En2013 5 (8)

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Е ННЫ ВО ПРАОВРЕМЕТВА И С УДАРС ГОС

COMPARATIVE LAW RESEARCH PUBLIC AND PRIVATE LEGAL ACTS (COMPARATIVE STUDY OF THE USA AND THE RF) DOI: http://dx.doi.org/10.14420/en.2013.5.8

Ruslan Yuryevich Magomedov, Military serviceman, Process Engineer (oil products quality control), Head of Fuel Materials Service of military unit, Ph.D. candidate of Russian Presidential Academy of National Economy and Public Administration, e-mail: magomedov_r_u@bk.ru.

Abstract.

Keywords:

This paper presents a comparative legal analysis of legal acts of the Russian Federation and the United States of America, researches the notion and characteristics of normalization, including various approaches to its understanding in the Russian and American legal systems, studies the main types of the US Congress legal acts – bills – in the context of their orientation (private and public), shows the difference of the US private and public bills in historical and modern aspects. The article’s final part presents the author’s reasoning on possibilities of using the American legislative practices in the Russian practice. The author comes to the conclusion about impossibility and untimeliness of assimilation of the American practices in the Russian practice, despite a steady tendency of legal systems of the two states towards rapprochement. legal act, legislative act, law, normalization, legal norms, bill, private bill, public bill, US Congress, orientation of legal regulation.

1 Normativity plays many roles in state and social life. Normativity, as a concept and an attribute of legislation, includes order, levels, and standards.

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54 When considering their legal implications, the predominant role of norms and regulations is that they secure social communications associated with the formation, alteration, and termination of legal relations. They result in a parameter that is socially designated. The function of normativity as a legislative property, in establishing a formal frame for social relations, characterizes a certain political and social structure, the ideals and priorities of a nation’s evolution, and the peculiarities of the secured or stimulated norms and regulations in the field of public relations; it also demonstrates the level of regularity, the standards, and the features of the politically organised society of the present age. If we understand that normativity is an essential element of legal evolution, then the development of legislation and the formation of its political and informative core, as well as its social and regulatory substance, cannot take place without choices being made regarding a politically acceptable model for social regulation, a mode for the manifestation of state regulatory control, and the subject matter to which lawmakers should attend.

As we know, the resolutions that are adopted to enable legal regulation are commonly called legal acts. They establish a code of conduct for a wide circle of addressees or for just one individual. These norms have a binding character. The legal act, which is understood to be a document that establishes the content of a resolution of a particular matter and that is generally valid, is one of the chief tools for the juridical regulation of activities within a national state, its territorial constituents, or a corporation.

Depending upon whether a particular legal act is oriented toward many addressees (general law directivity) or toward an individual (individualised directivity), all regulating legal acts are divided into normative and non-normative acts. This division reflects important juridical legal relations because it generates a certain binding effect.1 Despite the fact that legal theory expressly defines the attributes of the regulatory legal act, law enforcement practice periodically necessitates the official correction of some of its distinctive features, characteristics or qualities.

The Supreme Court of the Russian Federation has made an effort to disclose and indicate the properties that it recommends should be considered in distinguishing the kind of regulatory legal act that is subject to appeal in the federal court.2 The Supreme Court identifies the following set of essential features that characterise a regulatory legal act: 1) it was enacted by an authorized agency of state power, a local authority or a civil servant; Jurtaeva E.A. Normativnost’ zakonodatelstva: sovremennye moduljatsii v rossiskom pravotvorchestve // Zhurnal rossiiskogo prava. – 2012. – № 11. – P. 28-39. [The Normative in the Context of Legislation: Contemporary Modulations in Russian Lawmaking // The Russian Law Magazine.]

2 Postanovlenie Plenuma Verkhovnogo Suda Rossiiskoi Federatsii ot 29 nojabrja 2007 № 48 «О praktike rassmotrenija sudami del ob osparivanii normativnykh pravovykh aktov polnostiju ili v chasti». [The Decree of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2007 No. 48 «On the practice of investigating cases concerning the litigation of regulatory legal acts, fully or in a part».]

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2) it was enacted in accordance with the established order; 3) it contains legal norms (rules of conduct) that are binding on an unspecified set of people; 4) the norms (rules) it contains are designed for repeated application; 5) the legal norms (rules of conduct) specified by the regulatory legal act must be directed either at the legal regulation of the process of the formation of certain social relations, or at the alteration / termination of legal relations that already exist.

The attributes of the norms of a legal act, in legal theory, are conventionally established with reference to the legal regulations that the act contains. If the legal orientation of the legal document contains rules of law (legal norms), this is considered to be grounds to treat it as a regulatory legal act.1 Accordingly, to acknowledge a particular legal document as a regulatory legal act, it is necessary to confirm that its legal orientation, by its juridical content, is a legal norm, which means that it has the following attributes: a general regulatory orientation (directivity); an obligatory character; and authorised enactment.

The general regulatory orientation of a normative act is understood as follows: The provisions established by the act are designed to be continuously in force (their efficacy is unreserved by one or several particular actions); they are directed at a non-personified (not specified in terms of persons) set of subjects; and they are designed for an indefinite number (unlimited set) of cases (i.e., whenever we refer to legal relations that are settled by a legal norm). Traditionally, this set of attributes, which characterise a legal rule, has been considered sufficient to determine the main parameters of the general regulatory directivity of the act. However, the list of attributes above does not address whether it is factually possible to enforce the efficacy and the application of the specific norm specified by the act as a normative regulator.

Furthermore, norms and regulations dictate that there is another attribute that they must have, i.e., the generality of a legal regulation: One legal norm, when it is issued, provides for the regulatory control of the legislative corpus as a whole; it does not require repeated enactment on other rule-making levels or in other acts.

One of the attributes of a norm is the binding character of the regulatory legal act. It manifests itself as a rule of procedure that provides for the juridical protection of the fact that the norm is observed and performed: Non-observance, non-performance or non-application of an established obligation entitles interested parties to apply to authorised agencies and persons, including the court, with claims to restore the factual efficacy of the norm.

Regulatory control in Russia, where legislation principally adheres to the characteristic properties of the continental system of law, is exercised in such Boshno S.V. Normativnyi pravovoi akt: razvitie priznakov v pravoprimenitelnoi praktike // Arbitrazhnyi I grazhdanskii protsess. – 2009. – №№ 4, 5, 6. [Regulatory Legal Acts: Evolution of Attributes in Law Enforcement Practice // Arbitration and Civil Procedure.]

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56 a way that, in the establishment of the normative system, direct links and correlations are simultaneously formed and structured between norms – those that are defined absolutely and in part, general and special norms, and versatile and specialized norms. Concepts in the continental system of law are defined directly within the context, which does not imply the establishment of any kind of mediation mechanism.

2 One of principal sources of law in the USA is the so-called statutory law, which is composed of legal norms that are established by the legislative bodies of the state. During the entire time that they have existed and functioned, the US parliament (Congress) and the legislative (representative) bodies of the legal entities that comprise the American federation (the states), have been executing an important function, i.e., they have been taking part in the development of the legal norms that regulate life in society. These norms inevitably are integrated into the restatement (code of norms) and are established by the judicial branch in the context of performing investigations and reaching determinations in concrete cases (judicial precedents).

As is well known, contemporary American legislation comprises the following forms of legal acts: the federal Constitution, the constitutional acts of the constituent entities of the federation (the states), and the federal and regional laws. In addition, it is important to note that codes of laws exist both on the federal level (consolidated law) and on the level of the individual states, which, taken as a whole, can be defined as the systematised assemblage of the legal acts (laws) of the USA and are framed according to different classification criteria.

In addition, another source of American law comprises the legal acts of a normative character that are adopted by various bodies having executive power.

The emergence and evolution of this source of law has resulted from the legal opportunity of the executive power to delegate the authority (the phenomenon of a transference of power) of legislative power to regulatory bodies that exist on the federal level and are under its purview. In law enforcement practice, however, administrative acts (decrees, directives, and instructions) that theoretically are adopted for the purpose of providing more specialised and detailed elaboration of corresponding federal legislative acts are instead, in many instances, merely substitutes for federal legislation.

In the context of the matter under consideration, we consider it necessary to give special attention to the normative (legal) acts of the US parliament (Congress).

Such normative acts are usually called bills. It is commonly supposed that the bill is a legislative proposal that is adopted in identic editions by both chambers of the American parliament. It is these very acts, after they pass through all of the legislative stages (and obtain the President’s approval and are published), that achieve the legal status of law (statute). There is an opinion that US bills, as normative acts of the highest legal efficacy, are a tribute to British tradition, dating

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back to colonial times.1 However, the USA not only adopted Great Britain’s conception of the bill; it also adopted its system as a whole: As in British practice, it is customary to classify all bills adopted by the American Congress into those that are private and those that are public. Such a division in the Acts of Parliament already had existed in medieval England.

Let us consider the essential characteristics for each of these kinds of legal acts: 1) Public bills represent standard (as understood by the continental system of law) legislative proposals that concern the adoption of general universal rules of conduct that are matters of public interest and address the needs of the nation as a whole. In contemporary US (and British) legislation, such bills are adopted primarily in reference to matters of federal legislation and various aspects of state administration, i.e., those matters that are of concern to the whole society and meet the requirements of norms and regulations.

2) Private bills are legal acts related to the activity of a person (a private individual), which is understood as either a physical or legal person; they function, in fact, as acts having individual application. Originally, such acts were adopted exclusively upon personal requests directed to one of the chambers of the Parliament. Consequently, such acts were applied for the purpose of satisfying the specific need they for which were adopted. There is a belief that the first such private bill in Anglo-American legislation was an Act of Parliament that was adopted in 1266; the bill prohibited, under the threat of spiritual and secular punishment, the worship of the Earl of Leicester as a saint or a holy man because the church had pronounced an anathema on him and he had died under a curse.

So, it would be correct to state that, presently, private bills are legislative proposals that regulate matters that affect the interests of a certain group of people or the interests of the public that populates a designated area.

Furthermore, there are different procedures for the adoption of private and public bills. The procedural norms in this sphere serve as illustrative evidence that American legislators are fully aware of some incongruence between the legal nature of private bills and the nature of conventional legislative acts.

The main differences in the procedural questions that concern the adoption of the two types of bills are as follows: First, only the members of one of the houses of Congress can initiate legislation to introduce a private bill, whereas not only members of Congress, but also cabinet ministers can initiate the introduction of public bills in Congress (moreover, cabinet ministers exercise this right more often, and their legislative proposals are given a higher priority than other proposals when appointments are made for readings).

Second, to adopt a private bill, a simplified procedure is applied in which a Politicheskaja sistema SShA: Aktualnye izmerenija. – Moscow: Nauka, 2000. [The Political System of the USA: Topical Dimensions. – Publishing House «Science».]

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58 clause-by-clause discussion of a legislative proposal is excluded, whereas the content of a public bill is elaborated in detail, both in plenary meetings and within the framework of House committees.

Third, private bills can be adopted by a lesser quorum as compared with public bills (in fact, not infrequently, they are adopted directly by the legislative committees of a corresponding profile).

Moreover, private and public bills are never read during the same House session, as they are contained in different appointment calendars. For example, the House of Representatives of the United States Congress allocates separate days for sessions in which private bills are read and those in which other kinds of legislative proposals are considered.1 As is known, the House of Representatives has four appointment calendars: - The Union Calendar, which determines the schedule for the readings of public bills that in some way refer to finances, assignments, and budgetary funds.

It is assumed that such bills can be initiated only by the government, and they have the privilege to be brought up for proceedings any time the House conducts a session; - The House Calendar, which determines the readings schedule for public bills other than those in the first category (public bills that do not refer to financial matters); - The Private Calendar, which determines the readings schedule for private bills that have entered the House; - The Consent Calendar appoints the readings schedule for insignificant and uncontroversial legislative proposals; both private and public bills can fall into this category.

In the Senate of the US Congress, the appointment procedure is much the same.2 Based on the properties of private bills listed above and the procedures that are followed to adopt them, we find that it is possible to conclude that they represent a «power extension» in which the authority that is generally attributed to law enforcement bodies is assumed by the national parliamentary body. In other words, the private bill serves as a peculiar method to transfer a function that is normally performed by the judicial branch to the legislative branch. The very existence of private bills places emphasis on the systemic features of the common law; it practically «enables» such a situation because no real and final separation of powers exists (although it has been declared by the Constitution of the US): New (novel) rules of law are adopted by the courts, while the parliament issues law enforcement acts.

3 In contemporary jurisprudence, matters that are related in some way Chudakov M.F. Konstitutsionnoe Pravo SShA. Osnovnye instituty. – Moscow, 2003. [The Constitutional Law of the USA. Principal Institutions.]

2 United State Senate. URL: http://www.senate.gov/pagelayout/committees/d_three_sections_with_ teasers/committees_home.htm.

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to problems involving the interaction and rapprochement of different legal frameworks are very topical indeed. Many researchers attribute this to the fact that presently, the fundamental types of legal frameworks are moving closer and closer together. This phenomenon is called convergence in law. At the same time, it is necessary to keep in mind that the notion and content of legal convergence are highly controversial and unspecified. This is proven by the fact that neither science nor the practice of law has produced a unified approach concerning a general interpretation of such a development. Legal convergence is sometimes correlated with the processes of globalisation, integration, and unification.

Corresponding questions have been repeatedly raised and debated in connection with the rapprochement of the legal frameworks of Russia and the USA, especially in the consideration of the issue of Russia as a WTO member, as this organisation was built upon the principles of the American system of law.

Thus, in answering the question of whether we really need this borrowing, particularly when it concerns types of legislative acts, one may base an answer upon the following reasoning: In effect, the American system, which divides laws into private and public bills, is an extension of the powers of the supreme legislative body of the state. We mean that the private bills of the US Congress present a peculiar form of individual law enforcement acts that are issued by the legislator, rather than by the body that enables legislation, as it should be. The way in which the private bill appeared was logically predetermined by the evolution of the system commonly referred to as the law of precedent (other names for this system are: law of practice, case law, decisional law, judicial legislation, judiciary law, and magisterial law). The reason for this is that, in the context of this system, all acts of all public authorities acquire a generally binding character, and, as a consequence, they acquire the status of norms and regulations, and for this reason, the division of powers related to enactment of legal acts has been lost, which is very characteristic of civil or continental law. Furthermore, in view of modern trends in the US legal framework, the law is gaining more influence as compared with judicial precedent, and consequently, Congress undertakes functions that it did not formerly perform; it now adopts not only acts that have universal efficacy in terms of their initial orientation (public bills), but also acts that were originally adopted for a limited set of people, and that later acquire the attribute of being compulsory for all (private bills).

We assume that the aforementioned practice does not fit within the framework of the Russian system of law and the Russian interpretation of what is normative. The introduction of public and private bills into Russian legislative practice appears to be an unjustified accretion of the powers of the Russian parliament; this practice would authorise it to engage in functions that have been alien to it, namely, by authorising it to adopt law enforcement acts. In addition, the use of a simplified procedure to enact statutory legal acts can lead to more significant problems if the issue of compliance with the rules and norms of the juridical technique is taken into consideration; with regard to the content of statutes, the refusal to discuss a legislative proposal in detail can lead to the emergence of

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60 statutory wording that is not sufficiently elaborated. It can also result in insufficient correlation between the norms specified in a certain legislative proposal and the norms of other legal acts.

Therefore, we consider that the borrowing of the described American system by the Russian system of law is contrary to its ethos and can result in the loss of its distinctiveness.

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