Theoretical Legal Issues - Assignment Example

a). Briefly explain how law is created by parliament Law in its draft form is known as bill and can be introduce to the house by a member of parliament but it’s commonly introduced by a minister of the crown. A bill introduced to the house by member is referred to as a private member bill but when introduced by a minister of the crown it is referred to as a government bill. Bills are also categorised according to the their subject, bills concerning the general public are known as public bills while bills aimed to give rights to individual or small groups, bodies or local authorities are referred to as private bills .Public Bills that would affect the rights of the private entities and vice versa are known as hybrid bills. Private bills make up majority of the bills but are rarely passed compared to government bills and there are three ways to introduce a private member bill to the house. The first is where member put names in a ballot once per session and the ones who are chosen are given time to introduce the bill it is referred to as the private members ballot. The second is the Ten Minute rule where members are given ten minutes to outline the proposed new piece of legislation. The third is where standing order 57 where a bill is introduced without debate prior to a one day notice to the table notice (Craig, 2007). A bill goes through several stages before it becomes law; the first stage which is a formality is called the first reading. The second reading is where it is debated and may be voted in or voted out. The committee evaluates the bill clause by clause where further consideration comes. The speaker then decides on which amendments are to be debated. After the house has considered he bill the passage of motion follows and no further amendments are made this is where the third reading comes into play. The bill is read to the house for the third time and it must now be voted by the House of Lords, passage of the bill to one house it is taken to the other house. If the bill is passed by the two houses in similar form it’s then taken for the sovereign assent .The final stage is where the royal gives the assent and the bill becomes law. (b) Briefly explain how delegated legislation is created. Delegated legislation refers to la w that is not passed through the act of parliament. The empowering act gives a minister delegated power to pass a law. Delegated law is usually made through signing by the minister or a senior member of the civil service who creates it though in some cases verbal assent from the queen is important. Most of the delegated legislation is created using statutory instrument where it is catalogued and printed through the queen’s printer for the public. c) Explain statutory legislation, Statutory is written law usually spelt out by the government or the legislature. The law seeks to clarify such matters as government functions, orders among other codified functions .The law is usually passed by the Nation or the legislature. d) What is the system of precedent? These are principles by the collective body of judiciary that a court should put into consideration when interpreting the law. When an important legal principle comes into place then it s often referred to as landmark decision. Explain the three major types of law that originate from the European Union. Among the laws in the European unions is the treaty establishing a constitution for Europe which is a law that provides for creation of a European Union constitution. The law provides procedures and ways in which this constitution can make amended, enacted among others. The European Union also established a common market through standardisation of laws that govern the markets. This includes movement of goods and services from one European country to another, movement of people, taxation system among others. This type of law enables harmonisation of trade in the European Union countries (Craig, 2007). The law on legislation laws are also a type of laws existing in the Europeans constitution it covers such thing s as the e commissions in in charge, how they are appointed among other important matters of legislation 2. Disadvantages of making laws in parliament Making of law in parliament has both its advantages and disadvantages .Among the disadvantage is that only few enactments or amendments of law can be made at a time. This because this because of the path taken to carry out this which consumes a lot of time contrary to the many bills awaiting to be debated and enacted. The process of making the law in the parliament also has long procedures which must be adhered thus laws that need urgency may be derailed. These procedures also limit the number of bills that can be passed or amended in a session. It can thus be seen as at time consuming process. The popular vote does not also always represent the wishes of everyone but rather of the majority, this means that laws made in parliament may not be popular is only popular to the majority. Laws made in parliament are there fore not comprehensive as they come to play as long as they can gather a simple majority. This means that they lack fine tuning and may be beneficial to some as well as depriving others. Members of parliament are political representatives of their areas .This does not necessarily mean that they have expertise in matters of law formulation and enactment. The members can not be seen as the best when it comes to formulation of laws and thus the laws they make may not be the best in functioning when it comes to the implementation. The laws are at most of the times driven towards political motives but not necessarily the interest of the general public (Craig, 2007). Making law in parliament may also be greatly affected by the political environment and other forces at the time they are being enacted. A bill can be passed not because it is popular but because of political alienation to a particular political wing. Thus politics can be seen to manipulate the law making process in parliament again bringing in conflict of interest (Craig, 2007). Law is seen to affect the live s of public and thus it should be a representation of their wishes. Although it can be very hard to include everyone in the process legislation in parliament does not necessarily represent this. Thus the enactment will depend on the sole vote of a member who represents the segment of significant population or region (Craig, 2007). 3. The courts have no law in lawmaking; they merely decide the outcome of cases. Discuss the statement. Courts have no law in law making but merely decide on outcome of cases. This statement means that courts have no ability to enact or create law but the judiciary only depends on the enacted law or the constitution to decide on cases. The courts only operates on the constitution basis to make judgement meaning that even if something can is considered morally right but not inline with the constitution then liability must be taken into account. This means that people may use loop holes of the law to get away with criminal acts that are not well defined or vague in the law governing a Nation. Whatever is not entrenched in law as no law can is fully comprehensive as a result of the changes which are usually occurring for example technology will form a basis judgement from common principles that have applied in the past. This means the courts will follow a system of judgement or interpretation that has existed and not necessarily what is at hand or perceived as right .Culture will therefore be seen to come into play when it comes to matters which are vague or not entrenched in the current law of the Land until the new law can be created or addressed by the legislature or the relevant authority. One can therefore challenge a court ruling if it is unconstitutional. Courts and judges do not have the ability to make laws on their own (Craig, 2007). Courts depend on the out come of cases to make their decisions .This implies that if a case is presented and the court can not find a suitable law or act to convict, then the court refers to previous similar case judgement and how they were treated. A judge will therefore use past similar cases outcomes as his or her basis of judgment in this case. The out come of the decision made will depend on the culture or the way a matter has been treated in previous cases. This favours status quo of those who are conservative to culture though we see the world as dynamic and changing every day. Precedent law is not therefore enacted law but a system or principles that judges come up with for the purpose of law interpretation. This is usually referred to as the land mark decision; the courts therefore have a role and power to make interpretation of the law but not to create the law (Craig, 2007). According to Sir William Blackstone an English jurist he argued that when same points came into litigation or same fact pattern it is of great importance for court to look at previous case for two major reasons; it make s justice to be even and steady, promotion of stability and reasonable expectation of a society there fore requires fact pattern adjudication. Secondly when it comes to application of precedent, a judge should not base judgement on personal perspective but he advocates for precedent on basis of known law and customs prevailing. Precedent is not therefore law though it’s made in courts of laws but only a basis of judgement to expound the law according to what has been of customary value to the society (Craig, 2007). Bibliography Craig, Paul; de Búrca, Gráinne (2007). EU Law, Text, Cases and Materials (4th ed.). Oxford Read More