TyroCity: Legislative Principles and Law Making Process

Law making for Social Change and Social Control

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Background

Savigny: “Law is found but not made.”

Particular society themselves develop legal system by sense of common consciousness (Volkgeist).

HLA Heart:

He made a bridge between primitive society and modern society.

In primitive society there were some rules and principle to govern the society but there are de-facto rules.

Therefore, secondary rules for him made effective to those primary rules by (i) recognition (ii) change (iii) adjudication

Roscoe Pound

The purpose of law is to achieve ultimate goal of society, this ultimate goal can be achieve by balance of conflicting interest.

Individual interest: Fundamental rights
Public interest: -Right claim by a state to be a real state.
Social Interest: -Directive principles

So, all the source of law making is society. It is the institution felt by law makers for the society.

While making law, social order is to be considered, if not done then law can be oppose by the society: –

samajik byabahar sudhar ain

Law making for the Social change and Social Control

Law makers should make law addressing need of society not interest of elite group.

Changes through a law mean void changes. This can be as follows:

Changes in attitude, psychology, behavior and power structure (law against untouchability).
Changes brought by the present court.
Through this constitution, you can claim the right against state.
Like equality, sovereign power is people.
Pursuing equality in the land of Hierarchy, (Attitude in feudalistic pattern change into socialist)
Jurisprudential foundation of reservation.
Empowerment of woman.
Social Action and Public Interest Litigation.
Secularism
Sometime if alternative are not given and absolutely imposed.

There may be high probability of disobedience. So, alternative is to be provided to enjoy law.

Social reform Act, Consumer protection Act failed due to disobedience of society.

Cyber Law came into existence with the felt of need of it by law makers and cope up with the change in technology and human knowledge.

Other laws enacted and amended due to WTO regime, Human Right regime.

If the law is against international legal order then it will be condemned internationally.

Things that are to be considered by law makers I law making for social change are: –

First thing is that, the law should be made according to societal interest.
Purpose of law is to make people empower (capable).

For this we can make affirmative discrimination.

Law should not exceed legal principle and international norms of standard.
Law should be according to the social psychology and social fact.

Cyber law wasn’t debated but Communication ordinances was debated because it has taken dignity of media and media personal.

If any misconfusion occurs between law makers and society then either society or law can’t function.

From the historical period to modern society like Mundhum, Manab Nayab, Sartha, Muluki Ain, Constitution has brought number of changes in society.

Sati abolition, Child marriage, Birta Unmulan, etc.

Because of the advancement of democracy, science and technology. (Climate change)

Law makers are to be update through research to meet the societal interest as a whole

Background of Legislative Principles and Law Making Process

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

“As force is always on the side of the governed, the governors have nothing to support them but opinion. It is, therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular. The Soldan of Egypt, or the Emperor of Rome, might drive his harmless subjects, like brute beasts, against their sentiments and inclination; but he must, at least, have led his mamelukes, or praetorian bands, like men, by their opinion.” David Hume (force and opinion to keep a regime in power)

“Opinion rules everything.” Napoleon

Law here refers to legislation. Positive law.

Also See, M_eera Kumari Dhungana and others v. Ministry of Law, Justice and Parliamentary Affairs et. al._ NKP 2052, p.462.

In this case, after holding-albeit indirectly-that the then existing provision in the Chapter on Partition of the National Code was discriminatory and unconstitutional, the Supreme Court held that the law was a part of a long held tradition of the Nepalese people and formed a core of the society. Hence, instead of directly changing the law, the society and the people should extensively discuss the issue on the basis of principles of equality and only then the Government should introduce a bill to the house within one year.

Law making process is the process of codification or transformation of principles and ideas into rules or legislation.

In democracy, one of the essences of law making process is the formal, transparent, participatory Law Making process. In addition, public should own the law to ensure effective implementation of the law.

In this context, public opinion ensures transparency, participation in the law making process and allows the public to get a sense of ownership of the law.

Public Opinion not only affects law making process by determining how the legislature votes but also by influencing every process in the way whereby sometimes even killing the legislation. That is, public opinion should not be seen only as a procedure followed during the law making process, rather it may become decisive in determining the necessity of the law, at the first place.

How Public Opinion influences, first, public opinion represents electorate’s aspiration so fear of retaliation in election. Second, moral pressure on the legislatures, doctrine of mandate.

Relevant provisions in the law

The Constituent Assembly (Conduct of Business of Legislature-Parliament) Rules, 2070 (2013)

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 present public opinion on Truth and Reconciliation Act and even the Constitution.

V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

“When we talk of legislative public opinion we should not forget that such opinion may bear a merely negative character, and operate not by making laws but by forbidding their enactment.”

Few points on Public Opinion in England.

First, There exists at any given time a body of beliefs, convictions, sentiments, accepted principles, or firmly-rooted prejudices, which, taken together, make up the public opinion of a particular era…

Such belief (right or wrong) are strongly and confidently held by the community.

Such belief maybe countered by opposite belief over time.

Secondly, the opinion which affects the development of the law has, in modern England at least, often originated with some single thinker or school of thinkers.
It is impossible, indeed, to insist too strongly upon the consideration that whilst opinion controls legislation, public opinion is itself far less the result of reasoning or of argument than of the circumstances in which men are placed.
Thirdly, the development of public opinion generally, and therefore of legislative opinion, has been in England at once gradual, or slow, and continuous.
Fourthly, the reigning legislative opinion of the day has never, at any rate during the nineteenth century, exerted absolute or despotic authority. Its power has always been diminished by the existence of counter-currents or cross-currents of opinion18 which were not in harmony with the prevalent opinion of the time.
Fifthly, Laws foster or create law-making opinion.

This assertion may sound, to one who has learned that laws are the outcome of public opinion, like a paradox; when properly understood it is nothing but an undeniable though sometimes neglected truth.

Something I found in the internet, worth noting. Will be helpful in exams, I guess.

Public opinion is not the unanimous opinion but there is a general agreement on the issue.
It may change with the circumstances, time and new information.
Public opinion is not always related to political matters. It may even be formulated on economic, social and cultural matters.
Public opinion is logical and considered view of a section of society.
Public opinion is subject to process of modifications, consolidation and clarification until it takes a definite shape.
Public opinion necessarily reflects diversity of opinion.
There is no fixed territory or area for public opinion.
Public opinion ensures democratic communication.

Conceptual Framework in Democratic Governance

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Democratic “governance”; political organization comprising the individuals and institution
(i) authorized to formulate public policies
(ii) conduct affairs of state.

Government is empowered to establish and regulate the inter-relationships of the people.

The peculiar and essential qualities of the government are:

First, it is representative.
Second, recognizes the liberty of individual citizens.
Third, separation of power accompanying with the check and balance mechanism.
Fourth, implementation (enforcement) of law.

Executive, Legislative and Judiciary are the most essential ingredients of government. They do have own governance system. Whereas, legislative: formulate the laws according to the requirement of society, assimilating current phenomena into law.

Executive: enforcement of law generally. But usually executive branch is fully devoted to administer the country’s law. Executive head or executive power may differ from country to country.

In regard to, judiciary: which check on rationality, objectives of law with interpretation? Protect the constitutional norms and values (Judicial review or judicial activism help to protect liberty and establish remedy).

Nepalese governing system has been adopting up to down approach in authority and delegation of power. Bottom to up approach in responsibility and accountability. Our governance should not be like “army fighting in war without arm and weapon”. Law should be used as a weapon to good governance.

Indeed, Nepalese do expect of good governance; (comparatively good than the present)

Many challenges have been appearing a hurdle to govern the state. Like as follows:

Problem of peace and security
Address issues of excluded groups:
Poverty
Political instability

Despite of these challenges, gain occurred in governance by considerer-able progress with

(a) Tax policy
(b) administrative reform
(c) combat corruption
(d) independence of judiciary
(e) advancement and development of communication system

Social changes as causes of legal changes

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

In a broad theoretical framework, social change has been slow enough to make custom the principal source of law. Law could respond to social change over decades or even centuries. Today the tempo of social change accelerated to a point where today’s assumptions may not be valid even in a few years from now. The emergence of new risks to the individual as a result of the decrease of the various family functions, including the protective function, has led to the creation of legal innovations to protect the individuals in modern society. Eg provisions of workers compensation, unemployment insurance, old-age pensions. Many sociologists and legal scholars assert on the basis of a large amount of accumulated data that technology is one of the great moving forces for change in law in three ways: (read page 335 paragraph 3). The computer and easy access to cyberspace, especially internet, also have inspired legislation on both the federal and the state levels to safeguard privacy, protects against abuse of credit information and computer crime. Change in law may be induced by a voluntary and gradual shift in community values and attitudes. [eg. People may think that poverty is bad, and laws should be created to reduce it in some way.] Alternations in social conditions, technology knowledge values, and attitudes then may induce legal change. in such cases law is reactive and follows social change. However, changes in law are only one of many responses to social change. Additionally, laws can be considered both as reactive and proactive in social change.

Behavior and Accountability of Law makers

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

A Legislator:

Person who writes and passes the law.
Usually politician, often elected by people
Different names are provided to it like Parliament, Diet, Legislative Assembly, Congress.

When there is room for interpretation, the intents of the Legislator will be questioned, and the court is supposed to rule in the direction, that it judges to fit the legislative intent the best, -which can be uneasy, in the case of conflicting laws or constitutional provisions.

Formulating new legislation is not an easy task. In fact, it requires comprehensive study done by legislators, regarding various issues.

There is question, whether the criteria education requirement and training is required for legislators or not?

Constraints

Legislator should be confine between some constraints while formulating law or fulfilling their role and responsibility.

(a)Constitutional Constraints:
Some constraints are mentioned in constitution like no death penalty, no exile to anyone, no prohibition to political parties, etc.

(b)Legal and Natural Principles Constraints:

Like: – rule of law, natural justice, fair trial right to hearing, appeal, Judicial review

(c)Self-restrained limitation:

Like: – Law should be reasonable, rational, judicious, good conscience.

Authority

(a)Legislature with absolutely define authority:

– Legislature has authority to formulate law on fixed and defined subject.

– Not other than that.

– American Congress can only formulate law in monetary, finance, public welfare and altogether 18 issues.

(b)Legislature with absolutely non-defined authority:

– Like: -British Parliament, New Zealand Parliament and Italian Parliament.

– There is non-defined authority to make legislation on any issues.

(c)Legislature with relatively defined authority:

– India and Germany parliament.

– Indian federal parliament has some authority to make law.

Legislator must keep in mind

Draft or passing of any law should be contextual.
Knowledge about other related prevailing laws.
Precedent.
Use of simple word.

Weapons for Legislator for law drafting and pairing

(a)Constitution

(b)Policies

(c)Law on Interpretation

(d)Precedent

(e)Foreign Laws

(f)Legal dictionary

(g)Convention, treaties

(h)Prevailing Acts

(i)Articles of Jurist and experts.

Function, Duty and Power of the Nepal Law Commission Sec. 10

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

a) To make and cause to be made study and research on enactment of new law or amendment of existing laws or the contemporary issues relating to law and justice,

(b) To prepare necessary draft for codification of law, and submit the same to the Government of Nepal.

(c) To unify or review the prevailing laws, and to provide necessary suggestion in this regard to the Government of Nepal,

(d) To submit a draft along with explanatory notes, in regard to enactment of new law and amendment of prevailing law as per necessity,

(e) To make study about the laws which are obsolete, contradictory to each other, unequal, discriminatory, conflicting with human rights as well as unimplemented ones, and to submit suggestion to the Government of Nepal in regard to repeal, amendment or review of such laws,

(f) To provide draft or suggestion to the Government of Nepal for inclusion of the covenants of international treaties and agreements in the prevailing laws, as per necessity,

(g) To make consultation, discussion and interaction with concerned agency, organization in regard to drafting, codification, integration, review, reform
and development of laws as per necessity, or to co-work with the concerned agency or organization in this regard,

(h) To obtain service of experts for study, research and drafting of special type of laws,

(i) To collect public opinion, views and suggestions in course of processing enactment of laws as per necessity,

(j) To launch programs like symposium, seminar and interaction as per necessity in course of reformation of draft of laws,

(k) To exchange necessary information and knowledge with law commissions as well as laws drafting agencies of other countries having contact with
them,

l) To make study whether there is or not an existence of laws in consonance with the principles laid down by the Supreme court and to submit a draft to the Government of Nepal in regard to promulgation, repeal and review of laws in case of being found a gap thereto,

(m) To prepare annual programs of the Commission,

(n) To accomplish other function relating to law and justice as prescribed by the Government of Nepal and as deemed necessary by the commission.

Introduction

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Utilitarianism (Latin utilis, “useful”), in ethics, the doctrine that what is useful is good, and consequently, that the ethical value of conduct is determined by the utility of its results. The term utilitarianism is more specifically applied to the proposition that the supreme objective of moral action is the achievement of the greatest happiness for the greatest number. This objective is also considered the aim of all legislation and is the ultimate criterion of all social institutions. The utilitarian theory of ethics is generally opposed to ethical doctrines in which some inner sense or faculty, often called the conscience, is made the absolute arbiter of right and wrong. Utilitarianism is likewise at variance with the view that moral distinctions depend on the will of God and that the pleasure given by an act to the individual alone who performs it is the decisive test of good and evil.

British philosopher and economist Jeremy Bentham (1748-1832) was the originator of the doctrine known as utilitarianism. He declared that in order to come into accord with the laws of nature, government and citizens should act to increase the overall happiness of the community. The utilitarian principles of Bentham and others who shared his beliefs, including British philosopher-economists James Mill (1773-1836) and his son, John Stuart Mill (1806-1873), helped to bring about social and political reform in Britain.

In the Introduction to the Principles of Morals and Legislation, Bentham advanced utilitarianism as the basis for reform. He claimed that one could scientifically ascertain what was morally justifiable by applying the principle of utility. Actions were right if they tended to produce the greatest happiness for the greatest number of people. Happiness was equivalent to pleasure. Through a kind of moral-mathematical calculation of pleasures and pains, one could tell what was a right or a wrong action. If all pleasures and pains were of the same order, then a utilitarian evaluation of moral, political, and legal activities would be possible. Also, Bentham argued, if values were based on pleasures and pains, then theories of natural rights and natural law were invalid. John Stuart Mill, severely modifying some of Bentham’s principles, discounted Bentham’s method for calculating quantities of happiness.

In Britain, liberalism was elaborated by the utilitarian school, chiefly the jurist Jeremy Bentham and his disciple, the economist John Stuart Mill. The utilitarian reduced all human experiences to pleasures and pains, maintaining that the only function of the state was to increase pleasure and reduce pain and that legislation was acceptable as an evil designed to reduce worse evils. Utilitarian liberalism had an especially beneficial effect on the reform of British criminal law. Bentham demonstrated that the harsh penology of the 18th century was uneconomical and that leniency was shrewd as well as decent. Mill defended the individual’s right to act freely, even to the person’s own detriment. His essay “On Liberty” (1859) is one of the most eloquent defenses of free speech.

WORK OF BENTHAM

Utilitarianism was enunciated in its most characteristic form by the British jurist and philosopher Jeremy Bentham in his Introduction to the Principles of Morals and Legislation (1789). In Bentham work, utilitarianism is as illustrated in his definition of virtue as the “doing [of] good to mankind, in obedience to the will of God, and for the sake of everlasting happiness.” Bentham employed the utilitarian theory as a foundation, not merely of an ethical system, but also of legal and political reforms. He maintained the necessity of sacrificing smaller interests to greater, or, at all events, of not sacrificing greater interests to smaller, and so posited as the ethical goal of human society the greatest happiness of the greatest number.

Bentham sought to illustrate the doctrine of utilitarianism by counterpoising it to the doctrine of asceticism on the one hand and to the theory of sympathy and antipathy on the other. Asceticism he defined as the principle that pleasure should be forfeited, and pain incurred, without expectation of any recompense. The theory of sympathy and antipathy he held to be based on the “principle which approves or disapproves of certain actions, not on account of their tending to augment the happiness, nor yet on account of their tending to diminish the happiness of the party whose interest is in question, but merely because a man finds himself disposed to approve or disapprove of them: holding up that approbation or disapprobation as a sufficient reason for itself, and disclaiming the necessity of looking out for any extrinsic ground.”

In his exposition of the theory of utilitarianism, however, Bentham postulated “four sanctions or sources of pain and pleasure,” namely, the physical, the moral, the religious, and the political. The physical sanction, according to Bentham, is the basis of all the others. He sought further to devise a scale of pleasures and pains, rating them in terms of their intensity, purity, duration, propinquity or remoteness, certainty, fruitfulness, and the extent to which pleasure and pain are shared among the greatest number of people.

Use of legislation as a state’s tool power to administer governance

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

In simple language, ‘what government does is governance’. Governments are empowered to establish and regulate the interrelationships of the people within their territorial confines, the relations of the people with the community as a whole, and the dealings of the community welfare.

The word government may refer to the people who form the supreme administrative body of a country, as in the expression “the government of Prime Minister Churchill.”

The system or manner of government is governance, which is run by the administrative law of the nation or state. Administrative law is the area of law dealing with the affairs of agencies of the executive branch of a government, and with the judicial review of public bodies generally.

Administrative bodies or government agencies (VDC, Municipalities, Forest department, CDO office, Tax Revenue office, etc.) are created as the government’s agencies and given power by federal or state legislation.

The administrative law is basically concerned with whether proper standards are applied by government’s agencies in exercising their powers and in making and enforcing regulations. If an agency does not apply the proper standards, its failure may be redressed by application to the courts.

Government require to maintain peace and security, generate and control the economy etc. there are many function of democratic government, therefore to run and regulate these action a government requires different legislation as ‘administrative laws’. Administrative Law is body of law applicable to the operations of agencies established by the legislature to carry out the functions of the executive branch of government. Administrative law are used in a way to maintain peace and security crime control act, police act; to regulate the economy income tax act, VAT, Nepal Rastriya Bank act and other banking acts; for regulation of industrial and other business activities there are company act, contract act etc.

Legislative just promulgate the constitution and act which determine the substantive or principle aspects like the framework, structure, jurisdiction, role and responsibility. But legislative can’t determine procedural aspect of each and every activities, it is not practicable to determine each and every procedure of an act. That’s why legislative provided delegated legislative authority to executive. For ex: there is ‘Forest Act’ which is enacted by legislative. This ‘Forest act’ provided the substantive aspect to run forest and forest administration, they are administrative power- authority to forest office, administrative discretionary power to forest officials, administrative adjudication (quasi-judicial) authority, etc. But in case of its procedure to run an administration, ‘Forest act’ provides delegated legislative authority to forest office to formulate its own procedure by formulating ‘Rules and Regulation’ by forest office themselves.

In this way government use the legislation (use of administrative law) as a state’s tool power to administer governance like forest department use ‘Forest act’ as its tool to administer forest governance.

Two major aspects arises (i) why? And other is (ii) how?

Answer to Why?

To protect individual right and liberty (Fundamental rights).
To maintain Rule of law
- Control the behavior of the people through criminal laws.
- Reform and adopt new laws with the social change.
- Public welfare
- Strengthen democratic process
To establish government of people
Separation of power with effective check and balance
Equality before law

Answer to how?

Through administrative laws like: Local government Act and regulation, Civil service Act and regulation etc.

Elements to Administer governance are:

1.By delegated legislation

Allowing minor laws (rule) making authority under the scope provided by act and regulation.

2. By administrative power and authority

Executive has an authority to govern and enforce. For ex: Village Development Committee and Municipality are autonomous to govern themselves.

3.Administrative discretion

The freedom or authority to judge something or make a decision about it by an executive authority is an administrative discretion. Ex: traffic police and tax official discretionary power to impose the amount of fine.

4.Administrative adjudication

Resembling power of court by an executive body, it describes decision making power of executive that are similar to court. Ex: Quasi-Judicial body.

5.Control over administrative abuse of power and authority by supreme source of law (Constitution)

Public Opinion, Introduction and Importance

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

Public opinion is shaped by relatively permanent circumstanced and by temporary influences.

Permanent circumstances such as race, religion, geographical location, economic status and educational level can strongly influence the public opinion. (Individuals or a particular group)

Temporary factors such as impacts of current events effects of main communications media, propaganda and concerned campaigns of public relations professionals.

It is a survey research in sociology, means collection and analyzing responses of large samples of people.

Public opinion in Nixon’s Vietnam war policies, polls showed that 60% of US people considered war as “immoral” and 70% demanded immediate withdraw from Vietnam.

Importance of Public participation(People’s voice) in Law making process

-Constitution and other law making is not an easy task.

-In societies in which sharply divergent aspirations are present and a common life cannot be assumed, constitution making is difficult task at best.

-It cannot be supposed that clever-drafting can solve the problem by merely writing around it.

-In countries with socio-economic, cultural and geographical diversity as well as with diverse aspirations and needs of people it is even more taken as challenging job.

-Hallmark of present day constitution making process is to ensure maximum participation in law making process.

This is newer form of constitutionalism in order to make law legitimate.

Apparently, it is important in Nepalese context to strengthen democracy and actual justice.

This don’t form an individual’s stand point view but from wider sense.

In contemporary Nepalese constitution building phase, the relationship between people and law is needed; it can be built through it.

-People’s voice is to have their say in different affairs.

It is a participatory democracy, which is accepted on the quite genius democracy.

It’s not only a constitution but entitles public spaces and direct engagement of people.

It is not an end but means to change and develop society.

-Public hearing, consultation, etc.

-Representative from different diverse sector facilitate the process.

Built on a belief that citizens can be trusted to shape their own future, participatory development uses local decision making.

Drafting Steps and Principles

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

There are 4 steps of Legislative Drafting. They are as follows:

1)Role of Interest group

The research is to be carried out by some group of people. This group of people is termed as interest groups. The interest groups may be (a) Concerned Political parties (b) Concerned Stakeholder (c) Concerned Experts (d) Concerned Local or effected community (e) Civil society.

Outcome of research are to be discussed to Interest groups. Interest groups have to have some constructive feedback and complements on it. They have to play major role for lobbing those research outcome to formulate it as a policy first and secondly for legislation. At first these are to be developed in the form of policies to cross check its pros and cons in society. After having positive response in society than they should be given Legal form (Legislation).

2)Identification of legislative problem: –

To formulate the policy, research is to be carried out to the concern stakeholder and take feedback from then. What kind of effect it may produce? Is it necessary or not? Whether the problem is there or not? Whether the problem can be solved or not? Is it necessary to be in legal form or not?

After answering these above questions legislative will be capable enough to find the research problem for legislative body. Research Problem here means to find out the social wants/ social interest.

For Ex: Is the lack of practical education cause for the poverty or unemployment in Nepal? Now legislative has the subject matter (research problem), which is to be address by law making (Legislation).

3)Framing of legislative policy: –

Among all the diverse issues raised by the interest groups, the legislative has to figure out which of the policy is essential to establish welfare-state. These kinds of policy are the legislative policy which is to be taken into parliament to enact it as legislation.

4)Identification of policy alternative: –

If that policies fails than the possible alternative should be formulated.

Policy

Definition

To address changing need of aspiration of people…For people’s welfare.
According with national interest.

Source of law

It is the source of law.
During Government rule, nation or state need different kinds of rule to govern the people at this they use policy as a tools.

Basis or group

Geographical, political, historical, economical, social, cultural, people level of awareness (civic sense)

Types of Policy

Nation/State policy: -Not easily changeable. Example: -Nepal commitment and foreign policy.
Government policy: -During the governance of state. It is comparatively changeable.
Political party policy: -Political party policy should be acknowledged and rectify by the government.

Effects of policy

i)They are the guideline for the government :-acts as directive to government.
ii) Source of law should turn into legal form: -Individual, social interest into law.
iii)Not necessary to be turn into legal for: -Foreign policy, Agricultural policy, foreign aid policy.

Legal Research

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

S.R. Myneni: – The systematic investigation of problems of and matters concerned with law such as codes, acts, etc.

-To obtain better knowledge and understanding of any problem of legal philosophy, legal history comparative study of law, or any system of law international and municipal.

-Discovering new legal facts and verification of the old ones.

Components of Research: –

Manipulation of things, concepts or symbols.
For the purpose of generalization.
To extent, correct or verify knowledge.
The knowledge may be used for construction of theory or practice of art.

Objectives of Legal Research: –

Evaluative: –
To find out how a legal rule came into being and what it is.

Explanation: –
To ascertain the nature, scope and source of law in order to explain, what law is?

Identificatory: –
To ascertain for whose benefit legal research is made.

Impact Analysis: –
Impact analysis of Legislation.

Projective or Predictive: –
To find out the degree of social acceptance to the anticipated or propose legislation.

Legislative Terms

Law Making Process Notes — Sun, 18 Aug 2013 05:41:42 +0000

ACTS– The volume of bills enacted at one session; published by the Legislative Research Commission.

ADJOURN (motion to) – An action to discontinue proceedings for the day; a privileged motion non-debatable, not subject to amendment, and requires for its adoption the assenting votes of a majority of the members present and voting.

ADJOURNMENT SINE DIE– Adjournment without a day. This action ends a session, since no time is set for reconvening.

ADMINISTRATIVE REGULATION – An enactment of law by an executive branch agency or department, under authority granted by the General Assembly.

ADMINISTRATION BILL – Legislation introduced at the behest of the Governor, usually sponsored by the majority floor leader.

ADOPTION – Approval or acceptance; usually applied to resolutions or amendments

AMEND (motion to) – An action to modify the contents of a bill or question under consideration; the motion to amend is in order at any time prior to final passage, unless the previous question has been ordered.

AMENDMENT – Any alteration made or proposed to be made in a bill, motion or clause thereof, by adding, substituting or deleting.

CHAMBER – A legislative, judicial or deliberative assembly.

COMMITTEE AMENDMENT – An amendment to a bill which is attached to the bill by a committee and made a part of the committee’s report on the bill.

COMMITTEE, CONFERENCE – A joint committee of senators and representatives directed to reach agreement on legislation on which the two house are unable to agree.

COMMITTEE, INTERIM JOINT – A committee composed of all members of a Senate standing committee and all members of a House standing committee, which meets between sessions as a subcommittee of the Legislative Research Commission.

COMMITTEE REPORT – The document by which a committee submits its recommendations to its parent body.

COMMITTEE, SPECIAL – A committee established to consider only one issue, and which ceases to exist after submitting its report.

COMMITTEE, STANDING – A committee established to function for the entire session, to consider any questions the body cares to submit to it.

COMMITTEE SUBSTITUTE – A bill offered by a committee in lieu of a bill it has considered; technically, the committee substitute is an amendment to the original bill.

COMMITTEE OF THE WHOLE – Resolution of the entire house membership into a single committee.

COMPANION BILL – A bill which is identical to a bill having been introduced in the opposite house.

CONCUR – Action by one house to agree to modifications of its legislation by the opposite house.

CONFLICT OF INTEREST – Threat to the public interest by a private interest; usually the position of a legislator unable to vote impartially due to some personal interest in a legislative matter.

CONSENT CALENDAR (or consent orders) – A list of bills having had one (or two) reading(s), and on which members in attendance are presumed to vote yes unless they indicate a negative vote prior to the call of the roll.

CONSTITUENT – A citizen who resides in the district of a legislator.

CONSTITUTIONAL AMENDMENT – A proposal to modify a constitution in some manner.

CONSTITUTIONAL CONVENTION – An assemblage convened for the purpose of writing or rewriting a Constitution.

CONSTITUTIONAL MAJORITY – One more than half of the members of a deliberative body.

CONSTITUTIONAL OFFICER – An officer selected by a legislative body in compliance with a constitutional provision that it do so; in Kentucky these officers are clerk, assistant clerk, enrolling clerk, sergeant at arms, doorkeeper, cloakroom keeper, janitor and page.

CONTINGENCY FUND – Money appropriated (to the governor in Kentucky) to meet expenses which are unforeseen at the time of budget preparation.

CONVENE – The assembly or meeting of a legislative body, on the periodic basis provided by law.

CO-SPONSOR – A sponsor of a bill or resolution who is not the principal sponsor.

DEBATE – Discussion or a question according to parliamentary rules.

DEFICIENCY APPROPRIATION – An appropriation to compensate for an impending deficit in an account budgeted for the preceding time period.

DILATORY – Designed to cause delay.

DISCHARGE PETITION – A notice filed one day in advance of an attempt to take a bill or resolution from a committee.

DISTRICT – The area or division of the governed territory which is represented by an individual member of its legislative body.

DIVISION – A method of voting by way of a show of hands or by standing; provides a count without a roll call.

DIVISION OF A QUESTION – The separation of one item to be voted on into two or more items to be voted on.

EFFECTIVE DATE – The date on which a legislative measure begins to function as a part of the law; in Kentucky, most legislation becomes effective 90 days after sine die adjournment.

EMERGENCY CLAUSE – Provision in a bill that it become effective immediately upon approval by the governor rather than 90 days after adjournment.

ENABLING ACT – Legislation permitting an entity which depends upon the legislative body for its power to take a certain action.

EN BLOC VOTING – To consider several questions in a single vote; or to vote as a unit on a particular question, as when all senators present are presumed to vote yes enbloc on consent bills.

ENACTING CLAUSE – The clause preceding any legislative measure which expresses formally the legislative sanction of the body promulgating the enactment.

ENGROSSMENT – The act of perfecting an item of legislation in accordance with any amendments which have been adopted to it since its origin.

ENROLLMENT – The act of comparing a printed bill to be transmitted to the governor with the original introduced bill with all amendments, so as to ascertain their identical form.

EXECUTIVE ORDER – Action by the governor in implementing executive authority under the law

EXECUTIVE SESSION – A meeting of any deliberative body which excludes from attendance any person who is not a member of the body or one of its essential staff.

EX OFFICIO – The holding of an office or assumption of a duty by virtue of holding a particular office, as when the majority floor leader is by virtue of that office an ex-officio member of the Legislative Research Commission.

EXPUNGE – Action to delete certain portions of the official record of a governmental body.

FILE – A collection of documents belonging in the same or similar category; or the act of presenting a paper or document to an official entity such as a court or legislative body.

FISCAL NOTE – An attachment to a bill or resolution indicating its impact on state finances.

FLOOR – The area of a legislative chamber which is occupied by the members and staff of the body.

FLOOR AMENDMENT – An amendment filed with the clerk to be considered on third reading of the bill to which it has been filed.

GALLERY – The area of a legislative chamber from which the proceedings may be viewed by spectators; usually a balcony or other raised area.

GENERAL ORDERS – A list of measures eligible for debate, amendment and voting on a given day without reference to a particular time of day or place in the order of business.

GERMANENESS – The relevance or appropriateness of a particular question, usually an amendment.

GERRYMANDERING – The act of drawing legislative district boundaries so as to gain partisan or fractional political advantages.

GOVERNOR’S PROCLAMATION – The document issued by the governor to convene an extraordinary session of the legislative body.

GRANDFATHER CLAUSE – Exemption from regulation for certain persons having engaged in the regulated activity for a specified period of time prior to the effective date of the regulatory legislation.

HEARING – A meeting, usually of a committee, at which testimony on a question or issue is accepted, whether from the public generally or from invited witnesses.

HOPPER – Colloquial name given the repository for bills awaiting introduction; in Kentucky such bills are filed with the clerk.

HOUSE – One body of deliberation in a legislature; customarily a shortened name for the House of Representatives.

IMMUNITY – Constitutionally, legislators are privileged from arrest, except for certain offenses, and may not be brought to question for remarks made in speech or debate on the floor.

*IMPEACHMENT *– A legal procedure, originating in the legislative branch of government, by which public officials may be removed from office by reason of misconduct.

*INITIATIVE *– A procedure by which the general public may present and require consideration of legislative proposals.

*INTERIM *– The period of time between sessions of a legislature.

*INTRODUCTION *– The presentation of a bill or resolution to the legislative body for its consideration.

*INVOCATION *– The prayer preceding each daily session of a legislative body.

JOINT SPONSORSHIP – A procedure in the Kentucky House of Representatives whereby several members may sponsor legislation without one being a principal sponsor, and each bearing equal responsibility as endorsing the measure.

*JOURNAL *– The official, written record of the proceedings of a legislative body.

*KENTUCKY REVISED STATUTES (KRS) *– The official title of statute law in Kentucky; each bill creates, amends, or repeals a section of the KRS.

LAY ON THE CLERK’S DESK (motion to) – An action to place a measure in a position of temporary postponement.

LAY ON THE TABLE (motion to) – An action to declare a measure defeated.

LEGISLATIVE ADVOCATE OR AGENT – A person, usually under hire, engaged in representing a particular interest or group of interests before the legislature; commonly referred to as a lobbyist.

LEGISLATIVE ANALYST – A staff person engaged to determine the effects of legislation, and assist a committee in its deliberations.

LEGISLATURE – A deliberative, representative assembly formed by constitution to enact change in statute law; usually the term legislature refers to the state level of government.

MAJORITY CAUCUS CHAIRMAN – A member affiliated with the majority party, who is responsible for convening the caucus of one party, and presiding over its deliberations.

MAJORITY FLOOR LEADER – A member affiliated with the majority party, designated to act for the party during the proceedings on the floor.

MAJORITY PARTY – The political party whose members occupy at least one more than half of the total membership of the body.

MAJORITY WHIP – A member affiliated with the majority party, designated to assist the floor leader during proceedings on the floor.

MASON’S MANUAL – A volume of parliamentary law and procedure providing a basis for ruling on questions of order in the General Assembly.

MEMBERS-ELECT – Persons having been elected members of a legislative body, but not yet having been sworn into office.

MESSAGE – An official communication from beyond the body which is read into and made a portion of its journal.

MINORITY FLOOR LEADER – The minority party officer corresponding to the majority floor leader.

MINORITY REPORT – A report filed by those members of a committee in the minority relative to the decision of the majority of the committee; the minority report may be adopted in lieu of the majority report.

MINUTES – The written record of proceedings of a deliberative body.

MOTION – A proposal, usually oral, made to the presiding officer calling for specific action by the body; the motion is the principal tool used to conduct legislative business.

NOMINATION – The placement of a person’s name in consideration for election or appointment to an office.

NON-DEBATABLE – Those subjects or motions which under parliamentary rules may not be discussed or debated.

OMBUDSMAN – An official, usually appointed, charged with the duty of receiving and investigating public complaints, and directing action thereon by the responsible agency.

ORDER OF BUSINESS – The defined routine of procedure in the legislative body each day; may be deviated from only by suspension of the rules.

ORDERS OF THE DAY – A list of bills and resolutions scheduled for third reading, debate, amendment and vote on a particular day.

OUT OF ORDER – The offer of an improper motion, amendment or question to a deliberative body.

OVERSIGHT COMMITTEE – A committee, usually legislative, created to maintain a review of some aspect or operation of government, usually related to the executive branch.

PAIRS, OR PAIRINGS – An arrangement between two members by which they agree to be recorded as voting on opposite sides of an issue, and be absent when the vote is taken.

PARLIAMENTARY INQUIRY – A question posed to the presiding officer for clarification of a particular point in the proceedings.

PASSAGE – The approval of a bill or resolution by way of an affirmative vote.

PER DIEM – A basis of compensation for services, from day to day.

PETITION – A formal, written request submitted by an individual or group to some official body or agency.

PINK SHEET – The colloquial term applied to the form used for technical or typographical changes to bills in Kentucky without benefit of amendment; this form originates in the Legislative Research Commission.

POINT OF ORDER – The calling of attention to a breach of order or the rules.

POINT OF PERSONAL PRIVILEGE – Defense of the rights, reputation or conduct of a legislator in his or her official capacity.

POSTPONE INDEFINITELY (motion to) – Action to prevent consideration of a measure for the remainder of the session, unless a constitutional majority sustains a motion to reconsider the matter.

PRECEDENT – Previous evidence or example for action or decision of a question.

PRE-FILED BILL – A bill filed prior to the session, for public discussion and printing.

PRESIDENT – The presiding officer in the Senate.

PRESIDENT PRO TEMPORE – The Senator, elected by the Senate, chosen to preside in lieu of the President when such officer is absent or unable to preside.

PRESIDING OFFICER – The person designated to preside over the proceedings of a legislative body.

PREVIOUS QUESTION (motion for) – Action to prevent additional debate on or amendment of a question, and to cause an immediate vote on the matter at issue.

PRIVILEGED MOTION – motions to which a special status is applied, whereby such take precedence if offered while other matters are pending.

PRIVILEGE OF THE FLOOR – Authorization for members of the general public to visit the floor, granted usually for the day.

PROCEDURE – Rules and traditional practices of the respective houses of the legislature.

QUORUM – The number of members of a legislative body which must be present to transact business.

QUORUM CALL – Action to require a call of the roll to determine the presence of a quorum.

RATIFY – To approve and make valid.

READING – Each bill to be enacted in Kentucky must have three readings, at length, in each house.

REAPPORTIONMENT – Redrawing legislative district boundaries so as to provide equality of representation.

RECALL – To cause removal of a legislative enactment or public official by popular action.

RECEDE – To undo action previously taken.

RECESS – Intermission during a daily session, usually for caucus or committee meetings.

RECOMMIT (motion to) – Action to send a measure to committee after it has been previously reported.

RECONSIDER (motion to) – Action to re-take a vote; the motion may be offered only by a member having voted previously on the prevailing side.

REFER – To send a measure or question to committee.

REFERENDUM – Submission of a question to decision by the electorate.

RESCIND – To annul or undo an action previously taken.

REPEAL – To delete and make of no effect.

REPORT – To communicate opinion or recommendations.

RESOLUTION, CONCURRENT – Expression of opinion or request by both houses of a legislature, without the force of law.

RESOLUTION, JOINT – To enact matters of law not to be made a portion of the statutes.

RESOLUTION, SIMPLE – Expression or request by one house.

RESOLVING CLAUSE – Language in a resolution defining the action taken.

REVENUE – The yield of taxes and other sources of public moneys.

REVISION – The process of inserting the enactments of a session into existing statute law.

RIPPER BILL – A colloquial term applied to legislation designed to harm a particular person or bill.

ROLL CALL – To determine a vote on a question by taking of names in favor and opposed.

RULES – A code of procedure adopted by each house of a legislature to govern its operations.

RULING OF A CHAIR – A decision by the presiding officer concerning a question of order or procedure.

SECTION – A division of a bill or statute, separated according to topic covered or action taken.

SENIORITY – Length of service as bearing on duties or functions.

SESSION, EXTRAORDINARY – A session convened by call of the Governor; Usually called a “special session”.

SESSION, REGULAR – A session convened on a regular basis by way of constitutional provision as to its date and length.

SIMPLE MAJORITY – A majority of those voting on a question.

SPEAKER – The presiding officer of the House of Representatives.

SPEAKER PRO TEMPORE – The member of the House of Representatives elected to preside in the absence or inability of the Speaker.

SPECIAL ORDER – An action predetermined to occur at a specific time on a specific date.

SPONSOR – The legislator responsible for presenting an item of legislation to the body

STATIONERY ALLOWANCE – a $50 allowance to each member, per session, for the purchase of stationery.

STOPPING THE CLOCK – An occasional tactic on the final evening of a regular session whereby the proceedings continue into the following day, with the clock and journal continuing to indicate occurrences of action on the preceding day.

SUNSET LEGISLATION – A law requiring termination of a particular agency or program on a predetermined date, unless justification for continuance is presented to the legislature prior to such occurrence.

SUSPEND THE RULES – Action to negate the application of a particular rule of procedure; the rule and purpose must be stated in the motion to suspend.

TITLE – A caption indicating the subject matter of a bill or resolution, required by the Constitution.

UNANIMOUS CONSENT – A vote, by voice, expressing adoption of a question without dissent or objection.

UNICAMERAL – A legislature composed of one house.

VETO – Rejection of an enactment without authority to modify; usually the prerogative of the Governor.

VETO OVERRIDE – Authority of the legislature to overturn a rejection of legislation by the Governor.

VOICE VOTE – A method of voting whereby only a vocal response to a question is indicated.

VOTE– A decision on a question by a member of a deliberative body, either affirmative or negative.

WITHDRAW– To recall, remove or delete a question from consideration.

YIELD– A parliamentary term referring to the cession of the floor by one member to another.