Law Making Process

There are various perspectives that explain lawmaking processes namely: the rationalistic model, the functionalist view, theory of Conflict and a moral entrepreneur thesis (Vago 2009 p. 163). From a rationalistic model point of view the design of laws are aimed at safeguarding the members of society from malice and social misconduct. This is the widely held perspective in lawmaking procedures (Goode, 2008 cited in. Vago 2009, p. 163). The challenges with such approach are the creation of objective laws, that is, laws free from bias and prejudice.

It can turn out that judges design laws that suit their interests; or better still, they define what activities to be regarded as crime or not. According to functionalism lawmaking is just but re-affirmation of the existing social customs (Bohannan 1973 Cited in. Vago 2009, p. 164). On the other hand, conflict perspective holds that lawmaking derives from economic class struggles in the society (Vago 2009, p. 164). It states that law originates from an elite class (Vago 2009, p.

164). In England, for instance, vagrancy laws were pushed by the groups that represented the dominant economic interests at the time (Chambliss 1964 cited in. Vago 2009, p. 164). The moral entrepreneur theory believes that laws originate from an enterprising entity (Vago 2009, p. 164). The judges through the courts are called upon to interpret the law. Moreover, ambiguity in law provides the judges with an opportunity to take part in lawmaking (Vago 2009, p. 174).

It is believed that antitrust statutes allow judicial lawmaking (Vago 2009, p. 174); furthermore, courts not only make law but they also implement policy to guide other businesses and government agencies (Vago 2009, p. 174). It is worthwhile to note that the origin of law is of a philosophical nature so this fact rules out any assumption that judges could be the originators of law. This study believes that there is a distinction between judges making law and judges being the originators of law.

In a court of law, for instance, judges follow proceedings and through consultations and use of conscience, they pass a verdict, either implicating that the defendant is guilty or not guilty. Obviously the judge will not make a law there and then that he will choose to judge the case, but instead he will refer the matter to appropriate statutory requirements. As mentioned earlier, judges do make laws and this is their duty, however, the lawmaking process always depends on another standard and the chain goes on.

This is why this study mentioned that understanding of lawmaking is of a philosophical nature. Therefore, just as how a mason will build a house following the guidelines or architectural work provided by the Architecture so will the judges follow natural law principles in making the laws. In general, this study believes that judges make law but guided by certain legal principles (natural law). Lawmaking process is not a direct action of the judges; recall the example of a mason and the design of the architecture.