Differences between Legislative and Judicial Lawmaking
- “legislation” describes the deliberate creation of legal precepts by a body of government in a formal document.
- Both adjudication and legislation involves deliberate creation of laws by government.
- Judge-made law comes from decisions on actual disputes which come before the courts.
- The courts don’t solicit cases in order to make pronouncements.
- In general, legislators have more authority to make significant changes and innovations in the law than courts.
- Legislatures are more responsive to public opinion and private pressure than the courts.
- Legislators’ attention is often drawn to a specific incident or event to enact legislation affecting many persons. ie 9/11
Legislation is generated by 4 things
- Social Unrest
- Conflict
- Environmental deterioration
- Technological innovation (social media, phones)
Increased probability of legislation (3)
- Powerful interest groups mobilizing their members to seek legislative action;
- Unorganized public becomes intensely concerned with an issue, or is indifferent to the particular measures advocated by an interest group; and
- There is no pressure to maintain the status quo, or opposition to the proposed legislation.
Pre-lawmaking stages of activity (6)
Whether an issue goes beyond the first 3 stages depends on the support it receives from stakeholders who possess authority and legitimacy in the policy area, and from key figures in the legislature.
- Instigation and publicizing a particular problem
- mass media, books, documentaries of social problems, etc. - Information-gathering about a particular problem
- collecting data on the nature, magnitude, and consequences
- alternative schemes for solving the problems, and a feasibility of various compromises
- costs, benefits and inherent difficulties
- likely political impact of each scheme - Formulation of a specific legislative remedy
- devising and advocating a specific remedy - Interests-aggregation means obtaining support for the proposed measure
- gathering support from lawmakers through trade-offs and compromises
- championing of one of the interest groups over others
- mediating conflicting groups - Mobilization
- exerting pressure, persuasion or control on behalf of a measure
- by one who has an institutional position
- can take effective direct action to secure law enactment - Modification of the Proposal
- marginal alteration of a proposal
- strengthen or grant certain concessions to its opponents
- facilitates its introduction
Stare decisis
- following what other (higher) courts have decided
- requiring precedent to be applied
- does not have to apply to administrative rulemaking
Administrative Lawmaking
They pursue both civil remedies and criminal sanctions.
Done for the purpose of promoting compliance with regulatory and administrative laws.
- Administrative Rulemaking
- rule = law made by administrative agency
- There is greater flexibility in agencies’ rulemaking procedures than in administrative adjudication.
- Administrators are free to consult informally with interested parties.
- They are not bound by the more rigid requirements of adjudicative hearings. - Administrative Adjudication
- Administrative adjudication is the process by which an administrative agency issues an order.
- Adjudication differs from rulemaking in that it applies only to a specific, limited number of parties involved in an individual case before the agency. An agency doesn’t have to wait until a case is brought before it.
nIt can have its enforcement officials go out and look for cases that will raise the issues its adjudicating officials want to rule on.
Administrative pronouncements (2)
- interpretive regulations = the circumstances under which a provision may apply.
- advisory rulings = interpreting the law with reference to particular types of situations.
Judicial Lawmaking
- The Charter specifically allows the courts to strike down or amend legislation which violates individual rights by government, and provides that rights are limited by s.1 of the Charter.
- the courts act as a check and balance against government or public officials contravening rights set out in the Charter.
- udicial rulemaking is based on the principle of precedent.
- This is known as the doctrine of stare decisis.
- 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.
- The Doctrine of Precedent includes the notion that the judge is bound by what has already been decided, which is a strictly common law doctrine.
- Courts deal with legal rules in earlier decisions by rephrasing, qualifying, broadening, narrowing, or changing such rules, or by analogies.
- In addition, judges may also use scholarly works, interpretive writings, interpretation statutes, and the legislative history of statutes as recorded in Hansards.
Benefits of Following Precedent (9)
- Often much easier and less time consuming than reformulating solutions to problems that have already been faced.
- Enables the judge to take advantage of the accumulated wisdom of preceding generations.
- Minimizes arbitrariness.
- Compensates for weakness and inexperience of lawyers.
- Follows the belief that like wrongs deserve like remedies and the desire for equal justice under the law.
- Enables individuals to plan their conduct so that they will be able to comply with the law and know what to do.
- The objectives of certainty, predictability and continuity are important objectives of the law.
- Many disputes are avoided, others settled without litigation, because litigants can be familiar with how the courts will respond.
- However, a judge may be confronted with a case with no precedent: to make a decision there, a judge must search through cases for appropriate analogies in the law.
3 Types of Interpretations used by courts
1.The Literal Rule: or the “Plain Meaning Rule”,
Says that the statute should be applied literally, regardless of whether the judge approves of the result or not.
- The Golden Rule: if the Literal Rule would lead to absurdity, inconsistency or repugnancy the court should move from the literal interpretation but only so far as is necessary to remove the conflicting construction.
- The Mischief Rule: when confronted by ambiguous statutes, attention should be given to the problem the statute was created to solve or “what mischief … the statute was designed to suppressed, or what remedy is being advanced by it”,
Interest Groups
- interest Group Thesis contends that laws are created because of the special interests of certain groups in society.
- In order to appear before court, there must be a justiciable interest, a lawyer needs to be hired and formal proceedings must be followed, and grievances written in legal terminology.
- To influence legislators a group must be economically powerful to be able to mobilize a large number of votes.
- Techniques: bringing a test case (allow judges to make policy) to court, an amicus curiae brief (“friend of the court”), and publishing favourable information in legal and general periodicals.
- represented by lobbyist firms and lawyers
Amicus Curiae briefs
provide important social science research findings on a particular case and the process allows interested parties to build coalitions with other groups.
Conditions that enhance potential influence of interest groups on law makers (13)
- Often there may not be 2 competing groups on an issue: if only one point of view is presented the group is likely to get what it wants.
- If groups on one side of the issue are unified and coordinated it improves their chances of success.
- If certain key members of the legislature believe in the interest group’s position success is more likely.
- Visibility of an issue improves if the issue is not too visible.
- A single amendment (e.g. changing a quota) is more likely to achieve success than a large legislative package.
- If visibility and public attention of an issue grows, (e.g. wage-price controls) the influence of interest groups diminishes.
- Interest groups are more likely to have more influence on issues that coincide with the interests of the groups they purport to represent.
- Likely to have greater influence on amendments than on entire pieces of legislation because amendments are considered to be technical and less understood by the public.
- Related to financial and informational resources, enabling them to support lawsuits, lobbying, public relations, etc.
- Their offensive and defensive positions is important.
- Interest groups that support the status quo have an advantage over groups seeking to bring change.
- The influence of the interest group depends mainly on its status in the eyes of the lawmakers. (similar political or group affiliations)
- Its ability to bring about social or economic disruption (strikes - nurses or essential services)
Public Opinion
- must consider the timing, whose opinion is being expressed, how the opinions are translated into law, who are the people involved
- more meaningful to look at the influence of public opinion on lawmaking by considering the diverse opinions of many “publics” (i.e. segments of society)
- Different influences of public opinion on the lawmaking processes is well-known: some people are “more equal” than others because of money, talent or choice.
- most people have no clear opinion on most issues facing judicial, administrative and legislative bodies and do not know ll the laws that affect us
- Public opinion should attempt to determine the views of the general public and the public directly affected by a particular law.
3 types of influences that push lawmakers into making decisions
Direct Influence
- Constituent pressures that offers rewards or sanctions to lawmakers.
- Rewards for compliance and sanctions for noncompliance may be votes in an election or re-election campaign, financial assistance, etc.
- Could range from the representative’s standing in lawmaking bodies to prestige in his or her own particular community.
- Not confined to legislators: members of the judiciary are also pressured by partisan publications.
Group Influence
- Exerted by organized interest groups representing a special constituency.
- Political parties, interest groups, and citizen action groups are continually influencing the lawmaking process.
- The motivation behind joining such groups is the perceived need for expressing a point of view in a manner that will influence lawmakers.
- In this context, public opinion becomes organized around a specific issue or an immediate objective.
- Through the process of organizing, interests are made specific, and public opinion backing is sought to gain an advantage in pressing for change or redress through the lawmaking process.
Indirect Influence
- Influences the lawmaking process indirectly.
- A lawmaker acts in the capacity of an “instructed delegate”.
- Decisions are made on behalf of the preferences of a particular constituency because they either share such preferences or believe those preferences will prevail over their own judgment.
Sources of Impetus for Law (6)
- a prerequisite for setting lawmaking in motion.
- Detached scholarly diagnosis
- Academics determine something is against or threatening societal norms and values
- publish in academic journals and popular forums, may take issue to legislature - A Voice in the Wilderness,
- people outside of academia succeed in calling attention to particular social problems
- journalists, authors, publishing books and articles, activists - Protest activities,
- Involves demonstrations, sit-ins, strikes, boycotts, and various forms of electronic civil disobedience or “activism”.
- Dramatically emphasize a groups issue or objectives
- The impact of protest activities on law creation is clearly evident because the law lacks the capacity to initiate change on its own (i.e. the law in general, and the courts).
- generate media coverage nd gather support from organizations and lawmakers
- Strike Action and Boycotts - Social movements,
- a type of collective behavior whereby a group of individuals organize to promote certain changes or alterations in certain types of behavior or procedures. - Public Interest Groups, and
- encourage people to become informed, concerned and active in their communities, pursue analysis of societal and environmental issues, encourage diversity and social equality for all people, etc
- ex. Canadian Medical Association
- must have access to lawmakers to be effective but this depends on the groups socioeconomic status - Mass Media
- news, radio, tv, social media
- the mass media can pressure or challenge lawmakers into taking action on an issue or into changing their stand on a question.
Characteristics of Social Movements
- the movement has specified stated objectives.
- It has a hierarchical organizational structure.
- It has well-conceptualized views.
- Has a precise change-oriented ideology.
- Purposefully articulates desired changes through political, educational or legal channels.
Women’s rights/feminist movements and the acceptance of legal abortion
Montreal Massacre at the Ecole Polytechnic was a catalyst for passing new legislation aimed at gun control, resulted in Bill C-68 receiving Royal Assent on December 1995. This legislation is part of a framework of weapons control to deter the use of firearms in criminal offences.
Mass Media
Function in part as an interest group.
-Each part is a business and so has direct interests in various areas of public policy. Eg. freedom of speech and freedom of the press, protection and confidentiality of sources
- The mass media also function as conduits, although not altogether impartial ones, for others who would shape policy.
Eg. Wealthier groups purchase media time or space in an effort to align public opinion with their causes - make undesirable conditions visible to large amounts of the population
- inform and influence public opinion
6 Processes of Media that Influence Public Opinion
1.authenticates
the factual nature of events, which is decisive in the formation of public opinion.
2.validates
opinions, sentiments and preferences: it is reassuring to hear one’s own views confirmed by a well-known commentator.
3.legitimizes
certain behaviours and viewpoints considered once taboo, by allowing issues once discussed in private to be expressed publicly (e.g. rights of homosexuals).
4.symbolizes
the anxieties, preferences, discontents and prejudices that people experience: by giving an acceptable identification for these perplexing feelings the mass media often translates them into specific opinions and actions. By providing symbols – terrorists, separatists, feminists, law and order, the new morality – the mass media creates a number of objects toward which sentiments can be directed.
5.focuses
the preferences, discontents and prejudices into lines of action.
6.classifies
into hierarchies persons, objects, activities and issues: as a result of the amount of consideration, preferential programming and placement of items, they indicate a relative importance and prestige.
Letters to the editor and public opinion (4)
- They alert the community that an issue is before a lawmaking body.
- They can persuade the reader to take a position.
- They can show that responsible and articulate people in the community are concerned.
- They can enlist the active support of others.
