Legislative Process: Understanding the Legislator’s Role
**Unit 17: Legislative Process for the Right**
**Legislator’s Role in Law Creation**
On the role of the legislature in drafting the law, there are two well-defined schools:
**Natural Law School:** This school maintains that the law is the product of reason, a mere result of human thought. It is the product of reflection, where man discovers a set of ideal rules of conduct, immutable, universal, and perfect as natural law. This school sees natural law as superior to the will of the legislature and believes it must provide direction and guidance to positive law. These rights exist, and reason makes man believe in and respect them. The legislator draws on natural law, and when the law is created by man, it is inspired by natural law, such as human rights.
**Historical School of Law:** This school posits that law is formed by social uses and appears or is manifested in the usual form. The generating element of law is not, therefore, the will of a legislator, but the popular consciousness, the spirit of the people. Thus, the supremacy of reason is replaced by popular belief, of which the right is the spontaneous product. A number of factors influence the creation of the rule, including historical, political, religious, and economic factors that exist at any given time, as well as factors such as climate and politics, among others.
**Generating Factors of Law**
Experimental Factor: This factor immediately engenders the right, but under the direction of the rational factor. It consists of the desire for social harmony, which originates in the social environment and the permanent nature of man. When we talk about the experimental factor, we are referring to what is lived, that is, based on experience.
The Social Environment: As an experimental factor, the social environment is where the right originates. It is a living environment, that is, society, whose experiences and needs must be met and served by positive law. This is how harmony is maintained in a society where there is no right. Society is a source of law, as it is a way of protecting the human species. Therefore, the legislature must always consider its data to develop healthy rules of law. Before any actual data, those which consist of factual circumstances in which humanity is placed should be sought. It does not matter that they concern the moral or physical nature, which are the factors by which man is surrounded, such as climate, soil, anatomical and physiological constitution of man, psychological status, aspirations, moral, religious feelings, and so on, or economic conditions that influence his activity, and even the existing social or political forces.
The Permanent Nature of Man: The legislator should take into account the data supplied by the permanent nature of man, covered by the experimental factor, as the physical sciences and morals do not present. The data of the permanent nature of man provides the fixed component of law, that is, a part of man that is static and does not change, anything related to the private part of man (marital status, registration, identification, etc.). This does not change, and as shown, the latest amendment to the civil code was in 1982, meaning all those rules are permanent and slow, which is not true in other branches.
Rational Factor: This is the second factor that generates legal rules and is translated by the notion of law. It is based on reflection and requires a balance so that neither the experimental, historical, nor political factors go beyond the legislative intent. Thus, the conscience of every man who reflects posits a regulatory principle, superior to contingencies, which is responsible both for defining social harmony in its essence and for indicating the means to achieve it. For example, we often see in the country that many rules are made more for policy or the intention to solve a political problem. The work of the rational factor is responsible for ensuring this does not happen, that no one factor is above the other, and that the common good and security for all are always sought through the standard.
**Strict Law**
The law, in the strict sense, is one of the forms that the right demonstrates. We understand by law any mandatory rule of social conduct, impersonal and permanent, issued by the government. In our legal system, that is written law. Law as a source of law acquires its greatest importance and is our formal source of law.