Lawmaking is one of the main activities of the state. Currently, in his understanding there are two aspects. In the narrow sense of the word, lawmaking is understood as the process of creating legal norms by the competent authorities. The same concept in a broad interpretation includes a number of stages, from the law-making plan to the implementation of a certain legal norm in practice. In other words, it includes the processes of preparation, adoption, publication of documents, etc.
The subjects of the law-making process are persons and bodies authorized to create, amend, suspend, cancel legal norms, as well as to deprive them of legal force. They are state bodies, the state as a whole, courts, officials, local authorities, people, labor collectives, etc.
Definitions of R. Lukic and A.S. Pigolkina
Lawmaking, according to the traditional point of view, is the activity of the state, which is aimed at the formation of legal norms. Moreover, R. Lukic defines it as a complex process, which consists of operations that are one or another kind of mental activity of a person. Each of them is performed by various methods and techniques. In this case, the concept of the law-making process is considered as a kind of activity of the human mind, unformed legally. After all, it aims, one way or another, to create certain legal laws.
The legislative process, as defined by A.S. Pigolkina, is the procedure for the implementation of actions (legally significant) for the preparation, subsequent adoption and publication of a normative act. These actions are legally mediated, procedurally formalized, have an official character.
Principles of the law-making process
We list the basic principles of this process.
- Lawmaking is characterized by democracy. In other words, it should identify the interests and will of the people, and then consolidate them in the rule of law.
- Another important principle is legality. It involves the observance of competence, as well as procedures for the adoption of various legal acts.
- The legislative process is characterized by enforceability. This means that organizational, financial, personnel and legal conditions must be taken into account that will allow the implementation of the adopted legal acts.
- Science is another integral principle of lawmaking. It assumes the validity of acts, as well as the consideration of sociological data, doctrines, and the forecast of consequences.
- Lawmaking should be characterized by professionalism. This principle presupposes the competence, legal and general literacy of those who are subjects of law-making.
- And finally, planning is needed. This means that there should be a clear distribution of the stages, time and subject of the necessary work.
Law and Lawmaking
A normative legal act in the Russian Federation is the main source of law. This is an act of state bodies, which contains certain legal norms.
The lawmaking process is an integral part of law enforcement. The latter is understood as the lengthy formation of a legal norm. Law formation begins with an analysis of a specific social situation. The need for its regulation through law is recognized. This process ends with the development of a legal norm and its adoption. Lawmaking is precisely the last stage. Despite the existing differences in the definition of this term, it is safe to say that the activity on the creation, processing and publication of regulatory acts is always carried out by authorized bodies. Lawmaking is one of the main elements in regulating public relations at the state and regional levels.
The components of lawmaking
The process of interest to us consists of two parts. The first of them, scientists rank organizational issues that are not related to legally significant actions. Examples include the following: preparation of a draft of a regulatory act, its subsequent discussion in an appropriate public or state organization, etc. The second part of the law-making process is based on legal principles. The decision to prepare a draft of a regulatory act is the point of reference.
Both of these parts are closely interconnected, forming a law-making process. They represent, in the general context, a holistic procedure related to the preparation, discussion, adoption and, finally, publication of the relevant document. The legislative process has two main stages. We will briefly consider each of them.
Lawmaking stages
The first of the stages of the legislative process involves a preliminary determination of the will of the state when creating a draft normative act. At this stage, all actions are preparatory in nature. They do not give rise to legal consequences. The second of the stages of the legislative process is the official consolidation of the will of the state in the relevant legal norms. So the draft regulatory act becomes a legal act, which is universally binding. Inside these stages there are various kinds of operations to create normative acts. Their specificity depends on the law-making hierarchy and the legal significance of the latter.
Let's consider this question in more detail. Any process, including lawmaking, proceeds in one form or another and can be divided into stages / stages. The establishment of a legal system is a lengthy process. It occurs progressively, that is, by creating specific regulations. It is a normative act that is the direct result and the final link in law-making activity. Consequently, the law-making process can be defined as the order of successive operations that lead to the emergence of a new element of the legal system. This is precisely its specificity.
It would be logical from the above to conclude that organizational actions that contribute to the direct work on a normative act do not need to be included in the law-making legal process. In particular, it does not include activities on the analysis, accounting and generalization of proposals for improving legislation, various organizational measures aimed at improving the activities of bodies, etc.
The concept of the stage of the law-making process
Despite the various features and types of the law-making process that scientists are talking about, it is possible to identify general principles and stages in it. We define the very concept of "stage of the law-making process." This is an independent stage of procedures aimed at shaping the will of the state; a complex of closely interconnected actions (organizationally isolated) aimed at creating a particular normative act.
Each stage of law-making activity is a stage of the process, the purpose of which is the preparation of a normative act, giving it official significance. The number of stages is determined in different ways. Some scholars talk about the following: legislative initiative, discussion of the relevant bill, its subsequent adoption and publication.
Legislative initiative
The introduction of a legislative proposal or a bill is connected with the exercise of the right of legislative initiative. It should be noted that the circle of entities possessing this right is wide in some states, while in others it is very narrow. For example, in the United States only parliamentarians possess it, if you do not take into account the fact that the president is introducing a draft budget. In other countries, also democratically developed, the government introduces most bills. At the same time, parliamentarians can play a considerable role, especially their groups.
In our country, legislative initiative is recognized as the most important function of the government. The latter transfers all responsibility to parliament. The current Constitution of the Russian Federation has deprived the Prosecutor General, as well as the heads of public organizations of the right of legislative initiative. Moreover, each deputy individually has this right. Many of them actively used it. This led to the fact that many parliamentary projects were submitted to the Russian parliament. Really important just drowned in this heap.
Discussion of the bill
Considering lawmaking (lawmaking process), we move on to such a stage as discussion of the bill. It is carried out both in commissions (standing committees) and in plenary meetings of various chambers of parliament. Usually in plenary meetings, a discussion of a bill takes place in three stages, called readings. During the first reading, the following crucial issues are resolved: 1) on the necessity of this law; 2) on the ability of the concept proposed in it (general idea) to become the basis of its discussion and subsequent adoption.
If the chamber makes a negative decision on at least one of these issues, the bill under consideration is withdrawn from subsequent discussion. If the decision is positive for each of them, it is taken in the first reading, and then it is transferred to the relevant commission (committee) for further development.
In the second reading, the bill is discussed more thoroughly, in essence. At this stage, each article and part is considered in detail, amendments are made and discussed. After its approval in the second reading, the bill is again submitted to the commission (committee) for editorial revision. Then, in the third reading, it is discussed as a whole. At the same time, new amendments are not allowed, except for editorial ones. However, this does not mean that the bill at the third reading cannot be rejected. According to the results of the vote, the leaders of the chamber’s factions can make statements about this.
Adoption of law
It is also included in the law-making process. Adoption is carried out by voting, which can be done either as a whole on the bill, or first by chapters and articles, and then as a whole. Voting is open and secret, ordinary and roll-call. Most often, for the adoption of a bill, you need to get the consent of the majority of either those present or the composition of the chamber (parliament). Only sometimes the consent of a qualified majority is required (when considering ordinary laws).
The specifics of the adoption of the law by a bicameral parliament
If the parliament consists of two houses, this process has its own characteristics. The bill in this case is considered adopted if each of the chambers approved it in an identical version. The upper one may not agree with the adopted lower version of the bill. The latter, in case of disagreement between the chambers, most often has the right to overcome the veto of another chamber by means of a second vote. However, usually a qualified majority of votes is required to pass the bill. Often, special conciliation commissions are formed, which consist of an equal number of representatives from the upper and lower houses. They can also sit together, and the law in this case is adopted by general vote.
Publication of the law
The publication of the law is what completes the law-making process, the concept and stages of which we have practically studied. Usually it is carried out by the head of state. The law is published after it was passed by parliament. Its promulgation is called promulgation. It involves the official submission of this normative act, its certification, signing, as well as an indication of its publication. In countries where the head of state has a veto, he can reject the law, which in this case does not enter into force. If he imposed a suspensive veto, the bill will be returned to parliament, where it will be reviewed again. Parliament in this case can overcome the veto. The law comes into force either from the moment of publication, or from a certain date.
So, we briefly reviewed the law-making process (concept and stages). As you can see, there are several definitions of this concept. The main stages of the legislative process are also distinguished in different ways. It depends on the depth and specificity of the theoretical approach.