A well-functioning legal system is a very important condition for a nation’s prosperity. The rule of law is a factor which cannot be eliminated and does contribute towards wealth and economic growth of a nation.
This document covers the description about the Legal Framework, how it is formed and the aspects around it, further it studies the criteria’s that are required for creation of an effective legal framework in an undeveloped country, in a developing country and in a developed country, this will be followed by the study if cultural and traditional factors should be considered while creating a legal framework.
For effective functioning of a society, legal rules and regulations are very important, and these rules and regulations are found in the legislation. It covers a wide range of activities and functioning areas like, the rules for creating and maintaining a society structure, rules that regulate the individual relations, rules that regulate the modern industrial society activities, rules for providing services that benefit the society development, rules that manage the private company activities, rules about taxation, rules for public services, and rules for the establishment of institutions that manage these activities (WJP Project, 2017).
The legal framework of a country can be defined as a set of rules that create a framework of how to govern a country, these set of rules are the basic building blocks of a country. This legal framework consists of legal documents which mentions about the rules, rights, restrictions and obligations of companies, citizens and governments. The documents of a legal framework also include constitution of a country, policy, jurisdiction, legislation, contracts and the regulations. Constitution is a legal document that covers broad principles and is very difficult to be changed. On the other hand, amendment is easier with the other legal documents as laws and contracts. The countries that describe the laws and policies in detail are more stable in terms of managing the legal framework.
Whatever projects get implemented in a country are governed by the rights of governments, companies and citizens, as mentioned in the legal documents. Authority for making these rules and regulations and under which legal document it should be covered, is not a uniform decision and varies from country to country (Posner, 1998). The architecture of a well-designed legal system provides rules for structuring of state institutions, acquiring of companies and managing the licenses, terms of payments among companies and states, management of the environment, rules governing extractive projects and neighbouring communities, conduct of public officials, disclosure of public information and its accountability, and rules for the government on how to manage the revenue of natural resources. Companies starting a setup in a country should always follow the country’s compliance and the rules of the legal framework.
A legal hierarchy shows the relation of one legal document with the other. The legal documents include the constitution, legislation, regulations, and contracts.
The hierarchy of the documents in a legal framework moves from the bottom of the pyramid to the top and each instrument of the hierarchy gets more detailed and more specific as it moves to the top. Each instrument is required to be consistent with the earlier instrument of the hierarchy. The below mentioned instruments take a precedence than the above ones in a legal speak. Each instrument of the pyramid can be defined as below
Constitution – A constitution defines the structure of the government, how it should be formed and also defines the rights and responsibilities of government and the citizens. It is the supreme legal instrument of all the legal instruments of a country. The constitution is very difficult to be amended and required super majority approvals in the legislature.
Policy and Legislation – The policy is the set of strategies that govern the behaviours of each sector. Legislation is the set of rules that govern the vision of forming a policy. There are countries that define the set of principles and goals under the petroleum or mineral sector policies that govern all other rules, regulations and activities. The approving authority for each policy is different, some needs approval from the national legislature while the others might be approved by the executive only. A well-designed policy is the one which is made after stakeholder consultations and which provides a clear and detailed explanation of public strategy (Institute, 2015).
Regulations and model Contracts – The executive government body creates the rules for making legislation practical, and these implementing rules are the regulations. Regulation is mostly combined with a law but provides more detail as compared to the law. The legislation provides guidelines for what needs to be covered in the regulation. An agreement between the government and the extractive companies is the model contract, which provides a template for the agreement.
Contracts – A contract is defined as an agreement between two or more parties. All other instruments of the legal framework are applicable to every individual, but a contract applies only to the parties involved in the particular contract.
There are few countries that work on very specific constitution, laws and regulations that provide rules to govern industries. Hence, in such countries very less information is mentioned in the contracts and very less scope is left with the government and companies to negotiate in the deal. This means that the country which provides detailed laws and regulations, leaves the government to mention fewer terms in the contract. On the other hand, another country that does not provide detailed laws and regulations, and hence the government will be left to cover many terms in each contract. It is generally suggested that the countries which mention detailed laws and regulations create a stronger foundation for the country, and makes it easier for the government to manage the regulations and national priorities (Weingast, 2008).
A strong detailed legal framework and the governance increase the legitimacy and integrity of the country’s legal regulators, it also provides strong support to the policy objectives and leads to good results. The social, economic and environmental policy goals and objectives of all the governments can be effectively achieved through strong regulations. Governments of all the nations have multiple rights and powers to address to the diverse requirements of the citizens, communities and economy.
The government when forming legal rules should
There are several factors that affect the rule of law, namely, constraints on the powers of government, corruption, open government, fundamental rights, security, regulatory enforcements, civil justice, criminal justice, informal justice. Certain sub-factors to regulatory enforcement would include effective enforcement of government regulations, no scope for improper influence on the formation and implementation of a regulation, no delays occur in the administrative proceedings.
Sudan is the largest country in Africa and comprises of people having different faiths, dialect, and socioeconomic background, which has been the main cause of various conflicts in the country, post-independence. Various other groups like, Muslim-Christian, Arab-African, etc. laid the foundation for the country’s social, legal and economic development, but were all opposed by these conflicts. The rule of law also faced a lot of consequences of the conflicts. With multiple conflicts at a very complex situation makes it difficult to implement the laws which already exist in the nation (Fournier, 2007). The Sudanese legal system is a combination of Arabic government, traditions of tribes, power completely dependent on the military, and has very complex international influence. The legislation is very unstable and legal documents are not kept properly so becomes difficult to find them for reference. As a result, the formation of a legal framework for Sudan is a challenging task.
Creation of a legal framework in Sudan would require to build up freedom, equality, justice, peace and prosperity. It should focus on building up the strengths and opportunities, which would include, the natural resources, energetic and talented people, who are self-motivated and understand the need of development in the country. The priorities need to be in the context of three major aspects, which are conflicts, poverty and the economy. For achieving the effective development in the long run, it is very crucial to have good governance practices, which are strongly supported by the legislation. An independent, strong judiciary needs can ensure and protect the citizen’s rights and the rule of law. A strong governance benefits by reducing corruption and reduces risk to natural resources.
In the initial stage, for a un-developed country like Sudan, it is important to strengthen the basic principles which are applicable to the day-to-day operations and administration. These basic principles are accountability, transparency, integrity and professionalism (Juba, 2011). Later, once these principles start functioning smoothly, they can be broadened to incorporate the private sector aspects and also strengthen the civil societies. At this conflict stage, inclusion is an important aspect while creating a legal framework. Hence, the government should keep itself open to the maximum extent so as to focus and address the conflicts and challenges. The inclusion would also lead to maximum participation from across the country for the creation of legal governance. The government leadership would include diverse groups, not just in the government institutions, but also in various public decision makings (Parmar, 2007).
The regulatory institutions were developed in India with the introduction of reforms in early 90’s. However, the development in over the two decades in the regulatory environment has not been similar across the sectors. A lot many regulations and unnecessary burdens have been imposed on the businesses and investors. The regulation in India can be categorized as economic, public interest and environmental.
Economic regulation handles and prevents the market failures. The economic regulation is achieved by prescribing the rules and punishing the behaviour that leads to crash of the market (Singh, 2013).
Regulation in the public interest are the rules that prevent the interests of the public, which means that it covers the areas where industries or institutions holds with them something which is of public interest or, the industries which are unable to meet the standards set forth by the government. There are a lot many number of mandatory standards set forth by the government, but these are no desired enforcement facilitated. An example in this context would be that there are not many industries which are interested in the implementation of safety standards as there is not enough demand for the workers. This is one area where a public interest regulation is required.
Environmental regulation are the rules that focus on the actions which can protect the environment. Harm to the environment leads to land cost, labor and resources that affect the economic development. Environmental regulation addresses the issues of unsafe water, polluted air, habitat loss, etc. The environmental protection in India, has been given the importance of a constitutional status (Paunov, 2012).
In a developing country, there is a need to integrate multiple systems into one hybrid system to have uniformity, equality and effective smooth functioning. The outcome of a hybrid system would consist of elements of local laws, state laws, religious, legal regimes, some differences would exist on the basis of region. This system must reduce the corruption, and scope of opportunities with the rich and powerful people to play with the system and exploit inconsistencies. Over the period, developing countries who have a basic level of legal framework running, generally reach a situation where rich and powerful individuals take undue advantage of this power and generally are the ones damaging the legislation and bringing in corruption as they have required resources, high level connections and the means to influence decision making. This is one of the main criteria to be considered when creating a legal framework for a developing country like India (Kaplan, 2012).
Another criteria is of training that will be required for officials who are responsible to run the state institution. These officials are the lawyers, judges, law clerks as they are the main actors who shape the implementation of a legal system.
New Zealand is a developed country and follows the rule of law as the most important fundamental principle. It believes that the rules mentioned in the laws should be clear and accessible, as well it should be applicable to all, be it the citizens or the government. It firmly believes in the protection of human rights and fair court proceedings; the public powers should be fairly exercised.
As the country’s legal system and policies are at a developed stage, the requirement for translating of polies to the legislation would be the next step. This step is very crucial to be efficiently implemented as it includes the rights and liberties of the citizens and communities which could be at risk. Poor implementation generally results in controversies, litigations, bad effects on the operational practices, affects the public and private interests (LDA Council, 2014).
This process can bring improvement in the making of new legislation as well as improving the existing content of the legislation. There are various criteria’s and aspects to be considered while creation or amendment of the legislation, like, it is very important to clarify and understand if the legislation is actually needed, so as to bring improvement in the policy implementation by the government, the second consideration is to properly following the processes and procedures of preparation of a legislation, means it should be followed after proper consultations and discussions with various communities and individuals outside the government; the next consideration is to ensure that the new prepared legislation is in line with the established principles.
The main considerations would include
Traditional cultural practices are the values and beliefs of the community that goes on for many generations. The traditional cultural practices and beliefs differs with different social groupings. Some of these practices and beliefs are beneficial to the community and some could be harmful too. The harmful practices and beliefs persist for many decades despite of causing harm to the community and violating the human rights laws. Such harmful practices and beliefs persists for long as they are never questioned or challenged by anyone and hence makes it a moral right in the eyes of the people practicing them.
Culture and societies keep changing with time and takes different shape. There are various factors which bring these changes. Cultural changes are a result of socioeconomic shifts, globalization, technology, environmental pressure, conflicts, various development projects, etc. Amendments in laws and government policies are also generally done to bring a cultural change and is a deliberate effort to influence good values. A lot many examples also exist which depicts the amendments in laws to influence the attitudes like, about racism, the use of the environment, workers and labour rights, etc. Many efforts have been taken to positively shape the values about women and gender relations, such efforts include the sending of girls to school, women being provided equal right to paid work, and changing the attitude of people towards domestic violence.
Development initiatives are taken by the government and several institutions and agencies to bring in social and economic change. For example, the implications about the structures of a family through the investments done in family planning. Law can be termed as a social practice that is being followed traditionally for generations. The legal systems in some or the other way does embody traditions. It is important to understand the nature and behaviour of traditions in day-to-day social interactions. The content of each tradition originated in the past and was brought to the present through various generations and hence it is a tradition. It brings in the authority and significance for the communities which follow the specific traditions. The similarity between tradition and law is to preserve, maintain and follow them systematically. The law can also be looked at as a complex tradition as it is made up of several traditions. These should be through and appropriate analysis of each tradition, so as to include the relevant features of a tradition and do not blur its existence. Traditions are either passed on from intervening generations or constructed socially (Schalkwyk, 2000). The traditions which hold a lot of importance are the ones which are generally inherited from past generations. Various institutions, practices and traditional maintenance groups force the lawmakers to inherit tradition, preserve it and follow it continuously, all this is at a time done using unlawful means. One should consider the modern context along with the understanding of the nature and behaviour of traditions in the present life. It is not a mandate that traditions cannot change, but the change should be in alignment with the modern scenario and accordingly, the legal regulations should be formed.
It is very important to be culturally sensitive, and at the same time it is also important to respect other cultures, traditions and religion. Culture and tradition should never be taken as a rationale for discrimination against any group. Culture is not static and keeps changing with people’s requirements, demands, time, etc. Culture can be considered as an inherent part of a human life, and hence form the values, norms and symbols which later takes the form of choices of that individual and restricts the interactions with others accordingly.
A good governance that includes cultural and traditional aspects can be considered as governance that follows certain measurable standards. For an effective and efficient legal framework, it is very crucial to have a good cultural governance as it is a management process that combines multiple legislatives, administrative functions, various processes that meet the good governance requirements. For a good, acceptable legal framework the governance should keep into consideration the resources of cultural heritage, cultural and traditional practices, cultural goods and services, cultural artefacts (Plessis & Rautenbach, 2010).
Culture is important while forming the legal framework as an objective for growth, and cannot just be treated as an instrument for development, but it is one of its roles. Looking at it from the other side, the economic development itself is a part of the culture.
A legal framework or the governance that is formed considering the cultural and traditional factors also needs to follow the rule of law. The legal framework which is applicable to the cultural governance creates certain rules and duties for them, when their cultural and traditional factors are considered while the creation of the legal framework, the good cultural governance also puts in maximum efforts towards achievement of the aims and objectives set forth in the legal framework. The legal framework provides the government structures and the cultural governance, then would, facilitate the applicability and effective following of the cultural laws and management of the respective duties.
Integration of culture and tradition is important for the development of policies at all the levels to achieve sustainable development, this also forms a foundation for promotion of the diversity of cultural practices and expressions. With the consideration of culture and tradition in drafting of legal framework, it is also very important to consider the existence of cultural diversity and cultural expressions, and thus it should not harm the sentiments of any other culture or tradition of that community (Bovaird & Löffler, 2009).
Conclusion
Until now there has been a traditional approach to the development of economies, politics, and in the eyes of the law; the societies are incomplete version of developed societies. This could also be described as that the developing countries lack essential ingredients or elements of a mature and developed country. The countries should have a standard approach towards the rule of law along with a dynamic, region specific elements which holds the current situation and also manages the legal system for a long term. The state institutions that create the rule of law should not be the only ones who manage and enforce them, it should be the responsibility of individuals beyond the scope of political and government officials. This is termed as a perpetuity. A lot many countries lack perpetuity and also resist to follow and secure the rule of law.
A lot many times the problem of violence is resolved by granting of privileges to the powerful individual’s. Privileges are distributed in accordance with the changing situation. Adjustment in a complex situation requires big adjustments in privileges and policies. This generally leads to violence and threats and later leads to fall of the government, the formation of coups, alteration of rights, amendments in legislation, constitution, policies. Lack of perpetuity causes so much harm to the legal system to sustain its rights and institutions.
In the present era, almost every country has legislative bodies, however, their specific roles might differ from country to country. The legislative bodies might act as an important source of a legal system, and on the other side, the main law making role might be played by the government of that country. The executive bodies manage the pre-legislative process and later the government initiate the bill, which when approved becomes the law. Some countries have independent legislative bodies from the executives. Legislative bodies have an important role in the law making process. The legislative bodies are enticed with the powers that control and manage the law-making of the executive bodies. These powers and controls might differ from one country to the other. To have uniformity in the legal system, it is crucial to maintain coordination of the legislative bodies and the executive bodies. The constitutional principles of democracy, separation of powers and of the social state depend on the process of law-making by the legislative bodies. Countries having multiple legal and political traditions work on such principles.
Regulatory reforms should be implemented in every country to bring change and improve the regulatory quality which would enhance the economic performance, cost-effectiveness, government structures and quality of legal regulations.
References
Bovaird, T., & Löffler, E. (2009). Public Management and Governance. Taylor & Francis. Retrieved from https://books.google.co.in/books?id=wjuz75AiVWQC&pg=PA45&lpg=PA45&dq=role+of+culture+and+tradition+in+making+of+legal+framework&source=bl&ots=88FBdvy0zg&sig=BU_N7YGwtRSRLCmUN50G4byeclA&hl=en&sa=X&ved=0ahUKEwj7oL3f1evWAhUiSo8KHYPhCpwQ6AEIPzAE#v=onepage&q&f
Committee, L. A. (2001). Guidelines on Process and Content of Legislation: 2001 edition and amendments. Retrieved from https://www.ldac.org.nz/assets/2001-Guidelines-watermarked/LAC-Guidelines-2007v2-watermark.pdf
Fournier, M. (2007). A Comprehensive Overview of Sudan’s Legal Framework in Light of the Darfur Crisis. Retrieved from https://reliefweb.int/sites/reliefweb.int/files/resources/C7F25FF3C539158D49257645001A8AB0-Full_Report.pdf
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Plessis, A., & Rautenbach, C. (2010). Legal perspectives on the role of culture in sustainable development. Retrieved from https://www.nwu.ac.za/files/images/Du_Plessis_and_Rautenbach_APotgieter.pdf
Posner, R. (1998). Creating a legal framework for economic development. Retrieved from https://siteresources.worldbank.org/INTLAWJUSTINST/Resources/LegalFramework.pdf
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