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Effect, in law, is a change to existing law or legal relationships caused by a legal instrument such as a contract or legislation.[1] Force of law or legal force typically refers in particular to the binding effect of a law, such as a statute or treaty. Coming into force (also called commencement) is the process by which a legal instrument comes to have legal effect.
The requirements for legal effect of statutes are often spelled out in a country's constitution. The requirements for legal effect of contracts are subject to each jurisdiction's contract law, which may be customary or unwritten (as in many common law jurisdictions), or may be specified in a legal code (as in many civil law jurisdictions). For example, in the United States, the requirements for many types of commercial contracts to take effect are set forth in the Uniform Commercial Code, while other types of contracts may be governed by common law.
Regulations
editIn United States administrative law, an agency rule that has the force of law must go through the notice and comment process specified in the Administrative Procedure Act, and is typically given Chevron deference.[2] A rule that does not have the force of law does not require this process, but also does not receive the same level of deference from the courts.
Coming into force
editThe point at which an instrument comes into effect may be set out in the instrument itself, or after the lapse of a certain period, or upon the happening of a certain event, such as a proclamation or an objective event, such as the birth, marriage, reaching a particular age or death of a certain person. On rare occasions,[which?] the effective date of a law may be backdated to a date before the enactment; this is known as an ex post facto law.[citation needed]
To come into force, a treaty or Act first needs to receive the required number of votes or ratifications. Although it is common practice to stipulate this number as a requirement in the body of the treaty itself, it can also be set out in a superior law or legal framework, such as a constitution or the standing orders of the legislature in which it originated.
For laws and treaties, coming into force often includes publication in an official gazette so that people know the law or treaty exists.
Treaties
editAfter their adoption, treaties as well as their amendments may have to follow the official legal procedures of the organisation, such as the United Nations, that sponsored it, including signature, ratification, and entry into force.
Acts
editThe process of enactment, by which a bill becomes an Act, is separate from commencement. Even if a bill passes through all necessary stages to become an Act, it may not automatically come into force. Moreover, an Act may be repealed having never come into force.[3]
A country's law could determine that on being passed by lawmakers a bill becomes an act without further ado. However, more usually, the process whereby a bill becomes an Act is well prescribed in general constitutional or administrative legislation. This process varies from country to country, and from political system to political system.
Typically, the process by which a bill becomes an Act includes signature or some other token of assent by the head of state and publication in an official gazette. In some systems, the head of state or some other official is required to definitely signify his approval, as for example in the granting of royal assent in the Commonwealth realms. In others, a bill automatically becomes an Act unless vetoed, as for example in the United States. But these steps do not, in themselves, make an act legally binding on the population. An act is typically brought into force in one of three ways:
- By means of an explicit commencement date (and sometimes time of day) written into the act itself. It is possible for different sections of an act to come into force at different dates or times.
- As a result of a commencement order. Usually, an Act or part of an Act may only be brought into force by a commencement order if explicit provision is made. Commencement orders are typically issued by the executive branch of government, though they may also require legislative approval, or at least that the legislature be informed. As with explicit commencement dates, different parts of an act may be brought into force by different commencement orders at different times.
- Automatically. An Act that does not include explicit commencement dates or provision for commencement orders, or that has dates or provides for commencement orders for only some of its contents, will typically be interpreted as having come into effect at a certain time relative to its enactment. This time is usually specified by an interpretive statute, or, in the absence of such a statute, a legal rule. For example, in the United Kingdom, until late in the 18th century a legal rule interpreted statutes as coming into effect at the start of the legislative session in which they were passed, but Acts of Parliament (Commencement) Act 1793 stipulated that future laws without explicit commencement provisions would come into effect on the day on which they received royal assent. A similar example is provided by New Zealand, where an Act without commencement provisions comes into force on the day after the day on which it received royal assent.
- It is possible for an Act to come into effect through any combination of these three methods.
It is not necessarily the case that a statute which comes into force remains in force until it is repealed; it may be explicitly brought out of force, and perhaps later brought back into force. For example, in Ireland, Section V of the Offences against the State Act 1939 (which provides for the Special Criminal Court) goes in and out of force by government proclamation:[4] it was brought into force on 24 August 1939, out of force on 2 October 1962, and back into force on 26 May 1972.[5]
United Kingdom
editSection 4 of the Interpretation Act 1978 provides:
An Act or provision of an Act comes into force—
- (a) where provision is made for it to come into force on a particular day, at the beginning of that day;
- (b) where no provision is made for its coming into force, at the beginning of the day on which the Act receives the Royal Assent.[6]
This replaces the corresponding provision in the Acts of Parliament (Commencement) Act 1793.
Schedule 1 of that Act contains the following definition:
"Commencement", in relation to an Act or enactment, means the time when the Act or enactment comes into force.[7]
Northern Ireland
editSections 14(1) and (2) of the Interpretation Act (Northern Ireland) 1954 read:
(1) Every enactment which is not expressed to come into force or operation on a particular day shall come into operation immediately on the expiration of the day before the date of the passing thereof, or, where the enactment is a statutory instrument, of the making thereof.
(2) Where an enactment is expressed to come into force or operation on a particular day (whether such day is before or after the date of the passing of such enactment, or where the enactment is a statutory instrument, of the making thereof, and whether such day is named in the enactment or is to be appointed or fixed or ascertained in any other manner) the enactment shall be construed as coming into force immediately on the expiration of the day before that particular day.[8]
In an enactment the expression "commencement", when used with reference to any statutory provision, means the time at which that provision comes into operation.[9]
Scotland
editSections 2 and 3 of the Interpretation and Legislative Reform (Scotland) Act 2010,[10] which applies to Acts of the Scottish Parliament and Scottish Statutory Instruments, provide-
2 Commencement of Acts of the Scottish Parliament
(1) Subsection (2) applies where no provision is made for the coming into force of an Act of the Scottish Parliament.
(2) The Act comes into force at the beginning of the day after the day on which the Bill for the Act receives Royal Assent.3 Commencement of Acts of the Scottish Parliament and Scottish instruments: time
(1) Subsection (2) applies where an Act of the Scottish Parliament or a Scottish instrument provides for the Act or instrument to come into force on a particular day.
(2) The Act or instrument comes into force at the beginning of the day.
This replaces the temporary provision made by the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999.
See also
editReferences
edit- ^ Garner, Bryan (2004). Black's Law Dictionary (8th ed.). p. 1561.
- ^ Hickman, Kristin E. (2013). "Unpacking the Force of Law". Vanderbilt Law Review. 66. Retrieved 2022-06-15.
- ^ For example, the Government of Ireland Act 1914 never came into force; it received royal assent on 18 September 1914, was suspended by the Suspensory Act 1914, and repealed by the Government of Ireland Act 1920.
- ^ "Offences Against the State Act, 1939 s.35". electronic Irish Statute Book. Attorney General of Ireland. 14 June 1939. Retrieved 11 March 2019.
- ^ Davis, Fergal Francis (February 2007). The history and development of the Special Criminal Court, 1922–2005. Four Courts. ISBN 978-1-84682-013-7.
- ^ Copy of section 4 of the Interpretation Act 1978 from Legislation.gov.uk
- ^ "Interpretation Act 1978".
- ^ "Interpretation Act (Northern Ireland) 1954".
- ^ The Interpretation Act (Northern Ireland) 1954, section 46(1)
- ^ "Interpretation and Legislative Reform (Scotland) Act 2010".
de:Wirksamkeit (Recht) it:Efficacia (diritto) ja:法的拘束力 ko:구속력