Normative Technique of Law-Making, its Essence, Necessity, Problems
The article describes the essence of the normative technique of law creation, its necessity and the problems of the normative technique that have arisen in the legislative process.
The author notes that the normative technique is a set of theoretically proven devices and methods used in the drafting of legislative acts. Its final goal is to help to guarantee that an act of law adopted by a competent authority within its powers and in accordance with the prescribed procedure is valid and has effect. The normative technique should guarantee that a legislative act contains no conflicts that could render the act void or limit its effect. In order to guarantee the effect of a legislative act all legal prescriptions contained in it should be enforceable, their implementation controllable, and the established rights clear, useable and realisable. It is important that each provision of an act, its every legal prescription would reach everybody whom it concerns and would be intelligible to that person. Almost any legislative act should be accompanied by a necessary implementation mechanism which is expressed either in the respective implementing provisions contained in the particular act itself or in necessary implementing legislation.
The article discusses problems that have emerged when in September 1999 the Government adopted a regulation on “The rules of the normative technique of drafts of legislative acts”, in addition to the previously existing rules of the normative technique approved by the Board of the Riigikogu. The article also discusses various problems encountered in practice. The author notes that a serious problem in the legislative process is a very frequent and sometimes somewhat chaotic amendment of currently effective legislation. It is not based on a profound analysis of the effect and implementation of the legislation in force. There is unfortunately no considerable feedback mechanism in Estonia between the implementers (courts, state and local government agencies, and others) and drafters and adopters of legislative acts.