Decree

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A decree is a rule of law 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). In non-legal English usage, however, the term refers to any authoritarian decision.[ dubious ] Documents or archives in the format of royal decrees or farming were issued by rulers.[ clarification needed ]

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

A head of state is the public persona who officially represents the national unity and legitimacy of a sovereign state. Depending on the country's form of government and separation of powers, the head of state may be a ceremonial figurehead or concurrently the head of government. In a parliamentary system the head of state is the de jure leader of the nation, and there is a separate de facto leader, often with the title of prime minister. In contrast, a semi-presidential system has both heads of state and government as the leaders de facto of the nation.

The president is a common title for the head of state in most republics. In politics, president is a title given to leaders of republican states.

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Decree by jurisdiction

Belgium

In Belgium, a decree is a law of a community or regional parliament, e.g. the Flemish Parliament.

Belgium Federal constitutional monarchy in Western Europe

Belgium, officially the Kingdom of Belgium, is a country in Western Europe. It is bordered by the Netherlands to the north, Germany to the east, Luxembourg to the southeast, France to the southwest, and the North Sea to the northwest. It covers an area of 30,688 km2 (11,849 sq mi) and has a population of more than 11.4 million. The capital and largest city is Brussels; other major cities are Antwerp, Ghent, Charleroi and Liège.

Flemish Parliament elected legislative body of Flanders (Flemish Community and Flemish Region), Belgium

The Flemish Parliament constitutes the legislative power in Flanders, for matters which fall within the competence of Flanders, both as a geographic region and a cultural community of Belgium.

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 ordinances under the 1958 Constitution.

President of France head of state of France

The President of the French Republic is the executive head of state of France in the French Fifth Republic. In French terms, the presidency is the supreme magistracy of the country.

Prime Minister of France head of government and of the Council of Ministers of France

The Prime Minister of the French Republic in the Fifth Republic is the head of government. During the Third and Fourth Republics, the head of government was formally called President of the Council of Ministers, generally shortened to President of the Council. Most non-French sources referred to the post as "prime minister" or "premier." The title "Prime Minister" became official with the founding of the Fifth Republic.

Constitution of France French Constitution adopted in 1958

The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth Republic, while the text was drafted by Michel Debré. Since then the constitution has been amended twenty-four times, through 2008.

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).

<i>Ordonnance</i> Type of temporary statute law in France

In French politics, an ordonnance is a statutory instrument issued by the Council of Ministers in an area of law normally reserved for primary legislation enacted by the French Parliament. They function as temporary statutes pending ratification by the Parliament; failing ratification they function as mere executive regulations.

Orders issued by the Prime Minister take two forms:

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:

Regulation is an abstract concept of management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For example:

Statute Formal written document that creates law

A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies.

Implementation is the realization of an application, or execution of a plan, idea, model, design, specification, standard, algorithm, or policy.

Only the prime minister may issue regulatory or application decrees. Presidential decrees are generally nominations or exceptional measures where law mandates a presidential decree, such as the dissolution of the French National Assembly and the calling of new legislative elections.

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 offers a definition of 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 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 especially 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 in fact precarious, especially when the conversion law never intervened. [7]

Portugal

In Portugal, there are several types of decrees (Portuguese : decretos, singular Portuguese : decreto) issued by the various bodies of sovereignty or by the bodies of self-government of autonomous regions.

Currently, there are the following types of decrees:

  1. 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;
  2. 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 ;
  3. 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;
  4. Decree (Portuguese : decreto): is an act issued by the Government of Portugal to an approve 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;
  5. 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;
  6. 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;
  7. Decree from the representative of the Republic (Portuguese : decreto do representante da República): is 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

9 October 1981, Jamaran, Tehran; Ruhollah Khomeini as supreme leader of Iran sings presidential decree of Ali Khamenei. Ali Khamenei first presidency decree by Rohullah Khomeini (3).jpg
9 October 1981, Jamaran, Tehran; Ruhollah Khomeini as supreme leader of Iran sings presidential decree of Ali Khamenei.

According to the 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 a 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 a number of forms:

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 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 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 common law) has generally replaced decree. This is now true also in most state courts. [8] The term decree has had a similar usage in admiralty, probate, and divorce law. [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.

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

Notes

  1. "decree-law" in the Random House Dictionary.
  2. "decree-law" in the Merriam-Webster Dictionary.
  3. René Metz, What is Canon Law?
  4. "Documents of the Second Vatican Council". www.vatican.va. Retrieved 2019-02-06.
  5. Canon 29, 1983 Code of Canon Law; accessed 30 March 2016.
  6. "Decree". Catholic Encyclopedia . Retrieved 2007-02-17.
  7. Buonomo, Giampiero (2000). "Sanatoria del condono decaduto: a favore dei centri di recupero ma a rischio di incostituzionalità". Diritto&Giustizia edizione online.  via  Questia (subscription required)
  8. West's Encyclopedia of American Law (2d ed. 2008).
  9. Law.com.
  10. Black's Law Dictionary Free Online Legal Dictionary 2d ed.
  11. Cornell Law School, Legal Information Institute.

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References

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