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Chapter 4: Lawmaking

Routinely there are thousands of new laws created, each is unique and has its //raison d’être//, but we can make generalizations on how they are formed.

Perspectives on Lawmaking

The Rationalistic Model

The rationalistic model(perspective) suggests that laws are created as rational means of protecting the members of society from social harm. It is the most accepted but also the most unsophisticated theory of lawmaking. One of the principal difficulties is that it is the lawmakers and powerful interest groups who define what can be harmful to the public welfare.

The Functionalist View

The functionalist view is concerned mainly with how laws emerge. Bohannan argues that laws are a special kind of ‘re-institutionalized custom.’ From this view, laws are passed because they represent the voice of the people; they are a crystallization of customs. It suggests that the failure in other institutional norms encourages the re-institutionalization of the norms by the legal institution.

The Conflict Perspective

The conflict perspective cites dissensus, unequal access to economic goods, and the resulting structural cleavages of a society as the basic determinants of laws. The elite class, from which the origin of law is traced to, use social control mechanisms such as laws to perpetuate their own advantageous positions in society. Conflict theorists argue that the interest group(s) more closely tied to the interests of the elite group would probably win the conflict.

The Moral Entepreneur Theory

The moral entrepreneur theory attributes the precipitation of key events to the presence of an enterprising individual or group. The role of moral entrepreneurs in lawmaking is splendidly illustrated by Becker’s study of the development of criminal law designed to repress the use of marijuana. The Narcotics Bureau of the Treasury Department was unconcerned with marijuana in its earlier years, and instead thought that opium was the real problem. But shortly before 1934, the NB redefined marijuana as a serious problem. As a consequence the agency acted as a moral entrepreneur, in that it attempted to create a new definition of marijuana use as a social danger.

Legislation

The most important and obvious task of legislative bodies is to make law. The verbal expression of a legal rule or principle by a judge does not have the same degree of finality as the authoritative formulation of a legal proposition by a legislative body. Main function of legislative body is to decide disputes under a preexisting law and the law-creating function of judges is considered incidental to their primary function of adjudication. Another difference between legislative and judicial lawmaking is that judge-made law stems from the decision of actual controversies, whereas legislation formulates rules in anticipation of cases. An opinion supporting a court decision is normally signed by the judge who wrote it; a statute carries no signature. In general, legislators have much more freedom to make significant changes and innovations in the law than do the courts. Judges deal with particular cases; legislators consider general problem areas with whore classes of related situations. The probability to create a legislative law increases when (1) powerful interest groups mobilize their members to seek legislative action; (2) the unorganized public becomes intensely concerned with an issue; and (3) there is no pressure to maintain the status quo or opposition to the proposed legislation.

The dance of legislation – (lexoni n’faqe 167 paragrafi i fundit, mos ti pershkruj t’njejtat sene)

Administrative Lawmaking

Administrative agencies engage in lawmaking through rulemaking through the adjudication of cases and controversies arising under their jurisdiction.

Administrative Rulemaking

It refers to the establishment of prospecting rules. A rule is a law made by an administrative agency. Through rulemaking, a particular administrative agency legislates policy. Under the requirements of Federal Administrative Procedure Act, general notice of proposed rulemaking must be published in the Federal Register. The notice must specify the location of the proceedings, the legal authority under which the rules are being proposed, and the substance of the proposed rules. The flexibility in rule-making procedures is much greater than in administrative adjudication.

Administrative Adjudication

Administrative adjudication is the process by which an administrative agency issues an order. Adjudication is the administrative equivalent of a judicial trial. It differs from rulemaking in that it applies only to a specific, limited number of parties involved in an individual case before the agency.

Judicial Lawmaking

In many instances, legislators and administrators are willing to let judges take the heat for controversial actions, such as allowing or disallowing abortion or ordering busing to desegregate schools. An increasing number of judges hold the belief that law and the courts are the most appropriate and effective means of redressing the perceived ills of our society. Courts have tended to move from the byways onto the highways of policy making. ‘Imperial Judiciary’ means the courts now have more power, play such a great role in lawmaking, that they pose a threat to the vitality of the political system – a rather controversial position in academic circles. ‘Romantic judges’ follow their passions of ‘do-gooding’ and use due process and equal protection to justify making law rather than interpreting it. However, judicial activism is not without criticism. The role o judges is to apply the law, and the policy-making activities carried out by the Supreme Court in interpreting the Constitution in view of social changes are considered an impermissible expansion of the powers granted to the judicial branch.
Adjudication is focused. The typical question before the judge is simply: Does on party have a right? Does the other have a duty? In contrast with admin and legis which ask: What are the alternatives? Courts must act when litigants present their cases before them. A judgment cannot be escaped.

Lawmaking by Precedents

Judicial formulation of rules is based frequently on the principle that judges should build on the precedents established by past decisions, known as the doctrine of state decisis (‘stand by what has been decided’), which is both expeditious and deeply rooted common-law tradition. By contrast, civil law countries, such as France and Germany, have codified legal system where the basic law is stated in codes. In common-law countries judges base their decisions on case law, a body of opinion developed by judges over time in the course of deciding particular cases. It conforms the belief that ‘like wrongs deserve like remedies’ and ‘equal justice under the law. To make a decision or cases which have no precedents judges search through law cases of similar cases that seem applicable. Through the selection of appropriate and desirable analogies judges make law in such instances.

The Interpretation of Statutes

In interpreting statutes, judges determine the effects of legislative decisions. For many, a legislative decree is not a law until enforced and interpreted by the courts. In the vast majority of cases involving the application of statutes, the courts have no trouble determining how to apply the statute. In some cases, however, the intent of a legislature is ambiguous; some statutes contain unintentional errors and ambiguities because of bad drafting of the law. An important reason for the lack of clarity in many instances is that the proponents have not been able to foresee and provide for all future situations, which provides the courts with the opportunity of lawmaking. 

The Interpretation of Constitutions

In addition to the US congress that plays a major role in constitutional interpretation, the courts are regularly called upon to interpret the Constitution. Every controversial statute and a variety of controversial executive actions are challenged in the courts on grounds of unconstitutionality. The opportunities to interpret constitutional provisions arise more often in federal than in state courts because the national Constitution is considered a more ambiguous in many of its key provisions. State constitutions are much more detailed documents and leave much less room or judicial interpretations. When deciding on the constitutionality of a government action, the courts have to decide what meaning they wish to give to the constitution and which social objectives to pursue.

Influences on The Lawmaking Process

Lawmaking is a complex and continuous process, and it exists as a response to a number of social influences that operate in society which cannot always be precisely determined, measured, or evaluated.

Interest Groups

The interest-group thesis contends that laws are created because of the special interest of certain groups in the population. Law governing the use of alcohol, regulations concerning sexual conduct, abortion bills, pure food and drug legislation, are all documented instances of interest group activity. The nature of the interaction between interest groups and lawmaking varies to an extent based on the branch of the government. To reach the courts, a lawyer must be hired, formal proceedings must be followed, and grievances must be expressed in legal terminology. To influence the legislators, a group must be economically powerful or able to mobilize a large number of voters. The principal techniques used by IG to influence courts are: to bring conflicts to a court’s attention by initiating test cases, to bring added info to the courts through amicus curiae (friend of the court) briefs, ant to communicate with judges indirectly by placing info favorable to the group’s cause in legal and general periodicals. Interaction between interest groups and legislative and administrative lawmakers are more overtly political in nature.
A number of specific conditions can be identified the increase the chances of influence. If there is only one perspective the chances to succeed are higher than if there is an opposition. If the group decreases their disagreements, if they are very unified the chances of success increase. Same if the key members of legislative bodies believe in the IG’s position. Another factor is the visibility of the issue; if it is low (eg they seek for a single amendment rather than entire pieces of legislation) the chances of succeeding increase, vice versa if the issue tends to attract the attention of the public chances tend to diminish. And interest groups that support status quo have an advantage over groups trying to bring change.
In general, the effectiveness of IGs to influence lawmaking is related to such considerations as their financial and information resources, offensive or defensive positions, and the status of the group in the eye of the lawmakers.

Public Opinion

As a society becomes larger, more complex, and heterogeneous there is a less direct correspondence between public opinion and law. The ‘public opinion’ that affects the law is like the economic power which makes the market. This is so in 2 essential regards: SOME people take enough interest in any particular commodity to make their weight felt; second, there are some people who have more power and wealth than others. At one end of the spectrum stand such figures as president of US; at the other, migrant laborers, babies, etc. lawmakers are aware that some people are more equal than others because of money, talent, or choice. 100 wealthy, powerful constituents of an issue outweigh thousands of poor, weak constituents, mildly in favor of it. These are known as the ‘silent majority’- the people that do not threaten, or write letters. Paradoxically this group matters only when it breaks its silence. And there is another group of people which do not know a lot or do not care about the issue, leading lawmakers to be influenced by a minority.
Despite these, there are three types of influences on the lawmaking process: direct, group, and indirect influences. Direct influences refer to constituent pressures that offer rewards or sanctions to lawmakers, like votes on election or reelection campaign, financial assistance, and other forms of pressure. Group influences are such are political parties and citizen actions which continually influence the lawmaking process. Public opinion in these groups is represented by organization leaders. In the indirect influence the lawmaker acts as an ‘instructed delegate’. The decisions made are on behalf of the desires of a particular constituency (eg, citizens living near an airport which wants to expand its facilities.)
Public-opinion polls seek to determine the aggregate view people hold in a community on current important issues. It has been demonstrated that opinion polls clearly influence what lawmakers do, and the use of them is encouraged.

Lawmaking and Social Science

Lawmakers have long been aware of the contribution that social scientists can make to the lawmaking process. In an era increasingly dominated by scientific and technical specialists, it is not surprising that lawmakers reflect the quest for specialization and expertise. They have used the collective data of scientists to create and reconstruct laws in different areas. Social-science data may be collected and analyzed or academic purposes and later utilized by one or more sides of a dispute. It may also be reactive in the sense that is it initially requested by parties in a dispute. And it may be undertaken in a proactive fashion where a Social scientist may undertake an investigation with the anticipation of subsequent use o the results by lawmakers.
Social-scientists also assist either the court or the legislator in the preparation of background docs pertinent to a particular issue or serve on presidential commissions intended for policy recommendations.

Daniel Patrik Moynihan gives two reasons why soc-scientists have been criticized for their involvement in lawmaking. (1) Social science is basically concerned with the prediction of future events, whereas the purpose of law is to order them. (2) Social Science is rarely dispassionate, and soc-scientists are frequently caught up in the politics which their work necessarily involves.

Sources of Impetus for Law

Detached Scholarly Diagnosis

The impetus for law may come from detached scholarly undertaking. Academicians may consider a given practice or condition as detrimental in the context of existing values and norms. They may communicate their diagnoses to their colleagues or to the general public through either scholarly or popular forms. In some cases, they even carry the perceived injustice to the legislature in search of legal redress. (eg on pg. 184) 

A Voice from the wilderness (Vox clamantis in deserto)

Through their writings, many people outside of academe succeed, or even excel, in calling public attention to a particular problem or social condition. The example of the novel “The jungle” by Upton Sinclair, where he writes about the quality of food in the 20th century has provided an impetus for the passage o the Pure Food and Meat Inspection Law in 1906 (pg.186). Another example is the book “Unsafe at any Speed” where the author shows the unconcern of vehicle manufacturers for safety, thus initiating a law on the issue.

Protest Activity

It involves demonstrations, sit-ins, strikes, boycotts, and more recently various forms of electronic civil disobedience or ‘hacktivism’ that dramatically emphasize, often with the help of the media, a group’s grievances or objectives. Often these strategies are used from those who are unable or unwilling to engage in more conventional lawmaking, or who regard it useless.

Social Movements

A social movement is a type of collective behavior whereby a group of individuals organize to promote certain changes or alternations in certain types of behavior or procedures. Invariably, the movement has specified stated objectives, a hierarchical organizational structure, and a well-conceptualized and precise change-oriented ideology. An example is legalization of abortion. It should be pointed out that not all movements are successful in bringing about changes through law. Those who have financial assets to support their effort to raise the public awareness have advantage over the others.

Public-Interest Groups

Lawmakers are fully cognizant of the fact that private interests are much better represented than public interests. There are hundreds of organizations that present private interests on a full or part time basis. But the number of groups that claim to represent public interests is quite small. These groups have been instrumental in the initiation o a series of changes in the law designed to benefit and protect the public.

Mass Media

The mass media function in part as an interest group. Each component of the mass media is a business, and like other businesses, it has a direct interest in various areas o public policy. It also functions as conduits for others who would shape policy. They are able to generate widespread awareness and concern about events and conditions, to bring matters before public so that they become problematic issues.
An indirect way by which the mass media can furnish an impetus for lawmaking is through the provision of a forum for citizens concerns.
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