SOSC 1375 A Introduction to Socio-Legal Studies Lecture 5 – Lawmaking Overview of today’s lecture Modes of lawmaking Examples of lawmaking Social conditions and lawmaking Models of lawmaking Creation of law as an ongoing process Rationalistic model Functionalistic model Conflict theory Moral entrepreneurial theory Rationalistic Model Laws created as rational means of protecting the members of society from social harm Functionalistic model Crimes are considered socially injurious Wide acceptance of these laws One of the more simplistic forms of lawmaking Who decides what’s socially injurious? Lawmakers and powerful interest groups are the ones who define what activities may be harmful to public welfare Value judgements preferences and other considerations obviously enter into the process of definition. Functionalistic Model Concerned with how law emerges A special kind of a re-institutionalized custom Lawmaking is essentially a restatement of customs For example, economic transactions, contract relations, property rights in marriage, or deviant behavior Essentially a crystallization of custom of the existing normative order Conflict Perspective Model Law emerges as a manifestation of the interests of the elite class Members of the elite class stand to gain as they reinforce their own advantageous positions According to this theory of lawmaking: In event of a conflict over the prescription of the norm interest groups more closely tied to the interests of the elite group would probably win the conflict. Moral Entrepreneur Theory Creation of a new fragment of moral constitution precipitation of key events leads to the creation of new individuals or groups These groups could then persuade society to develop or to enforce rules that are consistent with their own held moral beliefs Examples: LGBTQ2+ social movements, Gun control lobby etc. Legislation Deliberate creation of legal precepts Different from normative pronouncements in courts as they respond to specific issues of the law Legal proposition by a legislative body has greater authority How does a bill become law? Legislative lawmaking Response to specific issues Lawmaking done when a large group of individuals are affected by an issue Example of Bill C-36 Judicial lawmaking A complex process Empowers judges to strike down legislation and/or nullify actions of public officials Safe third Country agreement and its constitutionality Court case on the Safe Third Country Agreement Social forces and lawmaking Power impacts the lawmaking process Public opinion exerts influence on the lawmaking process PIRGs Laws are created because of the special interests of certain groups in the population Importance of wealth in accessing the courts Social forces and lawmaking (contd.) Mass media Case of Steven Truscott Social movements Action on violence against women and Bill C-68 Wet’suwet’en Protests Jury selection and peremptory challenges Peremptory challenges “Peremptory challenges are challenges that allow the prosecution or defence counsel to ask that any prospective juror be excused without providing any reason whatsoever” (Mirasty, 2018 – Edmonton Journal) R. v. Sherratt, a 1991 decision of the Supreme Court of Canada, “The modern jury was not meant to be a tool in the hands of either the Crown or the accused indoctrinated as such through the challenge procedure, but rather was envisioned as a representative cross-section of society, honestly and fairly chosen.”
