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Terminology
Terminology
The terminology issue is relevant in any legal domain but it becomes really critical in a context like the present analysis that covers different traditions and languages trying to identify common denominators. The terminology is crucial for labelling the modificatory provisions but moreover for labelling the date involved in the dynamic of the legislative document over time.
Therefore, we have first of all tried to harmonise the terminology used in the different countries and different legal system traditions by providing a tentative definitions of the important dates and milestones of the modification management over time. The below definitions are tentative and need to be accurately verified with the theory of law and with the legal drafting process used in each country.
Date of existance
This is the date when the formal act by which the lawmaking body (e.g. Lower House or Senate) freezes the document into its final form, it is the time when the document can be said to have begun its existence. This date is important, because the document will henceforth produce procedural consequences in view of the fact that it is due to come into force as law.
Date of delivery
This is the date when the competent authorities finalise the document by affixing their signatures to it (e.g. promulgation by the president, signature by the Queen, etc.). This date is the date shown on the document itself: it is an objective element and clearly identifiable.
Date of publication
This is the date when the normative document is published in the Official Journal designated as the source for making all such documents public and legal. This is an objective element even if it is assigned to the document at posterior respect its approval.
Date of entry into force
This is the date when a normative document becomes law and enters the legal system. The jurist and the lawmaker will take this as the moment in the document’s history starting from which the document can be amended, its applicability assessed, and its manner of producing an effect determined.
This initial moment is a static and historical marker that records a procedural step in the document’s period of force. On the other hand the period of force, as an interval, is dynamic—it can change over time—so we suggest that its static element (the initial moment enter in force) be kept separate for now to the interval of force.
The entry into force date can be, usually, established on the basis of the document’s publication in an official journal. There are cases in which it takes some interpretation to establish what happens after publication, there could be a period, called vacatio legis (e.g. 15 days) after the publication which determines entry into force. We assume as an axiom that it is not possible for the legislative document to enter in force in a moment before its delivery. Usually the entry in force sentences are similar to the following: “This act shall come into force on 1 August 2004”, “This Act is deemed to have come into force on 1 February 1998”. Therefore the sentence “This Act shall come into operation” is here considered relating to the efficacy starting time rather than the enforcement time, even if in some cases the interpretation is not clear (e.g. South Africa Act) and we hope to resolve this theoretical point with the contribution of the colleagues.
Period of force
This is the period during which a normative document belongs to the normative system. The period of force may change over time as a function of the modifications the document goes through.
Period of efficacy
This is the period during which a normative document may also be either operative or inoperative, by explicit provision of the document itself. The document is said to be in a period of operation, or enforceability or efficacy, when it may or must be applied or enforced. The relationship between the period of efficacy and the period of enter in force determines several interesting situations described in this work.
Date of application of the modification
This is the date when the modification is applied to the destination legislative document. This date can be instantaneous, in the future or in the past. In the normal case this date is coincident with the operatively period of the modificatory provision.Nevertheless, several cases are presented in this document.