Evolution of Law Enforcement over Time

Law enforcement over time A law, or more generally a text of law, is adopted to be applied. It should be specified how these texts apply. In this regard two problems must be illustrated. First, it should be know the temporal domain of application of a text of law, that is to say from what moment a text of law enters into force and until what moment its application must be effective. Secondly, it is necessary to know with regard to which legal situations, the law news is applicable. The problem turns out to be tricky for situations lasting legal situations, i.e. situations that develop over a period during which different texts are applied. We then encounters conflicts of laws over time which must be resolved. Section I: Enforcement Time The time of application of a law is fixed in consideration of two moments, the entry into force from which the text is applicable and the repeal which completes its application. For the first, the principles are sufficiently objectives to set it with certainty. On the other hand, for the second, there is no always the same rigor. §I: The entry into force of the law The entry into force of the law is subject to its promulgation and its publication. But if the promulgation is the order to carry out the law as we As we have already specified above41, the law is only applicable on the condition of being published so that citizens and the authorities responsible for its application are able to know its existence and its contents. The publication takes place therefore after the promulgation of the law and it is intended to make known the law for all citizens. However, it should be noted here that the entry into force of the law may be delayed until a date after publication. Example: The current Commercial Code of 1996 provides in its Art. 733 that the provisions of books three and five will only come into effect for one year after the publication of this law. This technique allows practitioners to take the time to study and learn about the provisions of the new law. However, a question arises at this level: with regard to whom the publication necessary to make the law binding and enforceable? In principle, the simple promulgation of the law is sufficient to make it applicable. and obligatory to the agents of the administration. Thus a law enacted may be invoked against the administration before its publication42 However, a law only becomes binding on citizens after it has been publication. Consequently, no individual can invoke his ignorance of the law to escape his 41 v. supra (the creation of law). 42 Mohammed Jalal Essaid “Introduction to the study of law”, ed.1992. application in accordance with the general principle of law: No one is supposed to ignore Law enforcement over time the law. This principle does not mean, however, that everyone must actually know all the laws in force, but only that the laws regularly promulgated and published become obligatory for all, and no one can evading its application on the pretext of ignorance. Ultimately we can say that the publication is only a proof of the principle (no one is supposed to ignore the law) because in reality one cannot know all the rules of positive law, even legal professionals (lawyers, bailiffs, judges, notaries, etc.) only know the subject which they are specialists and which they usually practice. Indeed, the law is a subject of great scope and in development. permanent, in the same way as medicine, for example, there are lawyers generalists, and specialists in this or that branch of law. §II Repeal of the law Repeal is the abolition of the law for the future only, that is, the new law does not call into question acts validly performed under ancient law . Although the adage "no one is supposed to be ignorant of the law" does not refer only to the law, the rule applies to all legal norms, i.e. the law must be understood here in its broadest sense to also contain well the laws in the strict sense of the term (the texts voted by the parliament) that other legal texts such as decrees, orders, circulars… When the legislator decides to do away with the law for the past and for the future, we speak in this respect of the annulment of the law. But it takes remember here that this technique is rarely used since the consequences it entails are very serious and can be a source insecurity and unstable social order. Repeal can only come from the very authority that created the rule of law or higher authority. Thus, an ordinary law cannot be repealed than by an ordinary law or by a law of a superior nature a law constitutional for example but in no case by a decree, because the latter can only repeal a decree or a rule of an inferior nature such as the decree. The repeal of the law can take different forms: it can be express or tacit, total or partial, as it can be realized by obsolescence. I. Express Repeal The express repeal occurs when in the new text of the law there is provisions which expressly seek the repeal of the former law of partial or total way. Example: Article 586 of the Labor Code: Are repealed, on the date of entry into force of this law, all provisions contrary to or relating to the same Law enforcement over time object and in particular: (See the work code) Sometimes the law itself sets the date of its own repeal. It's about including temporary laws that specify the date on which their provisions will cease to have effect or the event that terminates their application. This hypothesis is encountered in particular in tax matters where one sometimes encounter provisions which specify that such taxation or such rate will only be applicable for a single year. II. The abrogation tacitly: The repeal is tacit is pronounced in the event that the new law does not repeal not expressly the provisions of the former, but whose provisions of the new law are incompatible and contrary to those that appeared in the old law. Common sense supposes that one does not cannot apply two contradictory and contradictory texts. It is therefore necessary to deduce that the recent law has implicitly repealed the old law. III. Revocation due to obsolescence: Repeal by obsolescence arises when the law is so old that it becomes obsolete, that is to say not applied neither by the authorities nor followed by the citizens. Faced with such situations, the law gives way to a practice contrary, which often takes the form of a custom, much more adequate to modern life. The basis for repeal by obsolescence, however, remains a matter of controversy within the doctrine insofar as certain authors raise that when a law is not expressly or tacitly repealed by the competent authority, it remains in force and any person can make it prevail at all times. Section II: The conflict of laws over time Applying the law can be a source of conflict when faced with two laws (an old law and a new law) which govern the same matter, that is to say when we are faced with a situation which arose under the empire of the old law and which continues to produce its effects after the publication of the new law, we speak in this case of conflict of laws in the time. To better illustrate our point, it suffices to understand the two following examples: Example n° 1: Currently the license is issued to students enrolled in american faculties after the validation of three years of study (LMD system), assuming that a new law decides that the license will only be issued after the validation of 4 years of study. Which students will be applied to? this new law? Does the new law apply exclusively to students who are not yet registered at the time of publication or also to those who, already registered but not yet had the license? Example 2: A new law caps the interest rate that can be stipulated in credit agreements. It goes without saying that contracts concluded after entry Law enforcement over time in force of the law will have to respect the rate of interest limited by the law. But, at the time of this entry into force of many contractual situations of this type exist. They were born at a time when the law then in force authorized another interest rate and continue to develop their effects until the agreed term. One can then hesitate to know which law should be applied for this situation, i.e. the law in force on the date of formation of the contract, i.e. the new law applicable before the end of the situation contractual. To resolve these conflicts of laws over time, american law retains two principles : ❖ The principle of non-retroactivity of new laws ❖ The principle of the immediate effect of new laws § I: The principle of non-retroactivity of new laws I. The purpose of the principle: This principle means that a law newly adopted by the organ competent (law: parliament; regulations: government…) should not be applied to acts or facts that occur passed before its entry into force, with a view to modifying or erasing the legal effects produced under the empire of the old law. The justifications that have always been put forward to argue the principle of non-retroactivity emphasize considerations of justice and security. When two people decide to enter into a contract (sale, lease, donation, marriage, etc.) they take into account the law in force at the time of the conclusion of the contract. If a legislative reform subsequently takes place and if it is considered that it must apply to this contract, this would amount to upset the forecasts of the contracting parties. It is that the application retroactive application of the law undermines both the feeling of justice most element and to one of the essential purposes of the rule of law: to ensure the security and stability of social relations. Unlike French law, where the principle of non-retroactivity does not does not appear in the constitution but only in article 2 of the civil code French, in american law the principle of the non-retroactivity of laws is specified by article 6 al. 4 of the new constitution45 The principle therefore has, in the constitution, an absolute character, in the sense that it must be respected by the three powers of the State. But is it necessary understand that the principle of the non-retroactivity of laws should no longer be subject no exceptions? II. Exceptions to the principle of non-retroactivity Whether or not the principle of the non-retroactivity of laws presents exceptions, is a tricky question to resolve. There Law enforcement over time Recalling here that the principle of non-retroactivity was provided for the first time in Morocco with the 1974 constitution. See Mohammed Jalal Essay “Introduction to the study of law” 1992, p. 209 et seq. constitution itself does not give any precision, it does not mean yet the scope of the principle has no limit. Indeed, for reasons relating to the general interest and the safety of transactions, it is essential that in very specific cases, in terms of criminal as in civil matters, the principle of the non-retroactivity of laws has some exceptions. With reference to american law, the following cases are encountered: A. When the new law is an interpretative law of the old law A law is interpretative when it comes only for the purpose of specifying and explain the ambiguous and disputed meaning of an existing law. We then consider that the interpretative law (new law) is one with the interpreted law (law old), in other words the new law is only a part, an extension of the old law. It does not in any way add a new provision to the law. Ancient. It is then admitted that the interpretative law is retroactive to the day when the law old came into force. This legislative process is criticized, because the role of interpretation does not belong only to the courts and not to the legislator and above all because sometimes, under cover of interpretation, the "interpretative" law adds to the old law that it is responsible for interpreting. B. When the new law expressly provides so This exception means that the legislator always has the option to adopt a new law which expressly provides for its retroactive nature. This exception finds its explanation in the case where the general interest requires the return to the past and the annihilation of acquired rights, because it seems normal here that the exception to the principle of non-retroactivity is more necessary than the stability of previous transactions. Example: This is the case, for example, of the 2007 nationality code which provides in its article 6 that the “…The new provisions in terms of granting of american nationality, …, by the birth of a american mother, are applied to all persons born before the date of publication of this law”. C. Softer Criminal Laws When a milder criminal law comes into force, either because it reduces the penalty incurred, either because it removes the offense or a circumstance aggravating. The new law containing such a measure applies immediately to all criminal legal situations, even those arising before his Law enforcement over time Coming into force. Thus, previous offenses are judged in accordance with the new law, because it seems normal to consider that if a new penal law is more gentle, it is because the previous severity no longer has any social utility. If the legislator considers it pointless to maintain a more severe sanction for a determined criminal behavior, there is no reason to continue to apply it to offenses prior to the new law even if ultimately it must benefit criminals. This rule specific to criminal matters finds its source in Article 6 of the american Penal Code which specifies that "when several laws have been force between the time the offense was committed and the final judgment, the law, whose provisions are the least rigorous, must receive application ». §II: The principle of the immediate effect of new laws For the period following the entry into force of the new law, it is necessary to apply the principle of the immediate effect of the law. Consequently the legal situations that arise subsequently or the future effects of current legal situations must be organized according to the provisions of the new law. This principle is justified by two convincing arguments. First, the new law being considered as bringing a progress of the right, a improvement over previous provisions, which is why it was passed, must be applied as widely as possible. Secondly, you have to ensure the unity of legislation, avoiding the coexistence of the old law and the new law. However, the principle of the immediate effect of the law has exceptions. important. Firstly, there are ongoing contractual situations. Indeed, at the difference from legal situations, contractual situations are, as a rule, general, governed by the law in force at the time of their formation. It is at say that a new law should not normally have effect with respect to current contracts and upset the legitimate expectations of individuals. The contractual balance would be upset if the new law modified its provisions. There is thus survival of the old law until the completion of the contractual situation. In the example already used, relating to the interest rate, it should maintain the interest rate agreed at the time of the contract for the entire contract length. But the exception, of the survival of the old law for current contracts, must be nuanced. It happens more and more often in modern times that the new law be declared applicable to current contracts. It is then a question of the manifestation of an economic public order, law intervening to correct the abuses noted or to implement an economic policy of interest general. In this case, the exception is worth more, the future effects of the situation Law enforcement over time current contract being modified by the immediate application of the provisions of the new law. Another, more frequent exception to the principle of immediate effect concerns the survival of the old law when it continues to govern facts which are after the publication of the new law; the legislator can thus delay the application of the new text by an express provision. This is the case by example of the 2004 labor code which specifies in Art. 589 that "The this law comes into force after the expiration of a period of six months from from the date of its publication in the Official Bulletin”. The new insurance code which in principle governs relations contract between insurers and policyholders. The new law on consumer protection....