Actions

The application of law

From Baripedia


The law is made up of rules of law, but reality is made up of factual situations.

The syllogism[edit | edit source]

The legal syllogism, or subsumption syllogism, is the intellectual operation making it possible to apply the general solution provided for by a rule of law to a factual situation that meets the conditions thereof.

The application of the law over time[edit | edit source]

A law is only applicable when it enters into force and has not been repealed:

  • Adoption: the law is adopted when both chambers accept it in a final vote
  • Promulgation: the law is promulgated at the time when:
  1. the Federal Council validates the popular vote: promulgation
  2. the Federal Chancellery promulgates that the referendum period has expired without having been used
  • Publication: the law is published in the Official Compilation so that it is known to all

There are two official publications in federal law, namely:

  • the Official Compilation (OC) which is a chronological collection;
  • the Systematic Compilation (SC) which is a collection ordered by subject.

The Federal Bulletin is a weekly publication in the three official languages in which the laws of Parliament are promulgated to announce the referendum deadline, etc. In other words, it is a publication that informs parliamentarians about bills.

The entry into force of the law and its repeal[edit | edit source]

  • Entry into force

The law comes into force when it becomes mandatory. The Federal Council shall determine the entry into force unless it is already included in the legislative act.

A law is passed by Parliament and promulgated and published before it comes into force.

  • Repeal

Repeal is the deletion of all or part of a legislative act by a new legislative act of the same or higher rank. The legislative act ceases to have effect. This refers to the adage Lex posterior derogat priori.

The principle of non-retroactivity of the law[edit | edit source]

This is the principle according to which a new legal norm cannot call into question old situations arising from the application of the previous rule. This principle dates back to the 18th century with the declarations of fundamental rights, in particular Article 9 of the Virginia Declaration of 12 June 1776 and Article 8 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789: « The law must establish only strictly and obviously necessary penalties, and no one may be punished except by virtue of a law established and promulgated prior to the offence, and legally applied[7] ».

Two other examples of the principle of non-retroactivity of the law:

  • Article 2 of the Swiss Penal Code:

If the new law is more favourable to the accused than the old law, the doctrine is that an exception should be made using the new law. This is a derogation from Article 2.

  • Article 7 of the European Convention on Human Rights: "No one may be convicted of an act or omission which, at the time it was committed, did not constitute an offence under national or international law".

Transitional provisions[edit | edit source]

Transitional law, or transitional provisions, are special rules of law, of limited duration and intended to facilitate the transition from existing legislation to new legislation. They establish transitional provisions to allow for adaptation to the new legislation. This is a way to mitigate the immediate effects of new legislation.

The application of law in space[edit | edit source]

  • Principle of the territoriality of the law: the legislation of a State applies only in its territory

Because of this principle, all persons and things in the country are governed by the law of the country. However, there are exceptions in the field of public law which ensures the exercise of public power. Diplomats leave the legislation of public international law.

  • Principle of the extraterritoriality of foreign diplomats

The extraterritoriality enjoyed by foreign diplomats and embassies is exempt from the country's legislation, but is subject to the law of their own country.

Ex - aircraft: if an aircraft leaves a State, it benefits from the extraterritoriality regime

Interpretation of the law[edit | edit source]

« Interpretation is the set of intellectual processes used to determine and clarify the true meaning of the rules.»

Situations, where the law coincides perfectly with the facts, are very rare. Often, the situation requires that the law be interpreted. The rules must be interpreted because the facts in society are very diverse and it is impossible to say that an ordinary situation is perfectly reflected in a rule of law.

Who interprets the law?

The privileged agents who interpret the law are:

  • Judge
  • Doctrine (lawyer, professor, lawyer...)
  • Legislator (i.e. the author of the law): so-called authentic interpretation.

The gaps in the law[edit | edit source]

When a law is created, the legislator cannot anticipate all the real cases that may arise. If the situation is not mentioned by the latter, we are talking about a gap in positive law. This deficiency may or may not be deliberate.

A number of methods can be used to interpret the law, particularly in the area of deficiency. There are gaps when you look for a rule within a given framework and find nothing.

There are two types of gaps.

The intra legem gap (in the law)[edit | edit source]

The intra lgem gap is a gap intended by the legislator because the details escape him. The law refers to the discretion of the judge whenever it has an unknown or indeterminate term. It refers the law to the judge and his discretion (because it is more competent in a specific case).

The reference to the judge by the legislator is characterized by certain formulas:

The gap praeter legem (in addition to the law)[edit | edit source]

This gap is not rooted in the law. This is an unintentional gap that leaves a legal void in the law: there is no indication how to resolve a legal situation. This is a gap that has escaped the legislator.

Annexes[edit | edit source]

Reference[edit | edit source]