Law Makers (Law Series - 5)

Well there has been quiet some time that I wrote the last post in this series and then inner guilt made be come back to it. So here goes.

Law makers are the creepiest bunch in the legal system all together. We as those selecting the law makers are always skeptical about them and then we do not really have a choice. For in a democracy, law makers are people whom the citizens choose from amongst themselves through elections and give them a fixed term to legislate. In other versions of polity, say kingship, the King appoints as his council people he thinks wise and smart enough to understand the problems and perceptions of his subjects and make laws to deal with the same. Nonetheless, since these days there hardly remain any significant number of such political structures in the world and democracy is here to stay, I would deal with democratic institutions in the later parts of the post.

To begin with, we need to dealienate the role and place of the institutions coming into play. As any political scientist would put it, the legislature, judiciary and the executive, the three wings of the State. But why do I put judiciary first before executive when generally its the other way round. Because, ... because of their identification on the basis of the functions they perform. According to May (not the calender year but the name of a famous legal historian, ever heard of May's Treatise on Parliamentary Privileges), Legislature is that part of the State which performs the role of laying down rules to be enforced and complied by the citizens. Judiciary is one which is there to resolve the disputes amongst the citizens as well amongst the institutions. All the remaining functionaries of State are classified as the Executive. So technically even the Election Commission of India would be categorized as a part of State Executive, though a political scientist would frown over it.

So we have an institution which performs the role of laying down rules, or laws as I have put them in my earlier posts. [click here for what is law, why law] These laws are binding on the citizens for various reasons. Firstly because under the Constitution they have agreed to abide by and follow the laws in word and spirit. Second because these laws are a manifestation of the popular will (or 'General Will' as Rousseau puts it) as legislature represents the majority of the people and therefore what they say is considered to be coming from the people for themselves.


The above would be the simplest understanding of law makers but then there are issues involved as we tread a higher level. And the issue of separation of powers comes first. This relates with the idea pioneered by French political thinker Baron de Montesquieu, who based it upon (later found flawed) understanding of the British Parliament (but surprisingly the concept he pioneered stayed even though its premises was incorrect). He advocated that it would not only be wise and proper but also in the best interests of democratic values that the three wings of the state be made isolated from each other such they could work independently and also there could be a mechanism for checks and balance amongst themselves. It was pivotal for ensuring good governance.

So we have an institution which is devoted to making laws (i.e. legislature) and an institution which implements these laws (i.e. executive) and another institution which ensures that these laws are made and implemented with the spirit and allowed perspective under the Constitution of the State (i.e. judiciary). Therefore we have the power vested within a highest court of the State to declare the law made by legislature as unconstitutional being deprived of the inherent competency in the legislature (i.e. 'ultra vires' the legislature or simply put, beyond the power of the legislature given the limitations imposed under the Constitution) or for the reason of being a colourable devise perpetrating a fraud on the Constitution (this I would put as an innovation of the Indian Supreme Court and in the correct perspective). No wonder the United States Supreme Court (that too way back in 1803) declared in Mabury v. Madison that law in United States was what the Supreme Court said the law was.

The other issues associated with law makers, relate to the area of competence which the Constitution allots them; for example the Union Parliament in India is competent to make laws which are envisaged by the Constitution as matters relating to and of national importance (as under List I of Schedule VII) whereas there are clearly identified matters relating to state perspective and importance that are to be legislated by the State legislative assemblies. Then there are some matters which are left for the third tier of legislative (but basically self governance related) system of Panchayats wherein even they can legislature rules for their areas.

Similarly in the United States we have the doctrine of enumerated powers wherein the US Congress has the power to legislate upon the areas enumerated under the US Constitution whereas all other areas are vested to be exercised by the component states of the US federation. This is totally unlike Britain wherein all legislative powers are vested in the Houses of Parliament, which also suits the country given the small area is has to think off and given the lack of hetrogenic disparities as compared to India and US.

An essential feature of the making of the laws is the procedure for making them. Again, this procedure may either be prescribed by the Constitution or may be determined by the law-makers themselves. For example, in India while the Constitution prescribes that the law-making process shall set into action by the presentation of the ‘Bill’ by a member of the Parliament (called ‘Private Member Bills’) or by the Government (called ‘Government Bills’) and when is the law considered to have been made (in case of India it is when the Bill is passed by both the Houses and is signed by the President), the rest of the procedure is self-determined by the two Houses (i.e. Rajya Sabha and the Lok Sabha) and is termed as ‘Parliamentary Procedures’ (a huge code in itself). The procedure for law-making in the United Kingdom is similar to the above to a large extent with a series of well defined rules meant to ensure that the law-making procedure follows a full circle before they come to be implemented.

What we have hitherto discussed is essentially about the law-making powers and procedures in democratic jurisdictions. The state-of-affairs differ when it comes to other forms of State. For example, in Kingships (though pure Kingships are rare to find these days) the laws are still made both theoretically and practically by the King-in-Council which takes into account the needs of the governed subjects. The ways laws are made in such countries is purely the discretion of the King, who may or may not choose to follow self-imposed rules of good governance.

Apart from these domestic or national law makers, we also have a new group known as international law-makers. This has arisen on account of a new creed of international institutions which make binding rules which the independent nations are obliged to follow. While the rules made by earlier international institutions (such as the League of Nations etc.) were considered to be ‘soft law’ and therefore only of persuasive value, the later era of international institutions (such as the WTO, and arguably to some extent even the United Nations) have ensured that the rules framed by these institution are made binding on the Members and are followed with uniformity through out the jurisdiction of these countries. With the membership of these international institutions covering almost all countries of the world, they are increasingly been argued as international law-makers. How far it is true and how far not is currently within a subject-matter of intense scholarly debate but practically speaking, the world order has changed a lot since the dictum of these institutions has come to play.