CC BY
4
LEGISLATIVE TECHNIQUE AND ITS ROLES IN LEGAL REASONING
Do Thi Bao Yen, Master's Degree Student East Asia University of Technology (Vietnam, Hanoi)
DOLW.24412/2500-1000-2024-6-1-29-31
Abstract. The legislative technique is the art of making laws; it represents a part of the legislative science which has as object the enforcement of the options of the legislative policy and consists not only in the drafting of the text of the law or more generally in its organization, but also in the choice and coordination of the phrasing of the rule of law and the technical procedures to achieve it. The issue of drafting legislative acts has been particularly important in the last two centuries, as a result of social development, increasing complexity, legal thinking begins to address the theoretical side of the legislative process and progress in the field of legal technology.
Keywords: legislative technique; the rule of law; the legislative process.
Over the last decade, there has been a growing interest for the possibilities of automated legislative drafting. This is mainly caused by a concern related to the often inadequate quality of legislation. A few examples of this quality problem are the growth of legislation, the inconsistency and the incomprehensibility of rules and statutes. Anglophone legal philosophers usually hold that jurisprudence is a discipline "concerned with accurately and adequately explaining the nature of law". As one of the important issues in legislation, legislative technique is not only closely linked to the effectiveness of law enforcement in practice but also considered a key criterion to define the comprehensiveness of a legal system, and thus determine the short or long sustainability of a legal normative document. The legislative technique is the art of making laws [1].
Legislative technique encompasses a system of methods and means associated with the preparation of draft legal acts in the most perfect form in terms of structure and form. In the legislative technique, not only national, but also the established legal practice of foreign countries for hundreds of years is widely used. The special legal means of legislative technique include the following legal language; legal structures; the procedure for registering a legislative act, the process of lawmaking; systematization of legislation [2]. The legislative process provides for the existence of separate stages leading to the emer-
gence of a new legislative act. And the problem of systematization of legislation and its main components is described in a separate way.
Legislative techniques answer the question "How Are Laws Made?" and "How good is the quality of the law?" Laws begin as ideas. First, a representative sponsors a bill. The bill is then assigned to a committee for study. For example, in America, if released by the committee, the bill is put on a calendar to be voted on, debated or amended. If the bill passes by simple majority (218 of 435), the bill moves to the Senate. In the Senate, the bill is assigned to another committee and, if released, debated and voted on. Again, a simple majority (51 of 100) passes the bill. Finally, a conference committee made of House and Senate members works out any differences between the House and Senate versions of the bill. The resulting bill returns to the House and Senate for final approval. The Government Publishing Office prints the revised bill in a process called enrolling. The President has 10 days to sign or veto the enrolled bill.
In most countries, legislative procedure concerns the processes for the passage of legislation, as reflected in the constitution and/or other aspects of the legal framework, and as normally expanded upon in parliament's rules of procedure. These processes should be clear, transparent and understandable, and should allow for the proper consideration and debate of legislation as it progresses through
all stages. In bicameral systems, there should be clear, well-understood and accepted procedures set by each house for its own consideration of legislation, as well as clear, accepted and manageable arrangements to allow for the resolution of any differences between the houses. Should have sufficient time and opportunity to reflect on and debate proposals for laws before voting on them. Although practice differs from one parliament to the next, most have least two major stages for the consideration of proposals for laws (sometimes referred to as "readings"): one for debate on the general principles of the proposal for a law, and another when the detail of the proposal for a law is considered and amendments can be proposed and voted on.
In some circumstances, parliament may need to pass legislation more quickly than the routine process allows, such as in response to a natural disaster, pandemic or act of terrorism, or to an adverse court judgment. Under this fast-track procedure - also known an "expedited" or "urgent" procedure - the legislation passes through all the usual stages, but with an expedited timetable. While the urgency may be justifiable, the procedure should still allow for proper parliamentary scrutiny to the extent possible. This dimension also covers the consideration of delegated legislation, which parliament should have the opportunity to scrutinize, debate, and approve or reject.
Legislative techniques are also shown in clear provisions for the passage of legislation. The legal framework sets out clear provisions for the passage of legislation through parliament, including through both houses in bicameral systems. The procedures provide mechanisms for the resolution of differences between the houses in bicameral systems. Ordinary procedure - the legal framework provides for the use of ordinary legislative procedure as a rule. This procedure includes, as a minimum, general debate on legislation with reasonable time allocated to MPs to prepare and participate in the debate, and opportunities to consider the details of legislation and to propose and vote on amendments. If Fasttrack procedure - where there is a fast-track
procedure for the urgent consideration of legislation, such procedure provides MPs with the opportunity to debate, amend and vote on the urgent legislation, and for reasonable scrutiny mechanisms, such as inserting obligatory post-legislative scrutiny after a period of time, or using sunset clauses. The constitution, other aspects of the legal framework and/or parliament's rules of procedure establish that parliament has the opportunity to scrutinize, debate, and approve or reject delegated legislation.
In addition, legislative techniques are also shown in: Provisions of the constitution, other aspects of the legal framework and/or parliament's rules of procedure concerning the passage of legislation through parliament; Statistics on the passage of legislation through parliament in practice, such as time spent considering legislation and the numbers of amendments proposed and voted on; Practice of committees in the scrutiny of legislation, including statistics on public participation and the number of proposals for amendment.
Until recently legislative drafting was viewed as a mere skill, normally and mostly, served by government lawyers. The idea was that the drafting of legislation was nothing more but know-how learnt via mentoring by brilliant lawyers whose job was to basically switch the table round from the normal lawyer's task of statutory interpretation of existing legislation to the extra-ordinary task of drafting legislation with a vision on how this would be interpreted by the others. But things have changed. Legislation became the focus of regulation, replacing the common law in the preference of regulators [3]. Legislative drafting is the process of constructing a text of legislation. Legislative drafting must be distinguished from legal drafting, which involves the construction of a text used in the judicial process. Law-making encapsulates the whole process of conceptualisation of legislation until its very implementation and thus reflects the legislative process. Legislative techniques are expressed in drafting laws and the legislative process, so this is building each legal document and bringing the law into life.
References
1. Emilian Ciongaru. Legislative technique (formal logistics) - auxiliary branch of law. Fundamental elements of constitutional law // Bioterra University Bucharest, Romania, Journal of Law and Administrative Sciences. - 2021. - № 15/2021. - P. 35. - URL: http://jolas.ro/wp-content/uploads/2021/08/jolas15a5.pdf.
2. Habil Gurbanov, Legislative technique, 2022. - URL: https://philpapers.org/rec/GURLTD-
4.
3. Helen Xanthaki. Legislative drafting: a new sub-discipline of law is born. - URL: https://www.researchgate.net/publication/328782106_Legislative_drafting_techniquesformal_le gistics.
ЗАКОНОДАТЕЛЬНАЯ ТЕХНИКА И ЕЁ РОЛЬ В ТЕОРИИ ПРАВА
До Тхи Бао Иен, магистр
Восточно-Азиатский технологический университет (Вьетнам, г. Ханой)
Аннотация. Законодательная техника - это искусство о создании права; он представляет собой часть науки законодательства, целью которой является обеспечение реализации вариантов законодательной политики и состоит не только в разработке текста закона, но и в выборе, координации формулировка правового нормы и технических процедур для его достижения. Вопрос составления законодательных актов приобрел особую актуальность в последние два столетия, поскольку в результате общественного развития, усложнения правовой мысли начинает обращаться к теоретической стороне законодательного процесса и прогрессу в области юридической техники.
Ключевые слова: законодательная техника; правовые нормы; законодательный процесс.
