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Two opposite visions of the role of the law

French traditional logic

Since the Revolution, and in particular since the theory of the general will expressed by the law of Rousseau, the French design traditional is to say that the law must say what must be. It is thus a question of an ideal to be reached, which is not decreased less by it owing to the fact that one can apply it or not.

Liberal logic

According to liberal logic, the law should only recognize the facts.

In practice

At the time of the session of spring 1999, the debates with the National Assembly on the PACS, the debate beat about the bush of the idealistic/pragmatic opposition.

Was necessary it to recognize rights to the homosexual people owing to the fact that they exist already in practice (thus the law would do nothing but regularize what existed already) or the law was it to only say what was to be. The first were rather in favor of the PACS while the seconds opposed it.

The law and the contract

One often opposes the Contrat S (of which treated ), with the laws (with the material direction of the term). The first are legal documents translating a “horizontal” logic: the prone of right are juridically equal when they contract. The seconds follow a “vertical” logic, since the citizens do nothing but apply one law which was given to them by a hierarchically higher authority.

Moreover, the legal vocabulary is the same one so much for the treaties, conventions and the contracts, which are concluded, that for the Constitutions and all the other acts of nature legislative or lawful, which are legislated, issued, stopped…

In theory, if one considers the Hiérarchie of the standards, the law is higher than the individual acts, which must thus respect it. However, two cases are opposed:

Certaines laws is known as imperative , they cannot be isolated by those to which they apply (concept of Law and order ).
For example a contract stipulating that an individual commits himself killing another out of them is clearly illicit thus no one automatically. Thus nobody can claim in justice the execution of the Contrat since it is contrary with the law.
Of other laws is suppletive , which means that they apply only in the absence of contrary will their recipients who can agree in the contract or another act which them lie.
Ainsi, a contract specifying that the court of competent jurisdiction in the event of litigation will be " the court of X" derogates from the law organizing the jurisdictional activity by choosing a particular court, the will of the parts can draw aside the application of the law here.

Name

The laws are generally indicated by their date their object (law of social modernization , law of separation of the Church and the State ). By demagogic concern or simply mnemotechnics, the laws are indicated sometimes by the name of an instigator, minister or member of Parliament (law Perben , law Sapin , law Gouvion-Saint-Cyr , law Mahoux , etc), sometimes still by their date (law 1901).

In right, only the exact headings are allowed. With the rigor, one can accept the truncated headings or a simple date. The use of a name of minister, instigator of the law, does not reflect the constitutional text, because the initiative of the law belongs to the Government or the Parliament, never with a minister alone. It is nevertheless allowed to specify as follows: law of 1995 on territorial installation (law known as “Chevénement”).

Hierarchy of the standards

According to the countries

In Belgium

The bill is of governmental initiative and must be subjected to the Council of State, which has a one month deadline before delivering an advisory opinion, while a private bill is of initiative parliamentary.

The texts voted at the regional and Community level (Flemish Area, Walloon region, the Flemish Community, the French Community, German-speaking Communauté name “decrees” (regional or Community) and have the same force constraining as the law (the ordinances of the Région of Brussels-Capital have a slightly distinct statute). The rules of adoption are the same ones as for the law, mutatis-mutandis .

The law is voted by the Chambre of the Representatives of Belgium like sometimes by the Belgian Sénat. It is generally elaborate as follows:

a project is developed by the federal government. Alternatively, the federal Parliament can be itself the initiator of the text, then called “private bill”.
the text becomes “bill” when it is approved either by the Chambre of the representatives, or by the Sénat.
Once approved by the Room and the Senate, it is subjected to the royal Sanction.
Unless the law itself determines its date of coming into effect, it becomes applicable 10 days after publication in the Belgian Moniteur .

All the laws are not necessarily any more voted simultaneously by the Chambre and the Sénat. The phenomenon of shuttle which existed before (and still exists in France) and which slowed down the legislative process was thus strongly reduced.

For example, the budget and the naturalization S (formal laws) are adopted by the Room alone, the vote of the budget being the symbol par excellence control of the legislature on the executive.

But the revision of the Constitution and the approval with the treaties must be still adopted by the two Rooms. Moreover, 15 senators (or more) can ask that a project or a private bill be transferred to the Senate: in this case, the same text must be adopted by the two assemblies. Moreover, certain laws must be voted with special majorities.

In France

The initiative

A Bill is of governmental initiative. It must be subjected to the Council of State, which has a one month deadline before delivering an advisory opinion.

A Private bill is of initiative parliamentary (less than 10% of the voted laws).

Adoption

Parliamentary laws

The course of a project or a private bill starts at the Office of one of the two assemblies which decides which day it or it will be discussed by this assembly. The day order in itself is determined by the Government (Parlementarisme rationalized). Then, it is given to the one of the six parliamentary commissions which submit reports/ratios and proposals on the text.

During its parliamentary discussion, the text can be modified by amendments deposited by the members of Parliament of each assembly. The text thus carries out “shuttles” between the two assemblies until managing an agreement on the bottom and the shape of the legislative text. The National Assembly has the last word in the absence of consensus (after meeting of a joint industrial commission made up of seven senators and same number of deputies) or if the government wishes it (except on the subjects touching with the organization of the Sénat).

When the text is definitively adopted, the President of the Republic has fifteen days to promulgate it. If he considers it necessary, the President of the Republic can request from the Constitutional council his opinion on the constitutionality of the law before promulgating it. The promulgation of the law authenticates it and makes it executory. It is then published in the Journal officiel de la R3epublique fran1caise (edition Lois and decrees ).

Laws chief clerks

With the referendum, the Parliament is not any more the only national representation. The national will is expressed vis-a-vis that of the Parliament by a direct link between the people and the executive. Some think that it is about a Plébiscite from where the mistrust of the recourse to the referendum. The referendum is always framed by the Constitutional council at the end of article 60 of the Constitution. There exist several types of recourse to the referendum: article 89 (for the revisions), article 11 (for the organization of the capacities), the article 53 Al 3 (for the integrity of the territory) and article 88-5 (for adhesion at the EU).

When one speaks about laws chief clerks one speaks about those taken by the procedure of article 11. It is a capacity shared between the President and the Prime Minister, i.e. the signature of both is necessary. Under the terms of article 11, the referendum can relate only to “on the organization of the public authorities, reforms relating to the social economic policy or of the nation and the public services which contribute to it, or tending to authorize the ratification of a treaty”.

Various types of law

Ordinary laws

Control not-obligatory constitutionality, article 61 subparagraph 2.

Organic laws

These laws are taken pursuant to the Constitution (the Constitution orders that provisions must be taken by legislative way). Control obligatory constitutionality.

They lay down the methods of organization of the public authorities and is the subject of a particular procedure envisaged by articles 46 and 61 of the constitution.

Other cases

constitutional Laws: this category, enacted by the doctrines, is not recognized by the Constitutional council; they are revisions of the Constitution.
the ordinances: heiresses of the Orders in Council of the IIIe République, they can have legislative value if:

the ordinance is approved by a law;
its provisions are included in a law by the means of a legislative rider.

The control of constitutionality of the law

The control of constitutionality of the laws is made in France a priori (before its coming into effect). This control is carried out by a specialized body: the Constitutional council. However, all the laws are not subjected to such a control. Indeed, the Constitutional council must be seized, either by the President of the Republic, or by the Prime Minister, or by one of the two Presidents of the rooms of the Parliament, or by sixty deputies or senators. The Constitutional council then has to come to a conclusion about the constitutionality of the law which is subjected to him. The opinion that it gives then binds the President of the Republic, which will not be able to promulgate a contrary law with the Constitution.

It happens sometimes that an unconstitutional law is in force. It is the theory of the Law-screen. A law which was not subjected to the control of the Constitutional council can be promulgated by the President of the Republic, even if it is contrary with the Constitution. Control being exerted a priori , the judges cannot judge his constitutionality during a litigation. The notes taken on the basis of this law will be thus them also unconstitutional. However, the judge will not be able to censure them. He will look at the conformity of the act (administrative or regulatory) to the law, without appreciating his conformity with the Constitution. The law makes screen between the act and the Constitution. All the acts which rise from the unconstitutional law will be considered to be legal, even if they are actually contrary with the Constitution.

Crisis of the law in France

In the United Kingdom

The law is distinguished from the right ( law ) since it emanates from the Parlement ( statute law ). Although it was judged as of 1610 that the judge of was not to apply a contrary law to the reason, it from now on is acquired that “contrary to the American legislator whose laws are subjected to constitutional control, the British Parliament does not see recognizing its sovereignty limited by any text”. “From the point of view of the constitutional law, which will have prescribed the Parliament will have force of right”. In Common Law , historically, the judge was very powerful to create the standard of right. From now on, this one is carried out by the application by the judge of the legislative right or the implementing regulations. To the plan of the International law, international conventions are transposed by the legislator in the state or in a different drafting. The judge will have to apply the latter.

As for the influence of the entry of the United Kingdom in the Common Market in 1973, this one was done by way lawful, and nonparliamentary, and thus does not affect any the English internal rights: “So that the Community legislation belongs to the English right, so that the English judge recognizes it, one needed a law of the Parliament (...): European Communities Act (1972) ”. Its article 2 for the first time recognized the full one and whole application of an international convention (and derived right), which made spout out many protests.

Quotations

“It is sometimes necessary to change certain laws, but the case is rare, and when it arrives, one should touch only one trembling hand there” .

Montesquieu

“Yielding armed togæ” (That the weapons yield to the toga). The executive consular capacity (potestas) is with the orders of the authority (auctoritas) senatorial of the authors of the laws. Thus, the presidential executive power is directed and delimited by the joint legislative authorities of the Congress and the Senate of the the United States of America.

Cicéron

Nemo censetur legem ignorare (no one is not supposed to be unaware of the law) proverb according to which one cannot call upon the ignorance of the law when one is, precisely, out the law.

“the law must have authority on the men, and not the men on the law. ” .

Pausanias

“a thing is not right because it is law; but it must be law because it is right. ” .

Montesquieu

Lasted lex sed lex (the law is hard but it is the law)

the law is a cobweb: the bumblebee there spawning time a passage, the fly there empêtre .

Russian proverb

the life, freedom and the property do not exist because men made laws. On the contrary, it is because the life, freedom and the property existed that the men made laws.

(Frederic Bastiat).

See too

Code of Hammourabi | Origin of philosophy
List of the Roman laws
Code Justinien
Right | Substantive law
Legal security
jurisdictional Organization (France)
the law in Belgium on Wikinations.be
Legality of crisis

External bonds

; Congo-Kinshasa

Leganet.cd, files laws of the Democratic republic of Congo

; France

legislative Files of the Senate

Random links:

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