PART Ⅱ Making Law

Good laws lead to the making of better ones.

——Jean-Jacques Rousseau

The task of creating new law （or changing an aspect of existing law），whether in the form of legislation or case law，is a solemn undertaking and a complicated one.

In terms of process，briefly，legislation is drafted and then debated and finally passed in Parliament.The process sometimes involves a public consultation.As for case law，the written judgment issued by a court as it decides a case contains legal reasons and principles which may serve as precedents for future cases.If there is more than one judge hearing the case，they may confer and discuss.

In either process，the substantive dynamics （see Fig.1） are essentially the same and should involve some or all of the following：

● examining the context of the subject matter and the policy concerns；

● applying notions of justice；

● considering the applicability of moral values；

● applying legal maxim；

● adopting established legal concepts；and

● crafting the legal principle and deciding its requisite elements.

The context must be the starting point of the exercise.Without a good appreciation of the scenario，its stakeholders and the problems and challenges，one cannot proceed meaningfully to lay down the law.The contextual inquiry helps the lawmaker identify the practicalities and the relevant policies and arrive at the key objectives of the relevant law.We explore these in Chapter 3.

The next step is instinctual to the lawmaker as relevant notions of justice surface in his mind.To clarify，a notion of justice is different from a desired quality of a legal framework.Notions of justice are not what people think justice should be，that the law is simple，coherent，consistent，predictable and comprehensible，or that the legal system is accessible，affordable and expeditious.

Rather，we are talking about the idea of justice itself.There are many notions of justice but there are a handful of fundamental ones，namely，fairness，reasonableness and honesty.Each of them figures prominently in many areas of law and will be discussed in Chapters 6 to 10.

As the boundaries of the law are being considered，there is also a delicate task of deciding the extent to which the law should encapsulate moral values.As a rough delineation，morality requires each of us to do good and not to do evil，whereas the law only requires us not to do evil.Beyond such generalisation，there are many situations of controversy.The relationship between morality and law is discussed in Chapter 5.

Another important part of the lawmaker’s armoury is legal maxims.These are wise sayings of general application，such as “No one should be a judge in his own cause”.We discuss legal maxims in Chapter 11.

In the process of crafting，the lawmaker may also utilise relevant established legal concepts and doctrines.As an example，so far as fault is concerned （see Chapter 12），a concept the law sometimes uses is constructive notice，which means notice or knowledge which a reasonable person would have.So，where this is thought appropriate for the matter at hand，the lawmaker may include constructive notice in crafting the principle of law.

The legal world abounds with concepts and doctrines.

There are numerous legal concepts and in crafting new law，the lawmaker will naturally refer to and borrow from these concepts，just as he consciously （more often，subconsciously） applies the notions of justice and legal maxims.The notions，maxims and concepts are part of the armoury of law the lawmaker has at his disposal.

A good lawmaker understands fully the context that he is dealing with and the relevant policies，decides the extent to which ethics and morality should be imposed，and uses notions of justice，legal maxims as well as established legal concepts to craft the law.If he does so skillfully and wisely，the resultant legal principle will be robust and optimal.

Fig.1：Dynamics of Crafting Law

（numbers indicate the chapters in which the topic is covered）