Business Organizations in Law - Essay Example

THE LAWS ON LIMITED PARTNERSHIP AND THE PROPOSAL FOR ITS REFORM Although the government is proposing reforms to limited partnership law, the bulk ofthe Law Commission's proposals for the reform of partnership seem destined to remain on the shelf. To what extent have the Law Commissions' proposals been adopted by the government, and to what extent do you consider that they should have been Introduction The law is basically noted as the basic foundation of the much advancement in the human society at present. Basically, being the primary guideline that is recognized as the main controlling agent in the human society today, its realization make a good sense of social balance in the community. Likely then, because of this particular role that the laws withstand in the field of social balance protection matter, the reformation of such established philosophies that rule the society is usually subjected to long time debates and hard-to-deal-with issues that may or may not push the local government administrators into several questionings as to how they are supposed to reform particular laws and why are they likely aiming to do it. This is the very reason why the reformation of the law on limited partnership in the United Kingdom has earned many controversial comments that has brought together a chance for each particular element and parties involved in the process a hard way of completing the said task successfully. In the paper that follows, the completion of the reformation of the laws on Limited Partnership shall be examined in relation to its pros and cons and how much this particular matter affects the relationships and organizations established within the area of scope of the said law. Among the issues to be tackled herein includes the utilization of the Laws on Limited Partnership as the basis of the establishment of different organizations and agreements on the field of business and other associated connections that links people and/or groups of people sharing a particular vision towards a certain goal. It has been observed that the original released law on the said matter in the year 1890 had been rather accustomed to the past systems of application as per suggested to the guideline pursued by the said set of rules. This is practically the reason why the administration of UK realizes the need to reform the old system to be able to meet the needs of parties forming agreeable partnerships in the present system of organizations. These issues would rather be clarified in the paragraphs that follow through. The Basic Understanding of the Laws on Limited Partnership The laws on limited partnership have been released as an approved law in the UK in 1907 and 1908. It was basically presented to allow the connection of people between each other to form organizations and groups that are based on certain focus that allows the chance for every individual or any particular entity to form agreement with others become a possibility. These agreements are rather formed to establish understanding between the parties involved in the situation being considered. The understanding between the parties is the basic foundation of the creation of group that is well focused on a central goal that is noted as the main motivational force behind the existence of the said agreement form1. Through the years though, the demands of people from the systems of partnerships that they get involved with change. Understandably, the developments in the situation suggest the need for the adjustment of the primary sets of control of the operations of several partnerships in the society. How are these practical operations created and observed carefully to give better protection to the values of the parties involved The following elements of lawful recognition of the different aspects making up the major creations of rules and regulations formed as laws to protect the basic values of the parties involved in the agreement have been practically used as basis of the adjustments that needed to be assessed in connection with the creation of new and well assessed sets of laws of limited partnership. 2 The ELEMENTS of Adjustment and Law Establishment (A) CONSIDERATIONS FOR INDIVIDUAL LIABILITY Motive: A motive is a state of being relating to ones goals or specific desires. One may possess a conscious or unconscious motive. For example, one may act out of jealousy but not be aware of the jealousy. Even if motives are determined to be conscious, they are considered involuntary feelings or desires.3 Intention: An individual's intention is a means to an end. In other words, an intention is a way of achieving a specific goal or desire. Individuals are conscious of their intentions and may accomplish them by voluntary acts.4 Law is Concerned with Intentions: The law is concerned with intention, but not with motive. Determinations about motives are hard to ascertain and very complex. Therefore, one cannot be held liable for a motive. 5 They are involuntary behaviour patterns. Requiring judges to determine penalties based upon motives would undercut predictability and uniformity of justice. Given their voluntary nature, the law punishes based upon intent. An individual can be held responsible for their intentions. Skepticism Regarding Responsibility: Skepticism attacks the method of apportionment of responsibility for violations of law. Will the party be held personally responsible and if so, to what degree Or will society have to bear some of the responsibility for an individual's violative action Skepticism is argued in many forms. Skepticism may be premised upon a theory of determinism, practicalism, technologicalism, and morality.6 Deterministic Skepticism: Deterministic skepticism comes in a variety of degrees. In its most extreme, deterministic skepticism suggests that if one cannot help doing what they are doing, they should not be responsible for their actions. Other forms of deterministic skepticism are less drastic due to their belief that only a few persons are actually in a position where they cannot help what it is that they are doing. In the less extreme form, the inquiry focuses upon evidence regarding one's ability to control one's actions. 7 Practical Skepticism: Practical skeptics will not inquire into the question of responsibility because of the time required for such an inquiry has an inefficient impact upon the legal system. 8 Such inquiry is believed to be an inefficient distribution of scarce judicial resources. Technological Skepticism: Technological skepticism refuses to inquire into the question of responsibility, because its belief that the true concern of the legal system is that of control over the public.9 In sum, effective social control does not include an inquiry regarding responsibility. Moral Skepticism: Moral skepticism also forbids inquiry into responsibility because the theory holds that it is inconsistent with enlightened morality to insist on individual responsibility for harm. Strict Liability: Strict liability is another theory in the consideration of allocation of responsibility. Strict liability requires assessment of liability upon grounds of physical acts without regard to actual responsibility. 10The theory does not require a finding of intent to commit crime and therefore does not require resources for determination of intent. Proponents argue allowance of strict liability to replace individual responsibility in its entirety. Strict liability agrees with the utilitarian perspective and represents a denial of individual liberties in favor of deterrence for public protection.11 (B) FOUNDATIONS AND THEORIES OF LAW Eternal and Divine Law: Eternal law recognizes the role of a divine figure in the establishment of law. The numerous theories of eternal law suggest that law is created by the word of God, transmitted by prophet and sent to govern man. Recognition of eternal law is still found in Hebrew, Islamic and Babylonian law. Disadvantages of Eternal Law: Eternal law requires faith in a divine being, of which there is no universally accepted figure. Eternal law also requires translation through a prophet who is not held liable for the rules since she interprets the word of God.12 Natural Law: A system of rules and principles guiding human behaviour based upon conduct common throughout all people. The laws and principles grow out of humanity's rational thoughts and conform to natural mental, moral, and physical states. Cardinal premise states that humanity acts upon rational thoughts framed by our true nature to satisfy needs and impulses without interference from deception, dishonesty, or indulgence.13 Early Theories of Natural Law: Various early theories of natural law believed the concept was based upon virtue, nature, reason, and God. Historical Natural Law Based Upon Virtue: Natural law based upon virtue can be governed by theories of good conduct or justice and reason. Typically, law dictates virtuous duties of a person in all facets of their life. The duties generally demand fulfilment of particular social obligations and the rules may be considered divine in origin or from the ruler. Alternatively, the theory of virtue based upon justice and reason, demands decisions based upon an individual's sense of justice and reason. If a decision is prompted by anything other than justice or reason, the person has failed to live by the law of nature.14 Historical Natural Law Based Upon Natural Justice: Natural law based upon a theory of natural justice was developed by Aristotle and holds that laws are of two types; universal and specific. Universal law is the law of nature and binding upon all people. 15 Universal law does not change. In contrast, specific law is developed by the local community. It is developed by people and limited in its authority. Specific law is apt to change frequently. Historical Natural Law Based Upon Reason: Natural law based upon reason was developed by Cicero of Rome and establishes that law is premised upon reason in agreement with nature. Like Aristotle's universal law, Cicero believes that natural law based upon reason is universal in its application and does not change. To alter this type of law would be considered a sin, and it cannot be repealed.16 It is a law which is eternal and unchanging and valid to all people at all times. This law was believed to be written by God.17 Historical Natural Law Based Upon Divine Intervention: Natural law premised upon divinity was forwarded by St. Thomas Aquinas during the 13th century. Saint Thomas classified law into 4 levels18. The first level is divine law, not all of which is known to man. The second level is divine law known to man, called eternal law. From eternal law comes natural law, and from natural law comes human law.19 General Premise of Natural Law Based Upon Divine Intervention: Saint Thomas' general premise of natural law is founded upon a notion of goodness. Saint Thomas' theory holds that evil acts must be avoided and good acts accomplished. Generally, natural law applies to all people and prescribes that an individual act virtuously.20 Criticisms of the Historical Theories of Natural Law: Some of the criticisms of early natural law theory include; 1) failure to distinguish between natural laws and normative laws, 2) man is removed from responsibility in moral decision making, 3) man's contribution to own civility is ignored and, 4) distrust is unnecessarily placed in manmade structures.21 Historical Natural Law Lacks Distinction Between Natural and Normative Law: One of natural law's many criticisms is premised upon a lack of distinction between natural and normative law. Natural law exists at certain levels in man and in nature whereas normative law, crafted by man, does not exist in the world of nature. Natural law, much like nature, exists upon its own terms with no sense of morality.22 Natural law is fashioned from a factual and a regular existence whereas normative law is comprised of human morality. Historical Natural Law did not Assign Responsibility for Moral Decisions: Natural law forwards the proposition that nature makes the selection between two possible and competing moral values. Realistically, the decision between competing values is made by man and not by nature. Therefore man must assume responsibility for selecting between two values and he should not ascribe the choice to nature. Historical Natural Law Ignores Man's Contribution to Own Civility: Natural law does not consider man's ethical and moral development, apart from that development which occurs through application of natural law. This premise ignores the importance of man's contribution to his own development. 23 Those opposing natural law believe man has more than a passive role in his ethical and moral development and should be given credit for such contributions. Historical Natural Law Promotes Distrust in Man Made Structures: Natural law promotes distrust in manmade structure. Natural law considers everything created by man to be erratic and inconsistent with prior structures. Opponents of natural law will argue that the existence of normative standards created by man govern his sense of judgement in a consistent fashion. Illustration of normative standards includes world religions.24 (C)JUSTIFICATIONS FOR PUNISHMENT Justification for Punishment Based Upon Retribution: Retribution is often cited as a justification for imposition of punishment for illegal action. Retribution is most commonly associated with a theory of fairness. One should be punished as a result of one's blameworthiness in committing an illegal act. The beneficiaries of the punishment will be the society at large. 25 Justification for Punishment Based upon Deterrence: Punishment has been justified upon the basis of deterrence. The theory holds that punishment deters illegal activity in two fashions. First, an individual may be deterred from committing a crime after considering punishment of a prior criminal. Second, the repeat offender may be deterred from committing crime as a result of prior punishment. The beneficiaries of the punishment will be the society at large. Justification for Punishment Based Upon Reformation: Punishment has been based upon a theory of reformation of the individual's character, thereby allowing subsequent participation in society. 26The beneficiaries of punishment under a theory of reformation will be society at large and the individual criminal. Summary of thoughts and theories: From this particular section of the discussion, it could be noted that the different elemental factors considered as the basic foundation of law creation makes a fine influence on the adjustment of the existing set of laws on limited partnership. The consideration of these guidelines shall help the lawmakers be well guided as to how they should reform the actual existing law that is used as a basis of the many created partnerships in the present society. Why the Need for Reformation Basically, the idea on the major issues surrounding the reformation of the entire law concerning the guidelines for limited partnership are all sourced out from the major applications that are rather considered important for the different partnership agreements that are formed under the lawful guidelines of the different elements that are directly considered in these particular transactions. Agreements forming partnership do not need to be plain business based.27 There are different issues that are considered to assure that the protection of the parties involved is given careful option of consideration. Likely, this is the main focus of the reformation of the entire creation of the law on limited partnership. With the increased need of protection in connection with the development of agreements created at present and the complexities of the systems included within the said sets of linkages between people and organizations, the need to advance the major systems of protection and consideration for the values of the individuals or parties involved in the agreement is essential. May it be business or other casual organizations, it could be observed that the need to give ample protection to the values of the parties considerably involved in the transaction. The values of course do not only involve monetary assets but also abstract assets such as reputation and the name that is well taken care of by the parties involved in the process. Hence, protecting all these elements all together might as well suggest the need for reformation on the part of the existing law as the complications of the agreements today require the adjustment of some of the major points in the law that may not be applicable to the situations of partnerships at present. This is why the need to consider the following factors of the existing law is given careful attention: Elements of Lawful Definition Jurisprudence: Jurisprudence is comprised of two definitions relevant to the study of law. First, in the legal tradition of the United States and England, jurisprudence pertains to legal philosophy. Secondly, other European countries refer to jurisprudence as the collection of decisions of a particular court. Opinionated Definition: A person looses the real understanding of the jurisprudence of law when he becomes less able to understand the law due to anger and anxiety that increases the chances of moving violently against other people in the society. Likely, jurisprudence is returned to one when he is able to receive the rightful judgment he deserves from the authorities of law. Example: A jury decides to dismiss a case because of being highly moved for the reasons of the accused of why he did the crime. It turned out that he had no choice but to do it for the sake of protecting the one's he loved. The court was less powerful in this case as the majority of the jury as well as the people in the court the public all attested to one plausible fact that the convict did it for a deep and logical reason. Justice: The definition of justice depends upon which definition of jurisprudence is under consideration. By the American and English definition, justice means, "the constant and perpetual disposition of legal matters or disputes rendering every man his due28." But a broader definition of justice includes, "a moral or absolute rightness and upholding what is fair and just29." Opinionated Definition: Justice is applied as a normalizing factor among the differences of the people on the world. It sets the differences of the people in an equalizing their ideas and opinions with regard law and such things. Hence, justice is a regular matter that needs to be applied in the society continuously. A person then is supposed to be continuously considering justice towards himself and towards others as part of his moral responsibility to the society. Example: Wal-Mart employees claim that they are being unfairly treated by their organization. As they continue to serve the company, they are also constantly apprehended by their union to continue fighting for the justice that they deserve as the force increasing the profit of the company every year. Natural State of Man: A state or condition whereby man reacts according to his natural impulses and not as a result of such stimulus as fraud, deceit, or misrepresentations. The natural state of man is developed in the theory of Natural Law. Opinionated Definition: Conscience is a natural way by which humans understand the natural law of life, the impulses of humans with regards right and wrong is a strong implication of the reality of the existence of natural law. This is the section of the law that actually designs the basis of the right and wrong within the modern human law today. Example: A man was faced with great adversity of being homeless. He along with his family needed somewhere else to stay other than the streets so the man decided to search any possible area that he and his family could live for while. Out of need, the man saw a deserted house that nearly looked destroyed, still he managed to bring his family there and live there. After a few years, he was able to improve the house. Later on the owner of the house shows up and claims that the house has been stolen from him. The man attests that it was already deserted when he saw it and looked as if nobody already owned it. The man agrees to pay the price of the lot for possession, but the owner refuses to take the offer, instead he wants them to get out of the area. The man refuses the same way and a court hearing was set to solve the issue. Logic: The science of reasoning, or the operations of understanding which are subservient to the estimation of the evidence. The term includes both the process of proceeding from known truths to unknown, and all other intellectual operations30. Opinionated Definition: Logic is used by everyone wanting to understand the regularities of life. Every individual utilizing it actually makes a meaningful understanding of the things happening to him and to the environment that he is living in. with logic's existence, people are given the chance to reason out as to why they have done things in their past and how those experiences affect their present lives today. 31 Example: Not everything has been explained to a defendant when he was talked to by his lawyer because the session hearing has already begun.32 However, through looking at the faces of the people in the court, logic tells him that there is something that will happen ones the new witness is set for questioning. Prerogative: An exclusive or peculiar right or privilege. A special power, privilege, immunity, or right vested in an official person, either generally, or in respect to the things of his office, or in an official body, as a court or legislature.33 Opinionated definition: Each person believes to have his own prerogative in life. Using it as a basis of his decisions actually makes his life more meaningful and successful as he uses the power he has to support the wants and the needs he is expected to support in his life today.34 Example: The NEDA Secretary of the Philippines, Romulo Neri refuses to speak on the depth of the case on the XTE-NBN deal as he is protected by the executive privilege law stating that he can conceal things as long as he believes he has already said what he needed to say at the senate. Property Law: Property law defines the borders of our legally rightful possessions, the nature and scope of those things we can take rightful title to. It is also used to describe the exclusive right of possessing, enjoying, and disposing of a thing35. It is the highest right a man can have in an object. Opinionated Definition: Every person is given the rightful authority over his belongings. This is the primary basis of the property law which draws the line of the limitations and extent of one's properties.36 Such law serves as a guideline to one's understanding of the things that rightfully belong to him. Example: A number of people ought to say that the place where their scanty homes are standing is their own as community as it is already a public property, therefore they refuse to evacuate when a public project has been passed on to be built in their area. They point out that they have already worked hard for the development of the said area and they deserve to be paid for what they have done. On the other hand, the businessmen attest that they already own the area as they already bought it, meaning that they could already do anything that they would want onto it. Ratio Decidendi: The ground or reason for reaching a decision. The point in a case which determines the judgment37. Opinionated Definition: Rational understanding of situations is likely much related to ones logical reasoning over a certain thought that explains a situation as it happens. Being rational about things makes one more capable of seeing the two sides of the coin or the positive and negative aspects of an occurrence. Being rational too helps a person to become more understanding of things as they come barging in to one's lifetime using such occurrences as great opportunities for change and development. Example: Wal-Mart finally decided to face their issues with their employees. They tried to come up with the useful process of meeting the needs of their employees as they also meet the standards of the business. Likely though, after a year, the union decided to continue the cases against Wal-Mart as they believe that their values were not served well even after the agreement. With these definitive factors that are laid out for basis, the reformation of the laws on limited partnership should basically portray the rightful need of each party to have their values be subjected to legal protection as they undergo the transaction agreements. With the examples given, the different ideas portrayed through the different options presented through the definition of law handled in this section of the discussion, it could be noted that the limited partnership law naturally creates a fine definition of the different interests and values that are involved as the parties undergo a signed agreement that binds them together as an entity that thrives in the society for one particular goal. Conclusion The process by which partnerships are recognized as eminent parts of the society from then until know defines a more effective process of identifying the roles that each party in a particular partnership takes into consideration as they agree upon a particular transaction or a linkage that is naturally designed to place a definitive assessment on the responsibilities that each individual entity partakes in the situation agreed upon. The reformation of the existing law through the assessments used as to how much the old law applies to the modern demands of the society in terms of creating connections with other people are likely based on the idea of adjusting the guiding regulations to the present situations of people and organizations who or which are likely to undergo certain transactions that would bind them and their values with others as part of a unified thought or goal that drives them motivated together to work alongside each other towards a primary mission that defines their extensive role between each other and toward the society that they are trying to live with38. The reformation of the law is basically aimed towards improving the existing system and basically bringing about the protection that every party involved in partnerships needs to be assured of. References: Partnership 1908. An Act to declare and amend the law of Partnership. http://www.companylawclub.co.uk/topics/faq195.htm. (June 25, 2009) Limited Partnerships Act 1907 Consultation. http://www.lawcom.gov.uk/docs/cp161sum.pdf. (June 25, 2009). Reform of Limited Partnership Law. http://www.berr.gov.uk/files/file47577.pdf. (June 25, 2009). LIMITED PARTNERSHIPS ACT 1907. A Joint Consultation Paper. http://academia-research.com/files/message/1349642_reform.pdf. (June 25, 2009). Henry Hansmann, Reinier Kraakman, and Richard Squire, Law and the Rise of the Firm, 119 Harv. L. Rev. 1333 (2006). Naomi R. Lamoreaux and Jean-Laurent Rosenthal, Entity Shielding and the Development of Business Forms: A Comparative Perspective, 119 Harv. L. Rev. F. 238 (2006). Read More