ETH, STP

PIPP: Characteristics of Law

Public Institutions and Policy-making Processes (PIPP) covers three modules: Law, general (Public) Institutions, and European and International Institutions in particular. The first part of the course will be about law. The focus is not on becoming a lawyer, but rather to be able to understand the thought processes behind legal decisions and their implications.

Creation of Laws

One reason for laws is to regulate behaviour. For instance, it is prohibited in Zürich to own dangerous dogs (prohibition). Additionally, any dog owner must have an insurance to cover for any remaining danger from dogs (order). Another case would be the federal decision to drive on the right side in Switzerland (coordination).

Another reason for laws it to create predictability. Zoning laws are a classical example where rules are placed on how buildings must be developed to guarantee safety, aesthetics, social demands and more.

Another field for laws is to protect freedom. Usually fundamental rights are defined in a constitution and must be uphold by the government. For instance, “every person is equal before the law”. Specifically, the laws where created to protect the people from the government. However, in some areas it has been expanded to the private sector. In the case of Switzerland the equal pay is written into law, but all other laws applicability is usually decided in court.

An issue that comes up at the point of creation of a law is that it also represents societal interests which  may contradict previous law. In Switzerland the constitution guarantees no discrimination. To increase women participation in the work force laws to prefer women in hiring over man could be enacted which in turn could be seen as discrimination against male workers.

Interpretation of Laws

Disputes about the law are more often about whether a law applies or not (burden of proof). Usually laws are applicable even if a person may not know about it (ignorance does not protect from punishment). However, the knowledge must be attainable. For instance, retro-active punishment for new laws is usually not allowed. Some laws (usually parliamentary or judicial) are published to a collection, it is assumed that people then know the law or could have known the law.

If laws are enacted by an entity other than the parliament, they may be published in a written form or not. The rule of publication then could be attached to an act (e.g. drawing a no-parking line makes it a publication of the law to not park there).

Publication rules can be challenged in court if there is reasonable doubt that is was possible to acquire the knowledge from the publication. However, public interest can even supersede this. For instance, if a car is parked legally, but the parking regulation changes and the car is not moved within a reasonable time, it can be removed, even though at the time of parking it was legal. If the owner was on holidays for month he could probably not challenge his car being towed. Nonetheless, such cases are not part of the law and are often decided by court. This in turn means that cases that are similar, but not the same, it is often necessary to bring forward similar cases.

Courts are ordered hierarchically and decisions can be fought on each instance. In the first instance a ruling is usually not nationally bind, however, higher instances may become binding. In the Anglo-Saxon world (common law) a court ruling is binding without time limit. In civil law the highest court can review its position on previous ruling in a new case.

Back to the example of the parking. If a car is towed away by a private company. To reduce insolvency risks for the city, often the billing for towing is directly send from the company to the parking regulation violator. This is in contrast to usual contract law where both sides mutually agree on the contract. However, the car could be damaged in the process and the question becomes whether the city requesting the towing or the company performing the towing has to pay for the damages. The complication of a transaction is a major topic for the study of law.

Interpretation is difficult and courts often have to weigh between being activist and setting/changing the societal environment (e.g. the US Supreme Court case to allow gay marriage) and leaving the question open for parliament to decide.

Enforcement of Laws

Laws are generally binding and thereby enable the government to enforce the laws. These are usually covered by laws that specify the punishment. Specific sanctions include incarceration, fines and compensation.

Laws are created on different levels of governance with different scopes. Statutes are created by parliament and apply to the whole population. Court rulings are only applicable in a specific case trailed. Regulations are created by administrative bodies (in compliance with statutes) and apply to all citizens within the administrative body (e.g. students at university have to follow study regulations to obtain a degree).

“Soft law” are memorandums of understanding, codes of conduct or similar informal setups that have no formal enforcement mechanisms. Especially, between countries such arrangements are common. Enforcement is limited to reputation loss and reduced interaction.

Social Norms, Morality and Law

Morality and Laws are not the same. Laws are binary decisions where an action is either permitted or not. Morality sets standards to evaluate behaviours as “good”, “not so good”, or “bad”.

Trade-offs in legal decisions

Legal decisions often compare incommensurable values. One instance is the danger of monopolies in news sector for political discourse. Anti-trust authorities judge mergers on whether they cause monopolies and may stop them or require companies to sell of assets before they merge. Google acquired Doubleclick in 2007 (Story & Helft, 2007) and anti-trust authorities had to decide whether this causes negative effects for society.

Another instance may question whether efficiency or fairness  matter more. “Does a rancher have to pay damages if his cattle damage the corn of a farmer in the neighbourhood?” If fairness is considered the answer should be yes. If efficiency is considered, then it could be argued that the injured farmer should pay because he is the cheapest cost avoider – e.g. he should build a fence to stop the cattle from entering his ground.

In both cases the value/cost cannot be determined and therefore a policy decision must be made on what kind of law is preferred.

References

Story, L., & Helft, M. (2007, April 14). Google Buys DoubleClick for $3.1 Billion. The New York Times, p. 0. Retrieved from http://www.nytimes.com/2007/04/14/technology/14DoubleClick.html?_r=0

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