Law reform
Encyclopedia
Law reform or Legal reform is the process of examining existing law
s, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice
or efficiency.
Intimately related are law reform bodies or law commissions
, which are organizations set up to facilitate law reform. Law reform bodies carry out research and recommend ways to simplify and modernize the law. Many law reform bodies are statutory corporation
s set up by government
s, although they are usually independent from government control, providing intellectual independence to accurately reflect and report on how the law should progress.
Law reform activities can include preparation and presentation of cases
in court
in order to change the common law
; lobbying
of government official
s in order to change legislation
; and research
or writing
that helps to establish an empirical basis for other law reform activities.
The four main methods in reforming law; Repeal
(get rid of a law), Creation of new law, Consolidation (change existing law) and Codification
.
of a country's judiciary
. Judicial reform is often done as a part of wider reform of the country's political system or a legal reform. The President of the Constitutional Court of the Russian Federation
, Valery Zorkin, gives in his article, "Twelve Theseses on Legal Reform in Russia", first published in Russian magazine «Legislation and Economics», N. 2, 2004 an explained correlation between legal and judicial reform: "Complete legal reform should normally include not only judicial reform, but also reform of various aspects of the structural system and content of legislation
, legal education
, legal awareness by the population, and also the corporate consciousness of the whole legal community. Judicial reform usually aims to improve such things as law courts, procuracies, advocacy (bar), inquest, executory processes, and record keeping." .
. A true market economy cannot be created without ensuring both full guarantees of private property and transparent predictability for entrepreneurial activity, on the one hand; and sufficiently reasonable legal control over economic processes, on the other hand. Legal reform should be an integral part of any on-going reform process. Legal reform is a tool for implementing necessary reforms, to balance competing interests, create a dynamic and sustainable economy, and build a sustainable civil society
. During last decades the judiciary
became active in economic issues related with economic rights established by constitution because "economics may provide insight into questions that bear on the proper legal interpretation". Since many a country with a transitional political and economic system continues treating its constitution
as an abstract legal document disengaged from the economic policy
of the state, practice of judicial review of economic acts of executive and legislative branches became to grow.
Budget
of the judiciary in many transitional and developing countries is completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics
. It is important to distinguish between the two methods of corruption
of the judiciary: the state
(through budget planning and various privileges), and the private.
Russian Parliament
on October 24, 1991. This document still remains legally valid and applicable.
Valery Zorkin stressed that "the «separation of powers
» principle, also proclaimed in the Constitution
of the Russian Federation, requires observance of judicial independence
. And such independence requires proper funding of the courts and their activities. It is well-known that Russian courts remain under-funded. However, the cumulative economic costs suffered by both state
and private enterprises as the result of under-performance by various judicial institutions, especially by the courts of general jurisdiction
and the arbitration courts, is at least twice the order of magnitude as the financial burden carried by the state and society in financing such judicial institutions. The elimination of under-funding of the courts would definitely improve the efficiency of their work and be worthwhile.
Taking into account the specifics of historical developments in Russia, one may assert that without undertaking a large-scale legal reform it would be extremely difficult to succeed concurrently with judicial reform. It is necessary now to start unfolding a full-scale legal reform, which has to be completed by the year 2020. The official public presentation and implementation of such legal reform should become the prime responsibility of executive
and legislative authorities. The program of legal reform
needs to be adopted in the form of a legislative act.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
or efficiency.
Intimately related are law reform bodies or law commissions
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
, which are organizations set up to facilitate law reform. Law reform bodies carry out research and recommend ways to simplify and modernize the law. Many law reform bodies are statutory corporation
Statutory Corporation
A statutory corporation or public body is a corporation created by statute. While artificial legal personality is almost always the result of statutory intervention, a statutory corporation does not include corporations owned by shareholders whose legal personality derives from being registered...
s set up by government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
s, although they are usually independent from government control, providing intellectual independence to accurately reflect and report on how the law should progress.
Law reform activities can include preparation and presentation of cases
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
in court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
in order to change the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
; lobbying
Lobbying
Lobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
of government official
Official
An official is someone who holds an office in an organization or government and participates in the exercise of authority .A government official or functionary is an official who is involved in public...
s in order to change legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
; and research
Legal research
Legal research is "the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and...
or writing
Legal writing
Legal writing is a type of technical writing used by lawyers, judges, legislators, and others in law to express legal analysis and legal rights and duties.- Authority :...
that helps to establish an empirical basis for other law reform activities.
The four main methods in reforming law; Repeal
Repeal
A repeal is the amendment, removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....
(get rid of a law), Creation of new law, Consolidation (change existing law) and Codification
Codification
In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex of law.-History:...
.
Correlation with judicial reform
Judicial reform is the complete or partial political reformReform
Reform means to put or change into an improved form or condition; to amend or improve by change of color or removal of faults or abuses, beneficial change, more specifically, reversion to a pure original state, to repair, restore or to correct....
of a country's judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
. Judicial reform is often done as a part of wider reform of the country's political system or a legal reform. The President of the Constitutional Court of the Russian Federation
Constitutional Court of the Russian Federation
The Constitutional Court of the Russian Federation is a high court which is empowered to rule on whether or not certain laws or presidential decrees are in fact contrary to the Constitution of Russia...
, Valery Zorkin, gives in his article, "Twelve Theseses on Legal Reform in Russia", first published in Russian magazine «Legislation and Economics», N. 2, 2004 an explained correlation between legal and judicial reform: "Complete legal reform should normally include not only judicial reform, but also reform of various aspects of the structural system and content of legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
, legal education
Legal education
Legal education is the education of individuals who intend to become legal professionals or those who simply intend to use their law degree to some end, either related to law or business...
, legal awareness by the population, and also the corporate consciousness of the whole legal community. Judicial reform usually aims to improve such things as law courts, procuracies, advocacy (bar), inquest, executory processes, and record keeping." .
Relation with economics
Legal reform can be the «driver» for all other reforms, including reform of the economyEconomy
An economy consists of the economic system of a country or other area; the labor, capital and land resources; and the manufacturing, trade, distribution, and consumption of goods and services of that area...
. A true market economy cannot be created without ensuring both full guarantees of private property and transparent predictability for entrepreneurial activity, on the one hand; and sufficiently reasonable legal control over economic processes, on the other hand. Legal reform should be an integral part of any on-going reform process. Legal reform is a tool for implementing necessary reforms, to balance competing interests, create a dynamic and sustainable economy, and build a sustainable civil society
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
. During last decades the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
became active in economic issues related with economic rights established by constitution because "economics may provide insight into questions that bear on the proper legal interpretation". Since many a country with a transitional political and economic system continues treating its constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
as an abstract legal document disengaged from the economic policy
Economic policy
Economic policy refers to the actions that governments take in the economic field. It covers the systems for setting interest rates and government budget as well as the labor market, national ownership, and many other areas of government interventions into the economy.Such policies are often...
of the state, practice of judicial review of economic acts of executive and legislative branches became to grow.
Budget
Budget
A budget is a financial plan and a list of all planned expenses and revenues. It is a plan for saving, borrowing and spending. A budget is an important concept in microeconomics, which uses a budget line to illustrate the trade-offs between two or more goods...
of the judiciary in many transitional and developing countries is completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
. It is important to distinguish between the two methods of corruption
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
of the judiciary: the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
(through budget planning and various privileges), and the private.
Russian example
In modern Russia, aspects and directions of development of judicial reform were formulated in the «Judicial Reform Concept», enacted by theRussian Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
on October 24, 1991. This document still remains legally valid and applicable.
Valery Zorkin stressed that "the «separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
» principle, also proclaimed in the Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of the Russian Federation, requires observance of judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
. And such independence requires proper funding of the courts and their activities. It is well-known that Russian courts remain under-funded. However, the cumulative economic costs suffered by both state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
and private enterprises as the result of under-performance by various judicial institutions, especially by the courts of general jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
and the arbitration courts, is at least twice the order of magnitude as the financial burden carried by the state and society in financing such judicial institutions. The elimination of under-funding of the courts would definitely improve the efficiency of their work and be worthwhile.
Taking into account the specifics of historical developments in Russia, one may assert that without undertaking a large-scale legal reform it would be extremely difficult to succeed concurrently with judicial reform. It is necessary now to start unfolding a full-scale legal reform, which has to be completed by the year 2020. The official public presentation and implementation of such legal reform should become the prime responsibility of executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
and legislative authorities. The program of legal reform
needs to be adopted in the form of a legislative act.
See also
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- DemocratizationDemocratizationDemocratization is the transition to a more democratic political regime. It may be the transition from an authoritarian regime to a full democracy, a transition from an authoritarian political system to a semi-democracy or transition from a semi-authoritarian political system to a democratic...
- DeregulationDeregulationDeregulation is the removal or simplification of government rules and regulations that constrain the operation of market forces.Deregulation is the removal or simplification of government rules and regulations that constrain the operation of market forces.Deregulation is the removal or...
- Drug policy reformDrug policy reformDrug policy reform, also known as drug law reform, is a term used to describe proposed changes to the way most governments respond to the socio-cultural influence on perception of psychoactive substance use...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Independence of the judiciary
- LiberalizationLiberalizationIn general, liberalization refers to a relaxation of previous government restrictions, usually in areas of social or economic policy. In some contexts this process or concept is often, but not always, referred to as deregulation...
- Land reformLand reform[Image:Jakarta farmers protest23.jpg|300px|thumb|right|Farmers protesting for Land Reform in Indonesia]Land reform involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution,...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...