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Hart’s Concept of Law and the Indian Constitution

The Constitution
by Carl_C

Introduction

 

It can be a matter of dispute whether legal positivism owes its birth to Hobbes, Bentham or Austin but most of the legal experts agree that the version of legal positivism given by H.L.A. Hart is the most appropriate one for the modern constitutional system. Hart replaced the images of power and violence in jurisprudential imagination by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligation. For Hart, legality is not something which is politically imposed but is evolved through a growing complex system of different kinds of rules.

Before the advent of modern period legal theory was basically dominated by the natural law ideology which was the touchstone for testing the State law. In the modern period, Hobbes for the first time divorced positive law from natural law and made the State law independent of any external criteria. However, Hobbes did not fulfil the task of positivism fully as he did not distinguish between the actual law (“is law”) and the ideal law (“ought law”). His State-made law was not only an existing law but also an “ought” law.

The task was accomplished by John Austin. Austin divorced the State law fully from any external criteria and pretensions of validity on the basis of “ought”. His theory of legal system is based on his theory of sovereignty. According to Austin, a legal system exists if

(a) its supreme legislator is habitually obeyed.

(b) its supreme legislator does not habitually obey anyone.

(c) its supreme legislator is superior to the law subjects relative to every law.

For Austin, legal system was set of all the laws enacted directly or indirectly by one sovereign. His criterion for membership of a law in a system is that a law belongs to a system if and only if the sovereign who enacted all other laws of that system enacted it.

Austin has very little to say about the structure of the legal system – which can consist of internal as well as external relations. Punitive relations are perhaps the most important internal relations implicitly recognized by Austin. A law containing an imperative part only is not an independent law at all, unless there is a corresponding punitive law. At best, it is an imperfect law to be interpreted perhaps as a part of another law, and having the effect not of imposing duty but of permitting an act. Another kind of internal relation recognised by Austin is what is called as genetic relation, that is, the relation between subordinate law and the obedience law which authorised its legislation. Austin’s theory may be said to be based on the principle of independence

A theory of legal system is based on the principle of independence if according to it there is no logical necessity for a legal system to have an internal structure. It is based on the notion that every law can be an independent unit, the existence, meaning or application of which is not logically affected by other laws

The demand of personal obedience in Austin’s theory means that the span of the life of the legal system determines the period of existence of the laws of the system and hence also of the legal system itself. Austin came out with the solution of “tacit” command for the problem of continuance of old laws. In fact, Austin’s theory of a legal system is at best an explanation of a momentary legal system which contains all laws of a legal system valid at a certain moment.

There is not a moment at which a legal system exists but has no laws valid at that moment. Austin’s theory does not satisfy this prerequisite

Kelsen’s theory improved upon Austin’s theory. In his theory, laws derived their validity not from the sovereign but from grundnorm. His theory could provide an internal structure of the legal system as well as an explanation for its continuance. Apart from these two aspects, Kelsen’s theory was the same as that of Austin. It was based primarily on sanction and efficacy and was imposed from the top. Kelsen never clearly stated what grundnorm was and what was the validity of the grundnorm. At one point he said that grundnorm was the general acceptance that this legal system should exist and its validity was its efficacy. Thus, in this way Kelsen’s theory was not very different from Austin’s theory except in that a person or a body of persons was replaced by a norm which was basically a psychological factor.

These defects were largely rectified by H.L.A. Hart whose theory of legal system based on the combination of primary and secondary rule is regarded as the “high point of legal positivism The Concept of Law  was first published in 1961. It is considered useful and essential for understanding a theory that it is examined in its social background. Peter Wagner reflects on the social situation at the time of publication of The Concept of Law  He sees the period around 1960 in Western Europe as the culmination of “organised modernity” which

“developed a particular kind of reflective self-understanding as conveyed in its social science…. Organised modernity was characterised by the integration of all individuals inside certain boundaries into comprehensively organised practices. No definite places in society were ascribed to individual beings according to pre-given criteria. Social mobility existed and was part of the liberties this society offered. This configuration achieved a certain coherence, or closure at about 1960 … it appeared as a naturally ‘interlocking order”

Reflecting the social and political conditions of his time, Hart’s concept of law is based on general social acceptance of law or legal system”

Hart’s Perception towards Law

Deriving inspiration from linguistic philosophy of J.L. Austin and Wittgenstein that words should be understood in the context they are used, Hart concluded that law is what people practising it mean it to be. This is what he calls as internal aspect of the law. Although Hart did not go to the extent of Duguit in contending that laws derive their validity from social acceptance and he made the rule of recognition

A central part of Herbert Hart‘s theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or “what counts as law”) within that system. He articulates its application thusly:

“

…to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition.

”

 

— H. L. A. Hart

 

In Hart’s view, the rule of recognition arises out of a convention among officials whereby they accept the rule’s criteria as standards that empower and govern their actions as officials.[1] The rule is cognizable from the social practices of officials acknowledging the rule as a legitimate standard of behavior, exerting social pressure on one another to conform to it, and generally satisfying the rule’s requirements. To this end, as explained by Hart, the rule has three functions:

To establish a test for valid law in the applicable legal system, To confer validity to everything else in the applicable legal system, and To unify the laws in the applicable legal system.

According to Hart, any rule that complies with the rule of recognition is a valid legal rule. For example, if the rule of recognition were “what the Queen says is law”, then any rule the Queen spoke would be a valid legal rule.

His criteria of validity but he accepted that there should not be a general disregard for the system among common people and officials. Although Hart was aware of the role of coercion and conflict in the universe of law but he tried to downplay the role of command and coercion and violence by conceiving law as a system of rules upon rules of social practices informed by their own criterion of validity and normative obligations. “Hart spoke of the shared acceptance of rules. The law it seemed belonged to us all; legal rules were not to be seen as external forces upon us but as our resources.

As stated earlier, for Hart legal system is a combination of PRIMARY AND SECONDARY RULES.

Primary rules are rules of obligation while secondary rules are parasitic upon primary rules and are rules about primary rules.

These secondary rules provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones or in various ways determine their incidence or control their operation.

While primary rules impose duties, secondary rules confer power, public or private. Secondary rules are necessary to cure the defects which a simple social system may have to face due to static nature of the primary rules, their uncertainty and their inefficiency regarding dispute resolution. The introduction of the remedy for each defect is a step from pre-legal into legal world; since each remedy brings with it many elements which permeate law, “certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system”.

The thesis made Hart to conclude that international law is a law because nations feel an obligation to comply with it but it still lacks the character of a legal system because of lack of secondary rules. In recent years the development of the principle of jus cogens in international law can be called a development towards the formulation of secondary rule of recognition.

Thus, the three defects of pre-legal system are cured by “rules of recognition”, “rules of change” and “rules of adjudication”. Rules of change and rules of adjudication are again related to rules of recognition because it is with reference to it that a particular rule is identified. Thus, for Hart, the existence of a particular rule does not depend upon the command of the sovereign but on the fact that a rule is recognised as valid by rule of recognition and courts have declared it to be valid.

Indian Concept Acc. to Hart’s Ideology

The Indian legal system is a fairly developed system and consists of both primary and secondary rules. The Constitution of India is the ultimate rule of recognition. Although under Article 51 of the Indian Constitution, it is provided that the State shall endeavour to promote international peace and security and respect its international obligation yet no rule of international law which is in conflict with the Indian Constitution can be binding on the Indian people and courts.

Primary rules of obligation in the Indian legal system include customs which are recognised by courts and various statutes

This is evident from the changing status of customs. Although before independence the Privy Council in Collector of Madura v. Matoo Ramalingaa  ruled that in Hindu law a clear proof of custom overrides the written text of law, the situation has changed after independence. Only the customs which are recognised and accepted by Parliament or the courts have the force of law.

Pre-constitutional laws are given recognition by Article 372 of the Indian Constitution “but subject to the provisions of … Constitution”.

Hart criticises Austin’s definition of law as a command of the sovereign backed by sanctions. He contends that a legal system does not resemble a gunman situation writ large. A person may succumb to a gunman’s threats and FEEL OBLIGED TO do or obey his order. But he is not UNDER AN OBLIGATION TO obey the order. But under a legal system he may feel that he is under an obligation to obey the rule although there is no chance of being detected.

One of the criticisms against the Indian Constitution is that it was not framed by a Constituent Assembly which could be treated as representing all Indians and that most of the provisions of the Constitution are borrowed from outside and are not rooted in Indian tradition. It is also contended that the Constitution was never put before the people for ratification. Therefore, it signifies an imposition on the people rather than their acceptance giving validity. The criticism is not, it is submitted, justified because the members of the Constituent Assembly were people in whom the general population had confidence.

It is evident from the results of elections conducted under the new Constitution. It is also true that people have accepted the Constitution and its philosophy because so far there has not been any general opposition of its not coming directly from the masses. The people of India not only feel themselves under an obligation to obey the Constitution but they are also in fact seeking remedy from the Constitution against existing laws and circumstances.

This is clear from the decision in Supdt., Central Prison v. Dr Ram Manohar Lohi  this case a pre-Constitution law was opposed and the right to oppose it was sought from Article 19(1)(a) of the Constitution of India. The fact that new rights are recognised as fundamental right under Article 21 of the Constitution and that the courts are being approached to recognise and enforce the directive principles of the Constitution proves the contention that people of India have accepted the present constitutional system and it is not imposed on them from above.

Hart emphasised on INTERNAL AND EXTERNAL ASPECTS OF A RULE.

 An external aspect of a rule, which is also present in social habits, consists in the regular uniform behaviour which an observer can record. Internal aspect of the rule distinguishes a rule from social habit. When a habit is general in a social group, this generality is merely a fact about the observable behaviour of most of the group. In order that there be such a habit no member of the group need in any way think of the general behaviour or even know that the behaviour in question is general; still less need they strive to teach or intend to maintain it. By contrast, a social rule sets the standard to be followed by the group as a whole. In order that a social rule exists some must look upon it as to be followed by others, deviation from it is criticised, demand for conformity is made upon others.

There need not be any feeling of “being bound”. There is no contradiction in saying that people accept certain rules but experience no such feelings of compulsion. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and this should display itself in criticism (including self-criticism), demands for conformity and in acknowledgement that such criticisms and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must” and “should”, “right” and “wrong”.

Again, the government action subsequent to the Supreme Court decision in Mohd. Ahmed Khan v. Shah Bano Begum was criticised on the ground that it is against the spirit of the Constitution being in contravention of Article 14 and Article 44 of the Constitution of India.

RULE OF RECOGNITION according to Hart forms the foundation of the legal system.

Such a rule is accepted by both private persons and officials and is provided with authoritative criteria for identifying primary rules obligation. These include reference to authoritative text, legislative enactment, customary practice and general declaration of specified persons or to past judicial decisions in particular cases.

In a modern legal system where there are a variety of sources of law, the rule of recognition is correspondingly more complex. The criteria for identifying the law are multiple and commonly include a written constitutional enactment by a legislature, and judicial precedents. In most cases, provision is made for possible conflict by ranking this criteria in an order of relative subordination and primacy. There is a difference between “subordination” and “derivation”.

In the day-to-day life of a legal system, rule of recognition is very seldom expressly formulated as a rule. For most part, the rule of recognition is not stated but its existence is shown in which particular rules are identified either by courts or other officials or private persons or their advisors.

The use of unstated rules of recognition by courts and others in identifying particular rules of the system is characteristic of the internal point of view. Those who use them in this way thereby manifest their own acceptance of them as guiding rules and with this attitude there goes a characteristic vocabulary different from natural expressions of the external point of view.

Under the Indian legal system, although the Indian Constitution is the ultimate rule of recognition, it presents certain baffling complexities—

— It allows the existence of parallel legal systems in the shape of personal laws many of which still derive their validity from religious institutions. Article 372 of the Indian Constitution allows continuance of pre-constitutional laws. It includes personal laws also. Article 44 of the Constitution provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. These provisions may be interpreted to mean that the Constitution for the time being recognises their existence. But it may be relevant to note that the laws which conflict with provisions of the Constitution that are thought to be part of the basic structure like Article 14 are still tolerated.

Fluctuations by way of the Interpretation

— There is a hierarchy of rules of recognition and the Constitution is at the top. But there are perplexing exceptions-

(i) Under Article 240(2) the President can override parliamentary legislation in relation to Union Territories. The President may make regulations for any purpose for which Parliament could make law.

(ii) Under Schedule (5) Part (5) parliamentary legislation in relation to tribal areas in certain matters can be modified. State’s power to legislate on certain specified entries is subject to power of Parliament under the Union List, e.g. Entry 23 of State List subject to Entry 54 of List I, Entry 24 of List II is subject to Entries 7 and 52 of List I.

(iii) Parliament can by its own law effectively alter the distribution of powers. Articles 2 to 4 can be amended by ordinary parliamentary legislation which conflicts with the principle of federalism which the Constitution seeks to protect.

However, since these provisions are part of the Constitution itself they cannot be said to be in conflict with Hart’s theory of ultimate rule of recognition. Moreover, in Indian Aluminium Co. Ltd. v. Karnataka Electricity Board it has been said that the entries in the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such. This conflict in the Constitution brings us to the question of basic structure. Parliament has the power to amend the Constitution. But the power is subject to substantive as well as procedural limitations.

While procedural limitations are given in Article 368, substantive limitations are pointed out by the Court in Kesavananda Bharati v. Union of India as the principle of basic structure. Basic structure in simple terms can be said to indicate what Parliament, a creation of the Constitution, cannot do. In other words, power of Parliament to amend the Constitution is only limited to the areas outside the sphere of basic structure. It is the core of the ultimate rule of recognition. It tells what the ultimate rule of recognition does not give to Parliament. Normally, basic structure is said to be the grundnorm of the Indian legal system. But the analogy will be erroneous because then most of the provisions of the Constitution itself will become invalid when tested against the basic structure, e.g. the above-mentioned provisions conflict with separation of powers and federalism and to hold this will be beyond the powers of the judiciary under the ultimate rule of recognition.

One question, which is normally posed is, what gives the judiciary power to say what the basic structure is? Is the existence of basic structure dependent on the decision of the judiciary? The answer can be given by drawing an analogy from Hart’s minimal rules. According to Hart, these rules are minimal conditions for the persistence of social groups i.e. if certain rules did not exist the social group would not “survive”. Thus, we can say that there are minimal rules for the existence of a legal system. If these rules do not exist the legal system would not survive and by enunciating the basic structure the judiciary is only pointing towards these rules.

However, from the inefficiency of a particular rule general disregard for the system should be distinguished. One who makes an internal statement concerning the validity of a particular rule of a system may be said to presuppose the truth of the external statement of fact that the system is generally efficacious. For the normal use of internal statements is in such a context of general efficacy. Thus, while in Supdt., Central Prison v. Ram Manohar Lohia limited right of civil disobedience was granted under Article 19(1)(a) it cannot be so exercised as to threaten the legal system and the sovereignty and integrity of the country. Thus, it cannot be so exercised as to generate a general disregard for the system but opposition and criticism of certain laws is permissible because of the democratic framework of the country.

Hart’s idea of OPEN TEXTURE OF LAW is his another important contribution to legal theory. He recognises the limits of rules and accepts that since all conditions cannot be anticipated, there cannot be predetermined rule to suit every situation in society. Thus, legislators lay down the rules according to the aim of the law. These rules can regulate the clear cases of the paradigm. But there are indeterminate cases which the legislators could not visualise in the beginning. For these indeterminate cases the core meaning of the rule has to be extended to the “penumbral” meaning where the Judge performs an extra-legal function and makes a choice. Thus, according to Hart, in such cases the Judge has to exercise his discretion and a prudent Judge tries to accommodate the prevalent social conditions while interpreting the words. According to Hart, even if the Judge does not extend the meaning of the word and sticks to the “core” meaning, he is still exercising the discretion though making a conservative choice.

, While in interpreting Article 12 the Supreme Court extended the penumbral meaning of any other authority to include instrumentalities of the State within the meaning of the term “State”, they also came up with the principle of basic structure pointing out the principles on which the Indian Constitution is based which cannot be violated by the legislature. Taking guidance from the general structure and aim of the Constitution the Supreme Court has given a totally new interpretation to Articles 14 and 21.

Hart in agreement with Hobbes thought that these conditions are the foundation on which society is based. Men have come together for these reasons. Thus, if these truisms will be ignored the foundation of society and the legal system will be lost and the system will lose its base and efficacy. Thus, although these truisms do not validate the rules, rules cannot ignore them if general efficacy of the system is to be maintained.

In the Indian legal system, although the Supreme Court in A.K. Gopalan v. State of Madras and A.D.M., Jabalpur v. Shivakant Shukla  maintained a strict positivist attitude, in Golak Nath v. State of Punjab , Maneka Gandhi v. Union of India   it adopted the natural law tone and has in Article 14 and Article 21 introduced criteria like “reasonableness”, “anti-arbitrariness” and “due process” for testing the validity of laws which can be called external criteria.

 

 

Grounds of Morality

Finally, what is the role of law and the legal system in an individual’s life? What should be the sphere of law? Should law enforce MORALITY on its subjects? Hart differs from Devlin in this respect. Devlin contends that society has the right to enforce morality because a “recognised morality” is as necessary to society as a recognised government and that society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential for its existence. Although Devlin accepts that a balance should be maintained between rights and interests of the society and rights and interests of the individual, there are certain principles which the legislature should bear in mind while legislating.

Hart contends that while public morality should be enforced because its absence amounts to nuisance to another person, care should be taken while enforcing private morality and a balance has to be maintained between individual liberty and morality. According to Hart, the private morality should be made effective by means of persuasion, dialogue and debate rather than coercion.

The Indian legal system does not totally approve of Hart’s theory in this regard. In fact the Indian Constitution is not only a formal text but also a dream and an instrument to bring about social reform. Thus, Article 17 penetrates into private lives of citizens by abolishing “untouchability” in any form. Under the “Protection of Civil Rights Act, 1955” passed by Parliament under Article 35 of the Constitution, discrimination on the ground of untouchability has been made a punishable offence not only in public places but also in privately owned places of worship and the State Governments are empowered to impose collective fines on the inhabitants of an area involved in or abetting the commission of offences related to “untouchability

In Saroj Rani v. Sudarshan Kumar Chadha  and in Gian Kaur v. State of Punjab  the Supreme Court enforced private morality.  A Constitution Bench overruled the earlier decision of the Division Bench of the Supreme Court in the case of P. Rathinam v. Union of India  by holding that the right to die cannot be included in the right to life under Article 21.. Morality is expressly mentioned in Articles 25 and 26 as a ground for restrictions. Under Article 25 the Constitution guarantees freedom of conscience and freedom of profession, practice and propagation of religion subject to public order, morality and health. In the same way under Article 26, every religious denomination or any section thereof has the right to manage its religious affairs subject to public order, morality and health. Therefore in Acharya Jagdishwaranand Avadhuta v. Commr. of Police, Calcutta  the Court held that tandava dance in procession or at public places by Anand Margis, carrying lethal weapons and human skulls, was not protected by Article 25 or 26 as it was against public order and morality.

Even under Article 14 the Supreme Court under the new concept of arbitrariness, enforces the prevailing morality by striking down a law as unreasonable. Thus, in Air India v. Nergesh Meerza  the Air India Employees Service Regulations were challenged on the ground that they provided for different service conditions for Air Hostesses and Assistant Flight Pursers (AFPs) and it was alleged that they were discriminatory against women. The Supreme Court found that Air Hostesses and AFPs worked under two different categories of services and the Air Hostesses on the whole were not discriminated against. However, even though it found that there was a reasonable classification and no violation of the principle of equality, the Court struck down a regulation providing for termination of services for Air Hostesses on the first pregnancy as arbitrary because it insulted the Indian motherhood

. However, in R.K. Garg v. Union of India the majority of the Supreme Court spoke in a different tone. In this case the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and the Act which replaced it was challenged. The Act granted certain immunities to persons who had invested unaccountable money in the Special Bearer Bonds. They were not required to disclose the nature and source of acquisition of the Special Bearer Bonds. It prohibited the commencement of any enquiry or investigation against such person. The Court by a majority of 4 to 1 upheld the validity of the Act on the ground that the classification made by the Act between persons having black money and persons not having black money was based on intelligible differentia having rational relation with the object of the Act. The object of the Act was to unearth black money for being utilised for productive purposes. Bhagwati, J. speaking for the majority, refused to strike down the law on the ground of morality, saying that:

“It is necessary to remember that we are concerned here only with the constitutional validity of the Act and not with its morality. Of course, when we say this we do not wish to suggest that morality can in no case have relevance to the constitutional validity of a legislation. There may be cases where the provisions of a statute may be so reeking with immorality that the legislation can be readily condemned as arbitrary or irrational and hence violative of Article 14. But the test in every such case would be not whether the provisions of the statute offend against morality but whether they are arbitrary and irrational having regard to all the facts and circumstances of the case. Immorality by itself is not a ground of constitutional challenge.”

Gupta, J., however, gave dissenting opinion saying that:

“The concept of reasonableness does not exclude notions of morality and ethics. I do not see how it can be disputed that in the circumstances of a given case considerations of morality and ethics may have a bearing on the reasonableness of the law in question.”

Conclusion

Based on the general acceptance of the people, Hart’s legal system comprises of primary rules of obligation and “secondary rules of recognition”, “rules of adjudication” and “rules of change”. Existing within the framework of certain minimal rules this legal system has enough flexibility to adapt itself to the changing needs. Except for the five truisms, Hart’s legal system like Aristotle’s Politics is amoral. Principles of morality are no touchstone to test the validity of the rules of legal system. They can, however, become legal rules after passing through the process prescribed by the legal system.

The Indian legal system is a fairly developed legal system comprising of both primary rules of obligation and secondary rules of recognition, adjudication and change. While the primary rules consist of various statutory laws and recognised customs, secondary rules are contained in the Constitution of India. The Constitution of India is based on the philosophy and principles debated and accepted by the people of India during the national movement. Hence, it is “We the People of India” who have framed the general legal framework of our country and therefore feel under an obligation to comply by it. The general legal framework is the source of validity or the “rule of recognition” for other rules and governmental action. While the Constitution has enough inbuilt flexibility to change itself to the changing needs there are certain minimal rules termed as “basic structure” whose sanctity has to be respected as they comprise the basic framework or identity of our legal system.

As for the “rules of adjudication”, the Indian legal system contains a very integrated judicial structure with the Supreme Court of India at the top. The Supreme Court of India and High Courts of the States have the authority to interpret the Constitution also. In the exercise of this power, while basing their judgments on general principles, structure and aims of the Constitution, they have moved beyond the “open texture of law”. A clear example of this is the replacement of “procedure established by law” under Article 21 by the “due process of law”.

However, it is on the question of morality that the Indian legal system seems to clearly disagree with Hart’s thinking. Thus, not only morality is explicitly used in Articles 25 and 26, and implicitly in Article 19(1)(g), even while judging the validity of particular laws against the Constitution of India the Court takes into account moral principles. What is important here is not the actual decisions which can be either way, given the fact that morality is largely subjective, but the consideration of moral principles as part of constitutional values by the courts. This is clear from the views of the judiciary on the two issues of restitution of conjugal rights and the right to die.

Prateek Shanker Srivastava, Student, IInd Year, Dr RML National law University, Lucknow, U.P.

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Posted on May 8, 2011 by , Reply

How was the study of the liberal arts connected to the concept of education, freedom, citizenship, and public?

Citizenship and Freedom
by dbking

Question by Jess: How was the study of the liberal arts connected to the concept of education, freedom, citizenship, and public?
How was the study of the liberal arts connected to the concept of education, freedom, citizenship, and public service? Do you see a purpose in liberal arts education today?

Best answer:

Answer by Bottom Contributor
Liberals like to study things like art and basket weaving – because critical thinking escapes them

What do you think? Answer below!

Posted on December 12, 2010 by , 3 comments

Basic Principles of Democratic Governance ? Why is the Concept of Separation of Church and State Important

The separation of church and state is one of the important principles upon which democratic constitutions are based. The concept rose at the onset of the Renaissance, from the indomitable hold of the Roman Catholic Church in world affairs. People felt that for a tolerant government, that is, a democratic government to thrive, the religious convictions must not be a factor in shaping national policies.

This concept was also held to be acceptable because of the fact that most democratic societies like the United States of America are not members of a single church – there are Protestants, Catholics, Jews, Moslems and the like, all of whom are major chunks of the population. Thus, the concept was further reinforced.

Throughout the decades, it has been shown that the definition of this concept is murky at best. This is due to the fact that a majority of a person’s beliefs is derived from his or religious affiliation (or non-affiliation, depending on the way one looks at it). Hence, there ensued an inevitable clash between the constitutional fundamentalists, and the average American. Just look at any coin and you can see the phrase, “In God We Trust.”

It is true that the society’s moral fiber is being stretched too thin, so that many advocacy groups call for the reordering the code of ethics of citizenship. However, one must realize that to formulate a public policy is to promulgate regulations that are based on tenets which are subscribed to by everyone. Hence, a policymaker cannot quote the bible to support his propositions, as there are many Americans who are not Christians to begin with. That is something that many of us must understand.

Instead of forcing our own beliefs on others, let us learn to respect every person’s religious disposition. If we feel that what we want to happen is right, and then let us find ways to impose them on people who share the same outlook. Democracy is all about respecting every human being for who he or she its, and not for his or her faith.

 

 

 

 

One of the things Sammi appreciates the most about living in America is her right to have her own garden. She loves planting seeds and watching them grow. She uses the wall o water to keep her plants from freezing and jobes plant food spikes to keep them healthy all year round!

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Related Church And State Articles

Posted on November 29, 2010 by , Reply

The Concept of Corporate Citizenship in a Global Environment

1.         Introduction

Over the past two decades, the forces of economic globalization, political transformation and technological innovation have increased the global reach and influence of the private sector. The number of transnational corporations has almost doubled from 37,000 in 1990 to over 60,000 today, with some 800,000 foreign affiliates and millions of suppliers and distributors operating along their global value chains. This process has conferred new rights and created new business opportunities for global corporations and large national companies, while also exposing weaknesses in national and global governance structures. It has also resulted in new competitive pressures and risks, and led to increased demands for greater corporate responsibility, transparency and accountability.

As a result, today’s business leaders face a complex and often contradictory set of stakeholder expectations. They are being called on to engage with activists as well as analysts, to manage social and environmental risks as well as market risks, to be accountable for their non-financial as well as their financial performance, and to cooperate as well as to compete, often with non-traditional partners, focused on unfamiliar issues. They are under pressure from governments, consumers, trade unions, non-governmental organizations and a small but growing number of their investors, to demonstrate outstanding performance not only in terms of competitiveness and market growth, but also in their corporate governance and corporate citizenship.

In short, corporate executives are faced with a complex, unprecedented challenge: How can they continue to deliver shareholder value while also delivering, and demonstrating that they are delivering, societal value?

2.         What is corporate citizenship?

The term ‘corporate citizenship’runs the risk of being all things to all people. But it does have some easily identifiable elements too. The basic idea is to understand business as part of society, contributing directly to the welfare of society, rather than somehow separate from it. Whereas in the past the baseline of good behaviour was ‘acting within the law’across the company’s operations, newer aspirations range from the maxim ‘do no harm’through to assessing ‘overall net impacts’. Companies need to go beyond simply obeying the law and making a competitive return for their shareholders if they are to respond to the challenge of citizenship.

Corporate citizenship invites companies to make strategic choices based on an understanding of the total impacts of their business in society. The practice of corporate citizenship involves a

focus on one or more of three main areas:

v     the societal impacts that flow from basic business policy and practice (as managed and measured through various codes of conduct, ‘values statements’and company reports);

v     the impacts that a company has up and down the value chain (e.g. when child labour is employed by its suppliers; or when end consumers dispose of its products in ways likely to harm the environment); and

v     the impacts that come from the voluntary contributions that businesses make to communities affected by their operations (including charitable gifts, community investment and commercial initiatives in the community).

Management and communication tools such as the ‘social audit’, development of key performance indicators on corporate citizenship, ‘benchmarking’best practice across a variety of industries, and best practice on ‘cause-related marketing’have all grown up alongside these core elements of corporate citizenship. Codes of  good conduct for companies abound, as do stamps or standards awarded by third parties, such as the Social Audit stamp of the Brazilian NGO IBASE, or the Social Accountability 8000 standard developed by the Council on Economic Priorities Accreditation Agency. The professionalization of environmental management has had an impact on the ‘new’tools of social management and accounting, accelerating the process of adaptation to the corporate citizenship agenda. But not all companies professing to be good ‘corporate citizens’choose to use all of these tools, and the current state of ‘corporate citizenship’varies from country to country.

3.         What drives Corporate Citizenship in a Global Context?

The emergence of ‘corporate citizenship’as a guiding principle for business strategy has been driven by a number of changes in the business operating environment. The overall process of globalization

affects all businesses one way or another.

Globalization has given rise to unprecedented links between economies, cultures, individuals and groups. Technological advances such as the internet have transformed communications. When multinational corporations apply different standards at home from those in their overseas operations, the gaps are exposed to external scrutiny as never before. The result is that the corporate

citizenship debate has acquired an increasingly significant ‘international’ dimension, raising one of the most difficult sets of questions in the current policy and business agenda: where does the responsibility of companies end and the role of governments begin, and by what (and whose) standards should this be judged?

Economic liberalization and deregulation have seen a massive increase in the flow of capital, goods and services across borders, opening new markets to foreign investment. At the same time the gaps between rich and poor around the world have widened and the world’s population is growing rapidly.

As privatization proceeds apace around the world, companies are increasingly responsible for providing services that were public-sector responsibilities in the past; areas such as healthcare provision by private companies and liberalization of energy markets focus more attention on the role of companies in the place of governments. The role of the private sector in provision of technical assistance around the world has also increased as corporations have become more involved in providing funding for intergovernmental bodies and as contractors in the delivery of donor assistance programmes. The overall balance of public- and private sector responsibilities is changing.

Globalization has given rise to new demands on corporations to exercise their power responsibly. There is a popular perception that in some markets the economic power and influence of corporations is much greater than that of the incumbent government. Some international NGOs have focused in on this, giving rise to new demands that companies investing in politically unstable economies such as the Sudan should use their power to encourage host country governments to spend the revenue that their investments generate for social benefit – not to wage wars or benefit political elites.

It is often pointed out that the turnover of the world’s largest companies is greater than the GNP of all but around 20 members of the United Nations. But individually even large companies account for only a fraction of global economic ouput: BP, Amoco and Arco together produce no more than 0.01%.

Globalization is not an entirely ‘neutral’ driver of corporate citizenship from a business perspective. Indeed, a powerful ‘backlash against globalization’ has now been set in motion, as witnessed by the public demonstrations surrounding recent World Trade Organization (WTO) and International Monetary Fund (IMF) meetings in Seattle and Washington.

Some proponents of corporate citizenship in the North see it as a way of countering the backlash against globalization – of reinvigorating the notion that trade and investment can bring overall social and environmental welfare gains. Encouragement of global corporate responsibility then becomes part of efforts to put ‘a human face on the global economy’.

One maxim seems to find resonance with all: that with power needs to come responsibility. Globalization, it is said, is transforming corporate responsibility from a choice into an imperative.6 But the extent of that responsibility remains a matter of hot debate.

4.         Commitments to Corporate Citizenship

There are numerous examples of commitments towards corporate citizenship. Many of them involve not only the private sector, but also the public sector and civil society organizations.

v     The Global Compact was proposed by the outgoing UN Secretary General, Kofi Annan, at Davos in January 1999. He called on business leaders to embrace and enact within their own corporate activities nine core principles derived from universally accepted agreements on human rights, labour and the environment. Today the Global Compact brings together several hundred companies, with some of the world’s leading trade union bodies, human rights and environmental organizations in a global learning forum, policy dialogues and variety of development projects. Companies engage in the initiative through the written support of their CEOs.

v     Tackling global health issues: The World Economic Forum Global Health Initiative (GHI) is designed to foster greater private sector engagement in the global battle against HIV/AIDS, tuberculosis and malaria. In cooperation with the World Health Organization and UNAIDS, the GHI brings together businesses, NGOs, civil society and academic institutions in a partnership, focusing on corporate best practices, resource gaps, partnership opportunities, philanthropy and the role of business in advocacy. The Global Business Council on HIV/AIDS is an international group of business leaders dedicated to advocating for an increased business response to AIDS both in the workplace and in the community. The Global Alliance for Vaccines and Immunization (www.vaccinealliance.org) was officially launched in January 2000 at Davos, with a mission of combining public and private resources and competencies to support immunization activities. It is a coalition of governments, the WHO, UNICEF and the World Bank; philanthropic foundations; the International Federation of Pharmaceutical Manufacturers Associations (IFPMA); and technical and research institutes.

v     Overcoming the digital divide: The ICT sector has engaged itself in a variety of policy dialogues and practical initiatives to bridge the ‘digital divide’ both within and between nations. Examples include: the G8 Digital Opportunity Task Force which consisted of leaders from the public, private and not-for-profit sectors; the UN’s multi-stakeholder ICT Task Force and the World Economic Forum’s Global Digital Divide Initiative. Business leaders are also supporting practical projects such as the Digital Partnership and Net Aid; and others such as those listed on the World Economic Forum website.

v     Investing in sustainable development: This has been an area of immense focus. The International Chamber of Commerce and World Business Council for Sustainable Development have established Business Action for Sustainable Development as a network and platform to provide business input and partnership examples to the World Summit for Sustainable Development in 2002.

v     Promoting good corporate governance: Business leaders are playing a role in several initiatives to promote good corporate governance. Examples include: The International Corporate Governance Network, pension funds and financial institutions with over $8 trillion in assets under management working towards global convergence on standards of governance; and business support for Transparency International to tackle corruption. Another aspect of good governance is the efforts to promote sustainability reporting such as the Global Reporting Initiative.

v     Corporate citizenship at the sector level: The World Business Council for Sustainable Development and UNEP have played an important role in promoting sector-based initiatives for sustainable development in industries as diverse as mobility, cement, pulp and paper, information technology, banking and finance. Other examples include the E7 network of electricity companies; the International Hotels Environment Initiative; and the Global Mining Initiative.

v     Supporting national development: At the national level business leaders are supporting initiatives focused on goals such as education, local enterprise and job creation, and rural development. Examples include: Philippine Business for Social Progress; the National Business Initiative in South Africa;  Instituto Ethos in Brazil;  Business in the Community in the UK;  and Landcare in Australia.

v     Engaging Tomorrow’s Leaders: Today’s business leaders are supporting networks such as the World Economic Forum’s Global Leaders for Tomorrow, which consists of young leaders from the public and private sectors and civil society, and AIESEC, the world’s largest student-run organization to promote sustainable development and corporate citizenship. A small but growing number of business schools have started to invest in research and teaching in this area supported by some CEOs.

 
5.         Progress of Corporate Citizenship in a Global Context

While the leadership challenge is especially apparent for executives in Europe and North America, it is also becoming a reality for many in Asia, Africa, the Middle East, and Latin America, especially those who aim to be global players – either doing business with or competing against the world’s top multinationals. Business leaders in each region are obviously influenced by different economic, social, cultural and political traditions, and different industry sectors face different types of corporate citizenship challenges. Despite these differences, the following trends in the concepts of corporate citizenship or corporate responsibility are common across geographic and sector boundaries:

1. From the corporate margins to the mainstream

2. From assertion to accountability

3. From paternalistic approaches to partnership

5.1.      From the corporate margins to the mainstream

In leading companies, corporate citizenship is moving beyond the boundaries of legal compliance and traditional philanthropy to become a more central factor in determining corporate success and legitimacy, with implications for corporate strategy, governance and risk management.

There is now growing recognition that global corporate citizenship is essentially about how the company makes its profits, everywhere it operates, not simply what it does with these profits afterwards. It is about how the company operates in three key spheres of corporate influence.

§         First, in its core business operations – in the boardroom, in the workplace, in the marketplace and along the supply chain.

Second, in its community investment and philanthropic activities.
Third, in its engagement in public policy dialogue, advocacy and institution building.

In all three spheres of corporate influence, the challenge for leadership companies is two fold:-

First, aim to ‘do minimal harm’ in terms of minimizing negative economic impacts, bad labour conditions, corruption, human rights abuses and environmental degradation that may result from a company’s operations. This is a goal that calls for management strategies such as compliance – with internationally accepted norms, guidelines and standards, such as the OECD Guidelines for Multinational Corporations and the UN Global Compact, as well as with national laws and regulation – and control of social and environmental risks, liabilities and negative impacts.

Second, aim to ‘do positive good’ in terms of creating new value for both the business and its stakeholders in the countries and communities in which it operates. This can be achieved through strategic philanthropy and community investment, which harnesses the company’s core competencies, products and services, not only its philanthropic cheques. Examples include, ICT companies supporting community projects to tackle the digital divide, financial companies supporting microcredit initiatives, and professional services firms sharing management expertise with local community organizations. More strategic, are efforts by companies to create new business value through developing new products, processes and technologies, and in some cases even transforming their business models, to serve untapped social and environmental needs, or facilitate entry into underserved markets. Examples include developing new markets for carbon emissions trading, creating new environmental technologies, and producing more affordable access to essential services such as clean water, energy, food, housing and medicines for the estimated 3 billion people who live on less than $2 a day.

A taskforce of the World Economic Forum, consisting of a group of over 40 CEOs and chairmen from 16 countries and representing 18 industry sectors signed a joint statement on global corporate citizenship. They agreed that: “The greatest contribution that we can make to development is to do business in a manner that obeys the law, produces safe and cost effective products and services, creates jobs and wealth, supports training and technology cooperation, and reflects international standards and values in areas such as the environment, ethics, labour and human rights. To make every effort to enhance the positive multipliers of our activities and to minimize any negative impacts on people and the environment, everywhere we invest and operate. A key element of this is recognizing that the frameworks we adopt for being a responsible corporate citizen must move beyond philanthropy and be integrated into core business strategy and practice.”

5.2. From assertion to accountability

A second key trend at the heart of the emerging corporate citizenship agenda is the growth in demands by stakeholders, including shareholders, for corporations to demonstrate greater accountability and transparency – and to do so not only in terms of their financial accounts and statements, but also in terms of their wider social, economic and environmental impacts.

Gone are the days when consumers, investors and the general public trusted all the information they received from companies and were relatively undemanding on what this information should cover in terms of corporate performance. In part this trust has been squandered by the recent series of corporate ethics scandals and governance failures. It has also been affected by a combination of increased democratization and press freedom around the world, easier access to more information through the Internet, greater public awareness of global issues through the media, increased consumer choice and sophistication, and higher societal expectations of the private sector.

In response to these trends, leading companies are being called on to be more accountable and more transparent to more stakeholders on more issues and in more places than ever before. In the wake of corporate governance and ethics scandals, there have been demands for greater financial accountability and transparency, resulting in increased shareholder advocacy and new regulations, such as Sarbanes-Oxley in the United States. At the same time, certain governments and stock exchanges are also calling for greater public disclosure on environmental and social performance, in areas such as carbon emissions, product safety, occupational health and safety, training and diversity. There are also growing calls for greater transparency on private sector engagement with governments on issues such as lobbying, financing political campaigns, payment of taxes and receipts of public procurement contracts and incentives.

In all of these areas, business leaders are facing new and challenging questions in terms of what to be accountable for, who to be accountable to, and how to actually measure and report non-financial performance in practice.

A number of global voluntary efforts are underway to develop standards, guidelines and procedures for measuring and reporting on corporate social and environmental performance. These range from multi-sector alliances, such as the Global Reporting Initiative, which is developing guidelines and indicators for public reporting on sustainability performance, to sector-focused efforts such as the Extractive Industries Transparency Initiative, which focuses on public disclosure of payments to governments by oil and mining companies, the Fair Labour Association in the apparel sector, the Equator Principles for project finance in the banking sector, and global framework agreements being negotiated between certain trade unions and global corporations. Growing numbers of Asian companies are engaging in these and other accountability initiatives.

5.3. From paternalistic approaches to partnerships

The third key trend in global corporate citizenship is a move away from more traditional, paternalistic attitudes that “the company and its senior executives knows best” to more genuine engagement, consultation and cooperation with key groups of stakeholders. There is growing recognition that the challenges we face, both as individual companies and nations and as a global community, are too great and too interdependent, and the resources for addressing these challenges too varied and too dispersed, for any one actor or sector to have all the solutions. New types of alliances between companies and other sectors, built on mutual respect and benefit, are becoming essential to both corporate success and societal progress.

The area of community investment offers a good example, where leading companies have moved away from traditional philanthropic approaches, focused on one way disbursement of charitable funds, to efforts aimed at engaging the core competencies of the company and building mutually beneficial partnerships between the company and non-profit or community organizations. Cisco Systems, for example, has been able to expand its Cisco Networking Academies program to over 10,000 academies in all 50 U.S. states and over 150 countries, working with partners ranging from the United Nations, the United States Agency for International Development and the Peace Corps, to local schools and nongovernmental organizations. In the Philippines, the Ayala Group has worked with Nokia, one of its key business partners, Pearson Education, the International Youth Foundation, the Department of Education, local authorities and parent-teachers associations to provide science materials to over 80 under-resourced schools. Just two of thousands of examples, through which companies, working in partnership with others, are providing education, training, and other opportunities to millions of young people and low-income communities around the world.

Some of the most interesting partnerships are in the form of strategic global or national alliances aimed at transforming not only individual corporate practices, but also influencing public policy frameworks and the broader enabling environment. National examples in Asia include the pioneering Philippines Business for Social Progress, the Thai Business Initiative for Rural Development and the Asia-Pacific Business Coalition Against HIV/AIDs.

In addition to community-level alliances between individual companies and nonprofit organizations, we are also witnessing the emergence of strategic global or national alliances aimed at transforming not only individual corporate practices, but also influencing public policy frameworks and the broader enabling environment. One example is the United Nations Global Compact, with over 2,000 corporate participants and some 30 national business networks, many of them from developing countries, working with UN agencies, trade unions and non-governmental organizations.

Through the power of collective action, the Global Compact seeks to advance responsible corporate citizenship so that business can be part of the solution to the challenges of globalization. It is a voluntary initiative with two objectives:

• Mainstream ten principles in the areas of environment, human rights, labour, and anti-corruption – all of which are based on international, intergovernmental agreements – into business activities and supply chains around the world;

• Catalyse business actions and partnerships in support of UN goals, especially the Millennium Development Goals.

Asian companies have been among the pioneers in supporting the Global Compact. In countries such as China, India, Indonesia, the Philippines, Thailand, South Korea and Australia, individual companies, stock exchanges, business associations and governments are starting to explore ways to implement the compact’s ten principles as core elements of sound business practice. In November 2005, the Chinese government will host a major Global Compact Summit, taking a vital leadership role at a time when global industrial capacity continues to shift to China and Chinese companies continue to increase their international investment and influence.

Concluding Remarks

Although local business conditions and cultures vary from country to country, the elements of what it takes to be a successful and sustainable business over the longer-term illustrate some common imperatives. Being a profitable, but also responsible corporate citizen is increasingly one of these imperatives. This requires business leaders to be committed to a set of clearly stated and publicly upheld values – underpinned by policies and standards that are applied everywhere the company operates, not only in its home market. It requires companies to have risk management systems and accountability structures in place to protect existing value, by minimizing any negative economic, social or environmental impacts and reputation damage arising from their business operations. It also requires companies to support learning, innovation and partnerships that help to create new value, by delivering new products and services that meet societal needs as well as creating shareholder value. And it calls for ongoing efforts to evaluate and measure progress and performance against each of these three areas.

In summary, regardless of industry sector or country, global corporate citizenship rests on four pillars: values; value protection; value creation; and evaluation. These four pillars not only underpin the long-term success and sustainability of individual companies, but are also a major factor in contributing to broader social and economic progress in the countries and communities in which these companies operate. Along with good governance on the part of governments, they offer one of our greatest hopes for a more prosperous, just and sustainable world.

Surinder Pal Singh is currently Professor at Rai Business School, New Delhi. Prior to joining Rai Business School, he was associated with the corporate world for over a decade. He is a frequent speaker on the topics of B2B Marketing, Retail Marketing, Brand Management, Entrepreneurship, & Corporate Governance. His association with professional bodies include AIMS International, AIMA, DMA, ISTD, ISTE, Strategic Management Forum.

Posted on June 23, 2010 by , Reply