December 13, 2017

Significant legal maxims and principles

  • By U Khin Maung (A retired diplomat) 

Introduction
What is law? Law is the regime that orders human activities and relations through systematic application of the force of politically organized society or through social pressure, backed by force, in such a society. It is the legal system1. Under Myanmar culture and civilization, law is everybody’s concern, everybody’s business. There is an old-saying in Myanmar. If freely translated, I think it may read: “a man may not live hundred years long, but he may be faced with over hundred cases or problems 2. Oxford Advanced Learner’s Dictionary defines the term “law” as follows: “Law is the whole system of rules that everyone in a country or system must obey”. Thus, there is a legal maxim or principle: “Nobody is above the law”, “equality before the law.”
Significant legal maxims and principles Law is so wide, so delicate, so demanding, so difficult a subject that nobody could claim that he knows all the best about the laws. As such, may I, with some sort of legal background, present to you some of the significant legal maxims and principles as follows:
(1) The rule of law, law and order (2) Equality before the law, nobody is above the law.(3) The letter of the law, spirit of the law. (4) Ignorance of law is no excuse (5) Conflict of laws
1. The rule of law, law and order The incumbent government is a democratically elected government, or in other words, the incumbent government is “government of the people, by the people, for the people.” Together with the people, our government is carryingout a variety of tremendous tasks. And one of those tremendous tasks, I would like to present to you, with pride and glory as an ordinary citizen is, about our democratic people’s government’s noble aim and vision to set up a democratic federal union. And in connection with this article, may I present to you a relevant quotation as follows: “The first essential condition for making democracy secure in our lives” is to base all our activities, firmly on the rule of law. There are never two sets of law, one for those within and another for those outside the ruling party. Whoever breaks the laws, must take the consequences. The rule of law and equality before the law must prevail. Law and order is often equated with the rule of law, and in this equation the punitive and deterrentfunctions of law tend to be over emphasized”. 2.  Equality before the law. Nobody is above the lawRegarding this legal maxim, I would like to quote a British author Fielding Hall’s impression of Burmese (Myanmar) people, mentioned in his book. “The soul of a people”. The learned author observed that “the Burmese are a community of equals”, in a sense that has probably never been known elsewhere”. And according to our traditional justice system, “the King was the mighty fountainhead of justice, though he was not himself above the law”. Well, in explaining this legal maxim, “equality before the law” may I also mention its definition in Black’s Law Dictionary” as follows: “Equality before the law” means the status or condition of being treated according to regularly established norms of justice” 1. And many constitutional laws prescribe the notion that all persons are subject to the ordinary law of the land; administered by the ordinary law court and officials are not exempt from the general duty of obedience to the law3. And with reference to this legal maxim, may I present to you from the collection of my memories something about diplomatic immunity. Diplomatic immunity is the general exemption of diplomatic agents from the operation of local law, or the law of the country where he is serving. But this immunity or exemption means only from procedural matters and not from legal liabilities. So, if a diplomatic agent had committed offences in the receiving state he would be declared as a “personanon-grata” and he would be called back by the sending state and then legal action would be taken against him. In essence, nobody is above the law.
3. The letter of the law, spirit of the law “The letter of the law” means the strictly literal meaning of the law, rather than the intention or policy behind it. Spirit of the Jaw means the general meaning or purpose of the law, as opposed to its literal content. So, learned lawyers would like to advise and assert that when studying and applying the law, both the letter and spirit of the law should be studied and applied
4.  Ignorance of law is no excuseAs stated in the introduction, law is everybody’s business’, everybody’s concern. Nobody could argue that I have committed such an act or such an offence, just because I do not know the law. Lack of knowledge about a legal requirement or prohibition is never an excuse in a criminal charge. In Latin, “ignorantia juris non excusal”.
5. Conflict of lawsA difference between the laws of a state or between the laws of different states or countries is known as conflict of laws. If there is a conflict of laws within a state, the later law shall prevail over the earlier law. And if there is a conflict between the laws of a state party to a convention and the stipulations of the convention, then those of the convention shall prevail. Conclusion To sum up, I would like to quote some relevant words of wisdom of our legal and literati giant Dr. MaungMaung who mentioned in his book “Law and Custom in Burma and the Burmese Family” as follows: “Law is founded on morality and morality finds its foundation in the moral integrity of the individual. Law is not or must not be reduced to mere words in statute books and legal decisions, but law is or should be an active, ceaseless social process that runs like a nerve system in the living society, and the blood stream of law needs to be constantly renewed and nourished so that it may accommodate change in its continuity, youth in its age.” Our incumbent democratic government is carrying out tremendous tasks, together with the people. These noble tasks include to set up a democratic federal union.
Reference:
(1) Black’s Law Dictionary By Bryan A. Garer (2) အသက္တစ္ရာမေနရ။ အမႈတစ္ရာမက ေတြ႕ရတတ္သည္။(3) Law and custom in Burma and the Burmese Family.  Dr. Maung Maung, B.L (Rangoon), J.S.D (Yale), LL.D (Utretch), of Licolin’s Inn, Barrister-at-law.

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