Chapter 16:

Legislation
PRESENTATION PREPARED BY:
VILLARUEL, JOSEPH CARLO S.
EH-401 LLB
PHILOSOPHY OF LAW

Prologue: Philippine Government

EXECUTIVE
DEPARTMENT

LEGISLATIVE
DEPARTMENT

Functions: Implement Laws

Functions: Create Laws

JUDICIAL
DEPARTMENT
Function: Apply/Interpret Laws

LEGISLATION

Is the practice whereby laws are made.

It is not merely the process by which laws are made, but also the
process that change and/or repeal laws.

This is an intricate and dedicated explicitly for law making

It is also a formal process that changes or repeal laws.

Who may exercise Legislative

Power?

Generally, legislative power is vested upon legislatures (Senate,

House of representatives)

- Although legislatures have other responsibilities (e.g.

canvassing of
presidential votes, conduct inquiries, review
contracts) their primary function is creating law. It is their raison
detre .

However in common law jurisdictions, judges may alter laws.

Judicial Legislation: The possible

problem with the masses.

The masses are aware that legislature is vested with the power of
legislation, however only a few are aware that judges or member
of the judiciary can provide changes to the law

The masses are aware that the judiciary is there to apply the law,
not to alter it. The public may see this as a detractor to the
legitimacy of their decisions in cases.

Continuation:

Legislatures are given the power of legislation expressly.

Also, members of the legislature are elective institutions.

Legislative membership is determined on a theory of fair
representation.

- E.g. In the Philippines, district representatives as well as

party
list representatives.

In stark contrast, the judiciarys members are not elected. They

apply for the post. For higher level courts, they are appointed by
another branch of government., the executive.

F.A. Hayeks critique of legislation:

LAW

Legislation

Independent of human purpose

Conscious work of individuals

It is independent of human will

It is responsible for the

coordination of free wills

They are sometimes named after

the politician who authored or
sponsored the bill.

Deviates from the impersonality

and universality that characterize
true law.

Legislation in Legal Theory

Legislation can be studied from the viewpoint of jurisprudence of

legal positivism.

Jeremy Bentham and John Austin posited that law is conceived as

a set of general commands issued by a sovereign and backed up
with the threat of sanctions.

It is stated here that a judges proper purpose is not the

establishment of rule, but the decision of the specific case.

Continuation:

Law made by legislatures are easily promulgated, and thus the

public is generally more cognizant of the law made by legislature.

Judicial legislation however are not so easily accessed by the

masses, only those who are in the legal profession who will be
cognizant of the judicial legislation.

Joseph Razs argument:

Legislative institution is dispensable in the modern positivist

vision of a dynamic legal system.

According to his source thesis, the proposition that law is valid

in terms of its institutional origin rather than its content.

He concluded that the existence of norm creating institutions,

through characteristics of modern legal systems, is not a
necessary feature of all legal systems, but that the existence of
certain types of norm applying institutions.

To end:

The legislature has a primary, first line responsibility to establish

the institutions necessary or appropriate in the everyday
operation of government.

Legislation is the process wherein laws are made. It is a formal

process that has to be followed to be deemed as valid.

Source:

Jeremy J. Waldron, Legislation. cited in Blackwell guide to legal

philosophy. pp 236-241.