TyroCity: Legislative Principles and Law Making Process

Contents to be included while drafting law

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

In modern state the enactment of legislation is primarily a function of the government. Government can not conduct policies of the state in any meaningful sense without the capacity to govern. The executive in essence constitutes source of legislation. Strictly speaking, Legislative Drafting is the drafting of measures intended to become past of statute law. However, it includes the drafting of statutory orders, rules and other institutions issued by departments of the government as well as the drafting of by law of corporations and other firms of sub-ordinate legislation.

At present scenario, introduction of bill is daunting task for an individual Member of Parliament. Serious exercise and sincerity requires for preparation of any draft bill to introduce in the house. Such Member of Parliament must be acquainted with all the pros and cons of the proposed bill, each and every provisions of the bill must be elaborately discussed in the format. Hence, from above discussion what can be summarized is that in the orchestra of law, it is legislation that plays the role of the composer. Legislation sets the music, one may regulate the pitch soften the tone, or choice his octave but can not change the melody.

Concept of Legislative Drafting

Legislative Drafting is even sometime compared or linked to a child’s game of Snakes and Ladders. Snakes and Ladders are game of chance whereas Legislative Drafting is game of skill. We started Legislative Drafting from sheer necessity. Due to the welfarishic philosophy in the governing systems of the country, the state activism led every aspect of human life. The state has to run with those need of the people, it has to carry functions to maintain peace and order, it has to protect weaker section of the society, it has to undertake trade and commerce, it has to run different system, security, health, education etc. All the functions of the state become possible only by making law that is why legislation is necessary in every aspect of human life.

We perceive legislation as source of law that part of law. The term legislation may be used in the wider and narrow sense, which though connected are different. It may connote process of legislation that is the action, which results in the birth of law, or it may signify the result itself, that the law that is born, and Legislative Drafting is moreover concerned with the first sense that with the second.

understanding of problems will help in finding the problem will help in finding the solution but what should bear in mind is drafting is attempt to solve existing problem not like a acute and precise mathematical formula, which brings 100 % result. Moreover, Legislative Drafting is not always imitating one another and there is usually nothing absolutes new in a statute if in case law, the courts look to their own past decisions for the purpose of finding out a rule.

Legislative Drafting is both science and art. It is science in so far as certain rules can be laid universal application to all kinds of measures that come up for drafting and in so far as a certain set of rules are always observed by all drafts men for the purpose of securing method in their drafts.

It is, however, mainly an art; efficiency in drafting comes not by a mere mastery of the rules, by the exercise of a faculty of the mind, which can be described as skill or natural gift. The art of draftmanship consists of a sense of use of language; together with knowledge of the technical interpretations, which are placed by law in certain form of language. The sense of the use of language is the main qualification of a draftsman just as a good artist decides by instinct, the colour to be used for particular part of a picture or a good musician spontaneously fixes up the particular notes to which a part of a song should be set. Similarly, a good draftsman senses the word or group of words to be used to carry out the intended meaning.

Why a law is drafted

When any problems come before the legislatures or before the government, and it is also noticed that, the problem can not be effectively addressed without legislative mechanism or any other mode of address will not last longer to diminish the problem then only any new law or any amendment on existing law is drafted. Sometimes there may be constitutional compulsion that there should be legislation to address particular subjects.

Content of the Drafting

The content or let’s say the nature of drafting exclusively depends upon the nature and purpose for which the bills are to be drafted. For example, the bills for establishment of industry some how or in most of its content differs with bills for regulations of industrial work. Hence, a legislative drafting differs from the very nature, for which kit is to be drafted. Legislative drafting is an extremely onerous, exacting and highly ‘skill task. It is often appreciated that it is difficult task. It is not easy to express in words exactly what is clear in the mind and even if that can be easily expressed it is not easy to do so in such a way that there can be no misunderstanding. It is not a task for amateurs and dabblers. It is highly technical discipline, the most vigorous form of writing outside of mathematics.

A candidate for legislative drafting must have facility in the use of the language of legislative instruments. Experience in legal practice is desirable, so is an interest in drafting. As a systematic mind and an orderliness in the formulation of thoughts, the ability to pay meticulous attention to detail and the ability to work with accuracy under pressure. We can’t rule out the infallibility of human foresight and indeed of language itself, yet parliament must do the best they can to reduce doubt and ambiguity and to bring difficulties to a workable minimum by an intelligent application of knowledge to bear on their drafts. Here is some of the content of the legislative drafting, which is defined briefly.

Title
- Long Title
- Short Title
Definition
Section and Sub-Section
Commencement
Constitutions of Board of Executive Committee
Qualification for Members of Executive Committee
Disqualifications for Members of Executive Committee
Term of Office of Executive Committee, Their resignation and Removal
Powers
- General Powers
- Particular Powers
Constitutional Limitations
- Fundamental Rights
- Equality
- Development
Interpretation Section
Repealing and Amending Provisions
Referential Legislative
Offences and Penalties
Introduction in the house

Title

Long Title

Generally an act has always a long title, which indicates the nature of the legislative draft. It is a device to tell the members of Parliament what the bill is about and even helps to determine the scope of bill when it is being dealt in the Parliament. The title comprises the main theme, which is the pith and substance of the bill. The long title should not be vague and imprecise. It has to a large extent taken the place of preamble and therefore should cover the main theme of legislation.

Short Title

The Short title is the convenient means of citing the act. It is the short name of the act. In the words of Lord Moulton “the short title is a statutory nickname to deviate the necessity of always referring to the act under its full and descriptive title. As the name explains should be short, should be designed with great care and concern for those, who have to use the act.

Definition

It is an attempt to state in precise terms the meaning of a word or of an expression. In legislation, it should be used only as an aid to clarify and to reduce vagueness as much as possible. It should be used when necessary and should be as simple as possible.

Section and Sub-Section

An act of Parliament is divided into Sections and Sub-Sections. A section should contain one idea and therefore one enactment. It should be self explanatory and should be self contained. It should be simple, short and lucid. There should be no ambiguity as to its meaning or be difficult to read. In case of the section turns out to be long one the section should be broken into Sub-Section, all the sub-section read together must form a coherent and consistent whole. They should deal with the same idea, the same subject matter.

Commencement

The commencement clauses in the statute usually run as follows:-

This Act shall come into force on ………………………………………………………….
This Act shall come into force on such date as the ……………………………………
The Act may be made to commence at once in which it comes into force as soon as the last formality for it passing is undergone, instead of commencement of the entire Act in the whole country on one date, it may be necessary to provide for what can be called as partial commencement. Commencement of Act may be partial in respect of parts of an Act, area, subjects, or one or more of these matters.

Constitutions for Board of Executive Committee

Constitution is a document different from an Act of Parliament. It is a body of framework of politics. It aspires all authority and strength, also limit upon their power and function. It is a law regarding their job, it covers several things like eligible members, qualification powers etc. being organic in nature its construction must be beneficial but it’s not a private contract. It is essential to remember that a constitution is a mechanism under which laws are made and not mere Act which declares what a law is to be.

Qualifications for Members of Executive Committee

Certain criteria are remarked by every Act so that it could assume that the assigned job to be done with full efficiency. The criteria or qualifications may be in example like:-

should be at least graduate
should be experience of drafting
sound mentality
knowledge of Constitutional Law
thirty years of age
excellent spoken and written Nepali and English

Disqualifications for Members of Executive Committee

Certain barriers are also pointed which disqualify to be a member of committee, for example

Lunatic
Infant
Not a Nepali Citizen
Criminal background
Educational Qualification

Term if Office of Executive Committee

It specifies the tenure of the working session of the member, which is generally 5 years. It also must mention the provision of removal and regulations with ground for doing so.

Powers

There is found often in legislation power conferred on an authorized to make regulation for the better carrying into effect the purposes and principles of an Act. Power is almost inevitable to carry out the job assigned. There are, however, different aspects of conferring power like general and special powers, which are conferred as per the demand of situations.

Constitutional Limitation

Drafting of Legislation can never outgo from the spirit of constitution. There is certain limitation, which should be considered while drafting. An enactment is void from the begging if it is inconsistence with the constitution or in contravention of the constitution. A constitution brings into sharp focus the theory of Parliamentary and people sovereignty. While drafting legislation a good draftsman always consider.

Issues of fundamental rights: – either it is absolute or relative can it be seized or not, how does it safeguard people rights. Fundamental rights are as old as mankind does legislation respect this liberal idea or not etc.

Equality is perhaps the primary human rights. Fundamental rights are useless unless there is a right to equality.

Development issues: – how it ensures people’s participation.

Interpretation Section

It is now well established that an Act have an interpretation section. Definitions are used in legislation as an aid to clarify, to achieve consistency and as method of reducing vagueness. There is merit in having the interpretation section. At the outset a reader finds a list of terms with their meanings before coming across them later in the Act. The readers mind is prepared that there are certain words, which have specific meaning for the purpose of the Act. On the other hand one does not refer to the dictionary before reading a book thus interpretation is must in process of drafting legislation.

Repealing and Amending Provisions

Provisions, repealing or Amending Acts should be placed towards the end of the Act but before the commencement provision. It is a principle that a parliament can not fatter the hands of subsequent parliament, an Act passed in one session can be repealed by an Act passed in another session.

Referential Legislation

The corporation of the provision of the one Act into other is known as referential legislation, which can be useful or even necessary for example country law when gives signature to the International Conventions.

Introductions of Legislation

Introduction of legislation or bills in the house is the final task of the drafting. After introducing if the bill is not able to get majority the house it shall be again repealed or amended.

Conclusion

Legislative Drafting follows that good lawyer is not necessarily a good draftsman. Knowledge of law is intelligence, memory and judgment while drafting is skill and art. The good draftsman brings to bear upon his work the retentive and analytical faculty of his mind. It is not is should not ever be the matter of debate either legislative drafting is science or an art rather legislative drafting is always made for public good. The process of legislation is thus also a foundation for process of social change. This process of legislation involves changing the existing law where the existing law as perceived by government to longer serves a useful purpose. Thus, as far as the science pf government is concerned the important part of legislation is not only the regulatory aspect but the law making process itself that is the creative and dynamic aspect of government.

Hence, it is clear that legislative drafting is a very challenging job and directly concerned with the public life. It is worthwhile to have some knowledge on legislative drafting. Since the programme of Parliament depends upon legislative programme by government drafting has crucial role to play and promote individual’s rights.

Law Making Steps

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

With respect to legislative bills introduced by the Cabinet(“Cabinet-introduced bills”), the following chart illustrates the process in which they are drafted, approved, and promulgated.

(Note: For the sake of simplicity, the chart assumes that the cabinet-introduced bill is approved by the Diet without any amendment.)

Outline of the chain of events from the drafting of a legislative bill to be introduced by the Cabinet, to its approval and promulgation.

(1) Drafting of a legislative bill

A legislative bill that is to be introduced by the Cabinet is drafted by the ministry having the jurisdiction. A ministry draws up the first draft of a legislative bill, once it decides either to enact a new law or to amend or abolish an existing law in order to achieve a policy goal set in the performance of its administrative duties.
On the basis of this first draft, consultations take place with other ministries concerned and the political party(ies) in government. In addition, where necessary, procedures are followed for its referral to advisory councils or to public hearings. Once all of the above has been completed and the legislative bill is considered ready, the ministry in charge puts the draft into a proper statutory form. The final draft of the legislative bill has now been prepared.

(2) Examination by the Cabinet Legislation Bureau

All legislative bills that are to be introduced by the Cabinet are examined by the Cabinet Legislation Bureau before being brought before Cabinet meetings. In principle the examination of a bill by the Bureau should begin only after the request addressed to the Prime Minister for a Cabinet meeting relating to the bill is sent by the ministry in charge. In recent practice, however, a way has developed whereby the Bureau conducts a “preliminary examination” of the bill for which the necessary consultation has been completed. The request for a Cabinet meeting therefore is sent on the basis of the bill for which the Bureau’s preliminary examination is completed.
During the examination by the Bureau, the bill is examined from all angles, legally and technically. The points examined include the following. :
- The relationship between the proposed bill on one hand and the Constitution and other existing laws on the other, as well as the legal appropriateness of the contents of the bill;
- Whether or not the intentions of the proposed bill are accurately expressed in the text;
- Whether or not the structure of the bill (e.g. the order of articles.) is appropriate;
- Whether the usage of letters or words is correct.
Once the preliminary examination is completed, the state minister in charge of the legislative bill follows the procedure for sending to the Prime Minister the request for a Cabinet meeting regarding the submission of the bill to the Diet. The Cabinet Secretariat, which receives the request, sends it on to the Cabinet Legislation Bureau, which then conducts a final examination, considering the results of the preliminary examination already conducted, makes any revisions as necessary, and returns the result back to the Cabinet Secretary.

(3) Cabinet decision to submit the bill to the Diet

As to the legislative bill for which a Cabinet meeting has been requested, the Director-General of the Cabinet Legislation Bureau gives its outline explanation at the Cabinet meeting, and if the Cabinet decides in favor without objection, the Prime Minister submits the bill to the Diet (either to the House of Representatives or to the House of Councilors). The administrative work related to the submission to the Diet of a bill intoroduced by the Cabinet is conducted by the Cabinet Secretariat.

(4) Examination by the Diet

When a legislative bill is submitted to either the House of Representatives or the House of Councilors, the leader of the House (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors), in principle, refers the bill to an appropriate committee. The committee then conducts an examination, starting with an explanation by the state minister in charge regarding the reason for proposing the bill. The examination itself largely follows a question-and-answer format (with the committee asking questions about the bill, and the state minister answering). When the committee completes its questioning and deliberation, its chair person declares, and a vote is taken on, the issue of whether or not to approve the bill. When the committee finishes its examination, deliberation continues at a plenary session of the House concerned.
When the legislative bill passes both the committee and the plenary of the House to which it was first submitted, it is sent on to the other House (i.e. it is sent from the House of Representatives to the House of Councilors or vice versa). The same procedure involving deliberation and decisions both by a committee and a plenary is then followed by the second House.

(5) Enactment of a new law

Except otherwise provided by the Constitution, a legislative bill becomes a law when it passes both the House of Representatives and the House of Councilors. The leader of the House that examined the bill second (the Speaker in the case of the House of Representatives, the President in the case of the House of Councilors) then submits the new law to the Emperor via the Cabinet (the Emperor’s approval is a formality).

(6) Promulgation of the new law

The newly enacted law must be promulgated within 30 days from the date on which the leader of the House that examined the bill second submits it to the Emperor via the Cabinet. As to the promulgation, it is done after a Cabinet decision to do so, and by publication in an official gazette . (An outline of the law is also published in the gazette to serve the general public’s understanding of the law. )
Promulgation is to ensure that a newly enacted law becomes widely known by the public. In other words, it is an act whereby the people is enabled to know the law. A law must be promulgated before it actually takes effect.
A law is said to “come into effect” or “come into force” when it generally and actually takes effect and starts to apply. Laws usually stipulate in their attached clauses when they come into effect.
When a law is promulgated, it is given a serial number and signed by both the state minister responsible for the law and the Prime Minister.

Autocracy Vs. Democracy

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

Democracy is a form of government in which the people either directly or indirectly, take part in governing. However, the term is also used as a measurement of how much influence a people has over their government, as in how much democracy exists. A modern democracy implies certain rights for citizens:

Right to elect government through free and fair elections
Freedom of Speech
The rule of Law
Human Rights
Freedom of Assembly
Freedom from discrimination

Is Democracy the Best System?

There is much debate on the ability of a democracy to properly represent both the ‘will of the people’, and to do what is right, but to quote Winston Churchill;

“Democracy is the worst form of government except for all those others that have been tried”.

This is because there is no system that can ideally order society. Traditionally, the purpose of the democracy is to prevent tyranny (the accumulation of too much authority in the hands of one or few. Thus, if the democracy cannot give us a good government, it puts limits to the abuse of power.

What is Autocracy?

In simple tone, an autocracy is a system where the ruler rules the people with too much accumulation of the power, or there is no kind of limits on abuse of power. Autocracy signify lacking of people’s representation or participation in the governance process.

Despotism: Autocracy might be imposed by a single person or a group. When a singular authority –either a single person or tightly knit group-which rules with absolute power is know as “despotism”. Despotism implies tyrannical rule; it suggest a form of government which exercises exacting and near absolute control over all its citizens.

Totalitarianism: Totalitarianism is any poetical system in which a citizen is totally subjected to state authority in all aspects of day-to-day life. It goes well beyond dictatorship of typical police state measures, and even beyond those measures sustain total war with other state. It involves constant brainwashing achieved by propaganda to erase any political for dissent, by anyone, including most especially the state’s agents.

Dictatorship: Dictatorship is a government headed by a dictator or more generally any authoritarian or totalitarian government. It is often equivalent to a police state, but the term dictator refers to the way the leaders gain and hold power, but not the watch kept on the people.

Police State: A political condition where the government maintains strict control over society, particularly through suspension of rights and often with use of a force of secret police.

Authoritarianism: The term authoritarianism is used to describe an organization or a state which enforces strong and sometimes oppressive measures against population. This is distinguished from totalitarianism both by the degree and scope, authoritarian government being less intrusive and in organization not necessarily backed by the force.

Autocracy in general implies an ideology or concept of regime ‘which tends to or rule by accumulation of power without being accountable to people’. People are subjected to the authority of the state. This sate of condition implies that:

People have not freedom electing government.
People exercise no freedoms
Government interferes in all aspects of life of the people.
Police measures are used to contain the people.

Legislation is Used to Rule People

Law is effectively used to:

Remove the limits of power, and prevent abuse of power. Legislation in such regime is used to empower the rulers to accumulate powers or authority.
Restrict the people to dissent. People rights to freedom of speech and assembly is restricted or marginalized.

Features of Legislation in Autocracy

Prescriptive: Legislation prescribes the duties for people to support the ruler without any question.

Regulatory: Legislation is regulatory, so that behaviors of all people are strictly regulated, deviation being punishable.

Punitive: Legislation is punitive for violation of the prescription or regulation.

Centralization of power: Governance power is centralized. The devolution of the power is effectively negated. Centralization of power weakens the authority of the Parliament, the law making body.

Legislation is abstract and ambiguous or maintains possibility double standard.
Legislation empowers executive for rule making through regulation or ordinance or bye-laws.
Legislation provides absolute power for interpretation of the statute.

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

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.

Process of Law Drafting inside Law Commission

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

Initiation of tasks:
Commission may initiate drafting and law reform on referral of the concern ministry or on its own.

It may receive a proposal from stakeholder, i.e. individual, non-governmental organization, civil society and community organization.

Formation of working team:
Commission decides annual program on the basis of the priority, and for WORKING TEAM involving experts to act on approved area by providing clear mandate and time frame.

Preparation of Consultation paper:
WORKING TEAM carries out in-depth study, research of the issue.

WORKING TEAM may invite experts, stakeholder and Government official for consultation. WORKING TEAM prepares a consultation paper and make available to anyone interested.

Organizing Seminar/Workshop:
WORKING TEAM may organize seminar/workshop inviting prominent scholars, activists and other key stakeholders to have well-versed comments on draft prepared by WORKING TEAM.

Final Report and draft bill and Submit to Government:
Report and draft bill are submitted to the Government or concern ministry by finalizing it, for the further action on draft Bill.

Need of Legal Research for Making Laws

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

The following three reasons necessitate the legal research for the purpose of making laws

Legal research is crucial to the learning and practice of law: law is associated with social facts and it is impossible to learn about laws without its relation with facts
The law is changing constantly: law functions to serve the purpose, so that it has to change with the pace of the society.
You need to ensure your information is current: law is applicable in practical life, and the law which is based on the true information of the realities, its’ making is dependent on current information concerning requirement

How Act is Made

The last century has seen an enormous growth in legislative law making. Proposals for changes to the law can come from a number of sources including:
Pressure groups
Governments who want to implement their own policies
Changing community needs
Recommendations from Law Reform Committees and Royal Commissions of Inquiry
Irrespective of the reason behind the legislative changes the process for making laws follows a predictable path.
Act of Parliament begins its life as a bill. Most bills are introduced into the Parliament by the proposing Minister and have to pass through prescribed readings in each House of Parliament.
If both Houses pass the bill it receives Royal Assent and its provisions become law. Fortunately for a researcher, a bill’s progress through both houses of Parliament is recorded in the Parliamentary Debates.
For the legal researcher, the most important and interesting stage of a bill is the second reading. At this stage, the Minister responsible for the bill explains its purpose and the general principles of the bill are debated.

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.

Legislation and Legislative

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

Legislation
Law, body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members. The nature and functions of law have varied throughout history. In modern societies, some authorized body such as a legislature or a court makes the law. It is backed by the coercive power of the state, which enforces the law by means of appropriate penalties or remedies.

Formal legal rules and actions are usually distinguished from other means of social control and guides for behavior such as mores, morality, public opinion, and custom or tradition. Of course, a lawmaker may respond to public opinion or other pressures, and a formal law may prohibit what is morally unacceptable.

Law serves a variety of functions. Laws against crimes, for example, help to maintain a peaceful, orderly, relatively stable society. Courts contribute to social stability by resolving disputes in a civilized fashion. Property and contract laws facilitate business activities and private planning. Laws limiting the powers of government help to provide some degree of freedom that would not otherwise be possible. Law has also been used as a mechanism for social change; for instance, at various times laws have been passed to inhibit social discrimination and to improve the quality of individual life in matters of health, education, and welfare.

Some experts believe the popular view of law overemphasizes its formal, coercive aspects. They point out that if a custom or norm is assured of judicial backing, it is, for practical purposes, law. On the other hand, a statute that is neither obeyed nor enforced is empty law. Social attitudes toward the formal law are a significant part of the law in process. The role of law in China and Japan, for example, is somewhat different from its role in Western nations. Respect for the processes of law is low, at least outside matters of business and industry. Tradition looms much larger in everyday life. Resort to legal resolution of a dispute is truly a last resort, with conciliation being the mechanism that is preferred for social control.

Law is not completely a matter of human enactment; it also includes natural law. The best-known version of this view, that God’s law is supreme, has had considerable influence in the United States and other Western societies. The civil rights movement, for example, was at least partially inspired by the belief in natural law. Such a belief seems implicit in the view that law should serve to promote human dignity, as for instance by the enforcement of equal rights for all. Muslim societies also embrace a kind of natural law, which is closely linked to the religion of Islam.

Legislature
Legislature, branch of government empowered to make, change, or repeal its laws and to levy and regulate its taxes. Most modern legislatures are representative: composed of many members who are chosen directly or indirectly by popular vote. Legislatures that provide direct representation are usually considered more democratic in practice because they are less susceptible to being dominated by a single faction.

Nearly all modern governments have a bicameral, or two-house, legislature. The so-called lower house is generally elected on a basis of direct representation; and the upper house commonly on a basis either of indirect representation or of direct representation limited to certain occupational, territorial, or hereditary categories. The traditional theoretical justification for an upper house is that it can exercise moderation and delay on legislation by the lower house and thus restrain the effects of impulsive or excessive fluctuations of public opinion. A few governments, however, including that of the state of Nebraska, have unicameral, or single-house, legislatures.

The various legislatures throughout the world are known by different names, such as Congress, Parliament, Knesset, Diet, and Assembly. Most are limited in their powers by the Constitution or organic law of the government of which they are a part. The enactments of the U.S. Congress, for example, can be vetoed by the president, and the Congress must approve by a two-thirds majority any bill it wishes to pass despite a presidential veto. The British Parliament, on the other hand, chooses its own prime minister and cabinet, who are ultimately responsible to it for all their administrative actions. Being legislative as well as executive or administrative leaders, these officials have considerable power to initiate and influence legislation desired by their administrative departments. The tendency in most modern governments has been toward increasing assumption of legislative powers by administrative officials, with a consequent weakening of the legislatures. Many political scientists ascribe this to growing public impatience with the uncertainties of party politics within legislatures. The trend is also attributed to the increasing complexity of modern government, which requires the use of people with specialized skills, often not found in publicly elected legislatures, for the drafting of laws.

Limitations of Law in Creating Social Change

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

To most people law is imposed externally in an almost coercive way. Today people are characterized by a “crisis of confidence” and alienation from social institutions because of uncontrollable economic conditions. Therefore, law is hardly an expression of their will. Few people participate in the formulation of laws and legislation. One of limitations of law as an instrument of social change is the possibility of prevailing conflict of interest. Other limitations related to the efficacy of law in social change include divergent views on law and the prevailing morality and values. The scarcity of resources causes conflicting interests. Decades ago, Karl Marx and Max Weber said that many laws are created to protect special economic interests. This is because economic interests are strong factors influencing the creation of laws. Weber recognized that besides economic interests law protects other interests too such as personal security, personal honor, and it guarantees political, ecclesiastical, and other positions of authority and social preeminence. Weber emphasizes two points:

Conflict of interests provide the base for the formation of laws that bring change; so the stratification of society and the preferences of those who promulgate the changes determine the role of laws in social change.
Law as an instrument of social change can be seen as the organization of power and processes that protect special interests in society and result in social change.

For powerful and influential people “the law in effect structures the power relationships in a society, maintains the //status quo//and protects various //strata//against each other”. Many legislative enactments, administrative rulings, and judicial decisions reflect the power configurations in society. Even members of legal professions serve to unify the power elite by serving as “professional go-betweens” for principal political, corporate and other interest groups.
Interestingly, a lot of people who are coerced or oppressed by the laws imposed by a ruling minority are unaware of their oppression. They may even strongly support the existing legal system because the ruling party has used its power to confuse them as if they are protecting their true interests. However, a distinction should be made between what people claim as their interests and what their “true” interests are. There are many examples when people are organized to protect what they conceive as their interests. Blacks have been instrumental in the passage of many civil rights laws. Farmers have affected laws dealing with migrant workers, farm subsidies, importation of food items, etc. so it is the division of society into the “powerful” and “powerless” that simple? The mechanisms of change through law include large segments of the population. Even in democratic countries, the large-scale participation of citizens in social change is not feasible; however, the lack of participation doesn’t mean lack of representation.

How a bill becomes Law

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

Knowing how law is made is important. The steps below describes the basic process.

Step One:

Introduction by a member of the General Assembly and committee referral. A bill may be introduced in the House or Senate. After an initial reading, it goes to a chamber’s Committee on Committees, which refers it to a standing committee.

Step Two:

Committee consideration. A committee can kill a bill by failing to act on it. Or it may issue a report on the bill that is favorable, favorable with amendments, favorable with committee substitute, unfavorable or without opinion.

Step Three:

First reading. Favorably reported bills have their first reading — by title only — on the floor of the chamber. Bills that have been reported unfavorably or without opinion are not likely to go further.

Step Four:

Second reading; to Rules. The bill is read by title a second time and sent to the Rules Committee. This powerful committee can vote to send it back to a standing committee — hindering its chances for passage — or place it on the agenda for a vote by the full chamber.

Step Five:

Third reading and passage. A legislator — usually the majority leader — makes a motion to have the bill “placed upon its passage.” Open debate follows. The bill can be amended on the floor — though each amendment must be found to be related, or “germane,” to the bill’s original subject. To pass, a regular bill must be approved by at least two-fifths of the General Assembly (40 House members and 17 Senators) and by a majority of the members present and voting. (Bills that call for spending or contain “emergency” clauses must be approved by 51 House members and 20 Senators.)

Step Six:

On to the other chamber. Bills defeated on the floor can be reconsidered, if two members who voted against it request its reconsideration and a majority approves. Bills approved on the floor go to the other chamber, where they follow much the same procedure as in the first chamber.

Step Seven:

Concurrence or conference. Both chambers must agree, or concur on the final form of each bill. If either chamber refuses, the differences must be reconciled by a “conference committee” made up of members from both chambers. Such committees can make significant changes in the bills, but their compromises must be approved by both chambers.

Step Eight:

Enrollment. After passage by both chambers, each bill is read carefully to make sure its wording is correct, and then is signed by the presiding officer of each chamber and sent to the governor.

Step Nine:

To the governor. The governor may sign a bill, permit it to become law without his signature or veto it. The governor has 10 days to act on a bill after receiving it.

Step Ten:

Back to the General Assembly. The bill can be passed over a governor’s veto by a majority of the members of both chambers.

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.