Law in the Making : A Comparative Survey

The present volume presents a part of the results of a research project launched by the European Science Foundation (ESF) in 1977. Tribute should be paid to the late Professor Aleck Chloros, Judge in the Court of the European Community, whose belief in the European ideal and enthusiasm for European cooperation and the comparative study of legal problems made him an elo­ quent advocate of a large-scale ESF venture into the field of com­ parative law. Judge Chloros had envisaged the creation of a per­ manent, sizable and well-equipped European institute for compa­ rative legal studies. The successive working parties convoked by the Executive Council of the ESF, which I had the honour of chairing from the beginning, came to the conclusion that this am­ bitious vision could not be realized immediately; the financial sit­ uation of the member organizations of the ESF also deteriorated, making a cautious approach a necessary virtue. The solution ulti­ mately adopted by the last of the working parties - the Ad Hoc Committee for Comparative Law -and submitted to the General Assembly of the ESF in 1979 called for the launching of four pi­ lot projects. In November 1980, the Assembly approved detailed plans for two of these projects. The first of these - dealing with medical responsibility - has already been presented in an impres­ sive volume (E. Deutsch and H. -L. Schreiber, editors, Medical Responsibility in Western Europe.

The Law-Making Process as a Juridical and Political Activity.- I The Law-Making Process.- 1 Law, Rules, Legal System.- 2 The Making of the Law and its Different Meanings.- a. Law-Making and Law-Applying.- b. “Rechtssetzung” and “Rechtsfindung”.- c. The Various Phases of the Law-Making Process.- d. Theoretical Law and Living Law.- e. Provision and Norm; Normative Acts and Patterns of Behaviour.- 3 Rules on Law-Making.- a. The Sources of Law as a Field of Law-Making.- b. “Ex facto ius oritur”.- c. The Double Hierarchy of Rules.- d. The Effectiveness Rule.- 4 The Sources of the Law.- a. The Juridical Notion of Source of Law.- b. Rules Operating “erga omnes” and Rules Operating “inter partes”.- c. The Classification of Sources of Law.- d. The Main Factors Legitimizing Normative Power.- 5 Normative Inflation.- II The Concept of Legal System.- 1 The Role of the Legal System in Modern Societies.- 2 The Plurality of Legal Systems.- 3 Relations between Legal Systems.- a. Relations between State Legal Systems.- b. State Law and International Law.- c. State Law and Legal Systems Linked to it.- d. Relations between “Alternative” Legal Systems.- 4 The Most Important Models of State Legal Systems.- a. The Subjects of Legal Comparison.- b. Criteria for the Classification of Systems.- c. Prospects of Evolution in Contemporary Legal Systems.- III The Legislative Process and its Substitutes.- 1 Legislation by Political Assemblies.- a. The Structure of the Parliamentary Legislative Process.- b. The Initiative Phase.- c. The Resolution Phase.- d. Other Activities Necessary for the Entry into Force of the Act.- e. Characteristics of this Type of Normative Activity.- 2 Legislation by Governmental and Administrative Bodies.- a. The Structure of the Administrative Process.- b. Types of Governmental Normative Acts.- c. Characteristics of this Type of Normative Activity.- 3 Legislation by Judicial Bodies.- 4 Negotiated Legislation.- 5 Legislation by “Renvoi”.- IV Relations between Forms of Government and Sources of Law Systems.- 1 Forms of Government and Forms of State.- 2 The Most Important Forms of State.- a. Unitary States and Pluralistic States.- b. Democratic States and Authoritarian States.- c. “Patrimonial State”, “Polizeistaat”, “Rechtsstaat”.- d. “Liberal State”, “Welfare State”, “Socialist State”.- 3 The Most Important Forms of Government.- a. Absolute, Limited, Constitutional and Parliamentary Monarchies.- b. Presidential, Semi-Presidential and Parliamentary Republics and Government by “Directoire”.- c. “Democratic Centralism”.- d. Multi-Party, Bi-Party and Single Party Systems; Consociational Government, Alternation and Hegemony.- 4 Relations between Forms of Government and of State and Sources of Law Systems.- 5 Representative Force of Constitutional Organs and Hierarchy of Sources of Law.- a Limits to the Use of Forms of Direct Democracy.- b. Parliamentary Legislative Activity and Governmental Normative Activity.- 6 Judicial Interpretation and Judicial Law-Making; Law-Making by State Authorities and Autonomous Law-Making.- a. Judicial Law-Making.- b. The Normative Autonomy of Constitutional Organs and Public Authorities, and Private Normative Autonomy.- 7 Limits to the Correspondence between the System of the Sources of Law and the Form of State and of Government.- Constitutional Systems and Sources of Law.- 1 The Sources of Law and the Constitutional Context.- 2 The Hierarchy of the Sources of Law.- 3 The Conception of the Sources of Law and the International Legal Order.- 4 Unitary or Composite Structure of the State.- 5 Different Categories of Laws.- 6 Referendums and Other Forms of Participation of Citizens.- 7 Parliamentary Regimes and Presidential Regimes.- 8 Parliamentary Legislation and Governmental Action.- 9 Other Aspects of the Form of Government.- 10 The Delegation of Normative Powers.- 11 The Role of the Judiciary.- 12 Conclusions.- Constitutional Law between Statutory Law and Higher Law.- I Preliminary Notes: Object and Method of the Investigation.- II The General Character of the Constitutions.- 1 Written or Unwritten Constitutions?.- 2 Contents and Formal Structure.- a. Fundamental Rights and Organizational Rules ― a General Principle of Division?.- b. The Extent of Constitutions.- 3 The Normative and Programmatic Character of Constitutions.- a. Fundamental Structural Distinction ― Normative and Programmatic Types of Constitutions.- b. Contents and Normative Function of Preambles.- aa. Preamble ― the Preface of a Constitution.- bb. Selected Characteristic Elements.- cc. Preambles as Normative Binding Rules?.- III Constitutional Law and Statutory Law.- 1 Constitutional Law and Other Sorts of Law ― a Categorical Ranking.- a. A Formal Distinction of Categories on the Basis of the Formal Requirements for Enactment.- b. Constitutional Amendment and Unalterable Constitutional Rules (“Perpetuity Clauses”).- 2 Supremacy of the Constitution and its Implications for the Legislature.- a. Legislative Authority.- aa. General and Qualified Authority with Respect to Basic Rights (“Gesetzesvorbehalt”).- bb. Special Provisions for Limitation and Enforcement of Basic Rights.- b. Binding the Legislature.- aa. Constitution as an Objective Binding Law.- bb. The Immediate Binding Effect of Basic Rights.- cc. The Guarantee of Essential Content (“Wesensgehaltsgarantie”).- c. Other Constitutional Influences on the Legislature.- aa. Provisions Setting State Goals (“Staatsziel-bestimmungen”) and Law-Making Mandates (“Gesetzgebungsaufträge”).- bb. Impact of the Constitution on the Legislature Through the Objective-Legal Character of Fundamental Rights Articles.- IV Relationship between Constitutional Law and Higher Law.- 1 Recognition of Human Rights and Their Incorporation.- a. Recognition of Innate Human Rights.- b. Rank of the European Human Rights Convention (EHRC).- 2 Constitutional Law and International Law.- 3 Recognition of General Legal Principles.- Statute and Statutory Instrument in the Evolution of European Constitutional Systems.- I Preliminary Notes.- II Statute and Statutory Instrument in the Constitutions and in Practice in Some European Legal Systems.- 1 Great Britain.- 2 Switzerland.- 3 Belgium.- 4 Austria.- 5 West Germany.- 6 Italy.- 7 France.- 8 Spain.- III Common Tendencies.- 1 Underestimation of the Problem by Constituent Assemblies.- 2 The Expansion of the Functional Scope of Statutory Instruments.- 3 The Flexible Interpretation of Constitutional Rules Defining Areas Reserved for Regulation by Statute Law.- 4 Statutory Instruments Enacted Outside the Central Government Area.- 5 Relations between Statute and Statutory Instrument as a Problem Regarding the Division of Competences More than the Hierarchy of Sources of Law.- IV Towards the Definition of Three European Models..- 1 The English Model.- 2 The French Model.- 3 The Intermediate Continental Model.- Constitutional Jurisdiction as Law-Making.- I Subject and Scope.- 1 Terminology.- 2 Scope and Method.- II Techniques of Constitutional Jurisdiction.- 1 “Erga Omnes” Binding Effects and the Concept of Constitutional Jurisdiction.- 2 The American System.- a. The Principle of “Stare Decisis”.- b. The Judicial Review of Legislation.- c. Unconstitutionality due to Vagueness or Overbreadth.- 3 The European System.- a. The Idea of the Judiciary in Civil Law Countries.- b. The Austrian Model.- c. The Post-War European Systems.- aa. “Interpretative” Decisions.- bb. “Mere Unconstitutionality” Decisions.- cc. “Manipulative” Decisions.- III Methods of Judicial Law-Making and its Effects.- 1 Legal Law-Making Through Declaration of Voidness.- a. Object of the Declaration.- b. Form of the Declaration.- c. Spatial and Temporal Scope of the Declaration.- 2 Constitutional Law-Making.- Collective Bargaining as Agreement and as Law: Neo-Contractualist and Neo-Corporative Tendencies of our Age.- I Introduction.- II The Legal Nature of Collective Agreements.- 1 Functions of the Agreements. Normative and Procedural Clauses.- 2 Agreements Binding in Honour and Legally Binding.- 3 Freedom of Association and Bargaining Agents.- 4 Effects of new Patterns in Bargaining: Some Examples.- III State Guidance in Collective Bargaining.- 1 Legal Support for Collective Agreements.- 2 Remittals From the Law to Collective Bargaining..- IV Neo-Corporative Tendencies.- 1 Negotiated Legislation.- 2 Tripartite Bargaining and Institutions.- 3 Concluding Remarks.- Central Law and Peripheral Law.- I Federalism, Regionalism and Peripheral Law as Matters for Constitutional Regulation: an Overview.- 1 Preliminary Remarks.- 2 Separation and Coordination of Jurisdictions of “Oberstaat” and “Gliedstaaten”.- 3 Discrepancies between Written and Living Constitutional Frameworks of Political Decentralization.- 4 The Paradox of Decentralization.- II Decentralization, Democracy and Form of State. The Influence of American Federalism and the European Tradition.- 1 Decentralization in Federal or Regional Form as a Problem of Form of State and of Democracy...- 2 The Impact of American Federalism on European Tradition.- a. U.S. Federalism as a Model.- b. The Expansion of the “French Model” of Organization of Local Power and the Growth of National States.- c. Ethnic Federalism and the Protection of Minorities.- d. Federalism as a Political or Juridical Principle.- e. Decentralization and the Safeguarding of Democracy.- III Federalism v. Regionalism or Separation v. Coordination? Patterns of Political Decentralization and Law-Making Rules.- 1 Classification of Patterns of Decentralization. The Federal State and the Regional State as Qualitatively Different Models.- 2 Patterns of Liberal Federalism and of the Contemporary Decentralized State in Regional or Federal Form: From Guarantism to Cooperativism.- 3 Constitutional Models of Decentralization and Their Framework of Law-Making Rules.- a. The Classical-Liberal Model.- b. The Intermediate Model.- c. The Guarantist Aspects of the Intermediate Model.- 4 The “Cooperative” Model of Decentralization..- a. The Presuppositions for the Cooperative Model.- b. The Lack of an Organic Constitutional Regulation of Cooperative Practice.- c. Common Features of Forms of Cooperative Decentralization.- IV What Peripheral Law is and how it Works.- 1 Separation of Jurisdictions of “Oberstaat” and “Gliedstaaten”: Principle of Competence, Principle of Hierarchy and Concurrent Legislative Powers.- a. The Principle of Rigid Separation of Competences.- b. Concurrent Legislative Powers of “Oberstaat” and “Gliedstaaten”.- c. The Principle of Hierarchy.- 2 The Conzern-Basis of the Separation of Jurisdictions: Matters, Functions, Policies.- a. The Separation of Jurisdictions as the Basis for a Classification of Forms of Decentralization.- b. The Problem of the Juridical Definition of Matters or Concerns.- 3 Legislative Process and Cooperative Decentralization: Towards a Model of Decentralization Based on Procedural Guarantees?.- a. Cooperative Practice as a Means or as an End?.- b. Seeking a new Equilibrium in Relations between “Oberstaat” and “Gliedstaaten”.- The Law-Making Process in the European Communities.- I Introduction.- 1 Reasons for Extending the Research to the European Communities.- 2 The Difference in Nature between the Communities and States.- 3 The Particular Characteristics of the Communities with Respect to International Organizations.- 4 The Existence of three Communities with Separate Rules and Common Structural Elements.- 5 Nature and Role of Community Institutions.- II The Formation of Community Regulations.- 1 Regulations: General Features.- a. Typical Features of Regulations.- b. Equivalence between Regulations and General Decisions of the ECSC.- c. Limits to the Communities’ Law-Making Power..- d. Mitigation of the Enumerated Powers Principle..- e. Classifications of Regulations.- 2 The Initiative Stage.- a. The Commission’s Power of Initiative in the EEC and in the EAEC.- b. The Influence of Other Bodies on the Exercise of the Above-Mentioned Power.- c. Preliminary Contacts between the Commission and the Council.- d. Preparation of Draft Regulations by the Commission.- 3 The Consultation Stage.- a. Consultation of the Parliament and of the Economic and Social Committee.- b. The Possibility of Modifying the Initial Proposal.- c. The Conciliation Procedure.- 4 The Decision Stage.- a. The Role of the COREPER.- b. The Majority Principle in the Council.- c. and its Abandonment in Community Practice.- d. The Final Stage of the Rule-Making Process..- 5 Characteristics of the ECSC System.- a. Power of Initiative with Respect to Decisions.- b. The Consultative and Final Stages.- 6 Commission Regulations and the System of the “Management Committees”.- 7 Reasons for the Regulations.- 8 Other Aspects as Concerns Form.- 9 Publication and Entry into Force.- III Regulations and Other Sources of the Community Legal System.- 1 The Creation of Individuals’ Rights and Obligations on the Basis of Sources Other than a Regulation..- 2 Classification of Community Treaties into three Groups.- a. Rules Expressly Addressed to Private Subjects.- b. Rules Addressed to the States or to Institutions; Interpretation of these Rules in the Light of the “Direct Effect” Doctrine.- c. Rejection of the Thesis according to which Laws Implementing Community Treaties are Necessary in Order to Grant Rights to, and Impose Obligations on, Individuals.- d. Relationship between Treaty Rules and Rules Embodied in Regulations.- 3 Directives: Differences between their Features and those of Regulations.- a. Developments in Community Practice as Concerns Directives.- b. The Application of the Direct Effect Doctrine to Directives.- 4 The Possibility that Agreements Stipulated by one of the Communities can Have Immediate Effect on Individuals.- 5 The Role of Principles of Unwritten Law.- Problems of the Legislative Process in the Socialist Countries of Europe.- I Preliminary Remarks.- II Law and Legislation in the Socialist Countries….- 1 Law in General.- 2 Historical Foundations of Socialist Legislation..- 3 The “Style” of Socialist Legislation.- III The Legislative Process in the Socialist Countries.- 1 Phases of the Legislative Process.- 2 Legislative Initiative.- 3 The Drafting Process.- 4 Parliamentary Procedure: The Enactment of the Statute.- Some Specific Elements Concerning the Legislative Process of the S.F.R. of Yugoslavia.- 1 The Postwar Development of the Constitutional System of Yugoslavia.- 2 The Assembly of the S.F.R. of Yugoslavia.- 3 Legislative Process.- 4 Relations between Federal and Republican (Provincial) Agencies in the Legislative Process.- 5 Executive Activity.- 6 Process of Delegalization.- 7 Concluding Note.- Software for the Legislator.- 1 Introductory Notes.- 2 Legislative Pollution.- 3 “Gesetzgebung”.- 4 Computer Aids.- 5 Legislative Information Retrieval Systems.- 6 Automatic Analysis of Legislation.- 7 A Model for Rational Reconstruction of a Positive Legal System.- 8 The Legislator’s Language.- 9 Calculation of Combinations and Consequences.- 10 Expert Systems.- 11 A Shell for Basic Deontic Logic.- 12 Conclusions.- Annex I: How the Research was Carried out.- Annex II: Guidelines for the National Reporters.- I Preliminary Notes.- II The Legislative Process.- III Statutes and the Forms of State and of Government.- IV Statutes in the System of the Sources of the Law.- V The Structure of the National Reports.