Noor UL Shahbaz
Law and conflict are the two terms interrelated with each other. When we talk about laws it means we are actually demanding to create a state of nature in which our motive is to avoid, extinct or lessen the conflict and when a conflict arises anywhere it demands immediate suppression of it by way of legal mechanism. It cannot be said that the conflicting situations does not demand redress if the case might be like that, then laws, legal systems, democratic systems and institutions could not be witnessed in and around our societies. That means since the beginning of human existence efforts have been made to maintain peace and uplift the common good otherwise we would have been living a life of permanent insecurity. I cannot here admit or nullify the gravity or measure of both the terms: proper implementation of laws, just laws, fair and reasonable treatment and the extent of achieving common good and on the other hand extent of devastating effect of conflicts on our social groupings, the complete eradication of adverse situations and conflicts. But, what I want to establish is that both law and conflict move on side by side to each other and indeed is a phenomenon of human existence in this part of the universe. So, when we talk about the need and necessity of laws for maintaining our social, political, economic, cultural and religious relations, we mean thereby saying that the purpose is to come out of the complex situations or circumstances and promote, prioritise the common interest of ourselves.
The drafting of laws or opting for a legal system are meant to create a veil of collective good for all the people. The drafting must serve the common good rather than individual or particular. Common good or prioritising social interests and facilities put a special obligation to care for on the drafting agency or on the person in authority. In political discourse the “common good” refers to those facilities – whether material, cultural or institutional – that the members of a community provide to all members in order to fulfil a rational obligation they all have to care for certain interests that they have in common. The term “public good” and “common good” are sometimes treated as synonyms and at other times the modifier “public” is used to draw attention to the role of the state in the authoritative allocation of goods. Common good and public good can be stated in modern liberal democracy as : the proper roads, public parks, public health, public schools, cultural institutions, public transportation, civil liberties such as freedom of speech and the freedom of association; the system of property; clean air and clean water and the national defence. The term itself may refer either to the interests that members have in common or to the facilities that serve common interests. For example, people may say “the new public library will serve the common good” or “the public library is part of the common good.” As a philosophical concept, the common good is best understood as part of an encompassing model for practical reasoning among the members of a political community. According to Paton, the term law may be defined from the point of view of the theologian, the historian, the sociologist, the philosopher, the political scientist or the lawyer. It may be defined firstly by its basis in nature, reason, religion or ethics. Secondly, it may be defined by its source in custom, precedents or legislation. In the third place, it may be defined by its effect on the life of society. Fourthly, it may be defined by the method of its formal expression or authoritative application.
In the fifth place, it may be defined by the ends that it seeks to achieve. Paton himself defines law in these words: “Law may be described in terms of a legal order tacitly or formally accepted by a community, and it consists of the body of rules which that community considers essential to its welfare and which it is willing to enforce by the creation of a specific mechanism for securing compliance. A mature system of law normally sets up that type of legal order known as the State, but we cannot say that without the state no law can exist.” So, we can say that legal systems are created to guarantee certain form of conditions of life. The ends of laws are to eradicate, curb and illuminate conflicts and achieve better conditions of life for the community. The sovereign authority is not the representative but the common power of public itself and the former is under an obligation to devise the means and mechanisms for achieving the common good. The sovereign authority of the public can not be divided and the community is all time sovereign. The government is not the same thing as the sovereign, it is created, and a law is passed by the sovereign (community) to the effect that there shall be a government. Sovereignty is identified with the general will or the common interest of the community and that is infallible, indivisible, unrepresentable and illimitable. Sovereignty cannot impose limitations on itself, as soon as the nation appoints representatives, it is no longer free, and it no longer exists.
Noor UL Shahbaz ,M.A, LL.M [Gold Medallist] is a Lecturer in Law & Former Acting Principal at Sopore Law College, can be reached at im1415151819@gmail.com
