Legislative Principles: The History and Theory of Lawmaking by Representative Government

Legislative Principles: The History and Theory of Lawmaking by Representative Government

Legislative Principles: The History and Theory of Lawmaking by Representative Government

Legislative Principles: The History and Theory of Lawmaking by Representative Government

Excerpt

Priests and judges would commonly be thought of as "lawdeclarers." The word "legislator" ordinarily conveys the idea of one chosen by his fellows, usually by vote, to enact laws. Whether law-declaring or law-making, the function during some part of the world's history and in many countries has also been performed by individuals known as kings, or emperors, or by rulers with corresponding title. Perhaps "monarch" is the best designation for our purpose, since "monarchy" means literally the rule of one. If Sir H. S. Maine and Fustel de Coulange are right in their theories, then monarchy is a comparatively recent development in respect of the legislating power. It would be interesting to see if this is borne out by the history of Egypt, Persia, China, Japan, Mexico, Peru, but that would take us too far afield. Our institutions are either Teutonic or Roman and it is enough for present purposes to recognize that they have had law-declaring or law-making monarchs as a feature only in that period of time commonly known as the Christian era, that is, for something less than two thousand years.

With the change of Rome into an empire, the Roman lawyers had to justify the assumption of power by a single Roman. Ulpian did it by saying: "That which is decided by the prince has the force of law, because the people delegates its authority to him by the lex regia which raises him to the empire." Most of the Roman lawyers of the Middle Ages interpreted Ulpian in the sense that, though the people were to be considered the original source of authority of the prince, they surrendered their authority once for all. This was the theory later on developed by the Jesuits.

The Norman Conquest brought into England the Roman theory, and the Norman Kings presently began lawmaking, which the Saxon Kings had never tried. The early history of the procedure is full of uncertainty. There is, however, reason to believe that it started with a custom permitting the King to issue proclamations for the enforcement of law. The custom grew until at last the King began to issue proclamations, not for the . . .

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