UNIT 13: LAWS AND ETHICS

The rule of law is a concept that describes the supreme authority of the law over governmental
action and individual behavior. It corresponds to a situation where both the government and
individuals are bound by the law and comply with it. It is the antithesis of tyrannical or arbitrary
rule. The rule of law is the product of historical developments over centuries and is linked to the
rise of the liberal democratic form of government in the West. The rule of law is the subject of
competing theories. For some, the concept has a purely formal meaning. Under this concept of
the rule of law, the state must act in accordance with the laws it has promulgated and these laws
must meet a certain number of minimum characteristics.

The rule of law is expressed by codified legal standards. In the United States, and most other
democracies, laws spell out how we will govern ourselves. Over centuries, laws have evolved
based on commonly understood societal concepts of right and wrong. Even in the present, the
law is evolving to reflect not only our history but also current ideas of how we want to be
governed. Knowing we can depend on the law provides stability for the country and for
ourselves.

Ethics is the area of philosophical study that examines values, actions, and choices to determine
what is right and wrong. Core principles that have been foundational for ethical behavior were
established millennia ago by the great philosophers Aristotle, Plato, and Socrates. In the fourth
century B.C. they defined ethics as “the science of morals.”Ethics constitutes moral principles,
and values are related more to an individual’s personal set of standards.

Morals, on the other hand, has to do with day-to-day actions based on these principles. “Should I
steal coins from the collection basket?”

Ethics and laws are found in virtually all spheres of society. They govern actions of individuals
around the world on a daily basis. They often work hand-in-hand to ensure that citizens act in a
certain manner, and likewise coordinate efforts to protect the health, safety and welfare of the
public. Though law often embodies ethical principals, law and ethics are not co-extensive. Based
on society’s ethics, laws are created and enforced by governments to mediate our relationships
with each other, and to protect its citizens. While laws carry with them a punishment for
violations, ethics do not. Essentially, laws enforce the behaviors we are expected to follow, while
ethics suggest what we ought to follow, and help us explore options to improve our decision-
making.

Ethical decision-making comes from within a person’s moral sense and desire to preserve self
respect. Laws are codifications of certain ethical values meant to help regulate society, and also
impact decision-making. Driving carefully, for example, because you don’t want to hurt
someone is making a decision based on ethics. Driving carefully and within the speed limit
because you see a police car behind you suggests your fear of breaking the law and being
punished for it.
It is not always a clear delineation though. Many acts that would be widely condemned as
unethical are not prohibited by law — lying or betraying the confidence of a friend, for example.
In addition, punishments for breaking laws can be harsh and sometimes even break ethical
standards. Take the death penalty for instance. Ethics teaches that killing is wrong, yet the law
also punishes people who break the law with death.

Ethics does not prescribe a specific set of rules or policies. Instead, it provides a framework for
evaluating problems and determining an appropriate course of action. Ethical analysis should
reflect both internationally accepted norms and locally relevant cultural values. One approach to
ethical analysis is to identify a set of governing principles and then apply those principles to
evaluate the appropriateness of particular behaviour. In bioethics, the most commonly identified
principles are:

1) individual autonomy (the ability to make decisions for oneself);

2) beneficence (the obligation to “do good” for others);

3) nonmaleficence (the obligation to avoid causing harm to others); and

4) justice (the value of distributing benefits and burdens fairly).

These principles provide a general framework for analysis, which can then be applied to the facts
of a particular ethical dilemma to reach a resolution.

THE FORMATION OF INDIVIDUAL ETHICS PROCESS

INDIVIDUAL PROCESS :

The ethical view of an individual is formed by the contribution mostly of the following
factors:

Family influences:

Family influences play a key role in determining an individual’s belief about what is right and
what is wrong. The values that are built up from the very childhood become an integral part of
our lives. Children learn from the behaviour of their parents and other members of the family.
“Like father, like son” probably has a profound meaning. In general, a person who grows up in a
family with high ethical standards that are consistently followed is likely to develop high ethical
standards also.
Life experiences:

As one goes through life, one experiments with a number of situations. It is said that “life is

nothing but a collection of experiences, good and bad”. Accordingly, an experience and its

consequences help in shaping a person’s ethical or unethical behaviour.

Life experiences:

As one goes through life, one experiments with a number of situations. It is said that “life is

nothing but a collection of experiences, good and bad”. Accordingly, an experience and its
consequences help in shaping a person’s ethical or unethical behaviour.

An unethical behaviour which results in negative consequences such as feelings of guilt or legal
punishment or social condemnation may tend not to be repeated. Conversely, if a person does not
feel any remorse or is actually rewarded for an unethical activity, there would be a tendency to
repeat such an activity.

Personal values and morals:

A person’s values and morals also contribute to his ethical standards. A person who is deeply
religious is expected to have high moral values. There are persons on the other hand who place
top priority on financial gains and will accordingly do whatever is necessary to achieve their
goals irrespective of ethics of the actions. A person’s respect for his family’s honor would also
shape his ethical beliefs.

Situational factors:

Situational factors are certain events, sometimes random, that have a potential to determine
behaviour that may or may not be consistent with a person’s ethics. For example, an otherwise
honest, God fearing person may steal in a situation of financial crisis. On the other hand, a drug
dealer may become a saint by listening to a preacher or seeing a friend die of drug overdose.
Accordingly, a person’s behaviour may change from ethical to unethical and from unethical to
ethical if the situation forces him to do so.
 ETHICAL ANALYSIS IN THE CONTEXT OF VULNERABLE
POPULATION

Some individuals or communities face a greater-than-usual risk of being enrolled in research in

violation of basic ethical standards. These risks can arise from a variety of sources. For example,
some individuals face limitations in their ability to provide informed consent to research because
of factors like immaturity or cognitive impairment. Vulnerability can also stem from individuals’
relationships with others, such as when an employee is asked to participate in research being
conducted by a supervisor, or when a student is asked to participate in a study being conducted
by an instructor or mentor. Social factors, such as poverty and lack of access to health care, can
also make individuals vulnerable to coercion, exploitation or other risks. International
regulations and guidance documents on research require additional protections in studies
involving vulnerable participants. For example, the CIOMS guidelines1 provide that “special
justification is required for inviting vulnerable individuals to serve as research subjects and, if
they are selected, the means of protecting their rights and welfare must be strictly applied”.
“Special justification” exists when:

1) the research could not be carried out as well with less vulnerable subjects;

2) the research is intended to obtain knowledge that will lead to improved diagnosis, prevention
or treatment of diseases unique to the vulnerable class;

3) subjects will be assured reasonable access to any diagnostic, preventive or therapeutic

products that will become available as a consequence of the research;

4) the risks will not exceed those associated with routine medical examination of such persons;
and

GROUP PROCESS

Getting started with your group? One of the first things you might want to do is create a
document, sometimes called a group charter, which clarifies what the group is about, what the
group expects from its members, and other, related guidelines. Group charters make sure
everyone’s on the same page, and prevent any disagreements or miscommunication. Make sure
everyone has access to this document: this can be a great way to kick-start a discussion about
how files will be shared.
Here are the main points of a successful group charter:

 Lay down the ground rules.

 Set up a meeting schedule.

 Define your roles and tasks.

 List the supporting tools you’ll use.

Establishing Ground Rules

This involves agreeing on how the group will work together.
For example:

 How will you make sure communication stays respectful?

 How will you deal with problematic interactions, on- and offline?
 How will you address conflict or deal with disagreements in the group?
 How will you make sure that everybody participates equally?
 What are the rules for dealing with a member who hasn’t been communicating? How
frequently should group members communicate/check in?
 How will you ensure that everybody participates meaningfully? How will you make sure
everyone’s contribution is valued?
 How are decisions made in the group? Do you operate democratically, by the use of
roles, or something else?
 What technologies will support your group meetings? IM programs, Canvas discussion
boards, Skype, etc.?
 What’s the group’s primary goal? Getting an ‘A’? A good learning experience? The
chance to try something new?

Create a Schedule
It’s important to create, agree on, and stick to a meeting schedule that works for everyone. You’ll
need to consider:

 Assignment requirements and due dates.

 What you need to do face-to-face, in real time, as opposed to what you can do online.

 What you have time to contribute to, given your individual schedules.
 What constitutes satisfactory participation: how much time members have to spend a

week, what happens if deadlines are missed, etc. Reference your ground rules.

 Set your schedule and post online for everyone to view and refer to.

Once you’ve answered those questions, set your schedule and put it online somewhere everyone
can access it.

Designate roles and tasks

If you feel like your group could benefit from some structure, you might want to assign roles to
each individual: these help clarify what everyone is responsible for. Here are some suggested
roles, with brief descriptions of what each role is responsible for.

 Facilitator: organizes and facilitates meetings. The facilitator sets the agenda and makes

sure everyone’s voice is heard.

 Summarizer: summarizes what was discussed in each meeting. The note taker also

outlines the next steps for the project after each meeting, including who’s responsible for

what.

 Note taker: takes meeting notes. The note taker is responsible for posting the notes

somewhere group members can access.

 Progress chaser: follows up with group members to ensure that things move forward.

The progress chaser is responsible for making sure everyone stays on track.

 Timekeeper: the time keeper is responsible for making sure everything happens

according to the schedule. This includes reminding everyone how much time is left in

meetings, as well as the project as a whole, and what’s left to be done.

 Presenter: presents the materials that are created by the group.

 Mediator: helps resolve conflicts where they arise, making decisions when necessary.
Choose Your Tools
It’s never been easier to collaborate on documents together, or to communicate online. The work
you do as a group will be supported by the communication tools you select, so choose wisely!
Here are some options:

 Wiggio allows videoconferencing, calendar and file sharing, and use of a virtual

whiteboard to plan your project. Wiggio also supports mobile use.
 Google Drive is a cloud-based office suite ideal for collaborative writing/presentation
projects.
 Canvas discussion forums might be set up for your group by your instructor, allowing for
asynchronous (not everyone has to be online at once) communication. Like any message
board, discussion items can be posted and responded to at any time.
 Skype is a Voice over Internet Protocol (VoIP) program which allows you to
communicate using voice, video, and text. It’s a free, online conference call. Other VoIP
programs exist, but Skype is popular, free, feature-rich, and comes installed on many
computers by default.
 Phone conversations
 Email

SOCIAL PROCESS:

The term “Social change” itself suggests nothing as far as its direction is concerned. It is a
generic term describing one of the categorical processes. It only suggests a difference through
time in the object to which it is applied. Social changes are of various types and can be explained
by different terms such as Growth, Progress, Evolution, Revolution,- Adaptation, and
Accommodation, etc. Here we shall consider only two terms, i.e..Progress and Evolution.

Characteristics:
(1) Change is Social:

Social change means a change in the system of social relationship. Social relationship is
understood in terms of social process, social interactions and social organizations. So in any
variation of social process, social interactions and social organizations social change-takes place.

In an another instance it is found that society is like an organization, which never dies. New
civilizations and societies come up by replacing old societies and thereby retaining some of its
elements in its change. Thus social change is different from individual change. Its cause and
consequences are always social which make it social.

(2) Universal:

Social change is universal. Because it is present in all societies and at all times. No society
remains completely static. The society may be primitive or modern, rural or urban, simple or
complex, agrarian or industrial, it is constantly undergoing change. The rate or the degree of
change may vary from society to society from time to time but every society keeps on changing.
A changeless society is an unreality.

(3) Continuous:

Social change is a continuous process but not an intermittent process. Because the changes are
neither stopped nor the societies are kept in museum to save them from change. It is an on-going
process without any break. In the process of change every society grows and decays, where it
finds renewal and accommodates itself to various changing conditions. The sources, direction,
rate and forms of change may vary time to time but it is always continuous.

(4) Inevitable:

Change is inevitable. It is the human nature that desires change and also it is his tendency to
bring change and to oppose or accept change. Human wants are unlimited which always keep on
changing. To satisfy these wants social change has become a necessity not only to him but also
to the society.

(5) Temporal:

Social change is temporal. Change in anything or any object or in a situation takes place through
time. Time is the most important factor and social change denotes time-sequence. According to
Maclver, “It is a becoming, not a being; a process, not a product”. Innovation of new things,
modification and renovations of the existing behaviour take time.

So a social change is temporary or permanent on the basis of time. Sometimes some social
changes may bring about immediate results while some others may take years to produce results.
Similarly, some social changes spread rapidly and also disappear rapidly. Movements, style,
fashion and cults are the examples of this type. But in the biological process of ageing short time
does not cause change.

(6) Degree or rate of change is not uniform:

Though social change is an ever-present phenomenon, its degree or rate or what we call the
speed is not uniform. It varies from society to society and even in the same society from time to
time. Sometimes the degree of change is high and sometimes low depending upon the nature of
society like open and close, rural and urban and traditional and modern etc. For example, in the
rural social structure the rate of change is slower because the rate of change is not governed by
any universal law, whereas it is quick in the urban societies.

(7) Social Change may be planned or unplanned:

Social change takes place sometimes with planning and sometimes without planning. Social
change which occurs in the natural course is called the unplanned change. The unplanned
changes are spontaneous, accidental or the product of sudden decision. Usually the change
resulting from natural calamities like flood; drought, famines, volcanic eruption, etc. are the
instances of unplanned changes.
Here in this unplanned change there is no control on the degree and direction of social change. It
is the inborn tendency of human beings that they desire change. So sometimes plans,
programmes and projects are made effective by them to bring change in the society. This is
called planned change. As it is consciously and deliberately made, there is every possibility to
have control on the speed and direction of change. For example, the five years plan made by the
government.

(8) Social change is multi-causal:

A single factor may cause a particular change but it is always associated with a number of
factors. The physical, biological, demographical, cultural, technological and many other factors
interact to generate change. This is due to mutual interdependence of social phenomenon.

(9) Social change creates chain-reactions:

Social change produces not a single reaction but chain-reactions as all the parts of the society are
inter-related and interdependent. For example, the economic independence of women has
brought changes not only in their status but also a series of changes in home, family relationship
and marriages etc.

(10) Prediction is uncertain:

We can see some elements for prediction in social change. But the prediction we make is
uncertain. It is because of three reasons. They are:

(a) There is no inherent law of social change.

(b) The forces of social change may not remain on the scene for all times to come.
(c) The process of social change does not remain uniform.

Apart from the above characteristic features it may be said that social change can be qualitative
or quantitative. It is a value free term as it does imply any sense of good or bad, desirable or
undesirable. It is a concept distinct from evolution, process and development which are regarded
as key concepts in the literature of social change.

POLITICAL PROCESS

It is the process of the formulation and administration of public policy usually by

interaction between social groups and political institutions or between political
leadership and public opinion.

Policy is what the government says and does about perceived problems. Policymaking is how
the government decides what will be done about perceived problems. Policymaking is a process
of interaction among governmental and non-governmental actors; policy is the outcome of that
interaction.

From this definition of key terms, it is clear that a diverse set of actors can become involved in
the making of state and local public policy. Beginning with the perception of a problem, making
it an issue for government action, getting it on the government’s agenda for consideration, and
finally securing relevant government action all entail the involvement of many parties sharing a
stake in the form of government action taken.2 For many state and local governments the process
can become rather complex, featuring a multitude of actors engaged in one or more aspects of
policymaking. Broadly speaking, one can place the actors in the state and local government
policymaking process into one of two broad categories: institutional actors and non-institutional
actors.
 The institutional actors involved in the public policy process are governments and
governmental agencies that deal with public affairs — namely, the subjects of many other
chapters in this book, including legislative bodies, executive departments, and the judicial
branch.

Some characteristics associated with social movements in political issues that have been
successful in the past; these characteristics include the following:

1. Sufficient financial resources to recruit and educate new members and to promote the desired
policy outcomes in the general public:

Having sufficient financial support is particularly important in areas where the proposed
changes are strongly opposed by groups with substantial resources.

2. Involving people and organizations with prior grassroots experience:

Having staff and leadership skilled and experienced in grassroots politics expedites
successful organizational efforts. This is likely the case because experienced people are more
likely to know which strategies work and which do not work under given circumstances.
Experienced people are also more likely to be connected to affected communities and know the
political landscape within which the recruitment of movement participants can be accomplished.

3. Identifying emotional issues to motivate people to participate:

This process is known as “dramatic spotlighting,” and it occurs in cases wherein events that
lead to public outrage are carefully highlighted for the media and potential participants. There
are many examples of injecting emotion into a natural resource and environmental policy issues
— such as the filming of the clubbing of baby seals in annual hunts in Canada by Greenpeace
and a 1970’s EPA television commercial using a stately Native American elder with tears
coming from his eyes after coming upon a polluted river; while these are particularly noteworthy
examples, many others could be given.

4. Using a “micro-mobilization” approach:

Organizing small informal and formal groups at the local level, all connected to a much
larger network or coalition, has been found to be an important component of successful social
movements in the past. Having people interact at the local level creates social bonds among
otherwise isolated persons, and these bonds increase issue interest and participation in social
movement activities. At the same time as local bonds are being built there must be an ongoing
connection to a larger movement; locally bonded people scattered across a myriad of
communities are more likely to take part in movement activities if they believe large numbers of
others are also participating in other localities facing the same problems they are dealing with in
their own community. Examples of relatively successful movements would be the women’s
suffrage movement (i.e., “first wave” feminism), the civil rights movement, and the early
environmental movement in the 1960s and 1970s.

5. The absence of crosscutting cleavages:

Crosscutting cleavages —such as liberal versus conservative, rural versus urban, etc. within a
social movement — often lead to political conflict and undercut efforts at building a large,
cohesive and effective movement. Successful social movements in the past have grown more
inclusive over time, but start with a core set of fairly uniform actors who maintain a steadfast
focus on their shared cause.

6. Having a diverse and “co-optable” communications network:

Successful social movements tend to develop communication networks that connect large
and diverse numbers of people to the cause — the greater the number and diversity of people
actively participating in the network, the more likely the movement will be successful. The
communication network needs to connect individual and group participants in the movement to
one another, it needs to connect participants with the mass media, and it needs to connect the
movement with potential new participants.

7. Having capable and competent leadership:

Articulate and charismatic leaders and organizers are much more likely to inspire emotion
and participation than passive followers and inarticulate leaders. If leaders are identified as
being too partisan or allied too closely with a particularly divisive interest group, then their
ability to lead a broad- based movement is diminished.

8. Having an optimistic expectation:

This characteristic of successful social movements is related to sense of efficacy. People

have to feel they are joining ranks with large numbers of like-minded people, and that their own
participation will contribute to the success of the movement. While this is a very difficult
characteristic to engender in contemporary America, with only 60 percent of the eligible
population participating in the electoral process it is nonetheless very important for successful
 social movements. (9) Encouraging solidarity instead of free riding. With many state and
local issues in the political sphere, there are many free riders — people willing to sit back and
watch others take action and then benefit from those actions without themselves having
contributed their fair share. Successful movements are able to move people to take private
actions that contribute to collective political action (writing letters, attending public meetings,
voting for supportive candidates, joining groups, donating money, etc.) despite the temptation to
free-ride on the sacrifices of others.

Similarly, the mass media play an important role in state and local government policy processes:

n addition to noting these aspects of the new potency of the mass media, it needs to be stated that
the mass media traditionally perform certain important functions that are essential to state and
local government and politics, including the following.

 Formation of public opinion: the mass media provide information and the reporting of
diverse viewpoints that help citizens form their own views of public policy issues.
 The mass media help to prioritize public policy issues that come to the attention of state
and local government.  In one sense, the mass media can serve as a “marketplace” of ideas; in
another sense, they help determine what issues come to the attention of policymakers based on
their independent assessment of the “newsworthiness” of particular stories and issues.
 The news media, particularly the print media, serve as an important “watchdog” over
state and local governments and officials, providing a check on corruption, inadequate attention
to matters of public concern, unethical conduct, and bureaucratic malfeasance.
 The media collectively provide an essential link between citizens and their government in
a democracy by helping communicate public policy-relevant information, policy preferences,
and societal values back and forth between citizens and their governmental leaders and civil
servants.

STAGES OF POLICY AND LAW MAKING

Government and parliamentary structures as well as the different branches of government all
play very important roles in the making of laws and policies. Below is an explanation of the
stages of making policies and laws, using a specific example of compulsory education.

Stage one – Ruling party conference gives vision, goals and direction

Stage one in the process takes place at the major conferences of the ruling party where policies
are made. At these conferences particular issues are debated and discussed and the ruling party
decides its overall vision, goals and direction on specific issues.

For example, the ruling party may decide at their national conference that the policy regarding
access to education should be that all children under the age of 17 must be in school –
compulsory education. It is now the role of the party’s members in the executive and legislative
arms of government at national and provincial levels to initiate the processes that will lead to
the implementation of this policy.

Stage two – Executive (Ministry) draws up policy on an issue

Stage two of the process takes place at national level where the ruling party attempts to convert
its party policy into official government policy or law following the procedures prescribed by the
Constitution. It is clear therefore that there is a strong political link between key legislative and
executive structures and the majority party.

It is the responsibility of the executive branch of government to develop new policies and laws.
It is the responsibility of the legislative branch (Parliament) to approve policies and pass new
laws to give legal effect to the policies. But this is a long and slow process during which the
policy or law proposed by the ruling party is debated and negotiated with various stakeholders,
such as opposition parties, the public, non-government organisations, etc.  This can take many
years to complete.

During this time, the government ministries will draft discussion documents, called Green Papers
and White Papers on the policy or law to allow for debate and comment. Public service Senior
Management Service members are often used as resource people for this process. Various
parliamentary and select committees in national Parliament and in the National Council of
Provinces, as well as portfolio committees in Provincial Legislatures provide opportunities for
public participation in debating the proposed policy or law.

Stakeholders can use different opportunities for input, such as attending parliamentary committee
hearings, setting up meetings with department heads or the minister, using the media to put
pressure, etc.

Example:
The ruling party has stated its policy of compulsory education for all children under the age of
17. The national Minister of Education now informs his/her department of the need for a policy
document to be produced on this issue. The first discussion document to be published will be a
Green paper. This will be drawn up by the Ministry and the Education Department with the help
of advisors, experts in education, advisory committees, etc. The Green paper identifies the key
issues and suggests alternatives. It is then made public and invites comment from all
stakeholders and the public.

Stage three - Finalising a policy

Stage three of the process is when the policy is finalised by the relevant Department and
Ministry. Once a policy has been properly debated the Department and Ministry look at the
issues and options and draw up a final policy which is published as a White Paper. The White
Paper is a statement of intent and a detailed policy plan which often forms the basis of
legislation. It is debated and adopted by Parliament and approved by Cabinet.
Example
The Education Department looks at all the options and comments from stakeholders and the
public regarding the policy of compulsory education for all children under the age of 17 years.
For example, there may be input from Treasury saying that the government cannot afford to
provide compulsory education immediately for all children under 17 years, so the policy should
be phased in over 5 years. If agreed to by the Portfolio Committee these changes will be included
in the revised document which is called a White Paper. Cabinet then has to approve the final
policy.

Stage four - Passing a law

A White Paper often forms the basis of legislation. If the Minister or the Department decides that
a new law is necessary to achieve its objectives and implement its policy, the Department will
begin the job of drafting the new law. In its early stages before a new law has been tabled in
Parliament it is called a draft Bill. Once it has been tabled in Parliament it is called a Bill.

Before the draft Bill is tabled in parliament the following takes place:

 The draft Bill goes to the relevant Cabinet committee for approval.
 Once Cabinet has given its approval it may be released for public comment.
 Once comment has been received, the department and ministry will make any
changes they think are necessary as a result of public input.
 The draft Bill goes to Cabinet to ensure that it has kept to agreed aims and
principles and does not contradict any other policies.
 The draft Bill is sent to the State legal advisors for legal approval.
 The draft Bill is then tabled by the Minister in Parliament.

Once a Bill has been tabled, it will be given a number and then released as a Bill, for example,
B6 of 2004 and go through the process of becoming a law. This is a summary of the steps:

 The Bill is sent to the National Assembly (NA) who will refer it to the relevant
Portfolio Committee.
 The Portfolio Committee reviews the Bill and asks for public comment.  When
the Portfolio Committee considers the Bill it is regarded as the best time to lobby
for changes or to protest the principle of the Bill.  Once the committee has made
changes and asked for clarity, they will send a report on their findings to the NA.
 The NA considers the Bill and then votes on it with the changes the Portfolio
Committee may have made.
 The Bill then goes to the National Council of Provinces (NCOP) where the
appropriate Select Committee in the NCOP considers the Bill. The Bill goes
through a different process depending on whether it contains issues that affect the
provinces or not.

Stage five - Subordinate legislation and implementing the law and policy
Once National Parliament has passed a law, or a policy has been published, it is up to national
and provincial ministries and departments to implement the law and/or policy.
If it is necessary national and provincial legislatures and local authorities can pass subordinate
legislation that gives more detail on matters contained in the original law. Examples of
subordinated legislation are:

 Proclamations issued by the President

 Regulations for acts made by ministers
 Regulations of local authorities
 Provincial proclamations
 Municipal by-laws

A provincial legislature can also make its own laws on areas that are defined in the Constitution.
These laws will only apply to the province which has made the law.

Local governments can also pass ordinances that have the same legal force as national and
provincial parliaments.

RULE OF LAW AND MORAL CHOICE

The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of law”. The latter
phrase is used to designate some particular legal rule like the rule against perpetuities or the rule
that says we have to file our taxes by a certain date. Those are rules of law, but the Rule of Law
is one of the ideals of our political morality and it refers to the ascendancy of law as such and of
the institutions of the legal system in a system of governance.
The Rule of Law comprises a number of principles of a formal and procedural character,
addressing the way in which a community is governed. The formal principles concern the
generality, clarity, publicity, stability, and prospectivity of the norms that govern a society. The
procedural principles concern the processes by which these norms are administered, and the
institutions—like courts and an independent judiciary that their administration requires. On some
accounts, the Rule of Law also comprises certain substantive ideals like a presumption of liberty
and respect for private property rights.
No account of the Rule of Law is complete if it does not mention the ways in which this ideal is
deprecated. The laudatory history of the Rule of Law in the work of thinkers like Aristotle,
Locke, Dicey, Hayek and Fuller has been matched by opponents of legality such as Plato (in The
Statesman), Thomas Hobbes (at least if the Rule of Law is supposed to take us beyond rule by
law), and Carl Schmitt 1923 (in his attack on parliamentary and on the liberal assumption that
rules can prevail even under conditions of endemic crisis).
The criticism by Plato (c. 370 BC) has been the most enduring. From his perspective, which
extolled the application of focused intelligence and insight by those in power, insistence upon the
use of law in government was like a stubborn, stupid person who refuses to allow the slightest
 deviation from or questioning of his own rules, even if the situation has in fact changed and it
turns out to be better for someone to contravene these rules. (Statesman 294b–c)
Rules themselves were part of the problem: “People and situations differ, and human affairs are
characterized by an almost permanent state of instability” (Statesman 294b). One would use
them, only as a (distant) second-best, if one felt one couldn’t discern or trust the appearance of
expertise in political life. These concerns are echoed in the work of modern legal pragmatists
(like Posner 1995) who place much more faith in insight of judges into new situations than in the
application of established rules or strained analogies with ancient precedents.

Bibliography

 Aristotle, The Politics (c. 350 BC), Stephen Everson (trans.), Cambridge: Cambridge

University Press, 1988.
 –––, The Rhetoric (c. 350 BC), Rhys Roberts (trans.), New York: Cosimo Classics, 2010.
 Barro, R., 2000, “Democracy and the Rule of Law”, in Governing for Prosperity, B. de
Mesquita and H. Root (eds.), New Haven: Yale University Press.
 Bentham, J., 1970 [1782], Of Laws in General, H.L.A. Hart (ed.), London: Athlone Press.
 –––, 1792, Truth versus Ashhurst; or, Law as it is, Contrasted with what it is Said to be.
[Bentham 1792 available online .