La rédaction des lois
That there is an interaction effect between legislative drafting techniques and judicial methods for the interpretation of statutes is beyond question. But what really lies behind that interaction is a sort of tug of war between two opponents, legislator and judge, each obsessed with the other and each driven by the other to dig in his heels and resist at all costs, regardless of the caricature they may make of their respective roles. The presumed hostility of judges to the labours of the legislator leads to petty drafting techniques which, in turn, leave judges with a feeling of the legislator's hostility towards them, thus resulting in interpretation techniques which, if not altogether negative, clearly indicate the judges' distrust of the legislator.
This vicious circle must be broken and a return made to broader conceptions of legal interpretation. The judges, no doubt, have their part to play in the task of reconciliation. But no real progress can be made if the legislator does not first set the proper example in taking the honourable and calculated risk of expressing himself in simple and open language. The recent change in drafting techniques, at least in certain classes of statutes, is an encouraging sign in that regard.
The object of this paper is to suggest means whereby the body of statute law could be rearranged into a systematic whole.
The concept of a system of statutes is first defined and contrasted with the concept of codification. Systematization is presented as involving two stages. First, a classification grid is obtained by grouping statutes under a number of broad headings according to their subject-matter. Second, within each group the various statutory provisions are ranked and possibly rearranged according to the scope of their application within the field covered by the group of statutes as a whole. While statutes retain individual existence, logical links between them are made more explicit.
The concept is then applied experimentally to a group of 23 Québec statutes dealing with the provincial Cabinet and the organization of government departments. Proposals are thus made for a new Government Organization Act and new statutes setting up each of the departments.
The paper then considers extending the process of systematization to a larger group including all statutes setting up agencies of the Québec government (administrative tribunals, regulatory boards, Crown corporations, etc.). This, it is suggested, could lead to the adoption by stages of a Code of Government Organization.
Finally, the paper examines the requirements of the systematization of statutes as to legislative draftsmanship, legislative policy, and the legislative process. It argues for the need for a new agency with responsibility to advise the government on draft legislation and to carry out the systematization of groups of statutes on request from the National Assembly.
Jean Alarie et Guy Boisvert
Various groups and institutions are concerned about the proliferation of regulations. There is fear of an overflow into the regulatory field of standards that belong to the legislative domain. It therefore seems appropriate to draw up criteria for assigning standards to the respective areas of statutes and regulations.
The logic for apportioning standards might be based on the principle that the placing of a standard in the hierarchy of unilateral normative instruments is directly related to the scope of its object and inversely related to its degree of intervention in the activity subjected to it.
Before deciding to put a standard into a statute or to provide that it be enacted later under regulation-making authority, it is advisable to assess its degree of generality in relation to the concepts that surround it in the legislative draft, and also to measure its degree of materiality, i.e. the extent to which it embodies Government intervention in the activity that it is proposed to regulate.
From a practical standpoint, however, the impact of the political environment on legislative drafting must not be ignored. Allowing for the influence of policy and politics on the design of the statute-regulations complex, three contiguous but distinct normative areas may be identified: standards that must belong to the domain of statutes ; standards that may be apportioned to either the domain of statutes or that of regulations ; and standards that would normally belong to the domain of regulations.
The model suggested is not absolute and is liable to be modified by space and time considerations ; however, reference to it might help to rationalize the delegation of regulation-making authority.
This paper addresses the issue of a systematic approach to the drafting of legislation, in the light of Swiss experience.
Starting from a brief survey of inflationary tends in the production of Legislative material, the author brings out the mutually reinforcing interplay between these tends and a widening lack of consensus about the contents and enforceability of legislation. While such factors hardly favour systematic lawmaking, a number of institutional features in the Swiss federal legislative process help maintain the quality of legislative instruments — namely the very length of the process, the bicameralism, the plurality of official languages, and the subjection of laws to the referendum procedure.
Further, the practice of Swiss Legislators shows concern for the preservation of systematic unity. Thus, the federal department of Justice has devised a set of Principles of legislative drafting, supplemented by a checklist that can be applied to any draft legislative instrument. In a number fields where lawmaking authority vests in the cantons rather than in the Confederation, federal authorities have drafted model laws in the hope of promoting uniformity between cantonal legislation. In.other fields, where law-making authority has been given to the Confederation, federal legislation has sometimes been limited to a basic law, containing broad provisious only leaving details to be filled in by each of the cantons. The technique of codification, by contrast, has not been resorted to since the major achievements in civil and criminal law during the first half of this century.
Finally, Swiss legislative draftsmen, both federal and cantonal, have been concerned lately with the improvement of drafting and style, as is shown by the recent spread of guidelines, instructions and even laws on the subject.
The object of this paper is to underline the inherent difficulty of expressing a single legislative intent in two languages.
A number of basic issues concerning the translation of legal documents generally, and of statutes in particular, are formulated. These issues have been brought into sharp focus by divergent judicial interpretations of instruments drafted in French and referring to a civilian legal and cultural background.
The practice of bilingual legislation is then considered. Reference is made to recent efforts at improving the French version of federal statutes. The need for, or usefulness of bilingual legislation is critically examined. Anglophone reactions to French unilingual legislation in Québec are explained in terms of adherence to the traditional English style of legislative drafting. However, it is pointed out that common lawyers may be looking with increasing interest at the attributes of clarity, simplicity and logic associated with the civilian style of drafting.
This paper deals primarily with computer-assisted legal research. It attempts to sketch the current state of the art, mainly in the United States and Canada, with special reference to systems oriented towards the processing of legislative data. The author suggests a checklist of the main requirements the systems of the 80's will have to answer to, in order to fulfill the growing needs of the new computer-minded generations of law graduates.
Along these lines, this paper deals also with the second generation systems dedicated to automated legal research ; these could be expected to show some form, albeit elementary, of humanlike intelligence. Four prototypes of such systems are considered; they are the American Bar Foundation's and Jeffrey Meldman's systems, as well as the well-known JUDITH and TAXMAN systems.
The paper concludes on a glimpse of the Third Wave of computerized legal research, in the belief that the legal profession will meet the challenge of the computer age, will learn to live and work with this new technology, and will master the artificial but sometimes acute intelligence of our new friend, the Robot.
La notion de protection du public dans la réforme du droit professionnel québécois : une analyse socio-politique
This paper analyses the reform of the law governing professional occupations in Quebec from a socio-political standpoint. By focusing on the ideological level, the reform is seen as the result of the interaction of five competing ideologies : corporatism traditionnally dominant in the professional laws, technocratism that asserted itself in the context of the Revolution tranquille and gave its first impulse to the reform, neoclassic liberalism as expressed in the works of the Chicago School economists, communitarian ideology inspiring the practices of community-centered services among popular groups and consumerism advocating the interests of middle and upper class consumers.
In conclusion, it appears that the Code des professions enacted in 1973 proceeded from a compromise between corporatism and technocratism which turned largely to the advantage of the former. But the next step could be quite different. As a matter of fact, the recent positions expressed by the Office des professions du Québec reveal a clear tendency to rely upon consumerism and more fundamentally upon liberalism to carry on the reform. If so, the private law perspective based on a new contract of professional service would become more determinative than articulated public policies in the future regulation of the professional services industry. Bu obtaining a significant reduction of traditional corporatist powers — particularly the price-fixing one — while preventing a more pronounced public intervention, liberal forces would be the ultimate beneficiaries of the reform.
This paper describes the limitations on the constitutional right to strike that apply to public employees in France.
While recognizing the right to strike for all salaried workers, whether employed in the private or public sector, the Preamble to the 1946 Constitution, incorporated by reference into the present Constitution, allows for limitations being imposed on that right by statute.
Indeed, specific legislation has either prohibited or limited the right to strike for various classes of public employees. This has been held constitutionally valid insofar as the statutory bar or restriction is required to prevent essential functions of the State from being interrupted or to ensure that the vital needs of the country are being provided for.
Even where no specific restrictive legislation applies, strikes by the staff of « public services » — including not only central and local government employees, but also employees of major nationalized industries, institutions such as hospitals, and even private undertakings providing some public utility or service — are subject, under the Labour Code, to a number of restrictions. In particular, five days' notice of the strike must be given by a representative union. And certains forms of striking, such as rotating strikes, are prohibited.
In addition, the employer authority may, under the doctrine of « essential services », make administrative regulations identifying which units or staff positions are considered essential. These regulations are subject to review by the administrative courts on the basis that the constitutional right to strike may only be curtailed insofar as is needed to preserve State authority and security or the safety of the public.
This paper describes the specific nature of proceedings to quash decisions of local authorities under a number of provisions in Québec statutes. Similar provisions exist in the law of other Canadian provinces.
Paying relatively scant attention to the historical background of such procedures, the paper highlights the limitations and deficiencies inherent in them. Not all interested parties may bring them ; not all decisions of local authorities may be reviewed in this way ; not all remedies are open to be sought, especially those of a monetary nature; and fairly stringent time-limits apply to them. Taken together, these constraints disclose the true nature of such proceedings : they are an additional safeguard given to ratepayers as specially interested parties, to broaden the access to judicial review of actions by local authorities. These constraints also explain to a large extent why the existence of that additional avenue of recourse has not materially affected the use of general administrative-law remedies, whether direct and offensive such as actions to annul or declarations, or indirect and defensive such as evocation or exception on grounds of illegality.
This paper deals with the exclusive sale contract or solus agreement. Its first part identifies some characteristic features of this type of agreement, which quite often is not only aimed at regulating the exercise of trade, but also serves as a technique of market organization and economic power concentration. The impact of the increasing currency of such commercial practices on the free market justifies consideration of the various forms of control that can be exercised by public authorities in order to preserve free competition. Control can be achieved through the judiciary applying concepts such as public order in civil law or public policy at common law. However, in view of the courts' reluctance to interfere with such instances of private economic power and their indifference towards the economic inequities inherent in such agreements for the distributor, legislative intervention has become necessary to protect the free market. Thus the Combines Investigation Act was amended in 1976 to allow regulation of commercial practices such as refusal to deal, consignment selling, exclusive dealing, market restriction and tied selling.
Procedure before quasi-judicial boards and tribunals has recently attracted abundant comment as well as some criticism. In administrative law, rules of evidence form an important part of procedure. In this paper, the author first tries to define what are the sources of the law of evidence before quasi-judicial agencies in Québec : the common law, the two Codes, statutes and regulations. Then follows in two parts an overview of the principal rules that govern the manner in which claims and arguments are brought before tribunals and the extent to which specific provisions or general principles of administrative law allow tribunals themselves to gather evidence required for the purposes of a decision. The paper suggests that administrative justice requires that the tribunal really be « master of the procedure », within the framework of natural justice.
This paper is basically an analysis of art. 1003 of the Code of Civil Procedure of Québec.
Following a brief survey of the origins of class actions in English and American law, the Québec class action is defined as a form of procedure available to plaintiffs only, based on the existence of a group acting through a representative. It is then distinguished from similar forms of procedure, whether under Québec law (art. 59 and 67 C.C.P.) or foreign law (constitution de partie civile, relator, Adhasionsprozess, etc.). The introductory part goes on to examine the relationship of class actions to basic principles of civil procedure in Québec (such as the rules on standing), to challenge some widely-held beliefs concerning class actions and their social and economic impact, and finally to underline the unitary character of class actions under Québec law.
Brought under closer analysis, the introductory paragraph of art. 1003 underscores the requirement of a hearing by the court, indicates the nature and timing of judicial authorization, and determines the scope and extent of the conferment of representative status. The case of groups referred to in art. 1048 C.C.P. is examined in this connection.
The paper then surveys in turn each of the lettered paragraphs of art. 1003 C.C.P., in the light of similar provisions in Québec and other jurisdictions, with special reference to the American Federal rule. Similitudes and contrasts are thereby brought into view. It thus appears that paragraph d) is alone in showing definite American influence; indeed, discussion of this paragraph centres on foreign law. A critical review is made of the cases under each of the paragraphs. Certain approaches to the construction of art. 1003 are also criticized, especially those implying further conditions to the grant of representative status or involving the use or irrelevant tests in this regard, in spite of differences between American and Québec procedures or between the American and Canadian constitutions. Finally, the paper underlines the requirement, imposed by art. 1022 and 1024 C.C.P., that conditions laid down by art. 1003 continue to exist throughout the duration of the case.
The paper concludes that the Québec class action is probably the most liberal of all, and may open up new approaches toward using court proceedings to implement policy. However, it is feared that the courts may prove unreceptive to the innovative spirit behind this form of action; indeed, some cases decided so far seem to show a serious misapprehension of its character.
This paper summarizes the changes brought about in French administrative law by a law of 1979 imposing on administrative authorities a broad duty to give reasons for their decisions.
Traditionally, the state of the law had been that, failing a specific statutory requirement, administrative authorities were under no obligation to provide reasons. This, however, had not prevented the Conseil d'État from reviewing administrative action — even of a clearly discretionary nature — for unlawfulness or impropriety of motives.
The new law is aimed at improving communications between administrative authorities and the public. It reverses the former rule for three broad classes of decisions concerning individual cases : those having an unfavourable effect on rights and interests, those allowing for more favourable treatment than is provided under a rule of general application, and those made by social security and unemployment assistance agencies.
Alleviation or disregard of the new rule is allowed in cases of emergency, where confidentiality or secrecy is required by law, or where, no decision being made in a prescribed time, a negative decision is deemed to have been rendered.
Guidelines for the implementation of the new law have been issued by the Prime Minister to all Ministers; the latter have in turn issued more detailed instructions to decision-making officers in their departments. Further guidance will have to come from the administrative courts when they are called upon to review decisions for insufficiency or impropriety of reasons.
Ultimately, however, achievement of the goal of improving the quality of intercourse between citizens and administrative authorities will require the development of a more open and trustful relationship between them.
Looking back to the Roman era, one can see that the regulation of fisheries already formed a coherent whole which is still interesting to analyse today.
The oceans, seas and their shores are res communes, meaning that no one can own these things, or that everyone can make use of these things freely as long as this does not interfere with someone else's right. By contrast, rivers and their banks as well as harbours are classified res publicae, i.e. State property, but assigned to common use. Some fishing places were the exclusive property of the Roman State (res in patrimonio populi) and liable to be leased.
Fishing was a legally well defined activity, under strict control by the State: later generations have drawn inspiration from Roman rules in this field.
Denis Le May
The purpose of this paper is to advocate the creation of a legislative drafting manual that would suit the needs of all those concerned with the legislative process.
The order and editing of the Manual are examined in two successive parts.
The proposed Manual outlines an editing, conservation and retrieval method. A comprehensive classification scheme would cover all steps, all aspects and all fields of legislation.
An editor / coordinator would assure control and follow-up on the Manual which would be published in parts, through a Bulletin. The classification scheme would allow users to classify all sections or parts according to their needs.
Index du volume 21
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