Legal Fundaments

Hi Evgeny, an electorate can work towards ensuring the State functions as a service-oriented mechanism in two ways - a) it can through the judiciary ensure that there is a wider reading of the constitutional prescriptions that impose obligations on the State. We have seen that happening in India, in a couple of significant areas. For example, in the area of providing education, the judiciary has ensured that the State is made responsible to provide for universal free and compulsory education. I am adding a judgment here to show the initiation of the movement towards having a fundamental right for education for every child in India , where the State is not only obligated to ensure that the child who comes to school is enrolled and given education in the School, but also the State is responsible for ensuring that children come forward for enrollment at school. So the logic here is that State is not just providing the mechanism, but also ensuring that if the mechanism is not used or used enough, then the State is responsible for that failure. Here the idea of a service-oriented State comes in, where the State's job is not just to provide services, but if the services are not utilized or under-utilized then it becomes the fault of the State. And the Courts have made such responsibility of service on the State as a constitutional obligation. b) another way is to understand the role of civil society in governance participation. Legislation and implementation become a partnership activity between the stakeholders in the society, and the electorate actually gets involved in the kind of laws that they want for themselves. The State then becomes an institution to facilitate such participation. For example, we are engaged in an exercise of law-making in the area of graft control and prevention. The civil society has actually come forward and works in coordination with the STate in reaching a final law. We have not yet succeeded in this attempt, but certainly the methodology of electorate's involvement in governance, and also the judiciary reading this methodology as a constitutional obligation on the State, goes towards ensuring that the State has a responsibility towards service to the electorate.

Thus legal norms, as Bill had said here earlier, largely have their intention grounded in the human conditions as existing in the society, and the existential needs of that society. Norms, if not justified by their existential needs, lack the character of norms per se.

Right of possession has not only contractual origin. And the possession "ad usucapionem"?

This is a good attempt to define the principle of rule of law from a more legalistic perspective.