Legal Problems
Non Legal Approaches to resolve Problems
The proposed solutions to problems are not always in the form of law. All human societies strive to maintain order, prevent and resolve conflicts, and assure justice in the distribution and use of resources. The specific problems that arise in achieving each of these aims differ from one society to another and within every society over time. The threats to order and justice that emerge over time can give rise to a number of responses, of which legal regulation has become perhaps the most prevalent this century.
Laws reflect the current needs and recognize the present values of society. As such, legal regulation is almost inevitably responsive; it can rarely anticipate or imagine future problems. Regulation of outer space activities, for example, only became a matter of interest and concern when such activities became possible. Guarantees of a right to privacy were articulated only when the threats to privacy from technology and government intrusion necessitated a response. While it may be possible to anticipate some emerging problems from current human activities, the ability to design responsive laws still requires defining the problem and identifying potential solutions to it.
Law is not the only means of seeking to prevent or resolve social problems. Issues of justice can and are also addressed through market mechanisms and private charity, while conflict resolution can be promoted through education and information, as well as negotiations outside legal institutions. Maintenance of order and societal values can occur through moral sanctions, exclusion, and granting or withholding of benefits, as well as by use of legal penalties and inducements. In the international arena, law is not the only form of social control or normative claim. Other basic requirements of behavior emerge from morality, courtesy, and social custom. They form part of the expectations of social discourse. Compliance with such norms may be expected and violations sanctioned. Like legal norms, they grow out of the understanding and values of society.
Law, however, is often deemed a necessary, if usually insufficient, basis for ordering behavior. The language of law, especially written language, most precisely communicates expectations and produces reliance, despite inevitable ambiguities and gaps. It exercises a pull toward compliance by its very nature. Its enhanced value and the more serious consequences of nonconformity lead to the generally accepted notion that fundamental fairness requires some identification of what is meant by ‘law’, some degree of transparency and understanding of the authoritative means of creating binding norms. A law perceived as legitimate and fair is more likely to be observed.
Identifying law can be problematic in a decentralized, some might say anarchic, system like the international society of states. It is not always clear where law ends and non-law begins, or, to use the current terminology, where ‘soft’ law should be placed. The issue can be important for compliance. Effective application of the principle pacta sunt servanda—that legal agreements should be carried out in good faith—proceeds from some basic agreement on what constitute ‘pacta’ or legal agreements. The question then becomes whether or not it is necessary for a norm to be contained in a legally binding instrument in order for it to be accepted as binding (pacta). Traditional international law clearly distinguished between binding and non-binding instruments, but the distinction may be blurring, as discussed below.
Author: Dinah Shelton
U.S. Constitution main Problems
Probably, the main critique yields on the later constitution, i.e. the Bill of Rights. They might object to the (over or under, depending on your view) breadth of the protection given to speech, or the insufficient protection of equality, or property, or perhaps that the U.S. still exercises the death penalty. While these are all valid concerns, they largely miss the point.
Leave a Reply