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JURISPRUDENCE (12.00.00) LAWMAKING AND LEGISLATIVE PROCESS
DOI: http://dx.doi.org/10.14420/en.2016.2.1
Svetlana Boshno, Svetlana Vladimirovna Boshno, Doctor of Legal Sciences, Professor, President of Consulting and Legal Protection of People Foundation, e-mail: boshno@yandex.ru.
Legislation is been creating in the process of lawmaking. State and local authorities publish legal acts on important issues of social, economic and political life of the country. The article deals with stage of lawmaking, including the introduction of the draft, its acceptance and official publication of the law. According to the author, it is necessary to distinguish law-making process and the legislative process. Legislating is an activity for the publication of legal acts, and the legislative process deals with publication of legislation only by representative (legislative) bodies. The aspects of the technology of preparation of draft regulations. The article is a part of the textbook «Jurisprudence». law-making, legislation, legislative process, referendum, regulation, legal advice, types of law-making, stage of legislative process, legislative initiative, adoption of law, reading of law, bill, official publication, sources of official publication.
1. Lawmaking and Process of Law Formation
It is common for the Russian juridical doctrine to distinguish such terms as «lawmaking», «legislative process» and «the process of law formation». These terms are crucially important for the understanding of law in the civil (continental) law system. The Common law system does not appear to be concerned in such distinction of terms. There are quite many reasons for different understanding of the law and the process of its creation in different types of countries. They are historical traditions, legal technique etc.
A significant attention is devoted to the process of legal activity in the research works. Such questions as the terms and conceptions, stages of the legal activity, participants of the legislative process are sufficiently developed. This work aims a clarification of the special features of the process of law creation in Russia and in other countries, which follow the same model of understanding
Abstract.
Keywords:
of law. The elements of the comparative law research provide special value to this article as it unifies the terms of different legal doctrines: civil (continental) and common. The following concerns the Russian model unless we make a specific comparative notice to the contrary.
Lawmaking is a form of state activity, aimed at the creation of legal norms, their further improvement, amendment or repeal. This is the process of creation and development of the law in force as united and internally harmonized system of rules of general effect, regulating social relations. Lawmaking is a specific and publicly important activity directed at the establishment of legal regulations. Lawmaking conducts based on the following principles: democracy, legality, humanism, scientific character, professionalism, careful and thoroughgoing project preparation, technical excellence of legislation to be introduced.
It is vital to make a distinction between lawmaking and the process of law formation. Law formation involves scientific analysis, summation of reality, working-out of views and conceptions on future legal regulation, maximal consideration of proposals and remarks of political parties, social movements, individuals and their associations, practitioners and scientists. Law formation is the process of formation of political will expressed in legislative acts, and lawmaking is the activity of specific public bodies to draft and enact legal acts.
The major factors that influence the process of law formation are financial well-being of society resulting from the simultaneous existence of different forms of ownership, freedom of enterprise (economic factors). Under political factors, we mean the influence of political situation in the country, character of mutual relations between different layers of society and population groups, activity rate of political parties, movements and public associations. Degree of governmental and social care about a person, her interests and needs, security and guarantees of her rights and freedoms is crucially important for the creation of new legal norms (social factors). National factors like mutual relations, forms of cooperation between nations and nationalities also play a great role. Position of the particular state in the World Community, level of relations with other countries and international organizations also seriously influence lawmaking (foreign policy factors). Ideological bases of law, legal consciousness of citizens and society in a whole, degree of its absorbance by social consciousness, legal ideas focused on further development of legislation (ideological factors) also have important influence on law formation. Under organizational-volitional factors, we mean legal formation of governmental\political will via activities of its bodies authorized to enact legal acts.
Besides the above, lawmaking is influenced by subjective factor because of specific interest of participants of this process wrapped in legal form. However, public democratic process of lawmaking by engaging wide range of participants is less exposed to subjective factor.
2. Types of lawmaking
It is important to emphasize the difference that is made between two terms of Roman law - lex and jus - in the contemporary civil (continental or Roman-
Germanic) law systems (including, but not limited to, Russian legal tradition). Russian legal scholars distinguish two types of lawmaking: making of lex (i.e. statutes) and making of jus (i.e. law in general), where making of lex is a part of making of jus, but not the same. Lex being a legal act (statute) usually enacted by legislative bodies of a state is one of the main sources of jus. The system of creation of sources of law recognized by a state forms making of jus. Thus, this distinction seems to be quite important for common law systems, because of the recognition of case law (stare decisis) as the source of law what leads to increasing difference between making of lex and other sources of law. Criteria to be used in classification of the making of jus are:
- subjects of making of jus, i.e. body or person authorized to enact regulation. Their authority rests on legislative acts;
- procedures of enactment (legislative process, individual or collective decision);
- forms of regulatory legal acts (lex, bylaws).
- In accordance with these criteria, we can distinguish the following types of making of jus:
- making of lex;
- making of jus by executive bodies;
- making of jus by municipal bodies;
- making of jus directly by citizens (plebiscite);
- making of jus by virtue of contract;
- local making of jus.
Making of lex is the process of statute creation. Depending on the types of statutes enacted as a result of such activity one can identify the following types of making of lex. These are for the Russian Federation:
- Enactment of statute of the Russian Federation;
- Enactment of federal constitutional law;
- Enactment of federal law;
- Enactment of law of the constituent entity of the Russian Federation.
The key element of making of lex is the procedure that has several stages. Making of lex procedure is carried out only by legislative (representative) bodies. In comparison to other kinds of making of jus making of lex is the most long-lasting and engages the largest number of participants.
In the Russian Federation, making of jus by executive bodies is performed by the Government of Russian Federation, federal executive bodies. The legal acts of the President of the Russian Federation should also be considered as making of jus by executive bodies. The executive bodies of the constituent entities of the Russian Federation are also engaged in the making of jus of this type. Bylaws creation has no stages, but can have reconciliation procedures. Each body decides on its own on the procedure of preparation, reconciliation, discussions of future legal acts, their approval and signing.
The President of Russian Federation based on the Constitution and other statutes of the Russian Federation issues decrees, both of regulatory and
non-regulatory (individual, operative) nature. The Government of the Russian Federation authorized to perform the functions of public management on the federal level. It issues decisions within the scope of its authority.
The legislative authorities of the Ministries under the scope of their activities are stated by laws, legal acts of the President and the Government of the Russian Federation. The Ministries as bodies of personal leadership enact orders, as the governmental body in a whole they enact directives, rules, decrees, regulations. As a rule, directives and decrees are of regulatory character.
Bodies of executive and legislative branches of the constitutional entities of the Russian Federation perform legislative activities under the scope of their authority.
The bases of the legislative activities of the municipal authorities are stated in the Federal Law «About general principals of organization of municipal self-government in the Russian Federation». More specified regulation of this kind of legislative activity provided in the legislation of the constitutional entities and charters of the municipal units.
By enacting legal acts, municipal authorities ensure the solution of all local questions by the citizens directly or in virtue of elected bodies in accordance with the interests of the population and on the bases of material and financial resources assigned to a particular municipal authority.
Making of jus directly by citizens is performed in virtue of plebiscite. This process is held under the provisions of the Federal constitutional law «About the Plebiscite of the Russian Federation». On municipal level making of jus directly by citizens is performed by decision-making of community assemblies or municipal plebiscites.
The following features are typical for making of jus directly by citizens:
- it is held under the initiative of groups of citizens, population;
- voters whose will is legitimizing source for the decision participate in plebiscite;
- results of a plebiscite do not need any confirmation and have the major legal power;
- preparation and conduct of a plebiscite are performed by states bodies, election commissions or plebiscite commissions whose rights and obligations are aimed at ensuring full and free expression of will by population.
The text of the bill may be suggested for the plebiscite for people to express their opinion on it.
Making of jus by virtue of contract is the activity of governmental bodies aimed at conclusion of public contracts. The specific feature of this kind of lawmaking is the accommodation of interests of the parties, voluntariness.
The example of the lawmaking treaty is the Federal Agreement of the Russian Federation that is the legal base for creation of the Russian Federation. It provides norms about distribution of the authority among state formations as parts of the Russian Federation (constituent entities) and the Federation itself.
Conclusion of agreements on economical, political and other questions between the Federation and some of its constituent entities is practiced.
Making of jus by virtue of contract is widely used in the international legal relations. The states conclude treaties with different subject matter of political, economic, humanitarian nature among each other. The ratification of the treaty which is effected by adoption of a federal law on the ratification of an international treaty by the Parliament is essential for putting the treaty into force.
Local making of jus is the creation of acts by different groups and organizations regulating their activity, internal organization stating rights and obligations of their members. The Labour Code of the Russian Federation provides that local legal acts of the organizations, including norms of labour law are obligatory for this organizations.
3. Lawmaking process, its content and stages
The process of law creation (making of jus) consists of several stages: preparation, reconciliation, discussions of future legal acts, their approval and signing. Specific features of this process in Russia are further improvement of democratic basis of the creation of legal norms, publicity and professionalism, consideration of public opinion, increasing attention to the quality and theoretical basis of the legislative decisions taken, extensive involvement of the members of the scientific community to the creation and discussion of the legal acts.
The first stage of making of jus is preliminary performance of the state will (drafting of the project). This stage started by taking a decision of drafting of the project of the legal act and is expressed in adopted law-preparing works plans, the adoption of which is the essential part of the lawmaking process in the Russian Federation and some other states. An additional point is that such decision concerning the bills may be originated by the federal legislative body by means of giving instructions to the Government of the Russian Federation or some other body or group of bodies to work out the project of the act. The bill may be prepared at initiative of the President of the Russian Federation, the Government of the Russian Federation, other bodies and persons authorized to legislative initiative.
One of the stages of the lawmaking activity is to conduct preliminary works before drafting the text of the project. Before the beginning of the preparation of the project, it is important to indicate social need to regulate legally some sphere of social relations. First of all it is necessary to identify the current state (condition) of the specific sphere of social life (economics, politics, social sphere) to which the proposed act is devoted, the substance of the issue that is to be solved in the project and the general aim of the proposed legal regulation. The bills are prepared both in order to resolve some new questions, which arise in practice and seek for the legal regulation, eliminate the legislative gaps, outdated regulations and collisions, to replace the variety of acts on the same question.
At this stage the research on the current legislation on the matter is held, its current state (condition) and legal practice is analyzed. Drafting of the projects with no connection to the acts already in force makes the situation with
the legislative system worse, destabilizes it and brings internal collision in it. That is why it is vital to prepare some analytical report on the topic of the current legislation on the matter before starting a new legislative project. The research of the foreign legislation on the matter is also important.
The analysis of the legislation on the matter helps to answer the question whether it is possible just to amend the previous acts or it would be necessary to work out a new act. The economical, ecological and other consequences of the new act should be taken into account beforehand, as well as possible material costs, financial and other resources needed to resolve the problem, revenues, expenses etc.
The key provisions of the future act are worked out at the first stage of drafting the project. They are aimed at achievement of the project's targets, results required and improvement of the current legislation. In some cases it is necessary to develop a new scientific conception in order to draft the bill.
The next stage is the preparation of the text of the draft. The commissions are usually formed in order to work out important and complicated bills. Their members are the representatives of the interested bodies, nongovernmental organizations, lawyers and other specialists.
Legal departments of the bodies and organizations drafting the project participate in its preparation by all means in order to assure the high juridical culture of the project, its right formalization, following the rules of legal technique, its correlation with the legislation in force.
All drafts are usually preliminary discussed during committee sessions of the legislative body that are interested in the bill's adoption due to the field of practice they are engaged in.
The prepared drafts are subject to comprehensive legal, financial, ecological and other specialized examination in order to increase the level of preparation of the bill and the efficiency of making of lex.
The most important projects could be put to a public discussion. The publication of the commentary to the bill, interviews on the most burning issues connected with the bill in mass media in addition to the text of the bill itself may increase the efficiency of the public discussion. It is vital to ensure the maximum absorbtion and consideration of the proposals made during the public discussion. The mechanism of consideration and analysis of the proposals should be tried and tested.
After working out of the comments and suggestions to the project it is finally edited.
The second stage of the procedure of making of jus is when the work on the project comes to its official stage in the legislative body itself.
At this stage the will of state becomes the law, e.g. it gets the form. This stage starts with introduction of the project to the legislative body in accordance with the official procedure. The right of the official introduction of the bills to the superior legislative bodies (right of legislative initiative) is enjoyed by specifically authorized bodies, organizations and peoples usually mentioned in the
constitution. Therefore in accordance with article 104 of the Constitution of the Russian Federation the President of the Russian Federation, the Government of the Russian Federation, the deputies of the Russian State Duma, members of the Federation Council, the Federation Council in a whole, legislative (representative bodies) of the constituent entities of the Russian Federation, as well as the Constitutional Court of the Russian Federation, Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation on the questions under their authority enjoy the right of the legislative initiative.
The bill is submitted together with the memorandum providing for the necessity of the bill, detailed characteristic of its goals, aims and the key provisions of the future law and its place in the current system of law as well as the expected consequences of its enactment. The financial and economical information is enclosed when the bill requiring additional expenses is submitted. The letter with information concerning changes, annexation or cancellation of some acts that are required as a result of the enactment of a new law is also attached to the bill. In case the bill require the use of funds of the federal budget or its subject refers to part 3 article 104 of the Constitution of the Russian Federation it is essential to get opinion letter of the government of the Russian Federation beforehand.
The next stage of the process of making of jus common for collegiate legislative bodies is the inclusion of the bill to the agenda of its session. This is the start of the discussion and official enactment of the bill.
In Russia consideration of the bill usually consists of three readings in case the legislative body does not decide to change this procedure for a particular bill. The practice of having several readings on the bill gives the opportunity to examine it more attentively and in details, to amend it and therefore ensure the enactment of more circumspect legal decision.
During the first reading of the bill the report of the bill's submitter is presented as well as the co-report of the responsible committee. After that the deputies discuss the key provisions of the bill, provide their suggestions and corrections in the form of amendments, resolve the question whether to publish the bill for public discussion. In case the bill is approved at the first reading, the deputies decide on the term for preparation for the second reading.
The submitted amendments are considered and the bill is prepared for the second reading by the responsible committee or other body, engaged to perform the improvement of the bill.
During the second reading the head or the deputy head of the responsible committee presents the report. He informs on the submitted amendments, comments on the amendments. The discussion is held provision by provision, section by section or in a whole.
As a result of the second reading the bill is either approved or declined, or recommitted.
Every provision, section or chapter is put to vote one-by-one. After any provision (section or chapter) is approved in principle, all written amendments thereto are put to vote. In case several amendments are submitted to one
provision of the bill, that amendments, decision upon which will help to resolve on the remaining amendments, are put to discussion and vote at first place.
After discussion of all the amendments a provision (section or chapter) with the approved amendments incorporated is approved in a whole. Later on the bill is approved in its entirety. The procedure of the votes counting is stipulated in the rules of the legislative body.
There exists a third reading in the State Duma of the Federal Assembly of the Russian Federation. In accordance with the Rules of the State Duma the bill approved at the second reading should be sent to the responsible committee of the State Duma in order to remove possible internal contradictions, to settle proper interactions among the provisions of the bill and editorial correction, which is necessary as a result of those amendments approved at the second reading. Either any amendments or its further discussion (provision-by-provision, section-by-section or in a whole) are prohibited during the third reading. The bill must be voted in a whole.
In accordance with the Rules of the State Duma there may be reconsideration of the federal laws declined by the Federation Council or by the President of the Russian Federation.
The Federation Council participates in the enactment of law by the Federal Assembly of the Russian Federation. Its participation is obligatory for enactment of some laws (e.g. laws about ratification and denunciation of the international treaties and some other laws) and is optional for other laws. Thus if the Federal Council did not admitted to consideration the law within 14 days it is regarded as its consent and the law is sent to the President for his signature.
Promulgation is the final stage of the process of making of jus. Promulgation is held in specialized bodies in accordance with Federal law «About promulgation and implementation of federal constitutional and federal laws and legal acts of the Chambers of the Federal Assembly of the Russian Federation». Then federal and federal constitutional laws published at «Svod Zakonov Rossiyskoy Federatsii», «Rossiyskaya Gazeta» and «Parlamentskaya Gazeta». They also published at the site pravo.gov.ru.
Promulgation is the condition for the implementation of laws. Any legal acts affecting rights, freedoms and obligations of an individual and a citizen must not be applied if they were not officially promulgated (published) for general public.
Legal acts issued by the federal bodies are promulgated (published) at the bulletins of these bodies (if there are such) and in accordance with official procedure are sent to subordinate bodies, institutions, and organizations. Legal acts of municipal bodies are promulgated via publishing at the corresponding bulletins and are strung up in public places.
4. Legal technique
Legal technique is a system of rules and techniques, based on the legal practice and theory, worked out to draft the projects of legal acts in order to provide the most full and exact correlation between the form of regulatory norms
and their substance, make them user-friendly, achieve the readability and easy guidance, exhaustive coverage of the governed questions.
Accordingly, the legal technique covers a variety of law making procedures: defining the subject of law, choosing a form and structure of the act, the language and others requirements to its content and registration.
The most important problem of the legal technique is defining a bill's subject. The subject of legal regulation is made of public relations that should have two obligatory characteristics:
- They shall require corresponding regulation;
- They can be a subject of legal regulation by nature.
The subject of the law can be made of only public relations having essential character.
The subject of the bill can be really clarified and explained only on the basis of deep studying of the existing legal material. A special attention when defining the subject of the bill should be given to direct analysis of the current social practice. Only such approach will allow the law to convey public interests. Zh. Zh. Russo described this requirement to this preparatory work delicately and brightly. He compared a wise lawmaker with an architect who, prior to erecting a building, surveys and studies the soil to learn whether it will support its weight. The lawmaker does not start to write laws at random, he preliminary tests whether the people for whom they are intended are capable to obey them.
The choice of the form of law tightly connected with the understanding of the subject of law. Difficulties arising in solution of this problem have different reasons. The main reason related to variety of law types and simultaneous absence of their approved legal classification.
The legal technique involves a number of recommendations related to the structure of legal acts since different acts have their own specifics. Let us focus on the law.
Each law shall have a name, which allows to define its subject immediately, the scope of public relations regulated by it. The law name shall be laconically formulated at the same time reflecting its basic content. The name of the law regulating a certain sphere of public relations shall differ from the name of the law changing earlier adopted legal acts. In the first case the key content of the law shall be shortly specified; in the second - it is necessary to list or describe full names of the acts changed by the new law.
The preamble is an introductory clause of the law, describing the reasons for its adoption, its objectives and purposes. It describes the reasons for law adoption and its political, economical or social and cultural value. The preamble is not necessary.
The basic part of the law is its legal content including instructions, permissions and restrictions. The legal substance of the law shall be stated in logical order with division to articles which, in turn, are itemed with a digital designation or divided to parts, each beginning with a new paragraph.
Articles, paragraphs, chapters and sections of the law shall have special subtitles laconically depicting their essence allowing quickly finding a necessary provision.
In most cases the legal part of the law is stated article by article according to the scheme «if - then» followed by unfavorable after-effects (sanctions) which come into forces under non-execution or breach of the specified norm. However, it should be noted that the unfavorable after-effects (sanction) are not always contained in the given article; they can be specified in other articles of the law or even in other legal acts.
A special section of the legislative technology is the law language. Its importance is caused by the fact that the law influences the legislative will, serves as information transfer of the legal substance. The language realization of a legal act provides the legislative will with integrity, completeness of forms, convenience in studying and application. A legal act is a written literary work, and it shall meet the same requirements as any other writing work. Besides, a legal act is one of the subtypes of the official business product along with other acts and documents having legal value.
When developing a sense of law in the form of a legal act, special language aids developed for the given sphere of lawmaking are used, i.e. mainly or even exclusively used in the specified field. It gives grounds to specify the legislation language as an independent literary style based on special social objectives facing the law, a specific way of depicting the subject, and characterized by special compositional and stylistic means, a special vocabulary to express a sense of the law. The brightest features of the law language are:
- An official and documentation character for external language expression of the sense of the law;
- Its clearness and simplicity;
- Maximum accuracy of expression.
It is possible to specify the following requirements to the law terminology:
- Use of terms with accurate and strictly defined meaning;
- Use of words and expressions in narrower or special meaning compared to that in a general standard language;
- Use of words and expressions in their direct and primary meaning;
- Refusal from ambiguous and polysemantic terms;
- Use of uniform terminology through the entire legislation or through its large sections, which shall mean that one and the same term in different legal acts should be used in one and the same meaning. Different legal notions shall not be denoted by one and the same term.
The legislative technology specifies the following requirements to the style of presentation:
- Logical order and harmony in presentation of the sense of the law, its notional completeness;
- Uniform methods for presentation of the same type formulations, though in matter they may be different from the informational point of view.
Observance of the specified conditions will improve quality of adopted acts as to their form and will serve for stability of legal acts.
Thus, the main source of the legislation in the Russian Federation is the activity of the governmental bodies and authorities. Other people participate in the creation of legal acts quite rarely. The plebiscite is the most rare event in the political life of the state. Local legal acts are used within a limited area and govern the activities of a limited number of people. The situation is a bit transformed due to the fact that the Russian Federation does not recognize such source of law as legal cases, the Russian Federation does not authorize judicial bodies to create law. Only the legislator is directly authorized to create law. The executive bodies shall exercise the legislative activities only within the scope of their competency provided by law.
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