The Role and Limitations of Organic Law in Governance

Introduction

An organic law is generally a law or system of laws thereof, which form the foundation and basis of any government, organization or any other corporation's body of rules. For a sovereign state, a constitution is a particular example of an organic law. Generally, no organic law or constitution, for purposes of this study, can be framed with a provision specifically applicable to every question that may occur in practical administration (Henderson, 2009). Framers of organic laws in various countries could not easily foresee or anticipate future administrative or general issues that its citizens were likely to undergo, thereby leaving the fate of citizens in the hands of a few judges to interpret their original intention to remedy a number of situations.

Organic law and its inability to foresee or anticipate future practical administrative issues

Constitutions, which are the main organic laws for most countries, are generally made for the people and by the people themselves. It is quite disturbing that the people themselves are not in a position to foresee the challenges that may affect them in future. This underscores the notion that no constitution in the world is perfect (Barroso, 2012). As this study establishes later, no constitution can claim to be worth its salt if it cannot guarantee to protect and deal with all problems that could easily be foreseen and were inadvertently omitted. If devotees backing administrative law and theory were content enough to conclude that constitutional law had developed fully, then no faults could be found or probably could be found with such a contention. As this study establishes later, organic laws are problematic and as such, organic laws demand new solutions to cater for future and unseen administrative issues (Arend & Beck, 2014).

It is a pressing necessity that constitutions all over the world should provide for their own workable solutions and while at it, they should reflect the will of the people and the society. Being an example of an organic law, constitutions should endeavor to register a well-considered purpose of the majority as far as politics are concerned and the society. It is common with most constitutions, which form the basis of organic laws worldwide, to not provide for the future literally (Schmitt & Widmar, 2014). In the recent past for example, most countries in the world are grappling with problems that their organic laws failed to provide for adequately. Framers of their organic laws could not easily foresee that such problems could happen or were likely to happen. The main problem as far as this problem is concerned is failure on both the framers side on the one part and the people on the other. Both sides are to blame for failing to secure and reasonably anticipate future and obvious problems (Dunham & Alpert, 2015).

The buck as far as failure to anticipate the future with most organic laws is concerned stops with the people or the society. Social foundations of law are a very vital area to touch in this regard. One philosopher, Joseph Raz, discusses the idea of paradox of authority when trying to relate law and society. In his paradox of authority, Joseph Raz concludes that law is what the political divide decides and that the society is only forced and has no option other than accepting what politicians say is right or wrong (Chaney & Robertson, 2014). This notion is a contributor to this issue of lack or failure by organic laws to anticipate or foresee future administrative issues. The sense here is that a few individuals sit and think on behalf and for the larger society. The society is to blame partly for the problems befalling them for they are the ones blindly passing constitutions through popular vote under the façade of democracy without questioning serious provisions or lack of such provisions that any reasonable society or group could easily foresee (Vago, 2015).

As far as administration is concerned, one factor remains a shared denominator with most countries when it comes to organic laws failing to contain provisions that may specifically address all future problems. Most constitutions do not provide for punitive measures to be undertaken in case of an offence involving contravention of its content and as such, most constitutions, which in this case are our organic laws, do delegate powers to legislature to provide for such punitive laws (Falk, 2015). The problem with such delegation of duty is that the public is not directly involved rather through their representatives in the house. Statutes are generated that do not reflect the will of the society and at the same time do not adequately provide for future foreseeable problems. Contraveners of organic laws thus find it easy to escape traps created by statutes since their main argument, as this study and related ground research establish, is that such statutes derive their validity from the supreme law of the land which normally is the constitution for most countries (Trevino, 2017). What is quite ironical is that the preamble of most organic laws contain powerful statement to the effect that “we the people” followed by article that prohibits or invalidates any law or statute that contravenes its provision. Therefore, it is practically impossible for any single organic law to cater or anticipate for future administrative issues.

Judiciaries in most countries have been reduced to interpretative tools. Judges are forced to interpret organic laws to reflect the will of the people and give life to inadequacies occasioned by failure on the side of drafters or framers and the people in their role of passing such laws through popular vote under the façade of democracy. Evidently, judicial officers have been forced to stray from the plain reading of organic laws and related statutes to align a number of problems that could not easily be foreseen by drafters and that are presently affecting the society to fit present administrative issues (Deflem, 2008). Directing their mind to law and intention of framers of organic laws, judges are free to stray if such would infer and give purpose to law and inadequate provisions. Thus the idea or the notion of independent and strong judiciary remains one of the biggest gifts that the people, despite not being able anticipate every problem that might befall them in future, have gifted themselves and to their future generation to remedy such inadequacy (Vago, 2015).

While at failure by most organic laws to fully anticipate future administrative issues, there are fundamental and natural ways to at least curb the issue. The issue of majority rule should not be left as the only natural way to cure the problem with most organic laws. While this study underscores the importance of amendment of an organic law, it shuns the principle of majority rule that arguably has been the thorn in organic laws’ flesh (Falk, 2015). This issue of majority rule for example was a problem during the clamor for constitutional change in America and made amendments unworkable. Therefore, the one natural way to cure this inadequacy and which way saw a lot of success in Germany during the making of German Imperial Constitution was the use of sound political science of involving all governmental organs in the making of constitution (Trevino, 2017). This implies that involving the executive, the legislature, and the judiciary depending with arrangements of a particular nation is one sound way to ensure that there are provisions that touch on at least every aspect of administration. If anything, it is the least involved and not always consulted Judiciary in constitution making that bears the biggest chunk of problems when it comes to interpreting the constitution in inferring what the framers intended (Chaney & Robertson, 2014).

Lastly, this study underscores and underpins the statement that no organic law has that provision that specifically touches on every aspect that may occur in practical administration. It attributes this problem to the idea of constitutionalism. Constitutionalism generally seeks to prevent arbitrary government (Chaney & Robertson, 2014). At its most generic and superficial level, arbitrariness involves the capacity of rulers to govern the citizens with complete discretion and to serve their interest instead of the ruled. Constitutionalism attempts to mitigate these dangers and inadequacies by designing mechanisms that determine who can rule, how they can rule and for what purposes. However, whatever has been seen in most countries with constitutions as their main organic law is the idea of constitution without constitutionalism (Vago, 2015). Constitutions that do not anticipate future and foreseeable challenges thereby making administration difficult owing to inadequacies.

Conclusion

The upshot of these findings points to one certain conclusion. That no single organic law worldwide has a provision that specifically anticipates future administrative issue on every aspect and at some point, countries are cornered with issues that are not covered in their organic laws. Nevertheless, countries have resolved to their judiciary to interpret the original intentions of those who drafted their organic laws. Judges have been forced to stray to avoid absurd and unfair outcomes especially where the plain reading of statutes would render an otherwise absurd and unreasonable outcome. It is on that basis of lack of anticipation with most organic laws to contain provisions that specifically touch on every issue when it comes to practical administration that this study recommends the involvement of all governmental organs in making organic laws.

The study further recommends that these organic laws should provide for workable amendments that are achievable and easy to come by to avoid long and tiresome procedures so that urgent and emergent issues not anticipated in the original law can easily be made part of it. Above all, it is not possible and still will be impossible for organic laws to anticipate their future fully.

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