Giving Effect to Policy in Legislation: How to Avoid Missing the Point (original) (raw)

Brief Considerations on Establishing Objectives in Law-Making

Challenges of the Knowledge Society, 2013

Society is quickly developing, but this process warrants the appearance of new laws, thereby putting the lawmaker under the pressure of regulating ever more diverse social aspects such as economic, political, cultural or ideological. The fast changes in society lead to shifts in social relations and even institutional modifications, which require regularization. Establishing objectives in law-making involves the participation not only of jurists specialized in this field but also defines a broader outlook including significant interventions from the political class. The law is the product of a compromise between the various political tendencies which clash in order to obtain a parliamentary majority. Starting with these main points, the present article seeks to stress the relation between legal policy, law-making policy, the legislative programme as well as the role of public policies in law-making.

Pragmatic Aspects of Legislative Intent

The American Journal of Jurisprudence, 2019

In "The Nature of Legislative Intent" Richard Ekins presents a theory of legislation that reaffirms the centrality of legislative intent in the understanding of law-making and legal interpretation. One of the distinctive aspects of Ekins’s accountis that legislation is conceived as a form of conversational communication through which intentional contents are conveyed to law-addressees. In the paper we firstconsider the way in which Ekins addresses the traditional problems that the concept of legislative intent gives rise to: the ontological problem(do legislatures have intentions?) and the epistemic problem (how can legislative intentions be identified?). Then we examine whether the conversational model is able to provide a convincing answer to these problems. To do this, the paper focuses on Paul Grice’s account of conversational communication and on some implications of it for the analysis of legislation and legal interpretation.

Conceptual Tools for Legislators, Part 2: Pathways through the world of law

The main purpose of this article is to show a number of implications of seeing legislation as a way of building the world of law, and the focus in this connection is on the ways in which the world of law relates to the rest of the world. The argument is structured as follows. First the difference between the two perspectives on legal rules will be developed in order to clarify both that the world of law perspective is not the only possible one, and how it differs from the rules as argument tools perspective. Second the idea of a more or less separate world of law is elaborated by distinguishing between kinds of facts, by comparing the roles of causal laws and legal rules in structuring the world, and by studying how the different kinds of facts can influence each other. This leads to the third topic of this article, namely the issue how the world of law interfaces with the rest of the world, the ‘outside world’. The basic idea in this connection is that facts in the outside world are transformed by counts as rules into facts within the world of law (‘input facts’) and that these input facts lead to other facts in the world of law, ending with so-called ‘output facts’ which lead human beings to bring about changes in the outside world. The chain of facts within the world of law from input facts to output facts is called a ‘pathway through the world of law’. The conclusion formulates and argues the recommendation for legislators to pay attention to the ‘pathways through the world of law’ which they build by maintaining the set of legal rules.

Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation

Law and contemporary problems, 1994

As a practical matter, these steps do not form a temporal sequence, but instead a logical one. As Posner has observed, the natural starting place for a judge who seeks to interpret a statute is usually previous judicial interpretations, typically as cited in the briefs submitted by the parties to a case. See Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 808 (1983). We are interested in the logical sequence of the first judicial interpretation of new statutory language.

Does Government dominate the legislative process PhD final for submission 25 February

Does government dominate the legislative process?, 2021

This thesis addresses parliamentary impact on government legislation using the Scottish Parliament as a case-study. It contributes to the ongoing debate about whether government dominates the legislative process, bringing a practitioner perspective. It makes the case for re-evaluating expectations about what government and parliament are seeking to achieve in the legislative process, demonstrating the need to take account of the type of legislation brought forward by government in interpreting parliament’s response. It highlights the importance of the choice of method in avoiding over– and under-stating parliamentary impact in the legislative process. It proposes re-evaluating the Scottish Parliament’s legislative performance, arguing that the legislative process in Scotland is largely defined by the sort of consensus politics which its proponents wished to see. This thesis addresses significant gaps in understanding of the Scottish Parliament’s legislative process in particular, but its focus on the role of parliament and government in the legislative process more generally should make it of interest to scholars in the wider legislative studies discipline.

Legislative Measures and Legislators' Motives

Comparative Constitutional Studies, 2024

This review of Wojciech Sadurski's Constitutional Public Reason (OUP 2022), forthcoming in Comparative Constitutional Studies, explores the relationship between the legislative measures voted on by legislators and their motivations for so voting. The relationship between such measures and motivations is examined by reference to GEM Anscombe's famous example of a man at a pump to illustrate the different descriptions that may be given for a human action. Where the relevant action requires the participation of more than one person, only that aspect of each person's plan of action that is shared with the others can be ascribed to them jointly, suggesting that the purpose of legislation does not encompass every motivation of the diverse legislators that voted for it.

A Positive Theory of Legislative Intent

Law and Contemporary Problems, 1994

The ongoing debate about statutory interpretation has been profoundly affected by the introduction of social choice theory into the study of legal institutions. Prior to this development, legal scholars had relied on theories of civic virtue, arguments about judicial activism, and understandings of the Constitution to shape their debate. 1 The first mention of Arrow's impossibility theorem and the subsequent chaos results proved quite a bombshell for this enterprise. 2 As Judge Frank Easterbrook noted, Because legislatures comprise many members, they do not have "intents" or "designs"... It is not only impossible to reason from one statute to another but also impossible to reason from one or more sections of a statute to a problem not resolved.... The existence of agenda control [within a legislature] makes it impossible for a court-even one that knows each legislator's complete table of preferences-to say what the whole body would have done with a proposal it did not consider in fact. 3 In fact, one cannot rule out the possibility that, faced with filling a gap in a statute, the legislature would pass a provision clearly contrary to the provisions of the original statute.