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    Law - S2 Fiche

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    Jonas Scheck
    The document discusses the sources and process of lawmaking. It begins by defining the state as a sovereign political community with a centralized government and monopoly on legitimate use of force within a territory. Laws are necessary rules for society to function. The social contract theory proposes that citizens implicitly consent to laws for mutual preservation of civil freedom and society. The lawmaking process involves legislative bodies representing citizens and converting individual wills into collective will through laws. Constitutional systems establish separation of powers and checks and balances between branches of government to prevent abuse of power. The constitution forms the basic legal framework that defines rights, governmental structure, and processes for change.

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    Law - S2 Fiche

    Uploaded by

    Jonas Scheck
    40 views3 pages
    The document discusses the sources and process of lawmaking. It begins by defining the state as a sovereign political community with a centralized government and monopoly on legitimate use of force within a territory. Laws are necessary rules for society to function. The social contract theory proposes that citizens implicitly consent to laws for mutual preservation of civil freedom and society. The lawmaking process involves legislative bodies representing citizens and converting individual wills into collective will through laws. Constitutional systems establish separation of powers and checks and balances between branches of government to prevent abuse of power. The constitution forms the basic legal framework that defines rights, governmental structure, and processes for change.

    Original Description:

    Study Notes – Law Session 2

    Original Title

    Law_ S2 Fiche

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    The document discusses the sources and process of lawmaking. It begins by defining the state as a sovereign political community with a centralized government and monopoly on legitimate use of force within a territory. Laws are necessary rules for society to function. The social contract theory proposes that citizens implicitly consent to laws for mutual preservation of civil freedom and society. The lawmaking process involves legislative bodies representing citizens and converting individual wills into collective will through laws. Constitutional systems establish separation of powers and checks and balances between branches of government to prevent abuse of power. The constitution forms the basic legal framework that defines rights, governmental structure, and processes for change.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    40 views3 pages

    Law - S2 Fiche

    Uploaded by

    Jonas Scheck
    The document discusses the sources and process of lawmaking. It begins by defining the state as a sovereign political community with a centralized government and monopoly on legitimate use of force within a territory. Laws are necessary rules for society to function. The social contract theory proposes that citizens implicitly consent to laws for mutual preservation of civil freedom and society. The lawmaking process involves legislative bodies representing citizens and converting individual wills into collective will through laws. Constitutional systems establish separation of powers and checks and balances between branches of government to prevent abuse of power. The constitution forms the basic legal framework that defines rights, governmental structure, and processes for change.

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    © All Rights Reserved
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    of 3

    SESSION 2

    HOW IS LAW MADE – WHERE DOES IT COME FROM?

    I. Sources of power: notion of State

    Coexistence not possible without rules: Laws are unavoidable rules in a society

    State: sovereign organised political community under one government


     Organised: set of international rules
     Political: general attribute of the community

    (Weber): State is a compulsory organisation, centralized government that maintains the monopoly of the
    legitimate use of force within a certain territory

    (Montevideo convention on Right and Duties of States - 1933): State meets these aspects:
    - Permanent population
    - Defined territory
    - Government Capable of maintaining control and conducting international relations with other
    states

    State legitimacy

    Form of political legitimacy (In past: divine right VS Now: rational-legal authority)

    Legitimacy (Weber): derived from belief that certain group has been placed in power in legal manner,
    actions are justifiable according to specific code of written laws

    II. The Social Contract (Jean-Jacques Rousseau)

    How freedom may be possible in civil society. Legitimate political authority comes from a social contract
    agreed upon by all citizens for their mutual preservation

    State of nature: physical freedom and no restraints on our behaviour

    The Social Contract: mutual agreement. We place restraints on our behaviour to enable life in community.
    • Giving up physical freedom for civil freedom (able to think rationally). Check on our impulses
    and desires, and thus learn to think morally.
    • Freedom, rationality and morality, are only possible within civil society (only possible if we
    agree to the social contract)
     We owe our rationality and morality to civil society (not human if not active participants in
    society under the “social contract”)
    The “sovereign” : Collective grouping of all citizens. Only has (absolute) authority over public concern
    matters. Rousseau recommends the death penalty for those who violate the social contract.

    Individual: particular will aiming at his own best interest VS Sovereign: general will for common good

    III. Law making process

    Law making: process to convert individual will into collective will

    Legislative bodies and the principle of “representation”: one head one vote
     Right to vote is a fundamental tool in democracies.

    Brexit vote: most voters were old people. Quantitative evaluation can be problematic (different point of
    views)
    SESSION 2
    HOW IS LAW MADE – WHERE DOES IT COME FROM?

    Electoral systems

    Backbone of democracy

    Electoral system: Set of rules that determines how elections and referendums are conducted and how their
    results are determined. Political electoral systems are organised by governments. Law/society build on it.

    Electoral systems govern also the voting process:


    - When election occurs
    - Who allowed to vote
    - Who can be candidate
    - How ballots are marked and casts
    - How ballots are counted
     Defined by constitution and electoral laws (typically by election commissions)

    Democratic law making and government in practice

    - Structuring democracy: Influence of political parties


    Why relevant: present ideas of one group, organisational way of aggregation, unavoidable
     Major stakeholder in the democratic system, acting as a filter (conceiving an intermediate body
    and the policy making)
    - Democracy, efficiency and effectiveness
    - Political will and technical skills: the “apparatus”
    - Recent rise of populism and crisis of the traditional system
    Five Stars Movement in Italy: Internet based democratic system

    Complexity of the process

    Society and states needs


     “Sovereign” exercises legislative power by means of laws
     Government for executive power
     Judiciary to enforce legislation
     Interaction between executive and legislative. Judiciary as integral part of law making process
    (civil and common law)

    Different types of law makers

    - Head of state
    Emergency powers and customary powers
    - Judges interpret and apply the law
    When does filling the gaps becomes making a new law?
    - Administration/regulators
    Gives guidance (eg in the UK)
    - Academics

    IV. Defining the limits of power

    Montesquieu (De l’esprit des lois, 1750)

    Political doctrine of constitutional law under which three branches of government are kept separate to
    prevent to prevent abuse of power  Guarantees individual liberty and smooth institutional functioning
    SESSION 2
    HOW IS LAW MADE – WHERE DOES IT COME FROM?

    Systems of checks and balances: each branch is given certain powers so as to check and balance the other
    branches

    V. The constitution – the law’s skeleton

    Supreme law (higher position and intellectually higher): basic principles for functioning of State

    What is in it?

    - Fundamental rights of citizens


    - Who does what (separation of powers)
    - What happens in an emergency
    - Stability over time
    - How constitution can be changed (rigid VS flexible)
    - Hierarchy among sources of law

    Not fixed! (France more than 10 since 1788): changed by amendments

    Same actors, different titles?

    - President
    - Government, Prime Minister
    - Parliament, Lower house (chamber) and Upper House (Senate)
    - Supreme court, Others and separate constitutional court or council
    - Regional and local government

    Legislation

    How is it made?

    - Role of Parliament and the distinctive case of the EU


    Doubts of democratic legitimacy for the EU. Predominant function in not on the parliament (EU
    Parliament has a stronger participatory role but historically quite recent, Council has more
    influence). In the Council, state representatives are send by the government
    - Some countries only have a single chamber legislature, so process is shorter
    Scandinavian countries
    - Some legislation expressly permits national or located government to make more detailed
    rules
    Delegated or secondary legislation

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