Legal security

The legal Sécurité is a principle of the Droit which aims at Protéger the Citoyen S against the negative side effects of the Droit, in particular the inconsistencies or complexity of the Loi too frequent S and payments, or their changes (legal insecurity)

This principle can itself be declined in several requirements. The Loi must be:

  • comprehensible,
  • foreseeable,
  • normative,
  • and to relate to the field of competence of the legislator.

The legal Sécurité rises from the natural Right of Sûreté, and must thus be treated with the level of the constitutional Law. It is one of the aspects of the Sécurité.

Stakes

The legal Sécurité conditions the exercise of the rights of the Citoyen S and the Economic development.

Historically, the doctrines recognize that this principle was born in Germany and found its recognition with the jurisprudence of the Court of justice of the European Communities as of the years 1970 (CJCE, July 14th, 1972, aff. 57/69). The CJCE had even employed this principle since 1962, in its stop Bosch . In 1981, this same Court handed down the judgment Dürbeck , in which it evoked the legitimate principle of confidence, near of that of legal security.

The European Court of the Human rights, as for it, recognized it since 1979, in its stop Sunday Times , then in 1994 with its stop Hentrich C France .

In France and constitutional law, the legal principle of Sécurité does not appear explicitly in the Constitution of October 4th, 1958. Only appears, via the declaration of 1789, the right of Sûreté which fits in the Préambule to Consitution. For this reason, article 2 of the declaration of 1789, place the Safety among the natural right and imprescriptible of the Man as well as the Freedom, the Property and resistance to oppression.

Risk factors related to nonthe respect of the principle

The risk factors likely to generate legal insecurity are:
  • proliferation of legislative standards,
  • excessive complexity,
  • character precarious, illegible, incoherent, even not normative, certain laws.

Risks related to the legal insecurity

Nonthe respect of the legal principle of Safety and of the corresponding requirements is likely to generate Risque S related to the misunderstandings, complaints, Contentieux, and to cause ruptures of equality.

Evaluation of the risks of legal insecurity

Preliminary evaluation before the development of the legal provision

This requirement is binding on any legal person who is subjected to obligations whose non-observance involves an legal insecurity. This specific evaluation can go until setting up a legal Veille particular.

On the official institutional level, the legislator as a producer of standards of right must also evaluate in his action the Risque S of legal insecurity of all new standard taking into consideration criterion various:

  • Character of Sovereignty, Community property, General interest,
  • Complexity of the covered subject and the Social network touched, multiplicity of the implied recipients,
  • Requirements of ethical,
  • Consequences in terms of Safety of the organizations and systems concerned,
  • Aptitude of the recipients for to perceive the context and to measure the range of the text,
etc

Quantitative evaluation a posteriori of the explosion of the standards

in France

In order to measure the current complexity of the right, it will be noted that there exists in France:

  • 59 codes, a code which can reach 2500 pages (case of the General Tax Code, which contains 4000 articles),
  • 9000 Loi S,
  • 120.000 Décret S.

More than 10% of the articles of the same code are modified each year as Legifrance thanks to its statistics of legistic confirms it.

The parliamentary amendments passed from 16000 in 1990 to 37000 in 2003-2004.

Keys of explanation on complexity and the normative explosion source of legal insecurity

The legislator can have to set up complex legislative devices, provided that the complexity of the subject requires it.

This complexity must itself be evaluated, like all the criteria.

It is noted that a given law belongs to a code (for example the Code of the trade), but that it interferes with others Loi S and payment S of very the code, and with laws and payments of different codes.

In the Pyramide of the legal standards, a law can thus interfere with a multitude of codes, like with higher levels of the Pyramide of the standards (Bloc of constitutionality, Bloc of conventionnality), which can call into question overall coherence. The complexity of the law will be all the more large as the number of impacted codes will be large, and that the higher levels of the pyramid will be impacted.

In particular, the European directives are on the level of the Bloc of conventionnality.

Several countries in the world (see paragraph implemented) set up procedures of impact study in order to evaluate the risks of legal insecurity.

Implementation of the principle

Germany

In Germany, the evaluation of the effects of the legislation raises, for the federal Constitutional court, of the protection of the basic rights of the person.

Canada

In 1995, the Canadian program the changing of modernization of the State requires that any decision of principle on a reform be made in committee interminsitériel, taking into consideration administrative and financial evaluation.

Spain

In Spain, since 1997, all the bills and of payment must be accompanied by an analysis on the need and the appropriateness of measurement.

The United States

To the United States, Ronald Reagan in 1981 and Bill Clinton in 1996 launched two programmes of simplification of the regulation. The impact studies became obligatory before any reform.

Following the events of the September 11th, 2001, a complete revaluation of the American legal system was carried out, without that being known as in the media in France.

France

In France, the jurisdiction charged to take care of the legal Sécurité is mainly the Council of State as an adviser of the government on the Bills) and considers administrative regulation, but the Constitutional council also plays there his part of controller of legality in comparison with the Constitution if it is invited there.

A report/ratio of the Council of State written by Francoise Chandernagor as of 1991 had alerted on the risks of legal insecurity in the French legal production of which loghorrée had been severely denounced with accuracy.

Fifteen years afterwards, the legal Sécurité is solemnly recognized by a decision of this same Council of State (Stop March 24th, 2006, KPMG and others) (Req. n° 288460,288465,288474,288485.

The United Kingdom

Since 1997, under the impulse of Tony Blair, the the United Kingdom obtained a device of impact study before any proposal of texts, which they are national projects or Community.

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

  • “the useless laws weaken the laws necessary”. Montesquieu (Of the Spirit of the laws, 1748).
  • “ Oboedire oportet Deo magis quam hominibus. ” It is necessary to obey rather God than with the men . ( Acts 5,29)
  • “ Lex positiva not obligat cum climbed incommodo. ” the positive law (= civil) does not oblige if it causes a serious damage .
  • “ Required not legem habet. ” the need does not have a law (= it thus suspends the duty).
  • “If it were necessary, or to make the injustice, or to undergo it, I would choose to undergo it rather than to make it. ” Socrate ( Gorgias ).
  • “ Non omne quod licet honestum is . ” All that is allowed is not therefore honest.
  • “All was known as and writes that the overproduction of rules of substance like procedure, the inflation of prohibitions and penal sanctions or administrative, the instability of the legal provision, since one arrives so that the reform itself is reformed before to be applied. The law thus loses its force and the legislator of its credit. Uncertainty on the contents of the applicable law does not encourage to comply with the rules of them. ” Renaud Denoix de Saint Marc (Vice-president of the Council of State, wishes to the president of the Republic (January 5th, 2001).
  • " When the right chatters, the citizen lends only one inattentive ear to him " , Public Report/ratio of the Council of State, 1991.
  • " the law which hesitates, gropes, stammers " , Pierre Mazeaud, President of the Constitutional council, at the time of the wishes to the President of the Republic, January 2005.

See too

Article on the public authorities

Articles on the right

  • Right

  • International law; European Right; Right compared
  • Montesquieu (philosopher); Of the spirit of the laws
  • Law of orientation and programming for the legal internal security
  • Day before

Articles on the risks

Articles on the natural right

Articles on the structure of the substantive law

External bond

  • Site of the constitutional council, the legal security

  • Article of Yahoo

Random links:Argus (heraldic) | Georges Albert | Radio control | Dielo Trouda | Microrégion de Guanhães | Abergwili