Scheduling: 2015-2019
Principal Investigator: Carlos Blanco de Morais
Research Team:
João Tiago Silveira
Alexandre Sousa Pinheiro
Miguel Romão
Rui Lanceiro
Mariana Melo Egídio
Francisco Abreu Duarte
Description:
Legislation drafting is almost unknown in the academic curricula of universities but it has, since the beginning of the century, been included in post-graduate studies. It is the area of knowledge that envisages the creation of rules, standards and methods to draft legislative instruments with quality. Its target is, therefore, the improvement of creating and drafting legislation. That is to say, “to theorise ways of producing “good laws” [1].
The issue at hand is not the merit of the legal act – such as its compatibility with the Constitution, with International Law, with European Union Law, with laws with higher legal force or the respect of legal procedures, in the case of regulations -, but rather knowing how legal rules may be drafted with clarity, simplicity and certainty when transmitting of the intention of the political decision-maker.
The awareness that legislation should be evaluated in terms of “quality”, and not only as a “source” has been developed in the European Union, in particular as of the approval of the report of the Mandelkern Group (2001), which determined the need to pursue a legislative policy based on necessity, proportionality, subsidiarity, transparency, responsibility, accessibility and simplicity of the law.
Today, institutions such as the European Union, European Organization for Cooperation and Development (OECD) and the World Bank, as well as a relevant number of States make efforts to develop and support programmes of better and smart regulation.
Traditionally, the study of better legislation drafting is divided as follows: (i) the study of the system of legal sources; (ii) “material” rules for legislation drafting; (iii) “formal” rules for legislation drafting and (iv) legislative impact assessment.
Any of these divisions is extensive and worthy of being studied in an autonomous research project. Whilst the system of legal sources is a legal and political component; material rules regarding legislation drafting is fundamentally concerned with methodological aspects of the drafting of the legislation. On the other hand, and in summary, impact assessment envisages evaluating if a proposed piece of legislation is the more adequate to address the issues at stake (ex ante evaluation) or if the results of the implementation of a piece of legislation corresponds to those initially envisaged by the legislator (ex post evaluation).
This research project is related to the third division aforementioned: it aims to study and promote to the definition of criteria, standards and common rules for legislation drafting in the legal systems of Angola, Brazil, Cape Verde, Guinea-Bissau, Special Administrative Region of Macao, Mozambique, Portugal, São Tomé and Príncipe and East Timor.
Accordingly, its main objective is related to formal legislation drafting, which envisages the definition and implementation of rules and good practices regarding the drafting of legislation. Such scope delimitation for this research project does not mean, as it will be seen, that there will not be the need to convey some of the other aforementioned divisions regarding legislation drafting.
There are four reasons that grounded the need for this research project.
First, the adoption of criteria, standards and common rules for legislation drafting making represents an added value towards an easier understanding of laws and regulations, in this case in a more comprehensive space than just in a single legal system.
One should highlight that what is, here, at stake is not the legal procedure for the adoption of laws and regulations or common policies, but finding common techniques of drafting legislation. I.e., techniques of drafting and systematising legislation in order to allow citizens and entrepreneurs to better understand their rights and duties in Portuguese speaking countries and regions. Criteria, standards and common rules for legislation drafting in countries and regions where Portuguese is an official language will determine improve conditions for their citizens and residents to act, as well as for enterprises to invest.
Based on this, all users of a legal system may be informed on the content of legislation in an easier and more efficient way. Indeed, whilst the doctrine may present different solutions for a given situation, doubts may still arise, for example, regarding the status of a piece of legislation (if in force, or not), or regarding the meaning of a determined provision. Therefore, efforts should be carried out to make such doubts disappear, making easier the understanding of the rights and obligations of citizens or residents, and to allow for a easier access to applicable law for investors, national or foreigners.
Second, a common language shapes the possibility of a cultural setting ideal for fostering common drafting rules for countries and regions where Portuguese is used in legislation. This means to study common rules to draft legislation for legal systems where more than 250 million people speak Portuguese.
Thirdly, the space of common development, cooperation and legal integration between countries and regions with Portuguese as official language is still reduced and there are possibilities to explore this potential. This research project aims to contribute for a common development, cooperation and integration in an area which is essential to society and the rule of law – legal clarity and transparency.
Finally, and in fourth place, it is possible to identify similarities in the legal culture of the several countries and regions with Portuguese as official language, which encourages this research project and the development of the above referred potential.
Thus, this research project aims to achieve an easily identifiable objective: the determination of common rules and standards for legislation drafting in the Lusophone legal system.
The idea is to take advantage of a common knowledge of all the legal systems with a Lusophone basis, in an academic dialogue, conveying academics and specialists from each system. For this purpose, we put forward the creation of a mixed research team, with researchers from the Institute of Legal and Political Sciences (ICJP) of the Lisbon Law School and specialists and researchers from the different countries and regions where the legislation is written in Portuguese, as well as consultants of European Universities.
Content of the research project:
As referred, the definition of criteria, standards and common rules for legislation drafting for Portuguese speaking countries and regions, including Angola, Brazil, Cape Verde, Guinea-Bissau, Special Administrative Region of Macao, Mozambique, Portugal, São Tomé and Príncipe and East Timor is referred to “formal” rules for legal drafting. In other words, it addresses rules regarding the drafting of legislation.
The definition of these criteria, standards and common rules may have to address such relevant issues as the following:
Formal organisation of the legal text;
Thematic homogeneity of the legal text;
Language and discourse homogeneity used in the legal system;
Accessibility to amendments to the legal texts;
Republication and consolidation of legal texts as mechanisms of simplification of applicable Law;
Special procedures of drafting of legal norms in accordance with the principle of typification.
Although this research project is mainly concerned with formal law making, it is not excluded the analysis of material issues of law making, if deemed necessary, as may be the case, for example, of the definition of a type sequence of steps in the drafting oflegislation, or of a set of basic principles regarding public discussions, consultations and public hearings.
Methodology:
This research project will follow the following steps:
Phase 1: Systematisation, collection and publicity of relevant data for the research project
1st step: identification and collection of laws, guidelines and doctrine on better legislation drafting in all legal systems of the countries and regions within the scope of the study;
2nd step: drafting and publishing of an academic article on the evolution of how legislation drafting has been addressed in Portuguese-speaking countries and regions and brief comparison of the different solutions;
3rd step: identification of the issues on legislation drafting where there is a higher potential fordefining criteria, standards and rules, considering each legal system.
Phase 2: further development of the methodology and procedures of the research project
4th step: first meeting with the research consultants takes place, in order to collect suggestions on methodology and procedures regarding the next steps of the research project;
5th step: identification and division of three main blocks of aspects of better legislation drafting , to be studied in three different moments/phases, which will be addressed in one each of the three plenary meeting of the research team.
Phase 3: dissemination of the data obtained up to this stage of the research project
6th step: writing of a book on the national and regional rules on legislation drafting in force in the above identified Portuguese-speaking countries and regions;
Phase 4: definition of criteria, standards and common rules on better legislation drafting
7th step: drafting of proposals regarding the definition of criteria, standards and common rules on legislation drafting for the first block of issues to be addressed and adopted in the first plenary meeting of the research team;
8th step: definition of the criteria, standards and common rules on legislation drafting for the first block of aspects analysed, on the first plenary meeting of the research team;
9th step: drafting of proposals regarding the definition of criteria, standards and common rules on legislation drafting for the second block of issues to be addressed and adopted in the second plenary meeting of the research team;
10th step: definition of the criteria, standards and common rules on legislation drafting for the second block of issues analysed, on the second plenary meeting of the research team;
11th step: possible second meeting with the research consultants, in order to discuss suggestions regarding possible corrections or elements to take into consideration at the last plenary meeting of the research team;
12nd step: drafting of proposals regarding the definition of criteria, standards and common rules on legislation drafting for the third block of issues to be addressed and adopted in the third plenary meeting of the research team;
13th step: definition of the criteria, standards and common rules on legislation drafting for the third block of issues analysed, on the third plenary meeting of the research team.
Phase 5:
14th step: writing and publishing of a book on the criteria, standards and common rules for legislation drafting in Portuguese-speaking countries and regions, which may be used for several objectives, namely within the Community of Portuguese Speaking Countries;
15th step: writing and publishing of text which will assist in the implementation of the common rules on legislation drafting, which may play the role of a “reference book regarding the legislation drafting in the Lusophone space”.
It is possible that, at the same time of the plenary meetings of the research team, courses/conferences/training on legislation drafting may take place, given by the research team of the countries/regions where the meetings are held. These events may also provide the opportunity for professionals, in those countries or regions, to engage in the discussion of the theme of better legislation drafting, as well as an opportunity for financing the research project.
Also within the research project, but not necessarily integrated in the methodology for the definition of criteria, standards and common rules on legislation drafting , a post-graduation on “better legislation drafting and science of legislation” will take place, under the responsibility of the Institute of Legal and Political Sciences of the Lisbon Law School.
Outputs:
The main purpose of this research project is the definition of criteria, standards and common rules onlegislation drafting within the Portuguese-speaking countries and regions, including Angola, Brazil, Cape Verde, Guinea-Bissau, Special Administrative Region of Macao, Mozambique, Portugal, São Tomé and Príncipe and East Timor.
This purpose will be achieved through the following projects outputs/results:
Report with the criteria, standards and common rules on legislation drafting for the countries and regions above mentioned, which may be used for several objectives, namely within the Community of Portuguese Speaking Countries, taking advantage of the existing knowledge in the legal systems with a Lusophone basis;
Writing of an article/book, which will assist in the implementation of the common rules on legislation drafting aimed to play the role of a “reference book regarding the legislation drafting in the Lusophone space”;
Writing of an article on the national and regional rules on legislation drafting in all the countries and regions above identified;
Writing of a preliminary scientific article on the evolution of legislation drafting rules in Portuguese-speaking countries and regions and a brief comparison of the legislation in force regarding that matter;
Annual post-graduate course on “better legislation drafting and science of legislation” will take place, under the responsibility of the Institute of Legal and Political Sciences of the Lisbon School of Law (beginning of the 2nd semester of 2015/2016), in connection with similar activities in other Portuguese-speaking countries and regions;
Courses/conferences/training on legislation drafting may take place, provided by the research team in the countries/regions where the plenary meetings of the research team are held.
At the end of the research project an evaluation will take place regarding the possibility of creating a “Legislation Observatory of Portuguese-Speaking countries and regions”, taking advantage of the know-how of the experts in the several legal systems involved.
[1] NA: «teorizar receitas para produzir “boas leis”», in Duarte, David/Pinheiro, Alexandre Sousa/Romão, Miguel Lopes/Duarte, Tiago – Legística, Perspectivas sobre a concepção e reacção de actos normativos, Almedina, Coimbra, 2002, págs. 5 e segs; Morais, Carlos Blanco de – Manual de Legística, Critérios Científicos e Técnicos para Legislar Melhor, Verbo, 2007, pág. 70.
