September 20, 2011
Law: Its Making and Organizing
“41 Parliament Resumes” Globe and Mail
“The calendar will soon be chock full of bills, many of which had
been voted down by previous Parliaments. Now the
Conservatives have a majority, all this legislation will pass…
New overdue copyright law
Omnibus crime bill
Reequip the state with powers to fight terrorism.”
Bills before Parliament (2011)
See House of Commons website:
And Dept of Justice – Acts:
Hansard – record of Debates
Perspectives on Lawmaking
Why do we have law?
Why do we need law?
Do we need law?
Regulate public behaviour
Maintain peace and order in society
Provide compromise for conflict
We live in a complex society with millions of people where we
can’t rely on individual people to regulate communities or
There are other really important institutions to regulate our
behaviour as well. There are other ways where those same
expectations can be met.
Models of lawmaking:
“Moral Entrepreneur” Theory
A rational means for protecting the members of society from social harm
(ie particularly criminal law)
A simplistic theory
But who gets to define what is “harmful”?
Is it a rational approach or highly “invested” approach?
How do laws emerge?
Ideas based on consensus in society
Social laws that come up organically
Law are a “reinstitutionalized custom”
Law as a restatement of customs enforced by legal
A crystallization of custom, of the existing normative order
Laws are passed because they represent the voice of the
A consensus perspective
Customs = norms or rules about the ways in which
people must behave if social institutions are to
perform their functions & society is to endure.
Marriage laws have changed as well
o “Marriage a partnership between two people”
o Now reflecting the social consensus of what marriage
The origin of law is traced to the emergence of an elite class
Laws, as a social control mechanism, perpetuate the
advantageous positions of the elites
Maintains unequal social & economic divisions
See Chambliss article on vagrancy laws in England
Regulation of security industry (Squeegee kid law)
It’s hard to make the argument that the white collared crimes is
that it is due to white control and them wanting to appear elite
“Moral Entrepreneur” Theory
Usually not “moral” at all, but highly ideological
Laws as a means to create or maintain a particular “moral”
constitution of a society
Law as a means of stamping ideology with “legitimacy” &
Anti-miscegenation laws in US & in Canada, see “white
woman’s labour law,” & the Indian Act.
To maintain “racial purity” & to secure economic rights & interests with the ruling group
Constance Backhouse’s article about the case where white
women could not work for Chinese men
Mothers Against Drunk Driving is a good example
Probability of Legislative Response
Powerful interest groups mobilize for legislative action.
Public intensely concerned with an issue.
There is no pressure to maintain the status quo or opposition to
Where does law come from?
Comes from Provincial or Federal governments, depending
on the issue.
Law made by legislative bodies, most obviously the
Parliament of Canada and the Provincial Legislatures
This is statute law: “a new statute … can make drastic
changes with the stroke of a pen” (121)
Responsive to public & private pressures
A response often to an issue, concern or problem (eg
Anti-terrorism Act (2001))
Preceded by a series of pre-lawmaking “stages” of
If intent of legislature as ambiguous – must be
interpreted by courts
Constitutional law: eg the Charter as a check &
balance to supremacy of Parliament
Imperial statutes (ie Canada Act 1982)
Marriage: both Federal and Provincial have control over
marriage. Federal controls divorce, even though it says it
regulates marriage, it is the provincial government that deals
with marriage, children or anything related. 16 years old with
parental permission and 18 years as an individual.
Body of law in addressing the actions and operations of
governments and governmental agencies
Creation of administrative rules and regulations
The law concerns the manner in which courts can
review the decisions of administrative deci