WEEK 2

LECTURE 2

DEFINITIONS

• PLAINTIFF/COMPLAINANT
• A person who brings a case against another person to court

• DEFENDANT
• An individual or a company against whom a complaint is filed

• VERDICT
• A decision to a dispute (usually rendered by a judge)

• APPELLANT
• One who appeals the verdict of a judge

• RESPONDENT/APPELLEE
• The person against whom the verdict is appealed

• COMMON LAW/CIVIL LAW

• Refer to Secretary, Ministry of Finance v Masdar Hossain, where a decision by the
Supreme Court of Canada (Walter Valente v R) was quoted

DEFINITION OF LAW

LAW IS THE COMMAND OF THE SOVEREIGN

1. Law has its source in sovereign authority

2. Law is accompanied by sanctions
3. Law commands a certain course of action

• As in, if you do not obey the law, you will be penalized

• People in society must follow certain common rules. For example (conduct that is
prohibited under the The Penal Code, 1860):

• Bribing someone for electoral votes (s 171B)

• Murder (s 300)
• Assault (s 351)
• Rape (s 375)
• Theft (s 378)
• More than one spouse (s 494)
• Adultery (s 497)

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 COURT STRUCTURE OF BANGLADESH

CIVIL COURTS CRIMINAL COURTS

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THOMAS HOLLAND

LAW IS THE FOLLOWING:

1. A rule relating to the actions of human beings

2. It attempts to regulate the external actions of human beings
3. It is enforced by the State

SIR WILLIAM ANSON

• What is the object of law?

• It is “order.”
• As in, people should be able to look ahead in society for some form of stability in the
future.
• While human conduct cannot be predicted, law provides us with some form of stability
as to what their behaviour may be in the future.
• For example, we know (from above) that murder is prohibited in Bangladesh.
Therefore, there is a likely probability that a person will not kill another person.

SOCIETY AND LAW

• SOCIETY
• A community where a group of people live and are united by a common bond

• COMMON BOND
• A “common bond” is when there is uniformity among people (habit, custom, beliefs,
culture)
• EXAMPLES OF HABITS, CUSTOMS, AND TRADITIONS:
• Eid among Muslims; Christmas among Christians (or persons residing in the
Occidental countries); Puja among Hindus; Pohela Boishakh for Bengalis

• Social rules are formulated by those living “in” society. And if you do not follow these
rules, you are ostracized (criticized)
• FOR EXAMPLE: In Bangladesh, once a man reaches the age of 26, or when a woman
reaches the age of 22, their parents and relatives ask when you are getting married.
• But remember, if you do not get married, the State will not punish you. As in, if you
do not get married, the State will not imprison you.
• What can happen is, though, that your family and “society” will disapprove. But
remember, you do save money if you are single.

• On the other side of the coin are “laws.” And, if you do something that is prohibited by law,
you will be imprisoned (or, punished).
• Why? Because the State will enforce those laws. And remember, the State is powerful.

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ROSCOE POUND

LAW IS RELATED TO THE FOLLOWING THREE ELEMENTS:

1. The legal structure of society

2. Constitutional ideals and principles
3. Legal procedure

• What must be remembered is that law in a Democratic Society must be different from laws
of an Autocratic Society
• Today, it is widely believed that law is one of the most important tools for social purposes

SYMBIOTIC RELATIONSHIP

• “Law” and “society” are in a symbiotic relationship. A change in social values results in a
change of laws.
• For example, in Canada, the Supreme Court of Canada’s decision in R v Morgentaler
(1988) allowed women the right to choose. As in, they can choose to continue or
discontinue pregnancy.
• After the collapse of Rana Plaza, there was a lot of pressure to increase the wages of
garment workers.
• Also see (1) Edwards v Canada (Attorney General) (women’s right to vote); and (2)
Carter v Canada (Attorney General) (assisted suicide)

EXERCISE

• However, certain laws now do not make logical sense. For example, s 494 of The Penal
Code, 1860 makes “adultery” a criminal offence. Read the provision and find what is
illogical or otherwise non-sensical:

Whoever has sexual intercourse with a person who is and whom he knows or has reason
to believe to be the wife of [another] man, without the consent or connivance of that man,
such sexual intercourse not amounting to the offence of rape, is guilty of the offence of
adultery, and shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both. In such case the wife shall not be
punished as an abettor.

RULE OF LAW

• In earlier times, certain classes of people (upper echelon) had special rights and were
judged by special law. However, now, the idea is that the laws apply to everyone equally.
• As in, whether you are a rickshaw puller, a General in the Military, or the largest
shareholder of East Coast Group — the law will apply to everyone equally
• It can be debated, however, whether it will actually apply to everyone equally
• Do remember, though, that Democracy can exist only in a society of equals

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ALBERT VENN DICEY

“RULE OF LAW” IS THE FOLLOWING:

1. NO MAN CAN BE PUNISHED UNLESS HE HAS BREACHED A LAW THAT WAS

ESTABLISHED BY A SOVEREIGN BODY

• As in, (a) the law is supreme; (b) no one can be punished unless he has breached
that law; and (c) the breach of law must be proven in a court of law

2. NO MAN IS ABOVE THE LAW

• As in, (a) equality before the law; (b) every citizen is subject to the laws of the land;
and (c) regardless of your position in society, a citizen must face trial in the same
court as every other citizen

3. “LAW” IS THE RESULT OF STATUTES (LEGISLATION) AND JUDICIAL DECISIONS

(PRECEDENT)

• Here, it is important to keep in mind that there is a dialogical relationship between

the legislature, the executive, and the judiciary. That is to say, the legislature will
make laws and the judiciary will determine whether that law is just and consistent
with the Constitution of the People’s Republic of Bangladesh, which is the
supreme law of the land
• This also means that if a particular law is inconsistent with any provision of our
Constitution, then that provision will be struck down (section 7 of Constitution)
• This way, the judiciary keeps a check on the legislature’s power. This prevents
any branch of government from becoming overly powerful

• Can the Queen of England be charged with an offence?

Roncarelli v Duplessis (SCC, 1959)

• FACTS: Frank Roncarelli, an Italian immigrant to Canada, owned and operated the
Quaff Café in Montreal, Quebec, Canada, which was a very popular restaurant. He was
a member of the Jehovah’s Witnesses. Maurice Duplessis was the Premier and Attorney
General of Quebec. In the mid-to-late 1950s, government officials, at the behest of the
Catholic Church, became concerned with proselytization by Jehovah’s Witnesses in
Montreal. On numerous occasions, adherents of that faith were arrested on public
nuisance charges while handing out their literature. As a successful and wealthy
businessman, Roncarelli post their bail so they could be released from jail. Frustrated
with this, Premier Duplessis instructed the provincial liquor commissioner to revoke
the liquor license for Roncarelli’s restaurant. The commissioner acted accordingly and
revoked Roncarelli’s liquor license. Roncarelli challenged the revocation.

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 • ISSUE: Did the Premier of Quebec act ultra vires to his authority in instructing the
liquor licensing board to revoke Roncarelli’s liquor license (or, in other words, did he
act outside his authority)?
• HELD: Yes
• JUSTICE RAND: “In public regulation of this sort, there is no such thing as absolute
and untrammelled “discretion,” that is that action can be taken on any ground or for
any reason that can be suggested to the mind of the administrator; no legislative Act
can, without express language, be taken to contemplate an unlimited arbitrary
power exercisable for any purpose, however capricious or irrelevant, regardless of
the nature or purpose of the statute.”

CRITICISM OF THE RULE OF LAW

1. ADMINISTRATIVE LAW

• Government bodies have made special tribunals to deal with specific issues related to
the Government
• For example, Military Courts (Court Martial)

2. INEQUALITY OF INCOME/WEALTH

• Police enforcement of laws are partial.

• Examine America: Deaths of (1) Akiel Denkens (North Carolina); (2) Gregory
Gunn (Alabama); (3) Samuel DuBose (Ohio); (4) Christian Taylor (Texas); and
most recently, (5) George Floyd.

3. SUPREMACY OF THE LEGISLATURE

• Remember that Democracy can only be attained under the Rule of Law. And, the Rule
of Law can only be attained in a Democracy.
• How do you attain this Rule of Law (is it attainable)?
• When you increase the education of society, you are stepping closer to establishing
the Rule of Law in a country

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