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LEGISLATION

The most important and most visible legal task of legislative bodies is to make law (Loewenberg et al., 2002). The term legislation describes the deliberate creation of legal precepts by a body of government that gives articulate expression to such legal precepts in a formalized legal document. As such, legislation differs from normative pronouncements made by the courts. The verbal expression of a legal rule or principle by a judge does not have the same degree of finality as the authoritative formulation of a legal proposition by a legislative body. Furthermore, although both adjudication and legislation involve the deliberate creation of laws by a body of government, the judiciary is not a body set up primarily for the purpose of lawmaking. As Chapter 2 explained, the judiciary’s main function is to decide disputes under a preexisting law, and the law-creating function of the judges should be considered incidental to their primary function of adjudication.

There are several other differences that should be kept in mind between legislative and judicial lawmaking. Judge-made law stems from the decision of actual controversies. It provides no rules in advance for the decision of cases but waits for disputes to be brought before the court for decision. Legislators, by contrast, formulate rules in anticipation of cases. A judicial decision invokes a justification for applying a particular rule, whereas a statute usually does not contain an argumentative or justificatory statement; it simply states that this is forbidden, this is required, and this is authorized.

In general, legislators have much more freedom to make significant changes and innovations in the law than do the courts. Legislators are also more responsive to public and private pressures than judges. Whereas judges deal with particular cases, legislators consider general problem areas with whole classes of related situations. At times, the attention of legislative bodies is drawn to a problem by a particular incident, but the law it eventually passes is designed for general applicability. For example, when Congress passed the Federal Kidnapping Act of 1932, the kidnapping and death of the Lindbergh baby were fresh in the legislators’ minds, but the law that was enacted was designed to deal with a whole class of such possible occurrences. Thus, it may be concluded that legislators are solely responsible for formulating broad new rules and for creating and revising the institutions necessary to put those laws into effect.

 
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