Decree
A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for this concept may vary from country to country. The executive orders made by the President of the United States, for example, are decrees (although a decree is not exactly an order).
Decree by jurisdiction
Belgium
In Belgium, a decree is a law of a community or regional parliament, e.g. the Flemish Parliament.
France
The word décret, literally "decree", is an old legal usage in France and is used to refer to executive orders issued by the French President or Prime Minister. Any such order must not violate the French Constitution or Civil Code, and a party has the right to request an order be annulled in the French Council of State. Orders must be ratified by Parliament before they can be modified into legislative Acts. Special orders known as décret-loi, literally "decree-act" or "decree-law",[1][2] usually considered an illegal practice under the 3rd and 4th Republic, were finally abolished and replaced by the regulations under the 1958 Constitution.
Except for the reserve powers of the President (as stated in Art. 16 of the 1958 Constitution, exercised only once so far), the executive can issue decrees in areas that the Constitution grants as the responsibility of Parliament only if a law authorizes it to do so. In other cases, orders are illegal and, should anyone sue for the order's annulment, it would be voided by the Council of State. There exists a procedure for the Prime Minister to issue ordinances in such areas, but this procedure requires Parliament's express consent (see Art 38 of the 1958 Constitution).
Orders issued by the Prime Minister take two forms:
- Orders (décrets simples);
- Orders-in-council (décrets en Conseil d'État), when a statute mandates the advisory consultation of the Council of State.
Sometimes, people refer to décrets en Conseil d'État improperly as décrets du Conseil d'État. This would imply that it is the Council of State that takes the decree, whereas the power of decreeing is restricted to the president or prime minister; the role of the administrative sections of the Council is purely advisory.
Decrees may be classified into:
- Regulations, which may be:
- Application decrees (décrets d'application), each of which must be specifically authorized by one or more statutes to determine some implementation conditions of this or these statutes; these constitute secondary legislation and are roughly equivalent to British statutory instruments;
- Autonomous regulations (règlements autonomes), which may be taken only in areas where the Constitution does not impose statute law (passed by the Legislature); these constitute primary legislation;
- Particular measures, such as the nomination of high-level civil servants.
Only the prime minister may issue regulatory or application decrees. Presidential decrees are generally nominations or exceptional measures where the law mandates a presidential decree, such as the dissolution of the French National Assembly, the calling of new legislative elections, and the grant of the title Marshal of France.
Decrees are published in the Journal Officiel de la République Française or "French Gazette".
Catholic Church
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A decree (Latin: decretum) in the usage of the canon law of the Catholic Church has various meanings. Any papal bull, brief, or motu proprio is a decree inasmuch as these documents are legislative acts of the pope. In this sense, the term is quite ancient. The Roman Congregations were formerly empowered to issue decrees in matters which come under their particular jurisdiction but were forbidden from continuing to do so under Pope Benedict XV in 1917.[3] Each ecclesiastical province and also each diocese may issue decrees in their periodical synods within their sphere of authority.
While in a general sense all documents promulgated by an ecumenical council can be called decrees. in a specific sense some of these documents, as at the Second Vatican Council, were called more precisely constitutions or declarations.[4]
Canon 29 of the 1983 Code of Canon Law defines general decrees:
General decrees, by which a competent legislator makes common provisions for a community capable of receiving a law, are true laws and are regulated by the provisions of the canons on laws.[5]
Holy See
The Holy See uses decrees from the pope such as papal bull, papal brief or motu proprio as legislative acts.[6]
Italy
According to clause 77 of the Italian Constitution, "The Government may not, without an enabling act from the Houses, issue decrees having the force of ordinary law. When in extraordinary cases of necessity and urgency the Government adopts provisional measures having the force of law, it must on the same day present said measures for confirmation to the Houses which, even if dissolved, shall be summoned specially for this purpose and shall convene within five days. The decrees lose effect from their inception if they are not confirmed within sixty days from their publication. The Houses may however regulate by law legal relationships arising out of not confirmed decrees."
The effectiveness for sixty days produces the effects immediately, giving rights or expectations whose legal basis was precarious, especially when the conversion law never intervened.[7]
Portugal
In Portugal there are several types of decree (Portuguese: decreto) issued by the various bodies of sovereignty or by the bodies of self-government of autonomous regions.
As of 2022[update] there are the following types of decree:
- Decree-law (Portuguese: decreto-lei): is a legislative act issued by the Government of Portugal under its legislative powers defined by Article 198 of the Portuguese Constitution;
- Regional legislative decree (Portuguese: decreto legislativo regional): is a regional law, issued by the legislative assembly of an autonomous region, within its powers defined by articles 227 and 233 of the Constitution;
- Decree of the President of the Republic (Portuguese: decreto do Presidente da República): is a decree issued by the President of Portugal, for the ratification of international treaties, the appointment or dismissal of members of the Government or to exercise other presidential powers defined in the Constitution;
- Decree (Portuguese: decreto): is an act issued by the Government of Portugal to approve an international agreement whose approval is not within the competence of the Assembly of the Republic or has not been submitted to it or within the Government administrative jurisdiction laid down in Article 199 of the Constitution in relation to a statute that requires this decree;
- Regulatory decree (Portuguese: decreto regulamentar): is an act issued by the Government of Portugal, under its administrative jurisdiction laid down in Article 199 of the Constitution, to make the necessary regulations for the proper execution of the laws and to take all actions and decisions necessary to promote economic and social development and to meet the community needs;
- Regional regulatory decree (Portuguese: decreto regulamentar regional): is an act issued by the legislature or the government of an autonomous region, regulating the proper implementation of regional legislative decrees;
- A decree from the representative of the Republic (Portuguese: decreto do representante da República): is the decree of appointment or removal of members of the government of an autonomous region, issued by the representative of the Republic for that region.
Iran
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According to article 110 of the constitution, the Supreme Leader delineates the general policies of the Islamic Republic.
Russia
After the Russian Revolution, a government proclamation of wide meaning was called a "decree" (Russian: декрет, dekret); a more specific proclamation was called an ukaz. Both terms are usually translated as 'decree'.
According to the Russian Federation's 1993 constitution, an ukaz is a presidential decree. Such ukazes have the power of laws, but may not alter the Russian constitution or the regulations of existing laws, and may be superseded by-laws passed by the Federal Assembly.
The Government of Russia can also issue decrees formally called Decisions (Постановления) or Orders (Распоряжения) and may not contradict the constitution/laws or presidential decrees.
Saudi Arabia
Royal decrees are the source of law in Saudi Arabia.
Spain
In Spain, decrees come in several forms:
- Royal decree
- Royal Decree-Law
- Royal Legislative Decree
Turkey
In accordance with Article 107 of the 1982 Constitution. One of the important amendments made in the constitution with the act no. 6771 is related to decrees of the presidency.
United Kingdom
In the United Kingdom, Orders-in-Council are either primary legislation deriving their authority from the Royal Prerogative, promulgated by the Privy Council in the name of the Monarch; or secondary legislation, promulgated by a Minister of the Crown using the authority granted by an Act of Parliament or other primary legislation. Both are subject to judicial review, the former with some exceptions.
United States
In US legal usage, during the 19th and early 20th centuries, a decree was an order of a court of equity determining the rights of the parties to a suit, according to equity and good conscience. Since the 1938 procedural merger of law and equity in the federal courts under the Federal Rules of Civil Procedure, the term judgment (the parallel term in the common law) has generally replaced decree. This is now true also in most state courts.[8] The term decree is broadly treated as synonymous with judgment.[9]
A decree is often a final determination, but there are also interlocutory decrees. A final decree fully and finally disposes of the whole litigation, determining all questions raised by the case, and it leaves nothing that requires further judicial action; it is also appealable. An interlocutory decree is a provisional or preliminary decree that is not final and does not fully determine the suit, so that some further proceedings are required before entry of a final decree.[10] It is usually not appealable, although preliminary injunctions by federal courts are appealable even though interlocutory.[11]
Executive orders, which are instructions from the President to the executive branch of government, are decrees in the general sense in that they have the force of law, although they cannot override statute law or the Constitution and are subject to judicial review. Governors of individual states may also issue state executive orders.
Other uses of the term
In some jurisdictions, certain types of court orders by judges are referred to as decrees, e.g. a divorce decree.
See also
- Consent decree
- Edict
- Fatwa
- Firman
- Official Communications of the Chinese Empire
- Proclamation
- Rule by decree
- Rescript
- Soviet Decree
- Ukase
Notes
- ^ "decree-law" in the Random House Dictionary.
- ^ "decree-law" in the Merriam-Webster Dictionary.
- ^ René Metz, What is Canon Law?
- ^ "Documents of the Second Vatican Council". www.vatican.va. Retrieved 2019-02-06.
- ^ Canon 29, 1983 Code of Canon Law; accessed 30 March 2016.
- ^ "Decree". Catholic Encyclopedia. Retrieved 2007-02-17.
- ^ Buonomo, Giampiero (2000). "Sanatoria del condono decaduto: a favore dei centri di recupero ma a rischio di incostituzionalità". Diritto&Giustizia Edizione Online. Archived from the original on 2012-08-01. Retrieved 2016-03-17.
- ^ Lehman, Jeffrey; Phelps, Shirelle (2005). West's Encyclopedia of American Law, Vol. 4 (2 ed.). Detroit: Thomson/Gale. p. 38. ISBN 9780314201577.
- ^ Matulewska, Aleksandra (1 June 2016). "Semantic Relations between Legal Terms. A Case Study of the Intralingual Relation of Synonymy". Studies in Logic, Grammar and Rhetoric. 45 (1): 161–174. doi:10.1515/slgr-2016-0022. S2CID 123298982.
- ^ Black's Law Dictionary Free Online Legal Dictionary 2d ed.
- ^ Cornell Law School, Legal Information Institute.
References
- Executive decree authority, John M. Carey and Matthew Soberg Shugart, Eds., Cambridge University Press, 1998, ISBN 0-521-59722-6
External links
All external sites in French unless otherwise noted.
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