Acta Iuris Stetinensis (Jan 2023)
O problemie tak zwanej zmiany doprecyzowującej jako nienormatywnej zmiany legislacyjnej
Abstract
The subject of this article is the issue of a clarifying amendment, understood as a legislative change of the legal text, which assumes no interference with the originally shaped normative content. As a result of such an action of the lawmaker, only the legal text is changed, while the normative content remains unchanged, despite the different wording of the provisions. Such an amendment does not introduce a normative novum, and thus it is neutral from the normative perspective and has exclusively textual character. In the adopted terminological convention a legislative change with such characteristics is referred to as a non-normative legislative change. The aim of the analysis carried out at the theoretical level is to verify the possibility of considering certain legislative changes as non-normative, purely textual changes. In relation to the practice of making and applying the law, the analysis has focused on the problem of admissibility of the lawmaker’s assumption on the non-normative character of certain changes which he decides to introduce by way of legislative intervention, and on the problem of identification of such changes in the process of applying the law. The analysis of the undertaken problematic has been based on theoretical and methodological assumptions of the Poznan-Szczecin school, taking into account in particular the fundamental conceptual distinction between a rule and a legal norm, as well as the assumption of the systemic character of law as a set of appropriately ordered norms, the content of which is recreated by means of interpretation. The analytical paradigm has been supplemented with threads of functional analysis. The findings made in relation to the content of legal norms were based on the legal-dogmatic method. The findings allow the conclusion that the non-normative legislative change should be regarded as acceptable for the theory of law, and from the perspective of legislation, acceptable and purposeful, and in some cases even necessary. It corresponds with the intuitions of legal practice and at the same time can be included in the conceptual net of the theory of law - being within the scope of the paradigmatic model of the system of law consisting of norms, and not of legal regulations or normative acts. The assumption of exclusively textual character of certain amendments to the law is also supported by the principles of legislative technique. An amendment of a provision without the intention to change the legal norm is conditioned solely by the need to make the legal text more legible by modifying the linguistic construction, which reveals a certain dysfunction in the process of exegesis of the legal text. In the event that the effect of this dysfunction is irremovable, and at the same time interferes substantially with the original assumption of the lawmaker as to the scope of application of a legal norm or the scope of normalization, a situation enforcing legislative intervention arises, the purpose of which is to eliminate the perceived defect of the legal text. However, the final effect of such a change does not depend on the lawmaker. The decision as to whether the change is in fact normatively neutral and will be understood as such will be made in the process of applying the law. The intended character of the change introduced by the lawmaker in individual cases may turn out to be inadequate, unclear, or for other reasons not respected in the process of applying the law. The body applying the law must accept the non-normative character of a change in the law with great caution. In this respect, a rebuttable presumption of the normative character of a change in law should be made, with the possibility of breaking this presumption in the process of interpretation with the use of sufficiently strong argumentation. Only in such a case can a change in the law be regarded as a purely textual change.
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