What are the factors responsible for disobedience of law? Give your suggestions in this regard.

PAPER – I

UNIT – II

I) Q. What are the factors responsible for disobedience of law?  Give your suggestions in

this regard.

In every society, law is an instrument to administer the chaotic atmosphere.  Some

legislation are based upon customary approach and some are upon analytical approach.  In spite

of the fact that legislations are being passed by the parliament, there is disobedience of law in

some concerned quarters.  The every first problem is created by custom in matrimonial disputes

and in succession.  Some tribes denied to obey the codified law by pleading that they are bound

by customs.

FACTORS RESPONSIBLE FOR DISOBEDIENCE OF LAW

1. Laws, which are inconsistent to customs:-  No doubt, all legislations are for

betterment of society and is based on customs.  In fact, sometimes during the

enactment of legislations some customs are ignored in totality later on these

customs create problems and lead the society towards disobedience of particular

law.

2. Customs vis-à-vis personal Law:-  It is a settled position that –

a) When custom is alleged and proved, then the custom is the governing rule.

b) When custom is alleged, is not proved, or when no custom is alleged, the personal law is

the governing rule.

In Ujagar Singh vs. Jeo, (1960)SCJ 16, the Supreme Court observed that when a party

who relies on custom fails to prove it, there the rule of decision must be the personal law of

parties. This is an established preposition of law that when no custom on either side is

established, the personal law of the parties applies.

3. Custom: The first rule of decision:-  In India, their personal laws governs each

community. Hindu Law has all along recognized that a valid custom overrides the

sacred law.

4. Age: - Under customary Hindu and Muslim laws, marriage of minors has been valid.

The Child Marriage Restraint(Amendment) Act, prescribes marriage age of 21 years

for male and 18 years for female.  In some tribes there is disobedience of this law,

because customs are still valid despite having legal provisions.

5. Ceremonies of marriage: -  Marriage under customary law may be solemnized in

three modes – whichever mode is  recognized by the custom of the tribe or case.

Firstly, the religious sacramental ceremonies are required to be performed on the

higher classes of Hindus when they perform a regular or normal marriage.

Secondly, some formal and secular ceremonies are required to be performed on

some tribes for the performance of a normal and regular marriage –included the

Muslim tribes.  Thirdly, no ceremonies are required to be performed in some tribes,

mere intention to live together as husband and wife followed by cohabitation is

enough.  Such marriages are usual in the lower cases.  This is particularly true when

an informal marriage like the ‘karewa’or the ‘Chadar-andazi’ is entered into.  In such

marriages even among the high case Hindus, no formal ceremonies, religious or

otherwise are required.

6. Customs prevails over Law:- The child marriage is still prevailing among Hindus and

Muslims despite the enactment of the Child Marriage(Restraint) Act.  Similarly,

despite the enactment of Dowry Prohibition Act, menace of dowry is still prevailing.

Reasons for this is the customs of the Hindus and Muslims.  Execution of laws are

impossible where customs are in practice.

7. Marriages:- Strictly, speaking there are no forms of marriage under customary law

as we talk of them under Hindu law.  Different tribes follows formalities for the

performance of their marriages.  There are two forms of marriage in which no

formalities are required, i.e., ‘Karewa marriage’ and ‘ Chader-andazi marriage’.

Karewa marriage’ is essentially a marriage by mutual consent  without the performance

of any ceremonies whatsoever.  Thus, among Jat tribes when a man takes the wife of his

deceased brother into his house without any marriage ceremony, and she bears him

children, such children are accepted as legitimate and all respects.  In Kaur v. Sawan Singh, a

marriage of a Jat with a Kori (low case tribe) woman in Karewa form was held valid.  Among

the low caste Hindus the Karewa marriage is very common.

 ‘Chader-andazi marriage’ in this form the ceremonial has been reduced to the very

minimum and is one of the recognized forms of marriage.  A ‘karewa’ among the jats usually

takes place in the ‘chader-andazi’ form which means throwing of sheet over the couple

about to be married.

8. Dowry Prohibition Act, 1961: Customs plays a vital role and dowry is termed as

Daan to Kanya. Provisions of Dowry Prohibition Act, 1961 are not applicable and

even not accepted particularly in rural areas when both are agreed on giving and

taking dowry.  It is not feasible to execute law because by execution of legal

provisions harmony between husband and wife may be disturbed. So in case of

dowry still customs are prevailing and execution is not possible without the

cooperation of people.

9. Public opinion disregards: POTA 2002:-   POTA was enacted with the object to fight

against terrorism.  There is repulsion among society and some quarters are not

convinced with the POTA legislation because plenary powers are given to authorities

so that they can violate fundamental rights easily.  No doubt when legislation is

passed by parliament it is supreme but it is equally important to note that whether

public opinion is for legislation or not?  In circumstances, when there is lack of

public opinion executive fails some time to execute law properly.  So here it may be

said that for legislation public opinion is necessary.

10. Armed Forces Act Manipur: -   This Act was passed with the object to administer the

Manipur State properly because Manipur is disturbed State due to terrorism.  90%

population opposed it.  Despite having opposition, Central Govt. has rigid approach.

Due to this dispute there was chaos in the State.

11. Haryana Excise Act: - When Bansi Lal Government came to power in Haryana they

imposed Excise Act for prohibition on selling and consumption of liquor.  Maximum

public consumes liquor in Haryana and there  was huge loss to the State exchequer.

When public is accustomed to liquor, it is not feasible to implement the law on

prohibition of selling and consumption of liquor.

12. Procedural law restricts execution of law:- Since ancient times concept of privacy is

important.  In modern times, personal liberty embraced privacy in every aspect of

life.  In an important incident CISF security male staff stripped an American woman

at IGI Airport.  She alleged violation of privacy of a woman.  But at the same time, it

is equally important to maintain security of State and seizure is primary duty of

security staff.   Procedural law was enacted with the object that concept like privacy

and personal liberty should not be violated at any cost but these concepts are

different to statutory law and sometimes instead of harmony there is repugnance

between both.

13. Religion and Law:- The Supreme Court has observed that there should be a Uniform

Civil Code to govern different religions.  In Shah Bano case, the Supreme Court

interpreted Section 125 Cr.PC in favour of Muslim woman but due to strict

intervention of Muslim leaders the judgment was nullified by Muslim Women

Protection Act, 1986.  This shows that religion is supreme not the law.

14. Article 21 prevails over legislations:- Constitution of India is the grundnorm, the

legislation which is against the grundnorm is not constitutional.  In Maneka Gandhi

vs. UOI, the Supreme Court observed that law should be fair, just and justified.

After this decision, the interpretation of ‘process established by law’ had been

interpreted on the footing of due process of law of American constitution.  The

authorities cannot implement unfair and arbitrary laws.

15. Lack of publicity:-  When new legislation comes into force there is lack of publicity

of that particular law which creates problems.  The reason of ignorance of law leads

to disobedience of law.

Conclusion:- Framing of legislation is not difficult but the execution of law is difficult. For

execution of laws the major problem is of disobedience of law by the concerned people.  In

country like India, customs are prevalent in comparison to law particularly Family Law.  So,

somewhere customs are factors for disobedience of law and somewhere imposed

legislations by Government are responsible for disobedience of law.

THE ARBITRARY PRINCIPLE OR THE PRINCIPLE OF SYMPATHY AND ANTIPATHY

THE ARBITRARY PRINCIPLE OR

THE PRINCIPLE OF SYMPATHY AND ANTIPATHY

According to this Principle, things are approved or blamed by

sentiments, without giving any other reason for the decision

except the decision itself. This Principle is based on I love, I

hate. An action is judged to be good or bad, not because it is

conformable or the contrary, to the interests of those whom it

affects, but because it pleases or displeases him who judges.

He merely pronounces himself sovereign and admits no appeal.  He

does not feel obliged to justify  his opinion by any consideration

relative to the good of society, liberty, justice, power, commerce

religion, objects respectable in themselves, and which ought to enter

into the view of the legislator; but which too  often lead him astray,

because he regards them as ends, not as means. Therefore, a

wealthy government looks upon society as a workshop, regards men

only as productive machines and does not bother as to how much it

torments the people, though it makes them rich.  The government

does not feel concerned about a multitude of evils which it might

easily cure.  It expects to produce maximum means of enjoyment, but

puts obstacles in the way of enjoying. Some governments consider

power and glory as the sole means of public good.

Sometimes the principle of sympathy and antipathy coincide,

the principle of utility.  Man loves the thing which gives him benefit

and hates the thing which hurts him.  Therefore, from one edge of the

world to the another edge, acts beneficent or hurtful are regarded

with the same sentiments of approbation of dislike.   Morality and

jurisprudence led by this kind of instinct, have often reached the great

end of utility without having a clear idea of it.

The sole basis of action always surely good is the consideration

of utility.  Therefore, sympathy and antipathy must be subject to it.

But the principle of utility is its own regulator; admits none.

The ascetic principle attacks utility in front.  The principle of

sympathy neither rejects it nor admits it; it pays no attention to it; it

floats at hazard between good and evil.  The  ascetic principle is so

unreasonable,  that its most senseless followers have never

attempted to cart it out.  The principle of sympathy and antipathy

does not prevent its partisans from having recourse to the principle of

utility.  This last alone neither asks nor admits any exception.  Qui

non sub me contra me; that which is not under me is against me;

such is its mono.  According to this principle, to legislate is an affair of

observation and calculation; according  to the Ascetics, it s an affair

of fanaticism; according to the principle of sympathy and antipathy, it

is a matter of humour, of  imagination, of taste.

The principle of utility has penetrated from time to time into

laws, from its occasional alliance with the principle of sympathy

and antipathy.  The principle of utility has not been properly

followed by any legislator.  The ascetic principle, though embraced

with warmth by its partisans in their private conduct, has never had

much direct influence upon the operations of government.

John Stuart Mill agreed with Betham that “actions are right in

proportions as they tend to promote happiness; wrong  as they tend

to produce the reverse of happiness”.  He attempted on the other

hand, to defend utilitarianism against the reproach of coarse

hedonism by pointing out that human beings have faculties more

elevated than the animal appetites and do not regard anything as

happiness which does not include their gratification.   The conclusion

at which he arrived was that the pleasures of the intellect (such as the

enjoyment of art, poetry, literature, and music), the pleasures of the

feelings and imagination, as well as those of the moral sentiments,

must be assigned a much higher value than those of mere sanctions.

He also insisted that the utilitarian doctrine of happiness was altruistic

rather than egoistic, since its ideal was the happiness of all

concerned.” Bentham had spoken of justice in a deprecatory fashion

and had subordinated it completely to the dictates of utility.

LAW AND EXPECTATION

The idea of expectation plays a vital role in theory.  Bentham

has defined security as the paramount and of law in terms of

expectation. He says that without law, there is o security and without

security the values of subsistence, abundance, and equality cannot at

all the pursued through the law.  Security itself consist in the

maintenance of expectations.  Accordingly, the goodness of the laws

depends upon their conformity to general expectation.  The legislator

ought to be well acquainted with the progress of this expectation, in

order to act in concert with it.  This should be the end.

The question comes as to how to achieve this end?  Speaking

ideally laws should be “anterior to expectations.” Because some

expectations are anterior to law, the legislator ought to simply follow

them.  Bentham acknowledges that laws also create new

expectations.  While correlating law to expectation Bentham lays

down some conditions of a good law which strikingly anticipate the

requirements of what Loan Fuller enunciated as the “inner morality of

law”.  Bentham has insisted that the laws should be well known,

consistent, certain in execution, simple and literally enforced.

Therefore, the paramount requirement is that laws ought to be judged

by the principle of utility.  According to Bentham good law has the

function not merely of ministering to expectations but also the

function of exercising control over expectation.  Bentham insists that

the law should be know, consistent, methodical, certain of execution

and loyal in its interpretation to the expressed intention or will of the

legislator.

Bentham’s other prescriptions explicitly relate to legal system

as a whole.

Every man has his limited measure of under standing.  The

more complex the law is, the more it is above the faculties of a great

number. The law ought to be a manual of instruction for each

individual; and everyone should be enabled to consult it in doubtful

cases, without the aid of an interpreter.

It is relevant to stress that Bentham’s further counsel that laws

must be interpreted literally assumes in the first place the existence of

laws which are well conceived in the light of the above quoted

prescription.  Bentham stresses that when laws are knowable, judicial

interpretation  should have no other role than strict interpretation,

legislative one.  Bentham’s denunciation of activist interpretation by

judges has to be contextualized; it applies to only those laws in

particulars, and those legal systems as a only those laws in

particular, and those legal systems as a whole where people are

enables to understand the law even without an aid of an interpreter

on all necessary occasion.”  In such contexts, Bentham is right to

characterize an activist judge as a charlatan who astonishes the

spectators by making sweet and bitter run from the same cup.”

SUMMARY

Bentham’s theory of utility is an amazing achievement.  It has

established the superiority of legislation over natural law, custom and

the common law as a form of political action in the contemporary or

modern state.  The understanding of law by Bentham was his great

work.  The theory has tires to emancipate legislation from the

quicksand’s of prejudice and instinct.  He has tires to put the theory

on scientific basis through the principle of utility, basing it on

“sensations and experience.” The theory has identified the basic

principles of civil and penal laws with clarity.  The theory has

converted the law in such a way, no other work did.

He who is so lighted in his views, or a passionate in his ideas of

reform as to desire a revolt or bring about in established system in

general contempt, is unworthy to be heard at the tribunal of an

enlightened public.

The good which the law produces is universal; it is enjoyed

everyday and every moment.

Bentham’s theory of utility.

4) Q. The principle of utility has penetrated from time to time into laws, from its

occasional alliance with the principle of sympathy and antipathy?  In the light of this

discuss Bentham’s theory of utility.

Q. “The pain or pleasure, which is attached to a law from what is called its sanction”.

Bentham.  Critically examine the four classes of sanctions laid down by  Bentham.

Q.  What is principle of Utility?  What is its use in a penal legislation?  Explain by giving

specific examples.

Q.  What is the principle of sympathy and antipathy?  Explain.

1. INTRODUCTION.

Utilitarianism –a philosophical movement flourished in 19th century in

England and, converts to countries with English flavour. In England

legal positivism was ushered by Thomas Hobbes and then by Jeremy

Bentham. Both of them correlated law with sovereignty and utility.

Bentham destroyed and demolished natural law giving currency to

the concept of utility as the principle of the ‘greatest good of the

greatest number’ - has condemned law of nature as ‘nothing but a

phrase’ and Blockstonian natural rights as ‘non-sense’ and eulogized

the doctrine of utility by rejecting both natural law and subjective

values and replacing these by standards based on human

advantages, pleasures and satisfactions.  Bentham was a believer in

laissez-faire. His emphasis on reform and social welfare has made

him one of the creators of the welfare state.  Bentham’s analysis of

the law has to be approached through his theory of fictions, which in

modern terminology would be styled semantics.

A law as distinct from law was to him a real entity, and so was an act.

Rights and duties, on the other hand, were fictional.

Basically, Bentham was interested in law of reforms.

The science of legislation is a branch of morals,  being the principles

upon which man’s actions are to be directed to the greatest quantity

of possible happiness.  The greatest happiness of the greatest

number might, require the greatest misery of the few.  This is well

brought out in Bentham’s  scheme for prison reform by way of his

celebrated “Panopticon.”

UTILITY-ITS MEANING:-

By the principle of utility is meant that principle which approves

or disapproves of every action whatever, according to the tendency

which it appears to have to augment or diminish the happiness of the

party whose interest is in question. or, what is the same thing in other words, to

promote or to oppose that happiness. I say of every action whatsoever; and therefore not

only of every action of a private individual, but of every measure of government.

Bentham: The Principle of Utility, also known as the “the greatest happiness

principle” (a term which he borrowed from Hume), is the belief that the best course of

action is whatever causes the greatest happiness for the greatest number of people.

Utilitarianism is the belief that what is best for society is whatever creates the greatest

amount of happiness for the greatest number of people. According to Bentham, each and

every person in a society is morally obligated to do that which causes the greatest amount

of happiness for everyone in the society. The principle of utility says that good actions

are the ones that create the most of happiness for the greatest number of people.

          Nature has placed mankind under the governance of two sovereign masters, pain

and pleasure. It is for them alone to point out what we ought to do, as well as to

determine what we shall do. On the one hand the standard of right and wrong, on the

other the chain of causes and effects, are fastened to their throne. They govern us in all

we do, in all we say, in all we think: every effort we can make to throw off our

subjection, will serve but to demonstrate and confirm it. In words, a man may pretend to

abjure their empire: but in reality he will remain subject to it all the while. The principle

of utility  recognises this subjection, and assumes it for the foundation of that system, the

object of which is to rear the fabric of felicity by the hands of reason and of law. Systems

which attempt to question it, deal in sounds instead of sense, in caprice instead of reason,

in darkness instead of light.

By the principle of utility is meant that principle which approves or disapproves

of every action whatsoever, according to the tendency which it appears to have to

augment or diminish the happiness of the party whose interest is in question: or, what is

the same thing in other words, to promote or to oppose that happiness. I say of every

action whatsoever; and therefore not only of every action of a private individual, but of

every measure of government.

If that party should be a particular individual, then the principle

of utility is designed to promote his happiness; if it should be the

community, then the principle contemplates the happiness of the

community.

Bentham emphasized that community can have no interests

independent of the interests of the individual.  To him community

interest is “the sum of the interest of the several members who

compose it”.

What is the same thing in other words, ‘promote or to oppose

the happiness’.  I say of every action, not only of a private individual,

but of every measure of government.

The Benthamite legislator must strive to attain the four

goals:-

i. Subsistence;

ii. Abundance;

iii. Equality; and

iv.  security for the citizens.

“All the functions of law” said Benthan, “ may be referred

to these four heads. Of these four ends of legal regulation, security

was to him the principal and paramount one.  Security demands

that a man’s person, his honour, his property and his status be

protected, and his expectations,  insofar as the law itself had

produced them, be maintained.  Liberty must sometimes yield to a

consideration of general security, since laws cannot be made except

at the expense of liberty.

The public good ought to be the object of the legislator and

general utility ought to be the foundation of his reasoning.

  To know the true good of the community is what constitute the

science of legislation - finding the means to realize that good.

Nature has placed mankind under the governance of two

sovereign maters, pain and pleasure.  It is for them alone to point out

what we ought to do, as well as to determine what we shall do.  On

the one hand the standards of right and wrong, on the other the chain

of causes and effects, are fastened to their throne. In words a man

may pretend to abjure their umpire; but in reality he will remain

subject to it all while.  The principle of utility recognized this

subjection, and assumes it for the foundation of that system, the

object of which is to rear the fabric of felicity by the hands of reason

and of law.  Utility is an abstract term.  It expresses the property or

tendency of a thing to prevent some evil or to procure some good.

Evil is pain or the cause of pain.  Good is pleasure or the cause of

pleasure.  That which is confirmable to the augment the total sum of

his happiness of the individual that compose it.  By utility is meant

that property in any object, whereby, it tends to produce benefit,

advantage, pleasure, good or happiness or to prevent the happening

of mischief, pain evil or unhappiness to the party whose interest is

considered; if that party be the community in general, the happiness

of the community if a particular individual, then the happiness of that

individual.

SOURCES OF PAIN AND PLEASURE

The  business of the government, according to Bentham, was to

promote the happiness of the society by furthering the enjoyment of

pleasure and affording security against pain. “It is the greatest

happiness of the greatest number that is the measure of right and

wrong”. He was convinced that if the individuals composing the

society were happy and contended, the whole body politic would

enjoy happiness and prosperity.

1. Security is the sole end which the legislator ought to have in

view;

2. The four sources from which pleasure and pain are in use to

flow: i. physical, ii. the political, iii. the moral, iv. and the

religious. Pleasures and pains belonging to each of them are

capable of giving a binding force to any law or rule of conduct,

they may all of them be termed sanctions.

3. If it be in the present life, and from the ordinary course of

nature, not purposely modified by the interposition of the will of

any human being, nor by any extraordinary interposition of any

superior invisible being, that the pleasure or the pain takes

place or is expected, it may be said to issue from or to belong

to be physical sanction.

4. If at the hands of a particular person or set of persons in the

community, who under names correspondent to that of judge,

are chosen for the particular purpose of dispensing it, according

to the will of the sovereign or supreme ruling power in the state,

it may be said to issue front the political sanction.

5. Of at the hands of such chance persons in the community, as

the party in question may happen in the course of his life to

have concerns with, according to each man’s spontaneous

disposition, and not according to any settled or concerted rule,

it may be said to issue from the moral or popular sanction.

6. If from the immediate hands of a superior invisible being, either

in the present life, or in future, it may be said to issue from the

religious sanction.

7. Pleasures and pains which may be expected to issue from the

physical, political or moral sanctions, must all of them be

expected to be experienced, if ever, in the present life; those

which can be expected to issue from the religious sanctions

may be expected to be experienced either in the present life or

in a further.

LAW AND SANCTIONS

At the very beginning of the first Chapter of his work of Laws in

General Bentham gives his initial definition of a law.  He continues:

“taking this definition for the standard, it matters not whether the

expression of will in question, so as it have put the authority of the

sovereign to back it, were by his immediate conception, or only by a

adaptation.” To this he later adds: “A will or mandate may be said to

belong to a sovereign in the way of conception when  it was he

himself who issued it and who first issued it, in the words or other

signs in which it stands expressed: it may be said to be long to him by

adoption when the person from whom it immediately emanates is not

the sovereign himself…..

The mandate which the sovereign in question is supposed to

adopt may be either already issued, or not in the former case it may

be said to be his by susception; in the latter by pre-adoption.

Bentham was  aware of the artificial and unrealistic results which

would ensure if the sovereign or sovereign body were said

specifically to produce and promulgate all the “Commands” or

“Orders’ of which the content of the positive law of a state made up.

His exposition therefore includes the idea that the sovereign,

thought directly responsible for originating some of the positive

law, also takes over to adopts orders given by other.  In

particular, the notion of “Pre-adoption” in one perhaps rather

unrefined way of expressing the forward-looking or purposive aspect

of legal authority.

For Austin the sanction is a vital part of the idea of law.  He

lays great emphasis on the  close interrelation of three elements in

law, namely, “command” duty and sanction.  These  are

inseparably connected terms; each embraces the same idea as the

others.

Bentham’s account admits both punishments and rewards,

which he calls respectively “ coercive motives” and “alluring motives”.

Austin, however, refuses to allow the terms “sanction” to be extended

to cover rewards: “I think that this extension of the term is pregnant

with confusion and perplexity.  The difference of opinion between

these two jurists is attributable, not to a difference in interpretation of

the term sanction itself, but rather to the relative lack of concern

shown by Bentham with the element of sanction in his concept of law.

Bentham pays more attention, however, to sanctions while discussing

methods of enforcement  of laws at a later stage in his work.

Bentham has made the classification of sanctions.  Though

not original indeed it well regarded as highly derivative.  But this

analysis of correlation among the different types of sanctions, and

policy guidance arising from this, is highly original, deserving close

guidance arising from this, is highly original, deserving close

examination.  The notion of sanction itself poses no analytical

problem to Bentham-such is the power of the principle of utility.  The

pain or pleasure” he says, which is attached to a law form what is

called a sanction”.  Implicit in this definition is an answer to the

question whether reward can be properly regarded as sanction.  Nor

does Bentham, rightly find it compelling, as so many have done, to

distinguish between positive and negative sanctions, the one

corresponding, roughly, to reward and the other to punishment

deprivation etc.  Since pleasures and pains may be

distinguished into four classes-physical, moral, political,

religious the sanctions also subdivide themselves accordingly.

Pleasures and pains “which may be expected in the ordinary

course of nature, without human intervention, compose the

natural or physical sanction” the term without human intervention

makes this distinctive definition somewhat problematic as Bentham’s

own  example illustrates.  If a man’s house s destroyed by fire as a

consequence of his imprudence.  Bentham would call it a plain

of natural sanction.”  But imprudence is not to be found in the

“ordinary course of nature and does definitely constitute human

intervention.  What does then Bentham really mean by natural

sanction?  The answer must be that it is a pain or pleasure

arising directly out of an event or an occurrence, regardless of

the factors which might have caused or contributed to the

occurrence or the event.  In this sense, the destruction of the house

by fire is painful; it is an event, with its consequences (fire, therefore,

destruction) which arise out of the ordinary course of nature.  Human

intervention (fire fighting) any operate as a source of pleasure; but

once again the actual pleasure will be derived not so much from the

act of fire-extinguishment but from the fact that fire is extinguished or

controlled.  For Bentham, this too would be an instance of a natural

sanction.  Moral sanction are pains and pleasures “expected

from the action of our fellow-men” in terms of their spontaneous

dispositions towards us” whether the latter  be of friendship or

hatred” esteem or contempt.  Bentham designates this sanction

as popular sanction or the sanction of sympathy.  More

commonly, he later simply refers, to popular sanctions. It must not

be assumed carelessly that Bentham necessarily equals morality with

public opinion or honour or sympathy.  Popular sanctions may

indeed often be most profoundly immoral from a specific ethical

standpoint e.g.  ostracism for not observing segregation

between the whites and blacks or for violating social distance

based on the axis of pollution and purity, between a high-caste

Hindu and an “untouchable.”

Legal sanctions - pleasures and pains which can be

“expected from the action of the magistrate in virtue of the

laws”.  Bentham describes them alternately as “political

sanctions,” thus seizing the vital fact that legislative decisions are

also products of political processes- the action of a magistrate need

not consist merely of punishment in the strict sense.  It may cover

diverse activities-such as upholding a transaction, declaring a will

valid or void, providing matrimonial relief, etc.

Religious sanctions are distinctive from social or moral

sanctions in the sense that the orientation of the actor is not towards

another social actor as such but towards some supernatural entity,

even when made manifest through a human being.  Pleasures and

pains arising from the religious orientation are described by

Bentham as constituting religious sanctions.

Only a small number of laws in a legal system relate

directly to the application of sanctions, especially if the notion of

a sanction is to be defined, with Austin, as a chance a threat of

some evil or harm.  Type of legal rule which most nearly

approximates to Austin’s model is a rule of criminal law which

requires that certain physical or material action be annexed to certain

behaviors.  Even then, however, the other essential elements in

Austin’s notion of law render his account inadequate as a proper

explanation of both theory and practice.  Bentham’s account admits

both punishments and rewards, which he calls respectively “coercive

motives” and “alluring motives”.  Austin however, refuses to allow the

term sanction to be extended to cover rewards; “I think that this

extension of the term is pregnant with confusion and perplexity”.  The

difference of opinion between these two jurists is attributable, not to a

difference in interpretation of the term, itself, but rather to the relative

lack of concern shown by Bentham with the element of sanction in his

concept of law.  Bentham pays more attention, however, to sanctions

when discussing methods of enforcement of laws at a later stage in

his work.

THE ASCETIC PRINCIPLE

The Ascetic Principle is the opposite or contrary to that

which we have just discussed.  The follower of this Principle have a

honour of the pleasures.  They are of the view that the thing which

gratifies the senses is criminal.  They find morality upon privations,

and virtue upon the renouncement of one’s self.  Therefore, in other

words, the opposite of the partisans of utility.  The followers of this

Principle approve everything which tend to diminish enjoyment

and blame everything which tend to augment the enjoyment.

The followers of this principle can be divided into two classes of why

in other respects have scarce any resemblance, and who even affect

a mutual contempt.  The philosophers and the devotees are the

followers of this principles.

The ascetic philosophers, animated by the hope of applause,

have flattered themselves with the idea of seeming to raise above

humanity, by despising vulgar pleasures.  They want to be paid in

reputation and glory for all the sacrifices which they seem to make to

the severity of their maxims.  The ascetic devotes are foolish people,

torments by vain terrors.  They consider man as a degenerate being

who ought to punish himself without ceasing for the crime of being

born, and never to turn off his thoughts from that gulf of eternal

misery which is ready to open beneath his feet.  The philosophers

have confined themselves to censuring pleasure; the religious sects

have turned the infliction of plain into duty.

FUNDAMENTAL RIGHTS VIS-À-VIS LEGAL POSITIVISM AND UTILITARIANISM

2) CONSTITUTIONAL UTILITARIANISM, MODERN TRENDS

The Indian Constitution was drafted with a view to avoid pain and get pleasure for

all. Bentham demarcated the difference between pain and pleasure, so codification is

necessary for implementation of pleasure.  Part-III and Part-IV of Fundamental rights and

Directive Principles are examples of individualism and utilitarianism.  Constitution

embodies all assemblage of volition or declaration by the State to give pleasure to all.

The enactment of Article 14,16 and 21 are particularly based on pain and pleasure theory

of Bentham.

The constitution of India embodies democratic, liberal and socialistic ideals

synthesizing the rights of the individuals with egalitarian aspirations of the masses.

FUNDAMENTAL RIGHTS VIS-À-VIS LEGAL POSITIVISM AND

UTILITARIANISM

The spirit behind fundamental rights signify positivistic perception for such rights

being identifiable or  enforceable in cases of transgression of such fundamental rights

even by legislatures.  The Constitution of India is viewed by the courts as the Grundnorm

to which all the statures have to conform and the validity of all legislative and executive

processes has to be in accordance with this supreme  norm.  The courts have been treating

fundamental rights as binding, obligatory and limitation upon the powers of the

legislatures and the executive.

In India there has been enough controversy as to whether judiciary should remain

indifferent to political and social change or should the fundamental rights existing status

quo or fundamental rights of the individuals who are unequally placed in society with

laws that have tried to uphold the directive principles of state policy.  The judiciary

generally adopted a logical, legalistic, formal and rigid attitude that has naturally led

frequently to conflict between the courts and the Parliament.  The Supreme Court adopted

and developed its philosophy and postures trying to determine rigorously the phrase ‘ the

procedure established by law’ mean two things.  Negatively speaking it was a rejection of

the American doctrine of ‘due process of law’.  Positively it meant an emphasis on

legality – the enacted law of the legislature in its strict and logical sense divorced from

the social context.  Such interpretation can be termed as a kind of legal positivism or

what can be said as legal ‘objectivity’.  In a series of crucial decisions of the Indian

Supreme Court involving socio-economic justice have been largely influenced by this

kind of legal positivism.  Concept of legal positivism means positive law in codified

form. Bentham desired greatest happiness to an individual which could be possible by

recognizing and giving some rights to the people.  We may also conclude that Bentham

and Austin have advocated for principle of utility and sovereignty.  If we interpreted both

the views of jurists it can be said that without sovereignty there is no utility of the law or

there would be no pleasure to individuals.

Let us illustrate a few cases of the Supreme Court involving legal positivism,

State of Madras vs. Smt. Champakam 1951   SCR 525- in this case the Apex Court

refused to give a sociological interpretation to the Order of the Government which was

meant to serve the interest of the underprivileged.  This led to the Constitution(First

Amendment) Act, 1951.

In A.K. Gopalan v. State of Madras (1950) SCR 88- the Court interpreted the

term law in the positivist sense of Stateside law and not as equivalent of law in the

abstract or general sense.  This case has been characterized as the ‘high water mark of

legal positivism’.

In Golak Nath  AIR 1967 SC p. 1643, - the Court made a positivistic comment

and observed ‘ ..that the Parliament will have no power from the date of this decision to

amend any of the provisions of Part III so as to take away or abridge the fundamental

rights’.

While in the Champakam case 1951 and Qureshi’s case 1958, the Supreme Court

had laid down the supremacy of the Fundamental Rights over directive principles, the

Golak Nath decision in 1967 enunciated the doctrine of a free liberal society.

However, in Kesavananda Bharti case, the Supreme Court struck the need of a

harmonious accommodation between the Fundamental Rights and the Directive

principles.  It was only in this case that the directive principles underwent metamorphosis

and the court henceforth no longer opposed social change and social justice by

overreacting to the fundamental right. It is in this case that the court invented the basic

structure theory. Now, the true position is that every provisions of the Constitution can be

amended provided in the result, the basic foundation and structure of the Constitutuion

remains the same.

The Supreme Court in Fundamental Rights case made a clear balance between the

rights of the individual and the authority of the State.  The basic structure theory,

therefore, is the epitome of contemporary Indian jurisprudence.  It has been made amply

clear that the right to property is not a basic feature.   Finally, Kesavananda rejects the

Bentham –Austin axis of separation of law and morals and makes judges the citadel of

secularism, democracy and social justice.

Another aspect of Indian positivism is the draconian legislation passed by

Parliament from time to time to meet both internal and external aggression to public order

and security of India viz. the Preventive Detention Act, 1950, the Proclamation of

Emergency of 1975, the Maintenance of Internal Security Act, 1971, the National

Security Act, 1980 etc. –these were some of the instances which vest especially in the

executive wide powers by which it can impose restrictions on the enjoyment of

Fundamental Rights by forbidding recourse to courts for enforcing such rights which can

be described executive despotism.  Therefore, a claim to writ of habeas corpus being one

in the nature of enforcement of Article 21, a petition for such a right was not

maintainable so long as the right itself was suspended.

3.3 PERSONAL LIBERTY VIS-À-VIS LEGAL POSITIVISM UTILITARIANISM

Concept of legal positivism was propounded by Austin whereas the concept of

utilitarianism was propounded by Bentham.  According to legal positivism there should

be a codified law and the law is command of sovereign.  Bentham has also pleaded for

codification of laws.  But the basic difference between the two is that Bentham pleaded

for to get pleasure and avoid pain whereas Austin said Law is always a command.  Under

Article 21 – personal liberty – State can invade personal liberty according to process

established by law which means law made by the sovereign but on the other hand

personal liberty  is based on principle of utilitarianism; individualism.

Conclusion: Article 21 is the blending of both principle of Bentham as well s of

Austin.  Legal positivism is rigid in comparison to utilitarianism; individualism.  For

better society which is leaning towards personal liberty in every way there should be

harmonious construction between legal positivism and individual utilitarianism.

3) PRINIPLES OF PENAL CODE

The theory of legislation enunciates Bentham’s moral and legal philosophy;

namely utilitarianism.  These are a manual of instructions to a conscientious legislator

and are submerged with insights relevant, and often central to the sociology of law.

Bentham’s theory dealing with indirect means of preventing offence contains

seminal analysis and it is beginning of one aspect of theory of social control through the

law.  Why are such means necessary?  Bentham’s answer to this question is memorable.

“the penal system, though it may be made as perfect as possible, is defective in several

respects.  The system can come into operation only when an offence has been committed

not before that.  Every new instance of punishment, Bentham maintains is an additional

proof that punishment lacks efficacy.  …”  Moreover, punishment is itself an evil, though

necessary to prevent greater evils. Bentham lays bare the anticlimax of the penal system

as a means of social control.

Q. What is the object of punishment?  Discuss various principles of punishments

and kinds of punishment.

Object of punishment?: Punishment is a reaction to crime and a means of social

control.  Object of punishment is infliction of sufferings on the criminal provides a sense

of relief to the members of the society. Punishment involves the intentional infliction of

pain and/or the deprivation of rights and liberties

The purpose of punishment is to reduce crime

principles of punishments

The sociology of punishment seeks to understand why and how we punish;

the general justifying aim of punishment and the principle of distribution. Punishment

involves the intentional infliction of pain and/or the deprivation of rights and

liberties. Sociologists of punishment usually examine state-sanctioned acts in relation

to law-breaking; why, for instance, citizens give consent to the legitimation of acts of

violence.

Two of the most common political and ethical motivations for formal

punishment are utilitarianism and retributivism.

1. Retributivism

Retributivism covers all theories that justify punishment because the offender

deserves it. This is interpreted in two ways, either:

i.) a person must be punished because they deserve it, or

a person must not be punished unless they deserve it. Retributive theories usually put

forward that desert is a sufficient reason for punishment.

The main strands of retributivism are:

i.) Intrinsic Retribution: Offender deserves punishment because there is intrinsic good

in the guilty suffering.

ii) Lex Talionis: To restore the balance between offender and victim.

iii) Unfair Advantage Principle: To restore the balance by the imposition of extra

burdens on those who have taken over more than their fair share of benefits.

iv) Hegelian Retribution: Punishment annuls the wrong done.

v.) Liability: The offender had knowledge that he would be punished if he committed the

acts, and he therefore deserves punishment if he does it.

vi.) Social Contract Theory: We make a contract to give up certain rights in order for

other rights to be protected, when we break that contract we deserve to have our rights

taken away.

viii) Grievance Theory: The offender has caused a grievance for the victim, and the

punishment of the offender will satisfy the victim, and make up for that grievance.

The nature of desert means that the offender must be blameworthy and that an

offender deserves punishment simply because he has offended, and so his punishment

must relate to his wrongdoing. It can therefore be said to be backward-looking.

The theory of retributivism does propose a number of purposes of

punishment: to restore the balance), to openly and emphatically denounce crime, or to

provide satisfaction.

The principles of distribution can be derived from these purposes.

There are 3 main methods for deciding on punishment.

The first is that punishment should be equal or equivalent to the crime.

The second is that punishment should be in proportion to the harmfulness and

blameworthiness of an offender’s actions.

The third is that punishment should give satisfaction equal to the grievances caused.

[Critique of Retributivism

The above expalanations for deciding on punishment raise a few issues:

The idea of equal or equivalent punishment, however, proves to be impractical. How

can the equivalent of sexual assault be found in any current punishment?

To decide on punishment in terms of satisfaction in accordance with

grievances caused is also questionable. Honderich [1989:34] says that punishment is

not wholly justified and liberilized in terms of the offence, but provides “the contention

that a man’s punishment must provide satisfactions”. However if punishment is not

wholly dependent on the offence, but is in part to do with satisfaction, then it is in part,

consequentialist (and therefore not retributive).

The culpability principle is often used in deciding the punishment of

offenders. However there are large numbers of punishments handed down which do

not obey this principle. Particularly, this is the case where the harmfulness and

blameworthiness of offender’s actions are not proportionate to the punishment.

According to the retributivist explanation of punishment, two offences that have the same

punishment should be fairly similar in terms of the harmfulness and blameworthiness.

Therefore it can be seen that retributivist theories are not adequate to

explain why and how we punish.

2.  Utilitarianism

Utilitarianism, as the name suggests and tells, covers all theories that justify the

evil of punishment only when that punishment has some utility. It is therefore forward

looking, and consequentialist in nature, as it holds the belief that, ultimately, the only

morally significant features of an act are the good and bad consequences produced by it.

The word utility has been used to justify punishment in two different ways in

utilitarian writing:

Use: that punishment is only justified when it has some use – that is, preventing further

crime.

Value: that punishment is only justified when it is most conducive to the welfare of

society, that is, the value society gains from the punishment is more than the

disadvantages incurred by the offender.

However most utilitarians agree that not only must punishment have both use and

value, but also that there be no other solution that would deter as effectively with less

distress.

Most utilitarianists agree that there are three ways to reduce crime:

incapacitation, deterrence and reform.

There are 2 main types of prevention: specific and general prevention.

Specific prevention is aimed at the offender him/herself whilst general prevention is

aimed at the public in general.

utilitarian justification of punishment:

Firstly, utilitarianism allows for innocents to be punished. Secondly, the utilitarian

justification of punishment as an investment does not uphold the claim of punishment to

be “something more and other” than burdens such as quarantine, war, etc imposed by the

state.

Utilitarianism as a justification for punishment can be seen to fall under the

category of a Theory of the Good rather than a Theory of the Right.

 Critique of Utilitarianism

If utilitarian justifications of punishment were sound, then one would expect to find

certain conditions met by those who are punished. Looking specifically at imprisonment,

one would conclude that the people in our prisons are dangerous or have a long criminal

record (and are therefore in need of capacitation), that the amount of recidivism is low (as

offenders will have been deterred from committing future crimes) and that there will be

programs for rehabilitation and opportunities for reform in place.

Kinds of punishment:  Punishments under the IPC may be distributed in the following

heads:-

1. Capital punishment: -puts an immediate end to the life of the offender.  Law

Commission in its 35th report recommended that capital punishment should be

retained.

2. Afflictive punishments:- which provide corporal sufferings and create a

temporary effect such as flagellation, compulsory fasting etc.

3.  Indelible punishments: -produce a permanent effect upon the body such as

branding and amputation.

4. Ignominious punishments: - expose the offender to the contempt of spectators

and make him to looked upon as unworthy the society of his old friends.

5. Chronic punishments:- most ancient.  Object is to eliminate the criminal from

the society by sending them to far off and secluded place like Kala pani in British

rule.

6. Punishment simply restrictive: -impose restrictions on the offenders viz.

prohibition to exercise a certain profession or to visit a place.

7. Punishment simply compulsive: oblige a person to do something of which he

wishes to be exempted viz. direction of being present before an officer in a month.

8. Pecuniary punishment: - -depriving the offender of a sum of money or article or

property.

9. Quasi-pecuniary punishment:- depriving the offer of a kind of property

combined with some pecuniary profit.

10. Externment from a locality:- -offenders are externed from the locality. Viz. DP

Act sec. 47 and 48 are in vogue.

Justification of variety in punishments

A single punishment can never have all these qualities.  Therefore, it is necessary

to combine them to vary them or to assort them in order to fid the composition of our

need.

PRINCIPLES OF CIVIL CODE-FUNDAMENTAL PRINCIPLES OF LEGISLATION

PAPER - I

1) PRINCIPLES OF CIVIL CODE-

To study principles of Civil Code-1 and Civil Code-II. -to find out

principles which are used in formation of legislation.  The main

principle to be followed while legislation is framed, i.e. social unity

and security.  In every civil legislation, security is the fundamental

FUNDAMENTAL PRINCIPLES OF LEGISLATION

In the modern age liberty is an ideal which is accepted with

passionate devotion by the modern statesman as well as by the

common man.  From the ideal of liberty two fundamental principles

(ii) Solidarity of Society

Liberty

  N

n_________________________________________________n

Worth of mankind solidarity of Society

The first principle - principle of human worth.  In the

principle and practice of humility lies human worth -  Recognized in all

civilized countries. -treats the right to life as basic to all other rights.

The human worth makes the society worth living.

PURPOSE OF LEGISLATION

-must be to provide opportunities for the full realization of

human worth.   The constitutional guarantee for the protection of

human life is not limited to the mere protection of existence of human

life. The guarantee of right of life included all those incidents which

make human life living for oneself and meaningful for the society.

Therefore, the legislator has to strike a balance between right and

obligations.  Bentham has said:

“The legislator ought confer right with pleasure, since they are in

themselves a good, he ought of impose obligation with reluctance,

since they are in themselves an evil.  According to the principle of

utility, he ought never to impose a burden except for the purpose of

conferring a benefit of a clearly greater value.

By creating obligations, to some extent law trenches upon

liberty.  Acts which would otherwise be permitted and should be

unpunishable arc converted into offences.  The law creates an

offence either by a positive command or by a prohibition.

These retrenchments of liberty are inevitable. It is impossible to

create right to impose obligations, to protect the persons, life,

reputation, property, subsistence, liberty itself except a the expense

But every restriction imposed upon liberty is followed by natural

sentiment of pain, greater or lesser, and independently of an infinite

variety of inconveniences and sufferings which may result from the

particular manner of these restriction.  It follows, then , that no

restriction ought to be imposed, no power conferred, no coercive law

sanctioned, without a sufficient and specific reason.  There is always

a reason against every coercive law/a reason which in default of any

opposing reason will always be sufficient in itself, and that reason is,

that such a law is an attack upon liberty.

The proposition that every law is contrary to liberty, is not

generally acknowledged.  On the contrary, the friends of liberty who

are more ardent than enlightened, make it a duty of conscience to

combat this truth.  And how? They prevent language; they refuse to

employ the word liberty in its common acceptation; they speak a

tongue peculiar to themselves. Liberty consists in the right of doing

everything which is not injurious to another.  But is this the ordinary

sense of the word? Do we not say that it is necessary to take away

liberty from idiots and bad men, because they abuse it?

According to this definition, I an never know where I have the

liberty to do an action until I have examined all the consequences of

my action.  I my action is injurious even to a single individual even

though the law permits it, or perhaps commands it, I should not be at

Let us attempt to establish a series of true propositions on this

subject. The only object of government ought to be the greatest

possible happiness of the community.

The happiness of an individual is increased in proportion as his

sufferings are lighter and fewer, and his enjoyments greater and more

The principal function of government is to guard against pains.

It fulfils this object by creating rights, which it confers upon

individuals; rights to personal security, right to protection for honour,

rights to property, right to receiving aid in case of need.  To these

rights correspond offences of different kinds.  The law cannot create

rights except by creating corresponding obligation.  It cannot create

rights and obligations without crating offences.

If this principle is acted upon it is conducive to the happiness of

both the individual and the society.

While legislating the legislator must have in view the prime

objective of the happiness of the society.  According to Bentham

happiness of the society consists in subsistence, Abundance

Equality and Security.  He says:

“The more perfect enjoyment is in all these respects, the greater is

the sum of social happiness and especially of that happiness which

We may hence conclude that all the functions of law may

be referred to these four heads: 1. To provide subsistence, 2. to

produce abundance, 3. to favour equality 4. to maintain security.

Of these objects of the law, security is the only one which

necessarily embraces the future. Subsistence,  abundance, equality,

may be considered in relation to a single moment of present time; but

security implies a given extension to further time in respect to all that

good which it embraces.  Security thus, is the pre-eminent object.

The aforesaid ends of legislation are intended to ensure the

fundamental principle of human worth because without these

objectives human worth is reduced to human worthlessness.

PRINCIPLES OF CIVIL CODE-II

In the previous lesson it has been stated that   there are two

fundamental principles of legislation.  One is the principle of human

worth and the other is the principle of social solidarity or social unity.

Legislation which does not recognize and give effect to these

principles should not be enacted.   In the previous lesson the principle

of human worth was given precedence.  The principle of social unity

will be the main point of discussion in this lesson.  But it should be

kept in mind that the two principles are inter-related, moreover they

are interdependent because one cannot be effective without the

other.  Therefore, overlapping not only becomes possible but is

PRINCIPLE OF SOCIAL SOLIDARITY

If legislation is not responsive to the Infirmities and difficulties of

the weak and fails to advance towards social equality such as

equality on grounds of sex, religion, and race etc., it would be difficult

People now want to know whether poverty, ignorance and

crime are not avoidable.  The legislator of the modem  democratic

state cannot afford to ignore these questions in the larger social

interest. It is impossible to maintain peace it these monstrous evil are

not eradicated.  The common man today wants to know whether I

was right for some people to pass their lives in affluence while other

toil in penury and lead a miserable life.  To day it is living demanded

that the distribution of good things in life should be made to depend

upon the principle of justice rather than on the accident of life.  The

legislator while legislating cannot shut his eyes to the prevailing social

discontent.  In order to main social order, the legislator of the civil

code must pay serious attention to these problems.

The principles of the civil law are the motives of laws, the

knowledge of the true reasons which ought to guide the legislator in

the distribution of rights which he confers, and obligations which he

3.6 BENTHAM ON CIVIL CODE

In the sphere of legislation various kinds of laws form the

content of the civil code.  But all these laws would be reduced to a

futile exercise if the basis of these legislations is not given a prime

place in legislation.  The basic rather fundamental principle of

legislation is Security.  It is the law that provides security.  Therefore,

civil law is enacted to secure to the citizens all that which is

necessary for a civilized society.  Bentham says:

‘Without law there is no security, and consequently, no abundance,

and not even a certainty of subsistence, and the only equality which

can exist in such state of things is an equality of misery.’

3.7 Security is the Fundamental Principle of Civil Code

Let us now examine as to what passes at those terrible epochs

when civilized society returns almost to the savage state; that is

during war, when the laws on which security depends are in pan

suspended.  Even instance of its duration is fertile in calamities, at

every step which it prints upon the earth , at every movement which it

makes, the existing mass of riches, the fund of abundance and of

subsistence, decreases and disappears.  The cottage is ravaged as

well as the palace; and how often the rage, the caprice even of a

moment, delivers up to destruction the slow produce of the labours of

The contributions of law to the establishment of civil society has

been greatest than that of all the natural sentiments put together.

Law alone has created the concept of possession whereby a fixed

and durable possession which merits the name of property is created.

Nothing but the law can encourage men to labour for the present that

which can be enjoyed in future.  Economy has as many enemies as

there are dissipaters men who wish to enjoy without giving

themselves the trouble of producing.  Thus, security is assailed in the

midst of enemies.  The legislator needs a vigilance which is

sustained, a power always in action, to defined it against this crowd of

Law does not say every thing to law to be given to the principle

of security, we must, consider that man is not like an animal, limited

to the present, whether as respects sufferings or enjoyment; but he is

susceptible to pains and pleasure by anticipation; and that it is not

enough to secure him fron actual loss, but it is necessary also to

guarantee him, as far as possible against future loss.  It is necessary

to prolong the idea of his security through all the perspective which

his imagination is capable of measuring.

This presentiment, which has such a marked influence upon the

fate of man, is called expectation.  We have the power of forming a

general plan of conduct.  Expectation is a chain which unities our

present existence to our future existence.

This principle of security extends to the maintenance of all

these expectations.  It requires that events should conform to the

expectations which law itself has created.  Every attach upon this

sentiment produces a distinct and special evil, which may be called a

3.8 Social Unity and Security

It is to be impressed upon the legislator that while legislating he

must study the individual in relation to the state.  The relationship is

not that of inorganic world, but the relation is that of the living beings.

The two fundamental principles of legislation – worth of man

and unity of society can be maintained if security is accepted as the

supreme principle because it directly leads to equality which is the

recognition of the worth of man.  But if equality is taken as the basis

of social arrangement according to Bentham it will destroy both itself

as well as security at the same time.

Under the category of security the following expectation

need the attention of the legislator:

1.Rights of the individual, including fundamental  freedoms.

2. Right to property.

3. Right to equal opportunity .

4. Right to resistance.

….