SOSC 2350 Lecture Note 2
Law Organization & Lawmaking
- How does policy become law
- Perspectives on law making
- Organization of courts
How does policy become law?
- How is it that law is made? Reflect? Sociological effect?
- Legal regulation and construction of society.
- Serving group of people
- The law itself is not a quickly moving, adapting thing. Precedent making
cases are always in the agenda. The law is malleable. Not so.
Three distinct stages from government policy goes to law:
- It can be something that is formally reason, and then becomes a reflection
- There’s the cabinet stage (the government)
- Parliamentary stage (reviewed)
- The coming into form stage (where it becomes a law
- Policy may originate in
o Throne speech, the budget
o Intelligence or federal/provincial agreements
o Ministerial proposals & other sources
- Sponsoring department prepares a Memorandum to Cabinet
- Memorandum seeks policy approval and authorization for the Department of
Justice to begin drafting legislation.
- Before completing the Memorandum, the sponsoring department holds an
interdepartmental consultation (discussion)
- Memorandum is revised accordingly
- Submitted to appropriate cabinet policy committee, which reviews the
Memorandum and prepares a report.
- Once the Cabinet approves the memorandum, the legislative drafters of the
Department of Justice put it in both languages
- The draft bill is reviewed and approved by the sponsoring people, there is no
new groundbreaking information
- Government house Leader seeks authority from Cabinet to approve the bill
for introduction in Parliament (where it gets debated)
- Bill usually introduced in House of commons, rather than the senate
- Appears on the Notice Paper and then Order Paper, where it will wait for
introduction by appropriate minister. (It sits in a line)
- It’s not a matter of changing the laws of the day as a whole; it’s a slow
process that goes through questioning and waiting, and it waits for being
- No notice is required for a bill proposed through senate. Parliamentary Stage:
- Introduced and First reading
o It’s assigned a number
- Second Reading: Debated
- Committee Consideration
- Report stage:
o The bill, as passed by the committee is considered the House of
- Third Reading
o Bill is debated for a final time.
- Passage and Royal Assent
o If the bill originated in the House of Commons, and is passed at the
third reading, it is sent to the Senate
o If the bill originated in Senate, and has been passed by both chambers,
it is presented for Royal Assent
Coming into Force Stage
- A bill becomes an Act when it receives Royal assent, but legislation is not
automatically in effect
- Laws come into force in several ways
o When the receive Royal Assent
o On a day, or days specified in the Act
o On a day or days set by the Governor in Council (the Governor
General, on the advice of the federal Cabinet)
Perspectives on Lawmaking
- Why do we have law?
- Why do we need law?
o Do we need law?
- Model of lawmaking:
o Conflict Perspective
o Moral Entrepreneur Theory
- Desire to create a sense of order/safety/justice (we believe in)
- The legal framework is intended to be a reflection of what we as society see
as just (fair), if the law is accurate reflection, we will have more likelihood to
abide by the law.
- Rationalistic Approach
o Means for protecting the members of society from social harm
Particularly criminal law
A simplistic theory
o But who gets to define what is “harmful”?
o Is it a rational approach or highly invested approach (reflective of
- Functionalist o How do laws emerge?
o Laws are a “reinstitutionalized custom”
Law as restatement of customs enforced by legal institutions
A crystallization of custom, of the existing normative order
Laws are passed because they represent the voice of the people
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
o We try to keep our laws secular (it treats everyone fairly, it’s not
- Conflict Perspective
o The origin of law is traced to the emergence of an elite class
o Laws, as a social control mechanism, perpetuate the advantageous
positions of elites
o Maintains unequal social & economic division
See Chambliss article on vagrancy laws in English
o It makes hierarchy rational
- Moral Entrepreneur Theory
o Usually not “moral” at all, but highly ideological (motivated by set of
beliefs, or intentions)
o Laws as a means to create or maintain a particular moral constitution
of a society
o Laws as a means of stamping ideology with Legitimacy &
Anti-miscegenation laws in US & in Canada, see “White
woman’s labour law” and the Indian Act
To maintain “racial purity” and to secure economic rights and
interests with the ruling group (you were un-American)
Mixed race marriages (not recommended by a general
It wasn’t racist; it was a desire to keep racial purity. The
nefarious effect is to an effect, being racist to justify
ideologies and racist intents.
You can’t debate this without being amoral or immoral
- Probability of Legislative Response
o Increases when: