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74ON CONSOLIDATION AS A FORM OF SYSTEMATIC ARRANGEMENT OF LEGISLATION Valery Reutov
Doctor of Legal Sciences, Professor, Head of Chair of Theory and History of State and Law Perm State National Research
University
Alexander Vankov
Postgraduate, Chair of Theory and History of State and Law Perm State National Research University
Abstract: The article is focused on the problem of describing the characteristics of such forms of the systematic arrangement of legislation as consolidation. The authors observe different points of jurisprudence concerning the problem of categorizing the types of systematic arrangement of laws and regulations, emphasizing the place of consolidation in these studies. The article presents not only the views of modern scholars, but also gives a brief review of pre-revolutionary Russian and Soviet literature on the issue. The authors also provide examples of using consolidation in the legal systems of civil law and common law countries
Keywords: consolidation, systematization of legislation, consolidation bills, codification, codes
In legal theory there are typically three forms (methods) of the systematization of legislation1. These are incorporation, consolidation and codification. Some sources name record of regulations as a fourth form, and the creation of codes of law as a fifth. In this classification, the description of the types is made according to the level of complexity (depth) of the rule by which the material is handled
Consolidation is usually understood to be the systematization of legislation and omission of associated regulations that have been repealed, into a single enlarged document; it is carried out by an authorized law-making body. Acts are included in the structure of the consolidated Act as individual chapters, articles or items Using this definition, some scholars believe that the relevant regulations are
1 Herewith the term legislation is used to wide extent, and includes both legal acts and legally enforceable enactments.
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Law and Modern States № 3 — 2013
not modified at all2, while others deem the changes to have only an editorial effect (less than the effect of codification) on the text3, with the removal of some contradictions and repetitions
Consolidation under this definition lies between incorporation and codification: the first of these is characterized by the streamlining of regulations, by placing them into different groups without modification, while the second involves the substantial reworking of legal material, with a structurally and substantively new combined complex being created as a result, such as an Act of basic legislation, a code, a statute, etc.
Distinguishing consolidation as an independent form of the systematization of legislation is a controversial issue In legal literature there is both a recognition of the presence of consolidation and the need to work to consolidate regulations, and a position which does not recognize the independent nature of this form of systematic rearrangement4 or does not even mention it5 .
2 Vide p.e.: Matuzov N. I., Malko A. V. Teorija gosudarstva I prava [Theory of State and Law]. Moscow: Jurist, 2009. P. 308; Melekhin A. V. Teorija gosudarstva I prava [Theory of State and Law]. Moscow: Market DS, 2007. P. 342; Khropanjuk V. N. Teorija gosudarstva I prava [Theory of State and Law]. Moscow: Interstil; Omega-L, 2006. P. 250.
3 Vide p.e. : Syrykh V. M.Teorija gosudarstva I prava [Theory of State and Law], Moscow: Legal Advice House “Justitsinform”, 2004.P. 230.
4 Shebanov A. F. Nekotorye voprosy teorii normativnykh aktov v svjazi s sistematizatsiej sovetskogo zakonodatelstva [Some Promblems of Theory of Legal Acts in Connection with Sistematization of Soviet Legislation] // Sovetskoe gosudarstvo i pravo [Soviet State and Law], i960.№ 7. P. 142; Teoreticheskie voprosy sistematizatsii sovetskogo zakonodatelstva [Theoretic Problems of Sistematization of Soviet Legislation] / Ed. by S. N. Bratus and I. S. Samoshchenko. Moscow: Gosizdat juridicheskoj literatury, 1962. P. 27; Vplenko N. N. Ocherki obshchej teorii prava [Essays on General Theory of Law]. Volgograd: Volgograd Univ. press, 2009. P. 351.
5 We cannot find references on consolidation of legal acts in pre-revolutionary Russian studies, because many legal scholars distingushed only two forms of sistematization: incorporation and codification. Some Soviet scholars also did njt mention consolidation. So we can believe that the notion of consolidation came into use from the second half of 20th Century Vide p.e: Korkunov N. M. Lektsii po obshchej teorii prava [Lectures on General Theory of Law]. Sankt Petersburg: Lelal Advice Center “Press”, 2003. P. 369; Trubetskoj E. N. Entsiklopedija prava [Encyclopedy of Law]. Sankt Petersburg. : Lan, 1998. P. 124; Khvostov V. M. Obshchaja teorija prava [General Theory of Law]. Moscow: Tipogtafija Vilde, 1914. P. 99; Shershenevich G. F. Obshchaja teorija prava [General Theory of Law]. Moscow: Tipo-litogtafija I. N. 18
For example, Prof. A . S. Pigolkin, describing consolidation, points out that “this kind of work to merge regulations cannot be called codification, although apparently there are two of its signs: unification of legislation into a single Act and its simultaneous modification . But codification is characterized by other typical signs, i e the creation of a large and structurally complex Act in a particular area of law or legislation and characterized by stable content.” He notes that such characteristics are absent in the case of the consolidation of legislation6.
However, the literature on the subject contains only a few examples of the consolidation of regulations So, speaking on examples of consolidation, A S Pigolkin only mentions the publication of a consolidated Act in the field of agriculture in the preparation of the collection of active legislation of the USSR7. Prof. T. V. Kashanina mentions, as an example of consolidated regulations, the Federal Law of 12 January 1995 No 5 “On Veterans” (and she notes that this Law combined more than one hundred different regulations governing benefits for veterans8) and the Water Code of the Russian Federation that is no longer in force (hereinafter — the WC RF 1995) . Although T. V. Kashanina agrees that the boundary between consolidation and codification in the Russian legal system is currently blurred, she considers the WC RF 1995 to be a consolidated Act, pointing out that there were earlier “mechanically joined” Acts dealing with water management It is difficult to accept such a conclusion, because the Code was adopted in place of the Water Code of the RSFSR that had expired (Article 148 WC RF 1995) . The connection with other regulations in this Code, without any change to the texts of those laws, is also in doubt
In addition, codification does not necessarily involve the creation of “primary” industry legislation . Thus, a special category for codification that is designed to combine the rules of law applying to one or more institutions is allocated in the literature9. At first glance, the criteria for dividing the legal world into sectors, sub-sectors and institutions
Kushnerev i Co, 1911. P. 420; Alekseev S. S. Collected Works. In 10 vols. Vol. 3: Problemy teorii prava [Problems of Theory of Law]. Moscow: Statut, 2010. P. 492.
6 Sistematizatsija zakonodatelstva v Rossijskoj Federatsii [Sistematization of Legislation in Russian Federation] / Ed. by A. S. Pigolkin. Sankt Petersburg: Lelal Advice Center “Press”, 2003 P 44
7 Ibid. P. 43.
8 Kashanina T. V. Juridicheskaja tekhnika [Legal Techniques]. Moscow: Norma; INFRA-M, 2011. P. 355-356.
9 Matuzov N. I., Malko A. V. Op. cit. P. 309.
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Law and Modern States № 3 — 2013
are ambiguous because there are a variety of factors determining the formation of these structures10; it is difficult to distinguish clearly between regulations containing legal rules applying across a legal field from Acts containing only rules applying to certain legal units and rules governing universal questions .
As was mentioned above, some authors who attempt to distinguish consolidation from systematization note that, in the course of consolidation, no changes in the content of the legal rules occur — the rules are just mechanically connected to form the text of the new regulation Such an approach leads other researchers to the conclusion that consolidation has shortcomings connected with the possibility of it being of no practical use11 However, even if we recognize that consolidation provides opportunities for editing the text, the literature indicates that consolidation as such poses challenges that are overcome by codification12. Yet scholars note that, even if it is recognized that consolidation gives an opportunity for editing texts, consolidation does generate problems that are avoided by codification Indeed, taking into account the dynamism of modern Russian legislation, it is difficult to imagine how we could work to create Acts which would recognize repealed legal regulations as invalid and give effect to new regulations, in the form of a single enlarged Act with no change in content
To construct a more complete picture of the theoretical question of consolidation, we can appeal to foreign experience and examine the consolidation of UK statute law which is essentially different from the consolidation of Russian law
It is interesting to look at the practice of creating consolidating legislation in England. The House of Commons publication Stages of Parliamentary review of a Government Bill13 states that Consolidation Bills make it possible to join together several existing laws, sometimes with minor revisions, in order to simplify the statutory law In the course of passing a Consolidation Bill a simple process is followed in Parliament: the procedures are formal and,
10 Reutov V. P. Funktsionalnaja priroda sistemy prava [Functional Nature of the Law System]. Perm: Perm Univ. press, 2002. P. 136-137.
11 Filatova L. V. Voprosy sistematizatsii zakonodatelstva v uchetnoj dejatelnosti organov gosudarstvennoj vlasti [Problems of systematization in registration activity of state bodies] // Juridicheskij mir [Legal World]. 2012. №2. P. 33—36.
12 Syrykh V. M.Op cit P 231
13 Parliamentary Stages of a Government Bill. 2010. FS No. L1 Ed 3. 7. P. 8. URL: http://www. parliament.uk/documents/commons-information-office/l01.pdf (date of reference 15.04.2013).
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as a rule, there is no debate over the Bill In this case, there may be a pure consolidation, i . e . there is no modification of the existing law, or there may be amendments
However, English law does not provide for the kind of systematization of legislation known as codification For this reason consolidation is possible, as a substitute for codification, which (in the sense in which it is used in continental law) is not possible14 In this example, the practice of consolidation is closer to the theoretical framework which we call consolidation in Russian legal science
The conclusion of representatives of French legal doctrine is also interesting: they are happy to call any activity aimed at the systematization of legislation “codification”, regardless of the nature of this activity. Investigating this problem, S . V. Bakhvalov notes that French practice now uses so-called “continuous codification”, which consists in a rational rearrangement of the existing law without making any changes This is based on the use of information and communication technologies, even though such use today has some serious shortcomings and unsolved problems15
Summing up the analysis of the consolidation of regulations, one can conclude that the current legislation in continental countries is too dynamic to allow the use of the mechanism of consolidation for the joining together of regulations by a mechanical connection only. Pure consolidation could probably have occurred in such countries in the past, but now it can take place only in legal systems where legislation is not the main source of law (and this is not the case for all common law systems16) If we examine systematization that includes editorial or substantive processing, the evolution of legal material, the abolition of outdated legal provisions and the inclusion of minor changes by the editors, creating a new instrument to replace the previously existing
14 Bogdanovskaja I.Yu. Osobennosti sistematizatsii v stranakh “obshchego prava” [Peculiarity of Systematization in Countries of Common Law] // Pravo i politika [Law and Politics], 2007. №7. P. 48—52.
15 Bakhvalov S. V. O razvitii spravochnykh pravovykh sistem i perspektivakh kodifikatsii [On Developments of Reference Law Systems and Prospects of Codification] // Kodifikatsija zakonodatelstva: teorija, praktika, tekhnika. Proceedings of International Conference (Nizhnij Novgorod, September, 25—26, 2008) Nizhnij Novgorod: Univ of Ministry of Home Affairs press, 2009 P 279-280
16 For example, there is a viewpoint expressed is in the literature on the systematization of federal legislation in the United States describing this process as incorporation and, with some features codification (for any particular standard material there is an appropriate form of organizing of the United States Code). Vide: Sistematizatsija zakonodatelstva P 376
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one, then it is not possible in practice to divide these arrangements into consolidation and codification
Thus, the concept of consolidation as a form of organizing Russian legislation is largely a theoretical construction which is of little use for modern law-making Consolidation appears only as a technique in the preparation of a new legal Act, but not as an independent type of systematization With this approach, we can agree with S. V. Bakhvalov's conclusion about the current trend of increasing the role of consolidation in the process of improving legislation17 There is no prospect that consolidation itself, as a separate kind systematization, can be developed, for the reasons given above
17 Konsolidatsija pravovych aktov [Consolidation of Legal Acts: Some Aspects of
Technological Type] / / Sistematizatsija zakonodatelstva v Rossii [Systematization
of Legislation in Russia (Historical, Legal, Theoretical, Methodological, Technical,
and Legal Issues). The 175th Anniversary of the Code of Laws of the Russian Empire:
Proceedings of the International Round Table. Institute of State and Law, Russian Academy of Sciences (Moscow, January 18-19, 2008)] / Ed. By prof. V. M. Baranov, V. G. Grafskij, S. V. Kodan. Nizhnij Novgorod. 2008. S. 342.
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