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SOURCES OF LAW
URL: http://www.spatialgovernance.com/governance/gov-06.htm
© John S. Cook - Created on 11 March 2005
Last modified
05/04/11 11:01
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INTRODUCTION |
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Introduction
The Preamble to the Universal
Declaration of Human Rights regards a rule of law as
essential to protect human rights if people are not 'to be
compelled have recourse, as a last resort, to rebellion against
tyranny and oppression'. However the
meaning to be given to a 'rule of law' is far from clear.
Nowadays, the expectation in a participatory democracy is that
policy debates will be conducted in open forums where interested
persons can know what is the policy rationale. This stage ha
been reached only after political struggles and attainment of
universal adult suffrage that provide a basis for today’s more
representative forms of government. Previously, the idea masked
a more authoritarian style of rule by an elite or ruling class.
This style tended to take lawmaking out of the realm of
discussion of ordinary people.
Nowadays, the idea of a ‘rule
of law’ is central to the United Nations Charter, especially
in promoting a human right to self-determination within a
framework of participatory
democracy. The law belongs to the people and is consistent with
an idea of 'government
with the consent of the governed'. Libertarian thinkers have
attached a meaning to a 'rule of law' where people must be able to know the law if
they are to be guided by it. However, this merely raises a
number of practical issues as set out below. |
Issues Arising from
a 'Rule of Law'
Issues arising from the idea of a 'rule of law' include:
 | How is it possible for people to know
the law? – This is of interest when the sheer volume
and complexity of law is intellectually daunting |
| What is the law? – This is of
interest to persons who wish to comply with the law, to
those lawyers who wish to advise on the law and to judges
who make declaratory statements on what is lawful |
| How did the law come to be what it is?
– This is of historical interest in understanding the
circumstances that brought particular rules into being |
| Does the law do what it is supposed to
do? – This is of general public interest as well as
more particular interest of policy advisers and law reform
agencies |
| What should the law be? – This is
of general interest in a participatory democracy but of
special interest to legislatures, policy analysts and law
reform agencies. |
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References:
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TECHNOLOGICAL CHANGE AND LEGAL
COMPLEXITY |
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Regulating Use of Technology
The need for regulation increases with
increasingly powerful technology. As an example, pedestrian
traffic requires little by way of regulation but air, sea and
land traffic involves a variety of regulations. A technically
advanced society receives many potentially beneficial outcomes
from the use of its technology. However, technological advances
also increase the potential for harm from misuse or their
careless applications. Accordingly, the law becomes complex out
of the sheer variety of matters that it may need to address.
Generally, advances in technology occur before development of
the law and the law may be silent on some issues at critical
times.
In general, regulation depends
on understanding the system that needs to be regulated. Thus, a
more predictable and orderly state of affairs can exist in
traffic control by requiring drivers to keep to the left of a
carriage way. Issues in regulation then become those of
describing rules or principles on the part of some rule-maker
and interpreting and obeying the rules on the part of people who
are expected to comply with them. Complexity in description (or
‘d-complexity’) occurs when the rules covering a large
number of possible circumstances become voluminous or where it
is difficult to contain rules involving scientific and technical
concepts in simple language. Complexity in interpretation (or
‘i-complexity’) occurs when the language and volume of the
written law becomes intellectually demanding or where
ambiguities provide opportunities for alternative
interpretations. |
Practical Consequences of
Legal Complexity
Legal complexity means that people may find difficulty in
writing rules or interpreting them. Accordingly, people learned
in the law often differ in their interpretation on what is the
law. Examples of such differences include those between:
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lawyers as counsel in
matters before the courts |
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decisions of trial judges
and subsequent decisions in various appellate courts |
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individual judges in
dissenting judgements of appellate courts. |
Notwithstanding these
differences, a substantial body of law is well settled, rational
and beyond sensible argument. This leaves open the possibility
of irrational and nonsensical argument.
Ultimately, law aims to
achieve social control over outcomes that are important to the
overall well-being of a society. A focus on understanding the
purpose of legislation and how it is possible to achieve that
purpose might lessen argument that dwells too much on vagaries
of language in processes of description and interpretation.
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SOURCES OF LAW - AN EVOLUTIONARY VIEW |
Evolution of Rule
Governed Behaviour
These notes aim to help students involved in processes of
social and economic development. Practitioners need to be
increasingly sensitive to helping people understand their own
opportunities for self-determination. Accordingly, some
distinction emerges between institutions of self-regulation that
occurs in arrangements between individuals, or within relatively
small groups in contrast to the arrangements that exist for
establishing law and order within society at large.
People become largely self-determining and
self-regulating when, as individuals or in groups, they are able
to reach agreements that do not interfere unduly or intolerably
with the aspirations of other people in the broader social
environment. Satisfactory arrangements for self-regulation
reduce the need for involvement by government. Reducing this
need tends to reduce also the complexity and costs of
government.
The Meaning of 'Law'
The scope of ‘law’ as a concept
necessarily involves the meaning that people give to the word
when trying to convey ideas and learning. Accordingly, meaning is
a matter of social convention. The meaning of ‘law’ as
adopted herein aligns generally with learning how to behave in
socially acceptable ways. Thus 'law' applies to rule-governed behaviour in
general - regardless of the size of the social grouping in which it
applies - the family, tribe, clan, local area, region, nation or
the global community. This meaning has some
similarities with the idea of ‘governance’ that is now seen
as a key development issue.
Evolution in Learning and Law
Criteria to identify sources of law from an
evolutionary view could recognise:
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evolution from relatively spontaneous to more
formal governance institutions with increasing technical
sophistication and specialisation
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learning processes within individuals and
societies as influenced by inventions in communication,
writing, computerization and telecommunications |
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Knowledge of the Law
According to this view, learning how to
behave by an individual begins in childhood long before learning
how to read. The learning begins within a relatively small group
such as a family and gradually extends into broader social
groups as the individual develops and increasingly sophisticated
world-view. The law itself recognises this growth
in learning by limiting the authority and responsibility of
individuals before they reach adulthood. Moreover, increasing
legal responsibility attaches to people on reaching mature age
and at subsequent stages of acquiring professional knowledge and
responsibility.
Law in Social and Economic
Development
Social and economic
development generally proceeds from laws as understood in oral
traditions to laws made in writing and evolving along with
modern political institutions. Sources of law identifiable
according to these criteria emerge in the following order:
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Customary law -
reflecting attitudes, norms and values of acceptable
behaviour within the community at large or particular
sections of the community |
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Common law -
comprising a consistent and coherent body of rules gleaned
from resolving cases brought before courts of law for
determination |
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Legislation - comprising
Acts of Parliament |
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Subsidiary legislation
- made by agencies to which Parliament has delegated an
authority to make laws by express provisions in an enabling
Act |
Historically, the evolution of English law has
generally followed the path as indicated. In many developing
countries, a combination of poor standards in literacy and
education together with problems of learning how to be
self-governing has made the question of 'governance' a key
development issue. |
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References:
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SOURCES OF LAW - A
CONSTITUTIONAL VIEW |
Formal
Laws
Some legal authorities recognise only the law making that
occurs within the constitutional frameworks of various democratic
governments. These constitutions generally recognise a separation of powers
between the legislative, administrative and judicial arms of government and the
supremacy of an elected parliament. Hence, the sources of law become:
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Legislation - made by a parliament operating according to authority
conferred by its own constitutional framework |
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Subordinate,
Subsidiary or Delegated Legislation - generally made by statutory authorities under
specific authority of enabling Acts of parliament and by some means that
makes it possible for a minister to accept ministerial responsibility on
behalf of the government of the day |
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Common law - made by judges according to the rules, practices and
protocols pertaining to the system of courts |
In interpreting contracts and
considering matters of liability, or in matters relating to
property, a number of arrangements can be made by private
persons that the law courts will recognise and enforce. The
making of contracts is an example.
A number of rules originate outside the realms of formal
government. Examples include various industry and commercial standards and
practices. These rules may be important in interpreting the nature of contracts.
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Acceptance of
Customs
Part of a strategy
for reducing complexity in government is to encourage self-determination and
self-regulation. Hence, rules originating outside the realms of
formally constituted government are also of interest. They become part of a fuller
understanding of societal development.
In a number of instances, formal laws embody the
standards and practices of commerce and industry. Thus the National
Measurement Act 1960 at s.7A
provides that regulations may prescribe legal units of
measurement in Australia. In effect the Act adopts the International
System of Units (SI) that was the work of a
non-government scientific organisation. Similarly, governments
may find it convenient to adopt standards of international or
national standards associations that are non-government
organisations.
Since the Mabo
decision of 3 June 1992, Australian law recognises
aboriginal customs regarding land. National, State and
territory governments have since enacted legislation to formalise
the circumstances under which native titles can be incorporated
into
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LEGISLATION |
Legislating as a
Regal Function
In former times, a statute was generally a statement of the law as
it stood at the time made for purposes of clarification or
elucidation of traditional understandings. Over time, statute
appeared as a response to social changes where appeal to
traditional understandings alone were not particularly helpful.
Statutes appeared under authority of a reigning
monarch. In Norman times, the language of public administration
was Latin or Norman French. Thus the Magna Carta of 1215 is
a Latin reference to a great charter. The significant loss of life
through bubonic plague - known as the Black Death (1349-50) - led
to a shortage of labour and increased influence of
English-speaking people. In a
Statute of Pleading of 1362, the law
required legal pleading, debate and argument to be conducted in
English.
Identification of Legislation
Modern legislation is often referred to by an Act number in a
particular year. In former times, it was the practice to refer to
the Act number in a regnal year. The regnal year referred to a
year in the reign of the monarch. Thus, the
Statute of Pleading
of 1362 is also known as 36 Edw.III c.15 being the fifteenth Act
in the thirty-sixth year of the reign of Edward the Third. The
regnal year system phased out in the second half of the twentieth
century but knowledge of the system is still important in
historical writings and policy analysis.
Another method of identifying legislation is to use
the short title.
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Legislating as a Parliamentary
Function
the role of parliamant as the source of legislation evolved
Citation of Acts of Parliament
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LIMITS TO LEGISLATIVE POWERS |
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SUBORDINATE LEGISLATION |
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Subordinate
Legislation in Queensland
The Queensland Government passed the Statutory
Instruments Act 1992 (SIA) to accompany the Legislative
Standards Act 1992 (LSA). The SIA seeks to improve
standards, facilitate interpretation and rationalise the
creation of statutory instruments in Queensland - s.2. Most Acts
of parliament authorise executive actions that require
documentation in the form of regulations, orders-in-council,
local laws, by-law, ordinances, public notifications and the
like. Such documents are statutory instruments within the
meaning of the SIA at s.6
and s.7. Subordinate legislation has a
meaning as set out in s.9.
The LSA requires preparation of regulatory
impact statements where subordinate legislation is likely to
impose appreciable compliance costs on the community. In effect,
the regulatory impact statement resembles benefit/cost analysis
with its identification of benefits and costs and consideration
of alternatives - s.44. Subordinate legislation must be notified
in the Gazette and tabled in the Parliament (s.49).
The Parliament can resolve to disallow subordinate
legislation at
s.50.
Part 7 of the LSA provides for a staged
automatic expiry of subordinate legislation. The aim is to
ensure the relevance of regulations and reduce any unnecessary
burden - s.53. subordinate legislation expires on 1 September
first occurring after the 10th anniversary of its making if it
has not expired sooner or a regulation exempts it from expiry - s.54. The LSA and the
Statutory Instruments Regulation 1992 set
out the requirements for exemption from the provisions for
staged automatic expiry. |
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COMMON LAW |
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Origins of Common Law
In medieval times, law was seen as something more or less according to an order
of nature or god-given. Laws were not necessarily seen as human inventions but
as something static that might be interpreted or explained by a royal decree in
a statute or judgement made by a court. Thus, the distinction now recognised
between a legislative, administrative and judicial arms of government were
ure, a made by humans The common law
incorporated customary practices, especially in
In addition, the law usually recognises agreements that
people make between themselves.
However, the growth of the common law since earliest times
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CUSTOMARY LAW |
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The Australian High Court brought official recognition of
customary law into sharp focus with the handing down of the Mabo decision
on 3 June 1992. Previously, judges had noted the complex social arrangements and
rule-governed behaviour of indigenous Australians.
The reasoning by Brennan J in particular pointed to a number
of examples where ancient customs of
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STATUTORY INTERPRETATION
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Interpretation of Statutes
The Acts
Interpretation Act 1954 (Qld) - the AIAQ - contains general rules for
interpretation of Acts and subordinate legislation in
Queensland. At s.14A, the interpretation that will best achieve
the 'purpose' of the Act is to be preferred over any other
interpretation. Use of extrinsic material is permissible in
confirming or resolving ambiguity in an interpretation - s.14B. Extrinsic
material includes
Similar provisions exist in the Acts
Interpretation Act 1901 (Cwlth) in relation to Commonwealth
legislation. An amending Act is to be read in conjunction with the
Act that it amends at s.15;
Acts are to be subject to the Constitution at 15A;
regard is to be had to the purpose or object of an Act at s.15AA;
extrinsic material is admissible at 15AB;
change of drafting style is not to affect meaning of an Act at s.15AC;
and construction where an Act provides an example of how a
provision is to operate at s.15AD
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