The Law's Flexibility: A Matter Of Perspective And Power

The law is not always enforced equally. For example, during the London Riots in 2011, people convicted of the same crime, such as theft, were more likely to receive custodial sentences. Similarly, in the 1960s, those associated with the mods and rockers were given stiffer sentences.

Differential enforcement of the law is influenced by factors such as class, ethnicity, age, attitude, place, and time of day. For instance, in the US, Congress is the lawmaking branch of the federal government, and the process of how a bill becomes a law differs between the House of Representatives and the Senate.

In the US, the law can be made and enforced at the federal or state level. At the federal level, Congress is responsible for creating laws. A bill is a proposal for a new law or a change to an existing law. Once a bill is introduced, it is assigned to a committee, which researches, discusses, and makes changes to it. The bill is then put before the chamber to be voted on. If it passes one body of Congress, it goes through a similar process in the other body. Once both bodies vote to accept a bill, they work out any differences, and both chambers vote on the same version of the bill. If it passes, they present it to the president for approval or veto.

At the state level, laws are made and enforced by state legislatures and state courts. State laws can vary significantly from state to state, and some states have more progressive or conservative laws than others. For example, some states have legalized recreational marijuana use, while others have not.

In addition to federal and state laws, there are also local laws, such as city ordinances, which apply only to specific cities or towns. These laws can vary widely depending on the location. For example, some cities have banned plastic bags, while others have not.

Differential enforcement of the law

William Chambliss studied two groups of youths: middle-class saints and working-class roughnecks. He found that the law was enforced more strictly on the working-class group by the police. Chambliss argues that the police have an idea of what a typical criminal looks like and are more likely to arrest them. He also found that situational factors, including class, ethnicity, age, attitude, place, and time of day, play a large part in a police officer's decision to stop and arrest someone.

Common law vs civil law

Common law, also known as case law, is a body of unwritten laws based on legal precedents and institutionalised opinions established by the courts. It is a legacy of the British Empire and is the foundation of legal systems in the US, UK, Canada, Australia, New Zealand, and other countries. Common law draws from interpretations by judicial authorities and public juries, and it allows for freedom in interpretation. While there is no official legal code, common law promotes stability and consistency in the legal system, as the example set by higher courts is binding on cases tried in lower courts.

Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law is practised in much of Europe and elsewhere in the world. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. Civil law is regularly updated, and its standardised codes aim to reduce bias and create order.

While civil law is considered more rigid and rule-based, common law is more flexible and allows for interpretation of facts. For instance, in the UK, common law as late as the 1970s held that fathers were entitled to custody of the children in case of a divorce, which kept women trapped in marriages. However, civil law codes can also be subject to interpretation, as demonstrated by Harvard Law School Professor Holger Spamann, who showed that civil law codes in Germany and France were just as frequently interpreted and cited as precedents as common law.

Both common law and civil law aim to establish consistent outcomes by applying the same standards of interpretation, but they differ in their approaches. While civil law relies on detailed codes, common law prioritises judicial decisions, precedents, and legislation.

The role of Congress in lawmaking

The United States Congress is made up of the House of Representatives and the Senate, and it is granted the sole authority to enact legislation and declare war by the US Constitution. Congress is also responsible for confirming or rejecting many Presidential appointments and holds substantial investigative powers.

The House of Representatives is made up of 435 elected members, divided among the 50 states in proportion to their total population. There are also six non-voting members, representing Washington D.C., Puerto Rico, American Samoa, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. The House has several exclusive powers, including the power to initiate revenue bills, impeach federal officials, and elect the President in the case of an Electoral College tie.

The Senate, on the other hand, is composed of 100 Senators, two from each state. Senators are elected to six-year terms, and their terms are staggered so that about one-third of the Senate is up for reelection every two years. The Senate has the sole power to confirm Presidential appointments that require consent and to provide advice and consent to ratify treaties. The Senate also tries impeachment cases for federal officials referred to it by the House.

For a bill to become a law, it must be passed by both the House and the Senate and then sent to the President for their signature. The President can choose to sign the bill into law, veto it and send it back to Congress, or take no action on the bill for ten days while Congress is in session, in which case the bill becomes law. If Congress is not in session, this is known as a "pocket veto," and the bill does not become law. If the President vetoes a bill, Congress can override the veto with a two-thirds vote in both the House and the Senate.

The legislative process begins with the introduction of a bill to Congress. Anyone can write a bill, but only members of Congress can introduce legislation. Bills are then referred to the appropriate committees for review and consideration. Committees are panels of members from both parties that take the lead in developing and assessing legislation. After a bill is approved by a committee, it is reported to the floor of the House or Senate, and the majority party leadership decides when to place the bill on the calendar for consideration.

The House and Senate have different rules and procedures for processing legislation. House rules and practices allow a numerical majority to process legislation relatively quickly, while Senate rules and procedures favor deliberation and provide significant procedural leverage to individual Senators.

Once a bill is on the floor, it is debated and can be amended. The House has a very structured debate process, while the Senate allows for unlimited debate on most bills. After the debate, a vote is taken, and if the bill passes, it is sent to the other chamber for consideration. If a bill is passed by both chambers, it is sent to the President for consideration.

Congress plays a crucial role in lawmaking in the United States, and the legislative process can be complex and lengthy. The process by which a bill becomes a law involves multiple steps and the involvement of various stakeholders.

The role of the President in lawmaking

In the US, the President has the power to either sign a bill into law or veto it if they disagree with it. This power of veto gives the President substantial influence over the legislative process. However, Congress can override a presidential veto with a 3/4 vote. Additionally, the President can also use a pocket veto, which occurs when Congress adjourns before the 10-day period for acting on a bill is up, resulting in the bill being automatically vetoed.

While the President plays a crucial role in the lawmaking process, the power to create laws ultimately lies with Congress, which is the legislative branch of the US government. Bills are introduced and debated in Congress, and a majority vote is required for a bill to pass. Once a bill is passed by Congress, it is sent to the President for approval. If the President signs the bill, it becomes law. If the President vetoes the bill, Congress can override the veto with a 3/4 vote in both houses.

It is important to note that the US Constitution establishes a system of checks and balances, where each branch of the government has the ability to limit the powers of the other branches. In this system, the President's role in lawmaking is balanced by Congress' power to override vetoes and the Supreme Court's authority to declare laws unconstitutional. This ensures that no single branch of the government holds excessive power and protects against the arbitrary or unjust use of power.

The role of the judiciary in lawmaking

The judiciary plays a crucial role in strengthening the rule of law and ensuring it is observed. This involves interpreting and applying the law to all cases in society, including those between individuals, companies, and the state. The judiciary is responsible for determining disputes, protecting rights, liberties, and vulnerable groups, and ensuring enacted laws are in accordance with the constitution and international legal obligations.

Common law vs civil law

In common-law countries, such as the US and UK, judges play a significant role in lawmaking by creating precedents that serve as rules with the same authority as laws passed by a legislature. This is known as the stare decisis doctrine, which translates to "to stand by decided matters". Judges in common-law systems are expected to follow earlier decisions to ensure uniform and predictable justice and treat similar cases similarly. While lower courts generally adhere to precedents, they can modify, deviate from, or overturn them if they are outdated or substantially different from the current case.

In civil-law countries, judicial decisions are theoretically based on legislative enactments, and the doctrine of judicial precedent does not apply. Civil law is a comprehensive, codified set of legal statutes created by legislators, aiming to establish consistent outcomes and reduce bias. However, civil codes may contain vague provisions that require judicial interpretation and fail to address all possible situations that may arise. Judicial decisions in civil-law countries are not considered binding but are frequently referred to and have a significant influence.

Judicial lawmaking

Judicial lawmaking is more prominent in common-law countries, where judges create precedents and develop a body of law without a statutory foundation. They fill gaps in legislation and interpret vague provisions, effectively making law when confronted with disputes that lack clear statutory answers. These judicial decisions become precedents for future cases, contributing to the accumulation of "the common law".

While judges in common-law systems can distinguish, deviate from, or overturn earlier decisions, the power to overrule is not absolute. For example, a court cannot overrule decisions made by higher courts in the judicial hierarchy. The desirability of judicial lawmaking is a subject of debate, with the general consensus being that unrestricted legislative power by the judiciary is unacceptable due to a lack of democratic accountability. However, judges are generally accepted to have some degree of lawmaking power to achieve fair and just resolutions.

Improving the lawmaking process

The judiciary can play a crucial role in improving the lawmaking process and securing democratic ideals. This includes enforcing the text and spirit of constitutional provisions, using the power of judicial review, and making deliberation a factor in evaluating the constitutional validity of laws. By adopting a swift and systematic approach to reviewing the legislative process, the judiciary can help restore faith in the legislative system and promote a culture of justification.

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