The Contemporary Concept of Legistics

In cooperation with the Faculty of Law and Public Administration and the Continuing Education Centre, the Institute of Law (IoL) at Birzeit University held the seventh legal encounter in the 2009-2010 Legal Encounters season. Taking place at offices of the Continuing Education Centre in Ramallah, IoL hosted Mr. Jacques Fournier, Honorary State Counsellor and a former Secretary General of the French Government.

Entitled The Contemporary Concept of Legistics, the legal encounter brought together interested actors from the Palestinian civil society, including representatives of the Palestinian President’s Office, Prime Minister’s Office, and Ministries of Justice, Interior, and Culture. In addition, representatives of civil society institutions, local and international agencies, human rights organisations, and the legal community attended the legal encounter.

Addressing him as a friend of Birzeit University and of Palestine, Dr. Ghassan Faramand, IoL Director, welcomed Fournier. Faramand highlighted the relevance of legistics and the need to establish a Palestinian school that will be specialised in legislative drafting. He also admitted that the Palestinian experience in the filed of legislative drafting is still novel. Over the past fifteen years, some Palestinian endeavours were distinctive and successful. Others, however, suffered certain deficiencies and shortcomings.

In this context, Faramand also expressed his appreciation of joint and ongoing cooperation between IoL and the French Consulate in Jerusalem as well as with the representative office of Konrad Adenauer Stiftung (KAS) in Ramallah. Faramand also emphasised KAS’s distinctive role in supporting Birzeit Legal Encounters.

Faramand explained that the term “legistics”, which is also commonly known as the “rules of legislative drafting”, is contemporary. In Europe, legistics is increasingly being adopted in the field of legal drafting.

In his opening remarks, Fournier extended his thanks to the audience as well as to the IoL for the warm reception and interest in legistics, which is a highly specialised and recent discipline. Stating that he first visited Palestine in 2000, Fournier also expressed his happiness for having visited it again.

Fournier explained that the term “legistics” or the “rules of legislative drafting” combines a set of disciplines and methods used in drafting legislation, including laws and regulations. Legistics is an applied science that is not only incorporated within the Constitutional Law, but by political science as well.

Dividing his presentation into two sections, Fournier addressed the product of the legislative process (i.e. laws and regulations) as well as work procedures leading to the product. Over 20 years, the European Union (EU) has made innumerable efforts to improve the quality of legal texts. Whilst seeking to preserve the quality of produced legislation, EU is to cope with problems associated with the mechanisms necessary to simplify laws. In particular, mechanisms are needed to enhance the quality of laws, reduce their number, and expand their scope.

To this avail, Fournier listed a number of major conditions to be met:

1. The need to enact a law;
2. Acceptance of the law;
3. Inclusion of standards and conditions;
4. Understanding the law; and
5. Public access to the law.

The need to enact a law:

In a first step in the legislative drafting process, a relevant minister submits a proposal to draft a legal document. Prior to examining the proposal, however, the extent to which the proposed law is necessary should be scrutinised. The society’s need for such a law will also be explored. In France, for example, a public debate was in place about the need to promulgate new security-related laws.

Additionally, impact of the prospective laws on the society as well as on social, economic and cultural spheres in the relevant state need be tackled. The impact of these laws on the state’s resources and employment will also be spelled out. In Germany, many interesting studies have addressed similar issues. In 2006, the German Standards Board conducted research on all proposed laws. At the beginning of 2007, the Board discarded more than 70 draft laws, thereby saving time and effort. Accordingly, the impact of enacted legislation should be examined carefully.

Laws must address specific issues and avoid needless verbosity. For example, the French Education Law of 2005 provided that all students must pass their courses. According to the French Constitutional Council, however, the said provision was excessive and should, therefore, be deleted. The French Constitutional Council tends to eliminate inconsistent and non-comprehensible legal provisions. Recently, the French Constitutional Court adopted this trend.

Public access to the law:

 
According to the French law, ignorance of the law will not be acceptable. Laws should be published and accessible by the public. In light of the current technological breakthrough, laws are also published electronically and provided online.

Addressing problems posed by amendments to previously issued legislation, Fournier stated that new amending provisions normally refer to numbers of old articles, without having adjusted the old legal texts. In addition to incorporating numbers of affected articles, Fournier suggested that previous piece of legislation be consolidated with the new one.

The French State Council started operation in the 1950s. Then, members on the Council lacked necessary skills and did not receive any particular training. However, the Council now applies clear obligatory rules. Somewhat similar to the IoL-issued Legislative Drafting Manual, the French Legislative Drafting Manual comprises over 500 pages and addresses relevant fundamentals and rules of legistics. 

Having joined the EU, France has become to implement European laws, which feature variant drafting, writing, and expression techniques. In terms of language, for example, there are major differences between English and French. Therefore, the right legal texts should be incorporated within the right items of legislation. Legislators should be adequately aware of the methods and mechanisms of including new texts into local laws. In addition, standards of legislative texts must be recognised and punctuation marks used orderly. Past practices should be avoided. Due to the so-called “war of paragraphs”, legal documents used to contain paragraphs that embedded several unordered subparagraphs. To work in line with a consolidated methodology, legislative drafting standards should be unified and reference numbering used.