Law Making Process Essay

Administrative Rulemaking

It is crucial to remember that in order to comprehend administrative rulemaking, government rules are typically standards, policy declarations, laws, or orders of application started by a the State. (Zander, 2015).

The primary function of administrative laws

The primary function of administrative laws is to either establish or modify the procedures that the agency uses in its programs or to interpret and apply the laws and statutes created by the legislature that are already in effect. (Vago, 2015, p. 164).

Administrative rules at federal or local levels

Either at the federal or local levels, administrative rules are made. The process typically falls under the control of the legislature, adheres to the rules of procedure, and when completed, becomes a statute. With regards to governing conduct of the people working in the administrative agency, the administrative rulemaking is always foresighted by trying to predict future behaviors and seeking to control them accordingly.

Administrative Adjudication

Conflicts within public institutions are, inevitably, everyday occurrences. Through formal administrative proceedings, administrative agencies listen to cases regarding conduct of individuals within their jurisdictions, which is limited to the sources that give it standing (legislative acts or constitutional provisions) (Vago, 2015, p. 165). During these proceeding, the quasi-judicial agencies or tribunals hear cases and determine them by cross-referencing on the past behavior of other individuals within that agency. These case proceedings may form laws, if they do not contradict the constitutional and other legislative acts.

Judicial Law Making

During the impending days of the French revolution, enlightenment scholar Baron De Montesquieu wrote about the doctrine of separation of power (Masterman, 2010, p. 25). In light of these, he argued that the government was divided into three parts; executive, legislature and judiciary. These bodies had different roles in which they were to exercise separately, independent of each other. Of particular, the judiciary interprets law. The question as to whether or not judges make laws has created controversy in legal debates. Vago, admits that while interpreting the laws, judges make laws in the name of case laws (Vago, 2015, p. 166-167). These case laws are entirely based on interpretation of foundational legal documents like the constitution and legislative acts. Though higher courts can reverse the decisions of laws courts, these case laws hold until overturned. In judicial law making, courts usually target other government agencies rather than private individuals. These laws approve or repudiate acts of government agencies.

Law making by Precedents

The say that nothing is new under the sun made sense the days it was first spoken and still makes sense today. In fact, this notion may be the philosophical basis of judicial precedents. Law making by precedents stems from the doctrine of stare deices (Robison, 2002, p. 45). Countries that follow the common law system bound their judges to use case laws of similar cases to make their decision on similar problems. Justifications for judicial precedents is that it is in line with the rule of law and enables people to predict consequences of actions. Also, they help avoid arbitrariness on the side of the judges by eliminating selective application of law (Vago, 2015, p. 168). Although, case law does not always have much weight than the foundational documents and statutes, once decisions are made based on case law, they become laws. A case law can be reviewed by a judge handling a similar case, thus, setting a new judicial precedent.

Law Making by interpretation of Statutes

Legislatures are usually charged with formulation of laws and policies through legislative acts. As people’s representatives, legislatures try to pass their message to citizens in plain written English and these come in form of legislative decrees. Various meanings can be used by attorneys in the adversarial systems to further the good of their clients, regardless of the common good for which the law is meant (Vago, 2015, p. 169). Therefore, these legislative decree are not laws until implemented and interpreted by courts. To allow for access of justice to the minimum, the statues interpretation form refined forms of laws made by legislatures. While making statutory interpretation, judges take cognizant of the world that may be construed and give them definite meanings, in consideration of the intent of the legislatures.

Interpretation of the constitution

According to legal realist, law is law at work. The constitution has been regarded as the supreme law of the land. However, these laws work as per the interpretation by the judges (Wacks, 2014). Interpretation of the constitution is a duty that is charged with the judiciary. Due to the ambiguity of the legal text in which the constitution is framed, inherently vague, and incomprehensive to lay man, there is need for some insight (Vago, 2015, p. 169). A law is made when courts give the extent to which wordings in the constitution can be used. The constitution has the obligation to determine its violation in cases brought to it.

Influences of Interest Groups in the Law making Processes

Over the years, interest groups have influenced changes in the laws that affect the public as a whole. An interest group is a category that seeks to inspire the law making process to favor their cause or needs (Hrebenar& Scott, 2015). In their quest, they inform legislatures of their problems, warn them of consequences and give them possible solutions. When incorporated in roles like the amicus curie, (friend of the court) they engage in knowledge production activities (Vago, 2015, p. 170). In law making, this is insightful as it gives valuable information for decision making.

References

Hrebenar, R. J., & Scott, R. K. (2015). Interest Group Politics in America. Routledge.

Masterman, R. (2010). The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom. Cambridge University Press.

Robison, W. L. (2002). The Legal Essays of Michael Bayles. Springer Science & Business Media.

Vago, S. (2015). Law and Society. (10th ed.). Routledge.

Wacks, R. (2014). Philosophy of Law: A Very Short Introduction. OUP Oxford.

Zander, M. (2015). The Law-Making Process. Bloomsbury Publishing.