Law-making process

PHILOSOPHICAL DISCUSSIONS ON THE CHARACTER AND IMPORTANCE OF

STATUTE LAW AND COMMON LAW:

Statute law:

• Supporters: Aristotle, Hobbes, Bentham

• Certainty of precisely formulated general rules

• The greater legitimacy of laws enacted by the sovereign authority and, in modern era, by the democratic representatives of people

• Statutes have no intrinsic evolutionary property à their quality reflects that of the electoral process à the legislature is closer to the preferences of the public because of its more direct democratic representativeness à a static advantage of legislation (a stationary model of law)

Common law:

• Supporters: Cato, Burke, Hayek

• The value of evolving tradition embodied in the history of judicial precedents

• Hypothesis of its efficiency

• Judges decide on the basis of precedent and of the rule their consider most appropriate à the attitudal approach à a model of decision-making by heterogeneous appellate judges who constantly innovate at the margin on the basis of the already established precedents à a dynamic, evolutionary model of law

THE STATUTORY LAW SYSTEM

• Law-making - is a unilateral, governing, conventional act of public authorities (state and self-government authorities) entitled to establish the law

• Result of law-making - a binding legal text and introduction of new rules of conduct into the particular legal system

WHO MAKES THE LAW?

I.

à a single person (e.g. a minister, a voivode)

à a collective body (e.g. a Parliament; a Council of Ministers)

II.

à mainly legislative bodies = "the legislative” (e.g. a Parliament)

à also executive authorities (e.g. a minister or a Council of Ministers or locally a voivode)

LAW-MAKING PROCESS

(1) acts enacted by a single-person authority:

1 - preparation of the previsions of an act

2 - acceptance of a draft legal act for its review by a competent authority

3 - signature of an act by a single-person authority

4 - announcement of an act

(2) acts enacted by a collective authority:

1 - preparation of the prevision of an act

2 - submission of the draft legal act for consideration (e.g. according to the Polish law - a draft law has to pass through two chambers - the Sejm (lower) and the Senate (upper) and through 3 readings that comprise:

-discussion on the particular provisions

-amendment

-voting

-signature on behalf of the authority

4 - promulgation (= announcement) of an act

• Art. 88 (1) Polish Constitution à all acts in order to come into force (and be binding on their addressees) must be announced = promulgated in the Official Journal of Laws (e.g. Dziennik Ustaw or Monitor Polski). Only then they are binding and have legal effects of their addressees

• VACATIO LEGIS= necassry suspension of the binding effects of the drafted laws as society must adjust to changes

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