Legal provisions

LLBJoanna Helios

Wioletta Jedlecka

The concept of legal provision

• Legal provision is an editorial unit of the legal texts.

• Generally, it is one proposition – a sentence in grammatical sense. It can be: article, point, paragraph, clause in a document.

• A legislator establishes the law in the form of legal provisions. A legal provision is a sentence (although it is not sentence in the logical sense, because provisions do not describe reality and are neither true nor false).

Difference between norm and provision

• In general, a legal norm is formed on the basis of several provisions, sometimes even included in various law – making instruments. Let us reiterate that a legal norm is a statement containing the directive of public authority ordering its addressees to behave under specific circumstances in a way that is specified in it.

Elements of legal norm

• The required elements of every norm are considered to be the definition of its addressee, the definition of the circumstances, the occurrence of which results in the duty of specific conduct, and the definition of the conduct that the addressee must apply or from which he must refrain.

Legal norm isn’t equal legal provisions:

• Partition of legal norm in legal provisions – parts of the legal norm need to be reconstructed from different legal provisions.

• Condensation of legal norms in legal provision-more then one legal norm might be reconstructed from one legal provision.

Chosen types of legal provisions

• Legal presumption• Legal fiction• Referring regulation• General clause • meta – regulation (second- order

regulation)

Factual and legal presumptions

• Very often factual and legal presumptions are confused. As the factual presumption is not a legal provision. It is essential to see the difference between them.

Factual presumption

• Process in which a court decides to treat some fact as if it has happened, despite it hasn’t been proved. This act belongs to the sphere of juridical discretion, also referred to the principle of free consideration of evidence. In this case, the court makes a presumption on the basis of his own knowledge about every day life. For example: a jealous husband is often considered to be a murder.

Legal presumption

• Is a kind of provision that obliges the court to treat some fact as if it has happened, despite it hasn’t been proved. They can be divide into:• Refutable (able to refute)• Irrefutable

Material and formal presumption

•The second distinction of legal presumptions is to material and formal.

Material presumptions

• Requires a preliminary condition, something that is proven. Without it our presumption can’t be applied.

• If…..(fact A is proved)……than (fact B is presumed)

• We can find an example of this provision in polish civil code, that states- if some people lost their life due to a common danger (A), it is presumed that they died at the same time(B).

Formal presumption

• Doesn’t require any fact to be proven as a preliminary condition. It binds automatically and we are not obliged to prove anything.

• Examples:• Presumption of innocence in the criminal law• Presumption of good faith in the civil law

Legal fiction

• Legal provision sometimes orders to treat some situation as another one and causing the same legal consequences (despite the fact that this second situation didn’t happen at all). It should be outlined that compared situations don’t have to be similar). Legal fiction can be also considered to be a scheme of legal argumentation in which we decide to treat some fictional facts as existing.

Referring regulations

• Reference provisions are also used to condense the legal text.

• Provision that refers usually to other provisions.

• They can point some other elements within the legal system or something outside the law.

Legal institution

• A set of provisions bound together due to some functional links, for example an institution of legacy, of marriage, of parenthood, etc.

Blank regulation

• Is another category of this sort of provisions. It refers to some regulations that don't exist (should be established in the future). In another sense a blank regulation might be also understood as regulation with too general content.

General clause

• Expression that refers to extra – legal criteria, especially values, but also rules and which requires an evaluation based on some axiological assuptions. It can be done:

• Indirectly, by using indefinite terms, for example: human dignity, inhuman treatment, good of child;

• Directly, by indicating the non- legal system that it refers to for example humanitarianism or others.

Second order regulations

• Are also called „meta – regulations”. In their substance, they don’t concern any entity or it’s conduct, but other regulations in the system.

Examples of the second – order regulations

• Provisions establishing a scope of validity;• Provisions defining a date of coming into

force;• Derogating clause;• Amendment;• Law- making delegation;• Intertemporals• Legal definition.

Derogating clause

• Repealing the whole instrument or individual provisions by a new law – making instrument;

• General derogative clause doesn’t states explicitly which provisions are derogated, but indicates a more general group like i.e. „all provisions that are in contradiction with this particular rule are derogated”.

• In Polish law system general derogating clause is prohibited.

Intertemporals

• Regulate situations when a new statute is introduced and are applicable to the legal relation, trial, competences or duties that took their origins under the former regulation.

• They indicate which provisions- new or former – should be applied.

Legal definition

• Explains terms used in law- making instruments;

• Sometimes the term that was used in a particular institution can have different meaning than we attribute to it in the everyday life.

Legal doctrine and practice

• The legislator establishes the law in the form of legal provisions and tacitly assumes that legal doctrine and practice will restore (design) legal norms based on these regulations, in accordance with the legislator’s will. The legislator assumes that the provisions will be translated into norms not optionally, but in line with special rules of legal reasoning, developed, consolidated and recognized as binding by legal doctrine and practice, i.e., in accordance with the rules of interpretation of law and legal inference.