Legislation

Under legislation or legislative means the creation of legal standards and generally binding arrangements that regulate an indefinite number of cases, particularly by way of legislation . It is about "human law ", also called positive law .

In legal philosophy , human law-making is contrasted with natural law , which exists independently of human action.

Germany

In the system of the democratic separation of powers, legislation in Germany is one of the three constitutional state powers, alongside executive power and jurisdiction ( Article 20, Paragraph 2, Basic Law ).

A distinction must be made between legislation in the formal and that in the material sense. Legislation in the formal sense is linked to the legislative body and refers to legislation through democratically legitimized parliaments at federal and state level (federal and state laws). The term in the material sense, on the other hand, is linked to the content of the regulation and designates every legal norm with generally binding force. These include not only the parliamentary laws and administrative organs issued legal regulations such as the Highway Code and autonomous statutes such. B. municipal development plans .

The regulation of specific individual cases, for example by administrative act or general decree, does not count as legislation .

Legislation is subject to legal scrutiny by the administrative and constitutional courts . The extent to which decisions by the judiciary itself also generate law is the subject of scientific debate.

With the administrative-scientific instrument of the legal impact assessment, legislation is examined with regard to its intended and undesired effects as well as their creation in the legislative process. The effectiveness and transparency of legal regulations are now part of the requirements for modern legislation .

Switzerland

In Switzerland , the legislative process in the Confederation, the canton and the communes is characterized by very well-developed, institutionalized and tried and tested participation rights of private individuals, communities and associations. Who is authorized to legislate in which areas results on the one hand from the subsidiarity principle of the Federal Constitution (Art. 43a BV) and on the other hand from the individual cantonal constitutions. Art. 50 BV ensures that the cantons do not interfere with the legislative competence of the municipalities.

The direct democratic tradition in Switzerland has created opportunities in some cantons for interested sections of the population to bring their own, fully developed bills or suggestions to a referendum.

In addition to the parliaments of the federal government, cantons and cities, the municipal assemblies are empowered to legislate as the actual legislative forces. The executive bodies in the Confederation, the cantons and the communes are also authorized to legislate within the scope of their duties. In addition, according to Art. 1 ZGB, customary law and the law of judges apply as legally established law.

Common law

In the Anglo-American legal system , law-making takes place in addition to legislative (gubernative law-making) also through judicial (judicial law-making) instances , as far as laws in the formal sense are concerned. This comes from Case Law (English case law ) to valid right sets of decisions of dishes are derived, which has the task of the courts of law.

Union law

The law of the European Union has the dogmatic peculiarity that acts that are not generally binding are also referred to as legal acts. Art. 288 paragraph 3 of the Treaty on the Functioning of the European Union (TFEU) names not only ordinances , directives and resolutions but also non-binding recommendations and opinions . In this respect, the issuing of individual acts and non-binding pronouncements can also be formally described as legislation, since the recommendations and statements are also the results of a legally regulated decision-making process and, for example, have certain legal effects in the legislative process . For example, certain legal acts that require a recommendation or opinion from an EU institution cannot be effectively enacted without this.

literature

Winfried Kluth / Günter Krings (Hg): Legislation: Legislation by parliaments and administrations as well as their judicial control . CF Müller, 2014, ISBN 978-3-81145-423-1 .

Web links

Cabinet decision of the German federal government of June 4, 2014: Work program for better regulation 2014 .
Federal Constitution of the Swiss Confederation , Art. 43a and Art. 50

Individual evidence

^ E. Waibl, FJ Rainer: Basic Knowledge Philosophy , facultas.wuv, Vienna 2007, No. 864.
^ Klaus F. Röhl , Hans Christian Röhl : General legal theory. 3rd edition, C. Heymanns, Cologne [u. a.] 2008, § 34 II, p. 291: "The concept of positive law only gets its meaning against the background of natural law as a counter-concept."
↑ Cf. M. Payandeh: Judikative Rechtserzeugung. Theory, dogmatics and methodology of the effects of prejudices. In: Jus Publicum . tape 265 . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 .
↑ Cf. PF Smith / SH Bailey / MJ Gunn: Smith and Bailey on the Modern English Legal System , 3rd ed., London 1996, p. 5.
↑ Jürgen Bast , Forms of Action and Legal Protection , in: Armin von Bogdandy, Jürgen Bast (ed.), European Constitutional Law. Theoretical and dogmatic fundamentals , 2., completely actual. u. exp. Ed., Springer, Heidelberg 2009, pp. 489–558, here p. 491 .

[1] E. Waibl, FJ Rainer: Basic Knowledge Philosophy , facultas.wuv, Vienna 2007, No. 864.

[2] Klaus F. Röhl , Hans Christian Röhl : General legal theory. 3rd edition, C. Heymanns, Cologne [u. a.] 2008, § 34 II, p. 291: "The concept of positive law only gets its meaning against the background of natural law as a counter-concept."

[3] Cf. M. Payandeh: Judikative Rechtserzeugung. Theory, dogmatics and methodology of the effects of prejudices. In: Jus Publicum . tape 265 . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155034-8 .

[4] Cf. PF Smith / SH Bailey / MJ Gunn: Smith and Bailey on the Modern English Legal System , 3rd ed., London 1996, p. 5.

[5] Jürgen Bast , Forms of Action and Legal Protection , in: Armin von Bogdandy, Jürgen Bast (ed.), European Constitutional Law. Theoretical and dogmatic fundamentals , 2., completely actual. u. exp. Ed., Springer, Heidelberg 2009, pp. 489–558, here p. 491 .