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SOSC 2350 Lecture Note 2.docx

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Social Science
SOSC 2350
Dena Demos

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 Cabinet stage: - 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 performed. - 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 commons - 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 Rationalistic o Functionalistic 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 social class)? - 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 religious) - 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 & respectability  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 group  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:
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