Theory and Practice of Legislation最新文献

{"title":"The past, present and future of law reform in Canada","authors":"Marc T. Moore","doi":"10.1080/20508840.2018.1476114","DOIUrl":"https://doi.org/10.1080/20508840.2018.1476114","url":null,"abstract":"ABSTRACT The story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1476114","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46845955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond the British model. Law reform in New Zealand, Australia, Canada, South Africa and Israel","authors":"E. Albanesi","doi":"10.1080/20508840.2018.1475054","DOIUrl":"https://doi.org/10.1080/20508840.2018.1475054","url":null,"abstract":"ABSTRACT The aim of this article is to set the scene for the following special issue, which contains five papers relating to research on law reform in common law and mixed jurisdictions and which forms part of a wider research project (Law Reform Project) carried out within the Institute of Advanced Legal Studies (IALS), University of London. The first hypothesis of this research was that due to the contrasting way in which the traditions of the British common law have developed within the two mixed jurisdictions examined in this volume (namely South Africa and Israel) and their different connections with the Commonwealth, the concepts of law reform there do differ from one another. The second hypothesis of this research was that, within a homogeneous area (i.e. common law or mixed jurisdictions which all have strong historical and cultural connections with the U.K. in common and which are all members of the Commonwealth), the model of law reform, although rather homogenous, is differently shaped in each of these jurisdictions and goes beyond the British model. The case studies analysed here are New Zealand, Australia, Canada and South Africa. The articles published here seem to support some provisional conclusions on the adoption of law reform processes.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1475054","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46110475","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the ground and on tap—law reform, Australian style","authors":"J. Barnes","doi":"10.1080/20508840.2018.1475611","DOIUrl":"https://doi.org/10.1080/20508840.2018.1475611","url":null,"abstract":"ABSTRACT Being governmental, the law reform processes of a country are closely associated with the constitutional framework of the country concerned. In the case of Australia, the framework combines English and American constitutionalism. Professor Saunders neatly describes the result as ‘hybrid, derivative but eventually Australian’. After a brief overview of sources of law reform advice in Australia, the article focuses on one part of Australian law reform processes—law reform bodies established by statute that advise in a particular area (‘specialist statutory advisors’). The main question the article poses is—like the constitutional framework, are specialist statutory advisors ‘hybrid, derivative but eventually Australian’? The research hypothesis is informed by an influential stream of Australian historical and legal thought. A number of commentators have propounded that Australian democracy is distinctive, and that Australians have time and again accepted a commanding role for government, and continue to give it great respect. It is said that Benthamite utilitarianism and legislation lie at the heart of the dominant political ideology. The article examines the Australian law reform scene in the light of these theories. The research hypothesis is that these distinctive aspects of Australian political life will manifest themselves in processes of law reform, namely specific legislative processes for facilitating law reform. The article identifies and analyses specialist law reform agencies established under statutes passed by parliaments of the Commonwealth, the States, and the Territories. This analysis is followed by an assessment of specialist advisors. They are compared with two other types of law reform bodies: Ministerial committees and generalist law reform bodies. The article concludes by reflecting on how specialist statutory advisors reflect the country’s constitutional framework. In their own way—on the ground and on tap—they too are found to be ‘hybrid, derivative but eventually Australian’.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1475611","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45437884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law reform in Israel","authors":"Yaniv Roznai, Liana Volach","doi":"10.1080/20508840.2018.1478330","DOIUrl":"https://doi.org/10.1080/20508840.2018.1478330","url":null,"abstract":"ABSTRACT This article examines the way that law reform is – and has been – made in the Israeli legal system. Israel has a mixed legal system which reflects a mixture of Civil Law and Common Law traditions. This mixture is also manifested in the state's approach to law reform, as there is no permanent commission responsible for law reform and, in fact, no definition of law reform. This article reviews the historical developments of the Israeli legal system, with the absorption of the Ottoman and British Mandatory Law into the Israeli legal system, followed by major efforts in the 1960–1970s, undertaken by the legislative department in the Ministry of Justice with the assistance of ‘ad hoc’ legislative commissions, to create a ‘new’ Israeli legislation – ‘codification style’ – especially in the field of civil law. It then examines the rise of the private legislative initiatives in the early 1990s, the role of the court in judicial law-making and the role of the Ministerial Committee for Legislation. It is claimed that law reform in Israel is all but ‘systematic’. However, the authors do not call for establishing a permanent law reform commission, but rather to develop a model of law reform that would include objectives, strategies, resources, participants and their appointment and responsibilities. Additionally, the high number of private bills should be reduced and the Ministerial Committee for Legislation, which is the central obstacle for non-governmental law initiatives, must act on a transparent basis. In other word, they suggest that, in Israel, law reform needs a form.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1478330","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46613995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Law reform in South Africa: 21 years since the establishment of a supreme constitutional dispensation","authors":"Christo Botha, B. Bekink","doi":"10.1080/20508840.2018.1475904","DOIUrl":"https://doi.org/10.1080/20508840.2018.1475904","url":null,"abstract":"ABSTRACT The Republic of South Africa has a mixed legal system. It is a hybrid of Roman Dutch common law (influenced by English law), indigenous customary law, legislation at various hierarchical levels, and a supreme justiciable constitution. Since the system of apartheid (formally between 1948 and 1993) was not based on Roman Dutch law, it necessarily required legislative reform. The dawn of constitutional democracy in South Africa on 27 April 1994, again necessitated large-scale law reform in South Africa in order to dismantle the apartheid structure. This process entails both formal reform of the law (by constitutionally-mandated agencies) and institutional law reform (primarily by the South African Law Reform Commission). Although the various legislative authorities will bear the brunt of the reform of existing legislation, the judiciary also has a law-reform function. All courts and tribunals have an indirect law-reform function in that they must interpret all law legislation, and develop the common law and customary law. However, law reform in South Africa is not limited to changes and intervention by legislatures, subordinate lawmaking bodies and the judiciary. The South African Law Commission was specifically established to facilitate law reform in the Republic of South Africa. Apart from the competent lawmakers, the judiciary and the Law Reform Commission, other role players – such as the State Law Advisors, civil society and developments in international law – also play a role in the law reform and transformation required by the new constitutional dispensation. During the past 21 years these efforts proved to be effective and successful.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1475904","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47012888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Institutional law reform in New Zealand: the importance of independence","authors":"G. McLay","doi":"10.1080/20508840.2018.1475900","DOIUrl":"https://doi.org/10.1080/20508840.2018.1475900","url":null,"abstract":"ABSTRACT In this article, Geoff McLay, a former New Zealand Law Commissioner, asks what distinguishes Law Commissions from government agencies through which Governments might seek to reform the law. He does this by examining the work of the New Zealand Law Commission within the context of reform generally within New Zealand in order to establish what the Law Commission adds to the general policy and law-making machinery. Professor McLay argues that the work of the Commission, and its success (and failures), can be usefully viewed through two lenses of identity and process. The identity lens points to the aspects of the Commission’s work that come from it being a ‘Law Commission’ and explains much of its work in the area of ‘lawyers’ law reform'. The process lens which focuses on the Commission’s independence from Government policy control explains the Commission’s ability to take on non traditional projects. He argues that it is this independence, albeit imperfect, that makes the Law Commission a valuable part of the law-making scene that should not be necessarily restricted to ‘lawyers’ law reform'.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1475900","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41263325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Professional legislative drafters: status, roles, education","authors":"Ronan Cormacain","doi":"10.1080/20508840.2018.1465250","DOIUrl":"https://doi.org/10.1080/20508840.2018.1465250","url":null,"abstract":"","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1465250","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44292219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Institutionalisation of better regulation principles in Estonian draft legislation: the rules of law-making, procedural democracy and political accountability between norms and facts","authors":"Aare Kasemets","doi":"10.1080/20508840.2018.1430105","DOIUrl":"https://doi.org/10.1080/20508840.2018.1430105","url":null,"abstract":"ABSTRACT The impact of legal policy reforms to draft legislation has been a relatively unexplored field in the sociology of law studies. In Estonia, as in other European Union and OECD countries, the interdisciplinary information on social, economic, environmental, security, administrative and budgetary impacts of proposed legislation has to be given in an explanatory memorandum of the draft Act to facilitate the knowledge-based and transparent resolutions of policy controversies. In 1997, the author designed a method for normative content analysis of explanatory memoranda on the basis of Estonian legal rules for the draft legislation (1996), OECD regulatory reform recommendations (1997) and multiple academic sources to explain the gap between constitutional norms and social facts in draft legislation. The methodological framework was designed for the parliamentary context involving democratic discourse, the rule of law, human rights, better regulation and other concepts. The initial aim was to gain an empirical overview of the extent that the initiators of draft Acts follow the law-making rules in information categories of impact assessments, research references, and civic engagement. In 1998–2009 seven follow-up studies and several qualitative case studies were carried out, which indicated the mimetic application of better regulation principles. In 2011, the Estonian Government and Parliament took a step closer to the leading OECD countries launching The Development Plan for Legal Policy until 2018. The latest follow-up study proceeds from a hypothesis that this policy reform has had a positive impact on the work routines of ministries. In addition to the normative content analysis of explanatory memoranda of draft Acts (2012–2015), the results of civil servants’ eSurvey (2011; 2015) and some insider’ observations from different ministries will be presented. The studies show many positive structural changes from 2007–2017; however, the gap between normatively required and factually presented socio-legal information is still remarkable. The institutionalisation of better regulation concepts into the relatively small Estonian governance system has been successful and the post-Soviet transition period should be considered as finished since 2010. This article supports this conclusion, partially demonstrating that many preconditions for the deliberative knowledge-based legal policy are not completed – the institution-building must go on.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1430105","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49563184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Handbook of regulatory impact assessment","authors":"Maria Mousmouti","doi":"10.1080/20508840.2018.1437885","DOIUrl":"https://doi.org/10.1080/20508840.2018.1437885","url":null,"abstract":"Impact Assessment (IA) is the ‘crown jewel’ of regulatory reform or better regulation efforts and has often been marketed as a magic remedy to the multiple problems associated with legislative and ...","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2018.1437885","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42263818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"East of Eden Hotel – soft law measures on harmful content between harmonisation and diversity","authors":"P. Láncos","doi":"10.1080/20508840.2017.1438086","DOIUrl":"https://doi.org/10.1080/20508840.2017.1438086","url":null,"abstract":"ABSTRACT The European Union adopts rules governing the protection of minors against harmful media content in the form of soft law. Using the example of media law and the theory of competition between legal orders, I try to shed light on the possible reasons for the regulatory choice of soft law. In the present paper, I propose that one important reason for the preponderance of soft law in a given policy area is the legislator’s ambition to bridge strongly converging policy fields with areas where diversity between Member States persists due to their varying cultural traditions and moral convictions.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2017.1438086","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44898429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}