Law Making

7 Key excerpts on "Law Making"

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  The Presidency in a Separated System

  • Charles O. Jones(Author)
  • 2005(Publication Date)
  • Brookings Institution Press

    (Publisher)

  Legislators are most commonly thought of as the law-makers, and as noted above, they have a constitutional responsibility to par-ticipate meaningfully in the process. But statutes passed by legislatures are not the end of lawmaking. Executives, bureaucrats, judges, and others implement and evaluate statutes through rule and standard setting, admin-istrative and executive interpretations, court decisions, and petitions. At its most effective, lawmaking mirrors social life. J. Willard Hurst believed that “law moves with the main currents of American history.” First, it is what [people] think: how they size up the universe and their place in it; what things they value, and how much; what they believe to be the rela-tions between cause and effect, and the way these ideas affect their notions about how to go about getting the things they value. Second, it is what [peo-ple] do: their habits, their institutions. 3 So conceived, no one can doubt the significance of lawmaking, nor ques-tion the vital role of those who make laws. T. V. Smith, an academic who 222 presidents and lawmaking served in the House of Representatives, eloquently wrote about legislative life and those who live it. The American way is a way of life and of law—and then of life as the final object of government. . . . Legislatures exist to solve those otherwise insoluble problems. . . . Blessed is the man who, through patience, sagacity, and co-operation with other men, can take the purely private thing called conscience and turn it into socially acceptable action through law. . . . Whoever has a genius for legislation has a mission of major importance to mankind. 4 Jeremy Waldron contributes another major purpose of lawmaking in democracy—that of displaying disagreement.

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  Law and Society

  An Introduction

  • John Harrison Watts, Cliff Roberson(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Laws establish norms that reflect the power of one section of a society over the other sections. Moreover, lawmaking allows for a certain amount of coercion to occur by means of promulgating sanc-tions to maintain these rules. Laws are thought to originate as a means by which one class or caste dominates or exploits others. The process of lawmaking and how the justice system operates to protect the rich and powerful is apparent in the following selection from Law, Order and Power by William Chambliss and Robert Seidman. In America it is frequently argued that to have “freedom” is to have a system which allows one group to make a profit over another. To maintain the exist-ing legal system requires a choice. That choice is between maintaining a legal system that serves to support the existing economic system with its power structure and developing an equitable legal system accompanied by the loss of “personal freedom.” But the old question comes back to plague us: freedom for whom? Is the black man who provides such a ready source of cases for the welfare workers, the mental hospitals, and the prisons “free”? Are the slum dwellers who are arrested night after night for “loitering,” “drunkenness,” or being “suspicious” free? The freedom protected by the system of law is the freedom of those who can afford it. The law serves their interests, but they are not “society”; they are one element of society. They may in some complex societies even be a majority (though this is very rare), but the myth that the law serves the interests of “society” misrepresents the facts. 1 Legislative Lawmaking The word legislation is derived from the Latin words meaning “law” and “bringing.” Originally, the word had more of a religious connotation, in that an act of legislation was an act of a high priest revealing a divine law. Today, we understand legislation to mean a set of social rules that a majority of leg-islators have declared to be enforceable laws.

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  Law and Society

  Canadian Edition

  • Steven Vago, Adie Nelson, Veronica Nelson, Steven E. Barkan(Authors)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  In addition to seeking real gains through lawmaking, moral entrepreneurs also seek symbolic victories. This symbolic victory has two dimensions. First, the passing of a law may symbolize the supremacy of the groups that support it. Second, the creation of a law is a statement that certain behaviours are disreputable. Where groups differ significantly in prestige and status, or where two groups are competing for status, each sees the law as a stamp of legitimacy. They will seek to use it to affirm the respectability of their own way of life. According to Gusfield (1967:178):

  The fact of affirmation, through acts of law and government, expresses the public worth of one set of norms, or one subculture vis-à-vis those of others. It demonstrates which cultures have legitimacy and public domination, and which do not. Accordingly it enhances the social status of groups carrying the affirmed culture and degrades groups carrying that which is condemned as deviant.

  Scholars continue to debate the relative merits of the four theories of lawmaking just outlined. Yet none of these theories can account for the creation of all laws. Because a large number of laws are made by the legislative, administrative, and judicial bodies each day, it is always possible to select a few examples that illustrate almost any conceivable theoretical position. At best, the theories we have discussed explain, in part, how laws are made. Probably all of these theories are at least partially correct, but it is doubtful that any single theory fully explains the creation of law, although one or another may account for the formation of any particular law or kind of law. With these considerations in mind, let us now turn to an examination of the processes of legislative, administrative, and judicial lawmaking.

  Legislation

  The foremost legal task of legislative bodies is to make law (Loewenberg et al., 2002). The term legislation describes the deliberate creation of legal precepts by a body of government that gives articulate expression to such legal precepts in a formalized legal document. In Canada, “[t]he ultimate source and maker of law … is the legislative body having jurisdiction in the area. Because Canada is a confederation with 11 legislative bodies, each must be considered supreme in its own right, and therefore they are the ultimate makers of law” (Yates et al., 2000:35). However, since the 1982 introduction of the Charter of Rights and Freedoms

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  The Dynamics of Law

  • Michael S Hamilton, George W Spiro(Authors)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  CHAPTER 5 L awmaking by Legislatur es We described in the last chapter how courts create new legal rules by building on judge-made precedents and principles. This was once the only type of lawmaking, and it remains extremely important. In the last 150 years or so, however, legislatures have become the primary makers of new law. And in many areas, including the field of business law, even long-standing rules that were originally established by courts have now been embodied in statutes : acts of Congress, state legislatures, and ordinances of local governments. The common characteristic of statutes is that all are enacted by elected legislative bodies. In this discussion of legislative lawmaking, we first describe how statutes are enacted. Then we examine some differences between statute law and decisional law. Finally, we consider some problems that legislators must face in deciding what to put into statutes. THE LEGISLATIVE PROCESS Before a draft proposal for legislation can be enacted into law, it must clear a series of hurdles. Some have been erected by federal or state constitutions, others by legislatures, either by rule or tradition. Although the legislative process is not the same in every legislature, the following brief description of how a bill moves through the U.S. Congress will give a good idea of the procedures followed in most state legislatures as well. Figure 5.1 provides a simplified diagram of how a bill becomes a law. Preparation and Introduction of the Bill A draft proposal, or bill, must first be introduced in one house or the other of the legislature. A bill is a proposal for legislative action, but it has no legally binding significance until finally enacted into a law. Let us assume that our bill is introduced first in the House of Representatives

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  A Sociolegal Analysis of Formal Land Tenure Systems

  Learning from the Political, Legal and Institutional Struggles of Timor-Leste

  • Bernardo Ribeiro de Almeida(Author)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  Chapter 5 The making of land laws

  DOI: 10.4324/9781003196396-5

  Introduction

  This chapter looks at the law-making process of land-related legislation in Timor-Leste. As detailed in Chapter 1 , law-making is a key analytical theme in understanding a land tenure system; it is through the law-making process that political debates are translated into the legal framework. Drawing on my experience as legal drafter in Timor-Leste, this chapter describes and analyses how Timorese legislation is drafted, debated, and approved, and how the problems and dilemmas of the law-making process affect the legal framework of the Timorese formal land tenure system. In other words, this chapter tries to explain how the land-related legal framework came to be the way it is.

  Law-making is a complex political and legal process, through which a mix of ideologies, policies, and agreements are converted into legislation that must work together within the existing legal framework. This conversion of broad and conflicting ideas into legislation tends to be chaotic, hence legislative institutions throughout the world use procedural devices that help to keep order in the process and ensure the coherence of approved legislation (Waldron, 2006: 24, 28). Detailed rules for drafting and debating legislation, specialised offices for verification of legal compliance, and monitoring and evaluation mechanisms are some examples of the many procedural devices that structure a legislative process. This chapter shows that, in Timor-Leste, a number of these procedural devices are missing or are poorly implemented, which is reflected in the resulting quality of legislation (Chapter 6 ). Put simply, if the law-making process is bad, the legislation it produces will not be good (Rooij, 2006: 26).

  This chapter starts with a brief description of the main steps taken in Timor-Leste to draft and approve key land-related legislation. After, it debates the existing theoretical framework on law-making in developing countries, including what the relevant theories contribute to my analysis as well as their gaps. Next, the chapter takes the theory further by identifying the main characteristics of the law-making process in Timor-Leste. Finally, the chapter analyses each of these aspects as they relate to the approval of key Timorese land-related legislation.

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  The Foundations of Australian Public Law

  State, Power, Accountability

  • Anthony J. Connolly(Author)
  • 2017(Publication Date)
  • Cambridge University Press

    (Publisher)

  157 5 LEGISLATION: MAKING VALID LAW 158 THE FOUNDATIONS OF AUSTRALIAN PUBLIC LAW 1 From the Latin terms legis (‘law’) and lator (‘to bring, carry, or bear something’). Institutions whose key role is to make or enact law (legislation) are termed ‘legislatures’ and their members, ‘legislators’. 2 There will be limited discussion of the legislative power of local governments. 1 The legislative power of the Australian state One of the key functions of the modern state is law-making or legislating. 1 Throughout Australia, the practice of legislating is governed by public law. Public law creates state agents and empowers them to make laws. It regulates them in relation to how they go about their legislative activities, and it calls them to account for how they have exercised their legislative power. We saw in Chapter 3 that in Australia, legislation is a mode of state action carried out by all three branches of state – legislative, executive, and judicial – at all levels – Commonwealth, State, Territory, and local government. Though we often assume that legislation is carried out only by Australia’s legislatures, laws are also made by adminis- trative and judicial agents at the three levels of government in Australia, as well as by local governments. In this chapter I want to explore the issue of legislation through the lens of Australian public law’s conferral, limitation, and regulation of legislative power in relation to the Commonwealth and State parliaments and the Territorial assemblies. 2 This will be supple- mented in later chapters by discussion of the legislative activities of Australia’s executive and judicial branches. A key aim of this chapter is to lay the groundwork for our being able to effectively evalu- ate the validity – that is, the lawfulness – of the exercise of legislative power in Australia by any of its state agents.

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  The American Congress

  • Steven S. Smith, Jason M. Roberts, Ryan J. Vander Wielen(Authors)
  • 2011(Publication Date)
  • Cambridge University Press

    (Publisher)

  2 Representation and Lawmaking in Congress The Constitutional and Historical Context I N REPRESENTATION AND LAWMAKING, RULES MATTER. THE CONSTITUTION creates both a system of representation and a process for making law through two chambers of Congress and a president. One constitutional rule determines the official constituencies of representatives and senators; another determines how members of Congress are elected and how long they serve. Other constitutional rules outline the elements of the legislative process – generally the House, Senate, and president must agree on legisla- tion before it can become law, unless a two-thirds majority of each chamber can override a presidential veto. More detailed rules about the electoral and legislative processes are left for federal statutes, state laws, and internal rules of the House and Senate. Although the constitutional rules governing representation and lawmak- ing have changed in only a few ways since Congress first convened in 1789, other features of congressional politics have changed in many ways. The Constitution says nothing about congressional parties and committees, yet most legislation in the modern Congress is written in committees. Commit- tees are appointed through the parties, and party leaders schedule legislation for consideration on the floor. In this chapter, we describe the basic elements of the representation and lawmaking processes and provide an overview of the development of the key components of the modern legislative process. Representation and Lawmaking Congress serves two, not always compatible, purposes – representation and lawmaking. Members of the House and Senate serve individual districts or states, yet they must act collectively to make laws for the nation as a whole. Collective action on divisive issues entails bargaining and compromise – among the members of each chamber, between the House and the Senate, 29 30 THE AMERICAN CONGRESS and between Congress and the president.

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