A decree is a legalproclamation, usually issued by a head of state such as the president of a republic, or a monarch (a royal decree), 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).
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 makes 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.
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.
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]
The Government may not, without an enabling act from the Houses [of Parliament], 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 extraordinally summoned 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 unconfirmed 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]
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:
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.
After the Russian Revolution, a government proclamation of wide meaning was called a "decree" (декретdekret); a more specific proclamation was called an указukaz. Both terms are usually translated as 'decree'.
According to the Russian Federation's 1993 constitution, an ukaz is a presidential decree. Such an ukaz has the force of law, 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 (ПостановленияPostanovleniya or Orders (РаспоряженияRasporyazheniya) and may not contradict the constitution/laws or presidential decrees.
Saudi Arabia
Royal decrees, along with the Sharia, are the sources of law in the Kingdom of Saudi Arabia.
The decree law (Turkish: Kanun Hükmünde Kararname, KHK) in Turkey is a type of legislative instrument issued by the government, based on the authority granted either by a specific enabling act from the legislative body or directly from the Constitution. These decrees have the force of law in a material sense and acquire formal and organic legal power upon the approval of the parliament. According to Article 87 of the 1982 Constitution of Turkey, granting the Council of Ministers the authority to issue decree laws on specific matters is included in the duties and powers of the Grand National Assembly of Turkey.[8]
Article 91 of the Constitution also regulates the issuance of decree laws. It states:
Decree laws in Turkey are categorized into two types: ordinary and extraordinary. Ordinary decree laws are issued by the Council of Ministers and require an enabling act from the Grand National Assembly. They cannot regulate fundamental rights, individual rights and duties, or political rights and duties. Extraordinary decree laws, on the other hand, are issued by the Council of Ministers under the presidency of the President. They do not require an enabling act from the Grand National Assembly and can regulate any area, provided they fulfill obligations arising from international law. Decree laws are subject to both political scrutiny by the parliament and judicial review by the Constitutional Court.[9]
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.[11]
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.[12] The term decree is broadly treated as synonymous with judgment.[13]
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.[14] It is usually not appealable, although preliminary injunctions by federal courts are appealable even though interlocutory.[15]
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.
The president of France, officially the president of the French Republic, is the executive head of state of France, and the commander-in-chief of the French Armed Forces. As the presidency is the supreme magistracy of the country, the position is the highest office in France. The powers, functions and duties of prior presidential offices, in addition to their relation with the prime minister and government of France, have over time differed with the various constitutional documents since the Second Republic.
The Constitution of the Kingdom of the Netherlands is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the Kingdom of the Netherlands. It is generally seen as directly derived from the one issued in 1815, constituting a constitutional monarchy; it is the third oldest constitution still in use worldwide. A revision in 1848 instituted a system of parliamentary democracy. In 1983, the most recent major revision of the Constitution of the Netherlands was undertaken, almost fully rewriting the text and adding new civil rights.
The president of Turkey, officially the president of the Republic of Türkiye, is the head of state and head of government of Turkey. The president directs the executive branch of the national government and is the commander-in-chief of the Turkish military. The president also heads the National Security Council.
Promulgation is the formal proclamation or the declaration that a new statutory or administrative law is enacted after its final approval. In some jurisdictions, this additional step is necessary before the law can take effect.
The president of Portugal, officially the president of the Portuguese Republic, is the head of state and highest office of Portugal.
The primary and fundamental statement of laws in the Russian Federation is the Constitution of the Russian Federation. Statutes, like the Russian Civil Code and the Russian Criminal Code, are the predominant legal source of Russian laws.
An enabling act is a piece of legislation by which a legislative body grants an entity which depends on it for the delegation of the legislative body's power to take certain actions. For example, enabling acts often establish government agencies to carry out specific government policies in a modern nation. The effects of enabling acts from different times and places vary widely.
The Constitution of the Republic of Lithuania defines the legal foundation for all laws passed in the Republic of Lithuania. The first constitution of the contemporary republic was enacted on 1 August 1922. The current constitution was adopted in a referendum on 25 October 1992.
The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958 to ensure that constitutional principles and rules are upheld. It is housed in the Palais-Royal in Paris. Its main activity is to rule on whether proposed statutes conform with the Constitution, after they have been voted by Parliament and before they are signed into law by the President of the Republic, or passed by the government as a decree, which has law status in many domains, a right granted to the government under delegation of Parliament.
The Constitution of Bangladesh, officially the Constitution of the People's Republic of Bangladesh is the supreme law of Bangladesh. The document provides the framework that demarcates the Bangladeshi republic with a unitary, parliamentary democracy, that enshrines fundamental human rights and freedoms, an independent judiciary, democratic local government and a national bureaucracy.
The Government of Turkey is the national government of Turkey. It is governed as a unitary state under a presidential representative democracy and a constitutional republic within a pluriform multi-party system. The term government can mean either the collective set of institutions or specifically the Cabinet.
The Law of Portugal is part of the family of the civil law legal systems, based on Roman law. As such, it has many common features with the legal systems found in most of the countries in Continental Europe.
The present Constitution of the Republic of Albania was adopted by the Parliament of Albania on 21 October 1998 and certified by presidential decree on 28 November 1998, following a failed referendum which was boycotted by the opposition. It is split up over many different acts. The document succeeded the 1976 Constitution, originally adopted at the creation of the People's Socialist Republic of Albania on 28 December 1976 and heavily amended on 29 April 1991.
The Council of Ministers is the principal executive organ of the Government of Italy. It comprises the President of the Council, all the ministers, and the Undersecretary to the Prime Minister. Deputy ministers and junior ministers are part of the government, but are not members of the Council of Ministers.
In French law, 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.
The political status of the Azores is defined by the Political-Administrative Statute of the Autonomous Region of the Azores, which acts as the standard legal constitutional framework for the autonomy of the Portuguese archipelago of the Azores. It defines the scope of the autonomous regional government and the structure and functioning of the region's organs of government within the framework of the 1976 Constitution of Portugal. The autonomous region of Madeira has a similar status.
The politics of France take place with the framework of a semi-presidential system determined by the French Constitution of the French Fifth Republic. The nation declares itself to be an "indivisible, secular, democratic, and social Republic". The constitution provides for a separation of powers and proclaims France's "attachment to the Rights of Man and the principles of National Sovereignty as defined by the Declaration of 1789".
The law of Italy is the system of law across the Italian Republic. The Italian legal system has a plurality of sources of production. These are arranged in a hierarchical scale, under which the rule of a lower source cannot conflict with the rule of an upper source.
States of emergency in France are dispositions to grant special powers to the executive branch in case of exceptional circumstances. A state of emergency was declared following the November 2015 Paris attacks, which expired, after five extensions, in November 2017.
References
Executive decree authority, John M. Carey and Matthew Soberg Shugart, Eds., Cambridge University Press, 1998, ISBN0-521-59722-6
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