Acts of Parliament as a source of law
“A statute is a legislative enactment
which goes as far as it goes and no further”
William K. Townsend[1]
As John Stuart Mill said in Representative Government (1861), parliament is ‘the sounding board of the nation’[2]. JAG Griffith and M Ryle further developed that idea by describing parliament as ‘the recipient of a wide range of external pressures and proposals and suggesting that the central feature of parliament is to ‘perform a responsive rather than initiating function’.[3] Hence, the main function of law-making bodies, in broad perspectives, is to communicate the preferences of the citizens into the written form (i.e. statutes or acts). As William Townsend, professor of law at Yale University, puts it: a “statute” is a legislative enactment which goes as far as it goes and no further[4]: that is to say, when a case arises which is not within the precise statutory language, which reveals a gap not foreseen by the draftsmen, then the court should put the statute out of mind and reason according to the basic principles of that particular legal tradition. In present time acts of legislative bodies, be it in a civil or a common law country, are considered as the main source of almost all national legal systems. The practice of countries with different legal traditions shows the increase in the number of acts of the legislative bodies, which in turn appears to suggest the inevitable harmonization of the two systems covering almost all jurisdictions. Therefore, the purpose of this paper is to carefully analyze and describe the role of acts of parliament as a source of law and to point out some of its very distinctive features that are peculiar to the civil or common law legal systems.
Effect of Origins to the Role of Statutes
Consideration of the Origins of legislative proposals is vital in evaluating the extent to which legislative branch of government interact with the society they are elected to serve.[5] Being based upon particular origin, each act of parliament obtains its role, importance, power and functions not only in accordance with the legal or historical peculiarities of the system within which it operates, but also does it depend on the origins of the proposals to its enactment. Legislative proposal (hereafter ‘bill’), which is a formal document prepared in the form of a draft Act, is no more than a proposal for a law or a change to the law.[6] A bill becomes an Act — a law — only after it has been passed in identical form usually by both levels of parliament and has been assented to by the head of the state. It is worth to note that while countries and legal systems differ from each other vastly, legislative bills almost in all jurisdictions fall into the same classification. The majority of bills is proposed in the interest of public and consequently holds the name of Public Bills, which perform general application to all members of society after their transformation into statutes. National Health Service Acts, as an instance, are applicable to all citizens, in contrast to Private Bills that affect only an individual or bodies within society. At the intersection point of these two types of bills Hybrid Bills can also be brought to consideration.[7] Another type, namely Money Bills, do not differ much from Public Bills, since they contain nothing other than fiscal measures that concern the entire population. Concerning all above mention types of bills, there exist Consolidation Bills, which purely represent the chance to ‘consolidate’ all the laws on a particular matter within one statute.[8] The original ideas for government legislation bills come from various sources. They may result from party policy, perhaps announced during an election campaign, from suggestions by Members and Senators or from interest groups in the community. Many proposals, especially those of a routine nature which may be thought of as matters of administrative necessity, originated in government departments.[9] The act originated from a party manifesto may play an enormous role in providing basic improvements within the state, perhaps, concerning the lives of the voters or even the means by which the government would be run. Private Bills coming from interest groups might probably (as both names openly suggest) function as provision of rights and responsibilities of a particular group or a lobby organization (the best example would be The Abortion Act 1967, UK). In the cases of urgency or necessity, acts would be regarded as response for a particular situation and are derived from reactive legislative bills. The Dangerous Dogs Act 1990, UK, for instance, is an immediate response to the increased number of dogs causing serious injury, particularly to children. Each of these proposals from various origins may result in acts or amendment to acts and later be included in statute books or civil codes (in the case of continental legislatures).
Power and Importance (Reception of Statutes into the Body of Law)
Different legal systems (even different countries) regard the power and importance of the legislative statutes in their own distinctive way and four ways, as suggested by Roscoe Pound, may be conceived of in which statutes may be employed as source of law[10]:
· Statutes might be fully received into the body of the law as affording not only a rule to be applied but a principle from which to reason, and be held, as a later and more direct expression of the general will, of superior authority to judge-made or other sources of law on the same general subject; and so reason from it by analogy in preference to them;
· They might receive acts fully into the body of the law to be reasoned from them by analogy the same as any other rule of law, regarding it, however, as of equal or co-ordinate authority in this respect with judge-made rules upon the same general subject;
· They might refuse to receive them fully into the body of the law and give effect to them directly only; refusing to reason by analogy but giving a liberal interpretation to cover the whole field they were intended to cover;
· They might not only refuse to reason from them by analogy and apply them directly only, but also give a strict and narrow interpretation, holding down rigidly to those cases which they cover expressly.
The fourth hypothesis represents the orthodox common law attitude toward legislative acts, while the third hypothesis, however, represents more nearly the attitude toward which most of the common law countries are tending. The second and first hypotheses may appeal to the common law lawyer as absurd and more likely to be greatly welcomed by their civil law counterparts.
Power and importance (Judicial Control)
Another area, which includes in itself many peculiar features of each legal systems and clearly points out the discrepancies even between states with the same legal roots, is the accountability of the acts of parliament to the doctrine of judicial control. The comparison of the powers and the importance of the statutes within different jurisdictions would not be fully described without mentioning the doctrine of judicial review that merely fuses the three branches of power[11] (if such doctrine exist in the legal system of a particular state) and makes statutes accountable to the consideration of judges. While the doctrine can exist only in a government where there is a division of powers and a written constitution, it is not, as is often asserted, the necessary outgrowth of such a system.[12] There are many nations now living under written constitutions, but this power seems to be confined exclusively to the American courts. The question has been much discussed by jurists in Germany and Switzerland, and while there are vast majority of those claiming the power for certain courts in both these countries, the current of theory and practice is the other way.[13] In Spain the supreme judicial tribunal may scrutinize the work of cabinet ministers, but cannot set aside the legislative acts.[14] In France, similarly, such control exercised over the acts of administrative authorities, while regarding acts of parliament there is an almost entire absence of both executive and judicial control.[15] The Court of Cassation, therefore, cannot question the validity of a law which has passed the Senate and the Chamber of Deputies.[16] In Germany a law passed by the Bundestag and the Bundesrat is beyond the reach of the Bundesverfassungsgericht (Supreme Court in Germany).[17] In Switzerland the supreme federal judicial power is vested in the Federal Tribunal, the members of which are appointed by the federal legislature.[18] The jurists of Belgium maintain, in theory, that an act of parliament opposed to constitution should be disregarded by the courts; but even since the independence of Belgium the power does not appear to be exercised.[19] A legislative act, in the case of UK being the joint act of crown, lords and commons, is a sovereign act and beyond control. A few eminent judges have, indeed, claimed for the English courts power to limit this absolute supremacy of Parliament by introducing judicial control, but it was never generally admitted and is inconsistent with the theory of the British constitution[20]. It remained for the colonists, which included most of the current common law countries, to carry the principle of judicial control further and apply it to legislative as well as to executive acts. When they came to lay the foundation upon which to build new governments, they did not break with the past, but reproduced, as far as was consistent with their circumstances, what they conceived to be the English constitutional system.[21] Consequently we find in the new governments (almost all former commonwealth countries) the same general division of powers with the additional system of checks and balance. The doctrine of judicial control, therefore, clearly draws the line between the two legal systems not only in terms of role of acts, but also regarding all of their peculiar traits.
Functions and Interpretation of Acts
Legislators, in the usual course of events, cannot foresee the extent of circumstances the statutes would cover, and if foreseen, their original intent cannot be clearly expressed. This might be due to the ambiguity within the meaning, though not in the words of the legislator; or the lack of precision within the letter, which may be contrary to his meaning, though not expressly excepted. As a source of law, one of the primary functions of the acts is to deliver the original message of the text as intended by legislators. Continental law-makers, as proposed by Ernst Freund (Professor of Law in the University of Chicago), are generally treated to be in “good faith” while formulating the law and the presumable intent of the legislature represents the principal guide of interpretation.[22] In many cases, however, presumptions will be so equally balanced as to leave us without any guidance on this basis. General principles of construction permit qualifying rules of law of a subsidiary character to be read and used into a statute, though not therein expressed.[23] Continental jurists recognize the possibility of authentic interpretations by which the legislator declares the true meaning of a law by which courts are to be guided. Such authentic interpretation has retroactive force (as a judicial interpretation has), and this was expressly declared in the original draft of the French Civil Code.[24] German and French legislation is overlaid by legislative and executive instruction to an extent unknown in England and America, while it is also possible to give effect to a statute literally and to refuse the application of these qualifying rules. The legislative statutes within the civil law countries, therefore, seem to carry an additional burden of being constructed as comprehensible and restricted to the intended meaning as possible so as to avoid formal violation of the law and its erroneous application from incorrect interpretation. The oft-cited conception of judge-made law in common law legal system acts as a key discrepancy between the two systems, though not as a source of law (at least not in this case), but rather as a qualifying rule in interpretation of statutes. As stated in Wood’s Institutes (1722)[25] and further developed in Blackstone’s tenth rule (1765), “the surest construction is by the reason of the common law”.[26] Where a gap has been left by any statutory rule, it is filled up, according to common law approach, by reference to the precedents (which can be compared to the retroactive character of authentic interpretation in civil law legal system). The American (and most probably the common law) view that the legislative interpretation is not binding upon the courts can be supported best with the theory that interpretation has historically been a specifically judicial function, which is currently highly unlikely to be given up to the Congress. This line of judicial interpretation and strict liberal construction is a mere difference between the countries within the common law and continental law jurisdictions, making the acts of parliament in the latter to include a more descriptive text and in the former the historically developed general principles of precedents.
Conclusion
Today most states recognize that legislation is the more truly democratic form of lawmaking. The rapidly increasing role of parliamentary acts as a more direct and accurate expression of the general will has, logically, proved to be immensely essential. The analysis of the origins successfully confirmed this generally believed and most probably accepted idea through providing various examples of proposals originated and developed not only at governmental or legislative level, but also at the level of individual intervention. Common law judges are fond of saying that they apply old principles to new situations. But at times they must apply new principles to situations both old and new. The new principles are certainly in legislation. Many writers claim that the Common Law and Civil Law are already harmonizing, yet there are so many peculiar features of the two, including their basic structure, the role of legislation, accountability to judicial control, interpretation through precedent and their mode of reasoning, which have remained mostly intact despite peripheral changes. Thus, harmonization, let alone a convergence, appears unlikely in the near future.
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Used sources:
[1] William Townsend, ‘Legal Realism: Its Cause and Cure’ (1961) The Yale Law Journal <http://www> accessed 26 October 2011.
[2] Hilaire Barnett, Constitutional & Administrative Law (4th edn, Cavendish Publishing Limited 2002)
[3] JAG Griffith and M Ryle, Parliament: Functions, Practice and Procedures (Sweet & Maxwell 1989).
[4] Townsend (n 1)
[5] Hilaire Barnett, Constitutional & Administrative Law (4th edn, Cavendish Publishing Limited 2002).
[6] ibid.
[7] ibid; the bill regulating the development of Channel Tunnel is an example of a Hybrid Bill, since it is in public interest and also affected the private rights of landowners whose land would be compulsorily purchased.
[8] William Townsend, ‘Legal Realism: Its Cause and Cure’ (1961) The Yale Law Journal <http://www> accessed 26 October 2011.
[9] Hilaire Barnett, Constitutional & Administrative Law (4th edn, Cavendish Publishing Limited 2002).
[10] Roscoe Pound, ‘Common Law and Legislation’ (1908) 10/2 Harvard Law Review <http://www.jstor.org/stable/1325404 > accessed 3 November 2011
[11] Colin Munro, Studies in Constitutional Law (2nd edn, Oxford University Press 2005).
[12] Elliot Charles, ‘The Legislature and the Courts’ (1980) 5/2 Political Science Quarterly <http://www.jstor.org/stable/2139554> accessed 6 November 2011
[13] ibid.
[14] ibid.
[15] Elliot Charles, ‘The Legislature and the Courts’ (1980) 5/2 Political Science Quarterly <http://www.jstor.org/stable/2139554> accessed 6 November 2011
[16]ibid 225.
[17] ibid 225.
[18] ibid 226.
[19] ibid 226.
[20] which is inappropriate to bring the question of constitutionality of the Acts of Parliament when the main body of the constitution consists of the Acts.
[21] Charles (n 1) 227.
[22] Ernst Freund, ‘Interpretation of Statutes’ (1917) 65/3 American Law Register <http://www.jstor.org/stable/pdfplus/786055.pdf> accessed 4 November 2011.
[23] ibid 209.
[24] ibid 211.
[25] Roscoe Pound, ‘Common Law and Legislation’ (1908) 10/2 Harvard Law Review <http://www.jstor.org/stable/1325404 > accessed 3 November 2011
[26] ibid 401.
