Law Reform Process and Outcome - Research Paper Example

?Introduction Legal reform is an inevitable part of the development and evolution of law to meet existing needs and expectations amongst people of a given society. Legal reform is a fundamental aspect of changes in the society. It often involves explicit changes in particular laws and these are done by a public authority and sanctioned for use in courts. Legal reform seem to have several facades. It changes the way people think and analyse the application of laws. However, the fundamental aspect involve the law modification process which involves the presentation of bills which seek to change the existing legal systems and structures. There are two clear phases in legal reform. The first phase is the process of the legal reform and the second phase is the outcome of the law reform. These two phases draw parallels with the two main schools of ethics: deontology which argues for absolute rules and a clearcut presentation of what is right and teleology or utilitarianism which justifies a given ethical choice on the basis of its outcome (Nicolson and Webb, 2011). This paper examines the fundamental question: which is more important – the process of law reform or the outcome of law reform. The research will examine the two aspects of legal reform and evaluate their relative worth. The study will be conducted by examining a set of real propositions for legal reforms relating to discrimination and multiculturalism in Australia. Facades of Law Reforms There are various definitions put forward to explain the concept of legal reform. One of them states that legal reform is “the process of examining existing laws and and modifying it and implementing hangs in the legal system, usually with the aim of enhancing justice” (Frankowski and Stephan, 2011, p283). This involve changes in the definition of laws and systems of interpreting the law (Frankowski and Stepha, 2011). Legal reforms are viewed from various angles and various processes. One of them involves the core debates that are put forward for changes in laws and their intervention in society. Parties like Pierre Legrand (2011) state that legal rules do not exist in vaccum but they receive their meanings from the society within which they are applied. Thus, to Legrand and similar scholars, there is the need for the transplanation of rules from one society to another to be sensitive to the realities of the society within which they are being implemented. This implies that legal reform will need to be done by trying to streamline the components and the elements of a given law to fit the existing society. Legal reforms must be done through a framework of conscious evaluation of the society and its values, norms and mores to ascertain the real needs of the society. Through this, the law that will be made would capture a vast framework of what the society needs. Thus, legal reforms are focused on the process of making a new law and implementing it. Another argument pioneered by Alan Watson states that based on historical evidence, laws are pervasive and legal transfers ought to be done by transplanting rules from one society to the other, however, the outcome of the new laws determine their appropriateness for the society (Paquin, 2011). The premise for this argument was the fact that most countries around the world acquired laws from the United Kingdom through colonial times. Hence, they played little or no role in the legal processes and the integration and adoption of those laws were not so complicated. However, as time went on, some laws lost their significance and they became obsolete. On the other hand, other laws remained important. The argument is that law is rarely created with a precise society in mind. Hence, there is no clear relationship between law and society (Paquin, 2011). In effect, this means that a society will always be acceptable to any kind of laws that are put forward by its legislators. However, the outcome of the law and its effect is what will present the law as valid or invalid. Law, to the proponents of this school of thought is about what is achieved as an outcome rather than the structure and procedure for making it and implementing it. This is more of a teleological view and it judges a law on the impact it brings on society rather than its components and make up. Law Reform Procedures The law reform process is complicated. It involves the examination of existing laws and the identification of issues that merit some kind and form of change (Hurlburt, 1986). This means it begins by examining the existing laws and identifying the issues that make it difficult to address issues relating to justice in the contemporary society. Usually, the need for change and legal reform is identified by interest groups who advocate for change. They present a case for the implementation of change and the modification of processes in which the existing law addresses issues. Once this is done, the legal community accepts it and makes a conscious effort to implement it and apply it to existing cases (Barenboim, 2009). There are four main types of legal reform which goes to change and modify existing legal systems and structures. They are: 1. Repeal 2. Creation of a new law 3. Consolidation 4. Codification (Barenboim, 2009) Repeal means the legal reform process will cancel an existing law in a systematic way and manner that will make the old law change but in relation to existing social and cultural systems and structures. The implication is that the repeal process is complicated. This is because the process will involve cancelling existing systems and structures and this must be done with care to ensure that all stakeholders and interested parties get their needs and expectations. Repeal of existing laws must be in response to the realities. This outline the importance of legal reform process. The creation of new laws also exist with linkages to the existing legal system. A new law cannot disturb the existing legal heritage of a country. Thus, there is a strong case for careful examination and elaboration of the existing legal systems with alacrity amongst the stakeholders. The consolidation of existing laws will mean the presentation of different laws and legal instrumentations. This will need to be done in a way and manner that will ensure that grey areas are covered and different laws are put together to preserve the harmony of the society. Codification on the other hand demands the creation of new sets of rules and regulations that will change many aspects of the legal system. Codification provides a strong case for careful analysis and evaluations. This will help the nation and the legal system to get a new framework and set of rules and principles. This must be done with the proactive involvement of interested parties and this has become the traditional and landmark for legal reforms around the world today. The current legal reform system of Victoria, Australia presented by the Victorian Law Reform Society indicates ten steps which seem to have various importance and significance. The first step is the identification of problem and this is to be done by some interested parties. In order to prevent a few furthering their personal interest at the expense of the majority, there is the need for the problem identification to go through various phases which will involve the critique of issues and matters that will be examined for their appropriateness. Thus, the process of identifying problems and making changes is to be supervised by the Attorney General's department which issues a reference to the Law Commission. This ensures that the appropriate legal techniques are used by the professionals of the Law Commission to examine the laws in question and evaluate it in a technical manner. This is followed by initial research and consultation. The initial research and consultation process involves the input of different professional views from affected stakeholders in the industry under review. This will involve consultation with stakeholders and other important parties. After this is done, a committee of expert is convened to examine the facts of the legal reform and present an outline. This involves the integration of consideration of broad elements and aspects of the wider society in general. The views of the committee is outlined and presented to various stakeholders through the publication of the findings. These publications are presented and submissions from researchers are taken. This leads to the democratisation of the legal reform process. The democratisation is consolidated by various consultations that are conducted into the legal reform for different stakeholders to make contributions. The final outcome is published and the further views and opinions of third parties and other stakeholders are taken. The effect is that the Attorney General's Department takes the instrument agreed throughout the process and presents it to parliament in 14 sitting days. This ensures that the laws are representative of the will of the people and laws are much more robust and more thorough. Finally, Parliament will decide on the new law and implement the recommendations. Sometimes, this is presented to the government ministry in question for further critique and he final assent is granted to the law. This highlights thoroughness and inclusiveness of law making processes and procedures. This implies that if a vast number of people are aware of the legal processes and there is no apathy and everyone in the society takes part in the legal reform process, the law is likely to be representative of the views of all stakeholders. This highlights the importance of the legal reform process ahead of the outcome. Implementation and Outcomes of Legal Reforms The implementation of legal reforms “is about the Ministry of Justice and Judiciary responding to the law and implementing it” (Opeskin and Weisbrot, 2011). Obviously, the implementation of the law is the avenue where a people in a given community get to test the effectiveness and efficiency of the legal reform that has been proposed by members of the community. This is because legal reforms are based on the things that are foreseeable at the time of the formulation of the laws. And this implies that there will be a set of realities that could confront the interpreters of the law which could render the processes void. Legal reform implementation involves the implementation of laws and the review of the laws in order to come up with various reports on how the law fared and how many things ought to change. The implementation report is used to prompt changes and further reform. The legal reform process is deficient in areas like foreseeing and predicting future trends and results and also lacks the universality that implementation has. In other words, implementation involves all the people in the society and people who are apathetic in the legal reform process will have to challenge the laws were necessary (McAuslan, 2010). This can bring about loopholes and issues that exist within the law. On the other hand, society is dynamic. No matter how well a legal reform process might be, there will always be some areas and aspects that would evolve in future that might not be captured in the existing or current laws. Areas like science and technology keep evolving and things that were unacceptable in the past would become obsolete in the future and as such, no matter how ingenious the legal reform process was, it would still be a bit shaky when these new findings come to place. For instance, the law concerning same sex relationships were very adversarial in the 1950s. It was illegal for people of the same sex to have any kinds of relations. Australia's policy of White Australia which opened the doors of Australia was see to be ideal in its time, however, after some generations, it was revoked due to the implementation outcomes based on the realities of the hardship it was causing. Also, laws relating to Aborigines were highly adversarial. However, they are now different and much more inclusive. Thus, it is worthy to state that the legal reform process of a particular time, will fail to perceive pertinent issues in that period. And hence, the only way of dealing with the issue is to find ways and means of dealing with it in order to interpret the laws in ways and means that provides the best results and outcomes for the entire society. Judges interpret laws and in doing this, they often have narrow and wider scopes of the application of the law (Bruce et al, 2010). This gives room for a diverse range of flexible and rigid interpretations. The judges will have to interpret laws in a way that they preserve harmony in society (Lindsey, 2010). Therefore, there is the need for some degree of adherence to convention in order to preserve the fundamental structures of society. In doing this, the judges will have to apply the law in a way that might bring an outcome which is different from the end sought by the stakeholders who sought to reform the law. This might tend to bring some degree of variance that might be very different from what the law reform sought to achieve. For instance, a judge might interpret a given law with other conventions in law and accept some kinds of evidence that is not accepted in the reformed law. This is because, judges examine the facts and the realities on the basis of legal conventions and other higher laws like the constitution (Gillespie and Chen, 2011). Thus, no law can go out of scope and as long as these constraints exist, the legal reform process cannot be said to be as important as the legal outcomes of a given law reform. Additionally, the implementation of reformed law will need to be streamlined to fit government policy and party principles (Biddulph, 2011). This is because there is a larger legal framework that must be considered. There is the need to follow precedents and there must be regard for the scope of the constitutional law (Biddulph, 2012). On these bases, there is a strong need for legal reforms to be evaluated on the basis of the outcome. This is because the outcome is important and can either make or unmake a given legal process or procedure. Case Analysis I In the draft Australian Anti-Discriminatory Law, there is an attempt to coordinate and streamline all the discrimination laws and laws that involve discrimination. This law seek to have the aims of making legal challenges accessible to the discrimination, improve cost effectiveness and enhance protection of minorities . The definition of discrimination is based on existing conditions. Although it has been expanded to include different definitions in contemporary times like same-sex individuals and other things which were not part of law in the past decade or two, there is room for some additions in the future. And in those cases, judges might permit the expansion or contraction of the scope of the definitions on the basis of the circumstances of a given case. Tests prescribed in the new law could prove problematic because they are complicated and the there could be some new stakeholders who might need to be included in classifications. Thus, judges will need to examine facts of specific cases and make recommendations on how they must be implemented. However, it appears that the law reform process played a major role in the definition and redefinition of concepts and ideas. For instance the Equal Opportunities Act 1995 is clearly outdated and there is the need to upgrade some elements of the 2010 revision of that act. There was the need to remove some archaic tests to reflect contemporary thinking. There is the need for new definitions of things like “reasonable test” based on contemporary ideas. Thus, this is done by all stakeholders and all affected parties and they are meant to work together to define the norm, rather than the exception. And although judges could depart from the strict sense of these tests and these definitions, they remain the standard for contemporary Australia. This shows that there is the need for some degree of harmony in the definition of laws and the interpretation of these laws. Case Analysis II The Human Rights and Equal Opportunity Bill of 2012 shows some major scope issues and matters which cannot be exhaustively defined by the bill. This is because Australia is an evolving society and there are some potential issues that could change the definition of the scope of the bill. The protected attributes cannot be exhaustive because there are possible individuals like refugees whose status in society could change. Also, the limitation of justifiable conduct and religious exceptions stands to change. This is because there could be some legal processes that might seek to negate this and for practical purposes, judges can either make some grants or limit the application of some of these ideas and concepts. Definitions like discrimination and reasonable exceptions come with challenges because judges will have to interpret them according to the realities on the ground. Also, issues like the burden of proof could be reversed where necessary in exceptional conditions and circumstances. Conclusion The research concludes that law reform process and the outcome of law reform are each special and critical in their own unique ways and forms. Law reform process ensures that there is the inclusion of all stakeholders and laws are streamlined to reflect the realities in a given set of circumstances in a nation. They reflect the democratisation of the law making process and allow the law to reflect all stakeholder expectations. If done properly, a law reform process can capture all the relevant legal pointers and lead to a law that will be all encompassing. However, law reform outcome is also important. This is due to the realism involved in the interpretation of laws. Society is dynamic and diverse. Thus, the legal system is evolved to deal with circumstances and realities according to conventions and within the scope of the constitution which is the supreme law of the land. The interpretation of a specific law by the judiciary could lead to very different outcomes and effectively render the legal reform process incompetent. In a very strict sense, it can be said that the outcome of legal reforms is more important than the process of legal reform. This is because legal reforms are applied in a framework of interrelated legal constructs. Hence, this influences the outcome. However, if the legal process is done thoroughly and critically, the results of a given legal reform will not vary much from the out come of the law reform. References Australian Council of Human Rights Agencies (2012) Consolidation of Commonwealth Anti-Discriminatory Laws 1st Februyary, 2012. Sydney: ACHRA Australian Council of Human Rights Agencies (2012) Human Rights and Equal Opportunity Bill 2012, Dec. Sydney: ACHRA. Barenboim, P. (2009) “Defining the Rules” European Lawyer Issue 190 Biddulph, S. (2012) Legal Reform and Administrative Detention Powers Cambridge: Cambridge University Press. Bruce, J. W., Giovarelli, R., Rolfes, L., Bledsoe, D. and Mitchell, R. (2010) Land Law Reform: Delivering Development Policy Objectives New York: World Bank Publication. Frankowski, S. and Stephan P. B. (2011) Legal Reform in Post-Communist Europe Amsterdam: Martinus Nijhoff Publishers. Gillespie, J. and Chen, A. H. Y. (2011) Legal Reforms in China and Vietnam London: Taylor and Francis. Hulburt, W. H. (1986) Law Reforms Commissions in the UK, Australia and Canada London: Juriliber Legrand, P. (2011) “Foreign Law: Understanding Understanding” 6 Journal of. Comparative Law 67 Lindsey, T. (2010) Law Reforms in Developing and Transitional States London: Routledge McAuslan, P. (2010) Land Law Reform London: Routledge. Nicolson, D and Webb, J. S. (2011) Professional Legal Ethics: Critical Interrogations Oxford: Oxford University Press. Opeskin, B. and Weisbrot, D. (2011) The Promise of Law Reform Sydney: The Federation Press. Paquin, J. (2011) Legal Reforms and Business Contracts in Developing Economies Surrey: Ashgate Publishing. Victorian Law Reform Commission (2013) Law Reform Process. Available at: http://www.lawreform.vic.gov.au/our-approach/law-reform-process Retrieved: 8th November, 2013. Read More