body of general rules of conduct made or recognised by the State and enforced by its power. Austin saw it as the command of a sovereign backed by a sanction. Holland defined it as "a general rule of external human action enforced by a sovereign political authority". Woodrow Wilson stressed its roots in society: law is "that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of Government".

Why we normally obey law

Most people obey most laws most of the time, without thinking about it. Several reasons work together.

1. Habit and inertia. People do what they have always done. Laski observed that people "obey the orders of government from inertia". Austin built his theory of sovereignty on this habit of obedience.
2. Deference and sympathy. People respect authority and want to do as their neighbours do. James Bryce listed indolence, deference, sympathy, reason and fear among the grounds of compliance.

Obedience is normal, not unconditional

The habit of obedience is a good thing, because without it no law could be enforced. But it is not blind. T. H. Green held that "the individual must indeed judge for himself whether a law is for the common good; but though he judge it not to be, he ought as a rule to obey it". The exceptions are rare: a law so unjust that conscience cannot accept it. Even then, thinkers from Thoreau to Gandhi held that resistance must be open and peaceful, and the penalty accepted. So we normally obey because we normally have good reason to, and the exceptions prove the rule.

The sources of law in detail

A source of law is where a rule gets its content or its binding force. The sources grew roughly in this order.

1. Custom. The oldest source. Wilson called custom "the earliest fountain of Law". A custom that is long, certain and reasonable may have the force of law. Example: the Hindu Marriage Act, 1955 defines custom and usage as rules "continuously and uniformly observed for a long time", and such customs can govern who may marry.

8. Delegated legislation. Rules, regulations and bye-laws made by the executive under the authority of an Act. Example: rules made under the Motor Vehicles Act.
9. International law. Treaties and customs of nations. Example: article 51(c) asks the State to "foster respect for international law and treaty obligations", and article 253 lets Parliament legislate to give effect to treaties.

How the source affects why we obey

The reasons for obedience change with the source.

1. Custom is obeyed mainly from habit: "it has always been done".
2. Religious law is obeyed from faith and reverence.
3. Legislation is obeyed because it was made by elected representatives, which is consent.
4. Judicial decisions are obeyed because of the authority and impartiality of courts.
5. Equity wins obedience because it appeals to the sense of justice.

In a modern State legislation and the Constitution dominate. So obedience increasingly rests on legality and consent rather than on habit and faith.

Two Indian cases

Sri Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458. The First Amendment of 1951 was challenged as a "law" that took away fundamental rights, contrary to article 13. The Supreme Court held that in article 13 "law" "must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in the exercise of constituent power". The case shows that legislation and the Constitution are distinct sources, of different rank. (Later decisions, beginning with Kesavananda Bharati in 1973, placed limits on the amending power itself.)

Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132. The appellants had been convicted by two District Judges whose appointments were later held void under article 233. The appellants argued that their convictions fell with the appointments. The Supreme Court held that the judges "were not usurpers or intruders but were persons who discharged the functions and duties of Judges under colour of lawful authority". Their judgments stood. The case shows why we obey the decisions of courts: certainty and public confidence require it.