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Legal design in support of legislative drafting

Livia Aulino, Ph.D. candidate at University of Naples Suor Orsola Benincasa

 

Abstract:

During the emergency period of the coronavirus, numerous legislative acts have been issued in Italy, the content of which is full of references to other measures, long and complex periods that are incomprehensible to citizens.  These measures have revealed a lack of legislative drafting, in which the methodology of legal design can be a remedy

 

Key-words: legal design, new technologies law, legislative drafting, covid-19

 

Category: Legal area

 

Topic: Privacy in Legal Design.

 

Summary:

1. Legal design and legislative drafting - Notes


1. Legal design and legislative drafting

Italian citizens, in the emergency Covid-19, have been complying with decree after decree, often announced late at night and entered into force the next day.

These legal texts seemed too long, complex and full of interpretative doubts, so much that amendments and clarification were needed, as well as conferences, explanatory press releases, both at the national and regional level.

In particular, the last decree of the President of the Council of Ministers announced on the evening of 21 March, which came into force on 23 March[1], contains about 2000 words and ten references to other decrees, laws, ordinances, codes, and protocols.

This is not surprising, considering that the Italian legislation is composed of approximately 110 thousand laws currently in force and laws containing even 150 thousand words (such as the budget law of 2018).

The ambiguity of these normative texts has also been noted by eminent legal experts. Indeed, Professor S. Cassese criticized the extension and complexity of the latest Government’s decrees on coronavirus[2], instead praising the document (entitled "brevity") with which Churchill of 9 August 1940 listed in four points how government documents should be written.

On the other hand, the legislator should not write the laws for himself but for an entire and uneven community, to which the principle "ignorantia legis non excusat" applies rigidly.

The principle of clarity of legal texts is also enshrined in art. 13 bis, of Law n. 400/1988 (as amended by Law n. 69/2009) according to which: “a) any rule intended to replace, amend or repeal existing rules or to establish derogations must expressly state the rules replaced, amended, repealed or derogated; b) any reference to other rules contained in legislative provisions, regulations, decrees or circulars shall indicate the text or subject to which they refer or the principle contained in the rules referred to, in full or in clear and brief form”.

In this legislative mess, the Internet and social networks are the main source of help for citizens, in understanding the rules. The opportunity of technology cannot be exhausted in the speed of the diffusion of information, of whereby social networks are pioneers. In fact, there is an increasing risk of false news.

Technology can also help the legislator through the application of the legal design methodology. Legal design is defined by M. Hagan - researcher at Stanford University - as the application of human-centred design to the world of law, in order to create more immediate legal services, usable and fulfilling for the user[3].

The Research Centre of European Private Law (ReCEPL) of Suor Orsola Benincasa University - of which Professor Lucilla Gatt is Director and Professor Ilaria Amelia Caggiano is Deputy Director - carries out researches on the subject of legal design, with particular reference to a contract, using various methodologies, including multidisciplinary ones[4].

Therefore, first of all, it is necessary to improve the legislative technique through the use of a clearer and unequivocal language, avoiding cryptic references to other normative texts. Indeed, it is crucial to avoid jeopardising values such as legal certainty and the efficiency of justice. Secondly, the legislator could apply the legal design methodology in the drafting of legal texts, providing - also in explanatory annexes - graphical summaries, infographics, maps and interactive tools to ensure a comprehensive and immediate understanding of the rules.

The use of these techniques would make recipients more aware and, as a result, the law would immediately become more effective.


Notes

[1] The decree was published by the Italian Council of Ministers on 22 march 2020 and is available at: http://www.governo.it/sites/new.governo.it/files/dpcm_20200322.pd

[2] The recent article was published in the newspaper Corriere della Sera on 23rd March 2020) https://www.corriere.it/editoriali/20_marzo_23/dovere-essere-chiari-b5b36828-6d39-11ea-ba71-0c6303b9bf2d.shtml

[3]  Hagan M, ‘Law by Design’ (Retrieved March 2018), in www.lawbydesign.co/en/home  

[4] The Research Centre of European Private Law (ReCEPL) of Suor Orsola Benincasa Univrsity of Naples develops research itineraries on the relationship between law and new technologies. See https://www.unisob.na.it/ateneo/c008.htm?vr=https://www.unisob.na.it/ateneo/c008.htm?vr=1


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