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Taxonomy

A modification is a normative provision that brings changes to another normative provision or otherwise to the relations among the constituent norms of a normative system (e.g. conversion of a legislative decree into law).

Normative modifications can be divided in two broad categories:

• norm-specific modifications
• legal-system modifications

These two categories can then be divided in subclasses and those in turn into third level that list specific types of modifications. We have therefore a hierarchy of the modificatory provisions which can be classified as follow:

NORM-SPECIFIC MODIFICATION

This is a provision that modifies other normative provisions or normative acts singly. Norm-modifying provision may make a textual modification to a normative provision, or it may change its range or temporal attributes, or meaning, either the literal or the meaning as interpreted. These are, in essence, modifications for managing the dynamics of a legal system.

Norm-specific modifications can be further divided into three subcategories according to what they modify:

• Modifications of content: these modify the content of a normative provision , and may do so by:

(a) textual modifications – traditional modifications made to a text by repeal, substitution, insertion, or re-placement (renumbering). More often than not, text-modifying provisions apply to external provisions, but there are cases in which they apply internally, either to their own text or to provisions enclosed in the normative act containing the modificatory provision (reflexive modifications). This group includes textual modifications to the letter of the norm, namely: repeal, substitution, insertion, and re-placement of text within the normative act itself.

• Re-placement, in particular, by affecting the way the repositioned text can be accessed over time is a challenging issue in the context of consolidation. Consider a paragraph moved from position 3 to position 7 at time t1, and then to position 11 at time t2. Now, any normative act making reference to former paragraph 3 must link us to the correct content, and hence to a new paragraph whose position will be different according from time t1 to time t2. In the example, if an external document refers to paragraph 3 at time t1, it must redirect us to paragraph 7; if, instead, the document browses for the same normative reference (for paragraph 3) at time t2, it must take us to paragraph 11.

(b) modifications of meaning – modifications that change the meaning of a provision without changing its text. This group includes authentic interpretation, modification of the terms (e.g., prolongation of an administrative procedure) and variation (a paraphrased modification that acts not with a punctual textual substitution, but describing the final effect. E.g. “Is increased in the percentage of 2 %”).

• Modifications of scope – modifications that limit or expand the range of cases to which a normative provision applies.

These modifications expand or restrict the range of cases to which a normative provision applies as formulated in the abstract. An expanded or restricted abstract norm may be internal to a normative act or external to it. This modification (by expansion or restriction) may be reflexive on the same provision; that is, it may expand or restrict the scope of a rule set forth in the provision itself. Note that we consider an expansion the expression “applies as well to,” and as a restriction the expression “does not apply to” In this set, modification of scope, we find also the categories of exception and extension.

• Temporal modifications: - modifications that change the time attributes, force and efficacy, of a normative provision external or internal to a normative provision. These modification subtypes can be divided in two sets:

(a) Modifications of norm’s force period: These include modifications of force itself:

• Entry into force: when the act starts to enter into force due to an external event;
• End of enactment: when the act states the end of the period of enactment and includes an implicit repealing of the text;
• Postponement of entry into force: when the act or a part of it enters into force with delay with respect to the usual rule;
• Prorogation of force: prorogation in an act of the date of enactment. The life of the act is lengthened respect a previous end of enactment modification;
• Re-enactment: when an act previously repealed is recalled into force. Reinstatement of a repealed normative act leaves a vacuum in the normative system in the interim period between the two actions;
• Unconstitutional decision: when an act is annulled following a High Court/Constitutional Court decision. It strikes out a normative provision at source and its entry into the normative system.

(b) Modifications of norm’s efficacy period:

• Suspension: when a part of an act or some provisions are suspended in coming to be operative for a period or indefinitely;
• Inapplication (or Disapplication): when an act of the lower level is subsidiary in respect to one of the higher levels. So in this case the act of the higher level is suspended indefinitely, but when the lower law is repealed immediately the higher level act restart to be effective (e.g. Regional Law respect the State Law);
• Retroactivity: when the act efficacy or a part efficacy starts before the entry into force of the document;
• Extra- efficacy: when the act efficacy or a part efficacy continues after the repeal of the document. This kind of modification is very unusual nevertheless it is a possibility;
• Postponement of efficacy: when the act efficacy or a part efficacy starts with delay with respect to the usual rule;
• Prorogation of efficacy: the same asthe prorogation of entry into force but applied to the efficacy.

LEGAL - SYSTEM MODIFICATION

This is a provision that modifies, not a single textual norm, but the relationships between the norms included in a legal system.

A good example is the ratification of an international treaty. The treaty is already in force as international law, yet it must be transposed within national law through a ratifying law. From that point onward, the international treaty becomes national law all the while retaining a standing of its own as a treaty of international law.

A second example of Legal-System modification is represented by all the relations that hold between delegating norms and delegated norms, as when a government issues an emergency legislative decree acting on powers delegated to it by parliament. A delegated decree would not exist but for the constitutionally established link that makes its enactment lawful through the authority conferred on it by a delegating normative provision. These power-conferring relations are expressed through provisions that modify not the single document per se but the system understood as a network of interrelated norms.

In this context we can have the following modificatory provisions:

• Static-reference: when a cross-reference links to a specific version of the document. E.g. the cross-references that are in the preamble. The cross-references that are in the judge decision.
• Implementation: when a local Act implement in the local Legal System normative supra-ordered such as when a Region implement EU directive. (in some case it is use the terminology Transposition)
• Ratification: when an International Treaty is ratified by the local Parliament in order to include it in the Local Legal System. The same thing happens when each local Parliament ratifies bilateral or multilateral agreements.
• Application: when a local Act applies in the local Legal System normative supra-ordered such as when a Region applies EU directive or a Decree applies in operative way the normative stated by an act.
• Legislative delegation: when the Parliament delegates the Government to release an act in autonomy about very urgent and specific topics (in Italy this is called: “decreto legislative” permitted only if there exists a special act called “legge delega”). To monitor the “decreto legislativo” linked to its “legge delega” allows the Parliament and the citizen to assess the policy-making process.
• Deregulation: when a part of first legislative source (act) is delegated to the secondary legislative source (regulation). In all the European States this mechanism is used for make lighter the Legal System.
• Conversion: when a temporary decree is converted in permanent act by another act.
• Expiration: when a temporary decree is not converted in permanent act within the expiration date.
• Reiteration: when a temporary decree after the expiration date is not converted but it is re-approved as temporary decree.
• Remaking: when an act is completely rewritten in a new way but the topic is the same. The semantic relationship is tracked with a special link in order to see the evolution of the original act even if it was remade.
• Republication: when an act is re-published with some annotation in the Official Gazette but it is not an official legal document.
• Coordination: when an act is published in the Official Gazette in a consolidation version.

Next: Annex A: Modelling Modificatory Provisions Previous: Terminology