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Some Neglected Factors in Law-Making1

Published online by Cambridge University Press:  02 September 2013

Ernest Bruncken
Affiliation:
Library of Congress

Extract

An obscure member of a legislative body dictates to his stenographer a document called a bill and submits it to the legislature. The bill goes through all the various stages provided, receives on its way more or less desultory discussion, mostly of an ex parte character, is adopted by a legislature, of whose members a majority have but the slightest, if any, acquaintance with its contents; is signed by the governor, and now has become a part of the law of the land.

In some law report, I find that a learned and famous judge, speaking on behalf of his brethren of the bench, with whom he has first consulted, enunciates a certain unfamiliar rule as being the law of the land. The court has come to this conclusion, not hastily nor without a serious attempt to understand the rule in all its possible bearings, but after careful study, assisted by the written and oral arguments of able counsel, who on their part have made an elaborate and profound study of the question, from differing points of view. Moreover, the question had already been considered, with hardly less thoroughness, in the court from which the case was appealed.

Type
Research Article
Copyright
Copyright © American Political Science Association 1914

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References

2 Hadley, , Freedom and Responsibility, p. 30.Google Scholar

3 The whole passage from which these words are taken might well be emblazoned on the walls of every legislative chamber: “Erit lex honesta, justa, possibilis, secundum naturam, secundum patriae consuetudinem, loco temporique conveniens, necessaria, utilis, manifesta quoque ne aliquid per obscuritatem in captionem contineat, nullo privato commodo sed pro communi civium utilitate scripta.” S. Isidoras Hispalensis, Etymologiarum, Liber V., cap. 21. Migne, , Patrologia Latina, vol. 82.Google Scholar

4 Corruptissima republica plurimae leges.” Annales, iii, 27.

5 Politics, ii, 8 (1269a).

6 Staatenverbindungen, p. 9.

7 See Holiday's, Life of Lord Mansfield, p. 179.Google Scholar For additional cases in which acts of parliament have been held void: Dr. Bonham's case, 8 Coke, 118; Day vs. Savage, Hob. 87; City of London vs. Wood, 12 Mod. R. 687.

8 Summa theologiae, Pars ii, quaestio 96, art. 2.

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