Content and Functions of the Preambles

From the definition of the content a n d functions of t h e preambles t h e following two direct conclusions may be derived, viz. p a r t l y the introductions to the legislative acts may be the vehicles of extremely varied and manifold, almost optionally abundant contents and functions as desired by the legislator, partly t h e preambles do not have any specific, closely delimited, uni- or multi-directional content or functional features which would in each case and inevi-tably, by constituting their indispensable notional element, be characteristic of them. As has already been made clear, in my view, it is not a sine qua non condition t h a t the introductory content should be functionally of a secondary nature compared to the p a r t s following it. F o r want of a n adequate provision in principle the legislator defines the c o n t e n t t o be given t o a particular legal form of his own free will, and thus, t h o u g h exceptionally, cases may occur, when t h e preamble content together with t h e parts of t h e t e x t following it, usually considered the operative parts, appears, as regards its content a n d function, a n equivalent "operative" p a r t . This will be t h e case when the legis-lator in t h e form of an introduction provides an autonomous settlement pos-sibly of a scope independent of the other p a r t s of the act, or a regulation of

norm content. Although in many instances t h e justifiability or desirability of this form may be open to argument, still its preamble character cannot be disputed.

However, the policy-making freedom of legislative activity limited b y superior norms only will in the course of t u r n i n g this freedom to good account and defined by the social context of this activity undergo appreciable re-strictions as regards both the development of the content and the establish-ment of the form of the legal rule. On t h e plane of the legal form this socially determined character will be present in p a r t in the evolving of directives of legislative technique based on social experiences and in tho practicability of following these directives, in part in t h e general purposefulness of the legis-lative activity directed to an effective settlement. So t h e policy-making, in reality often only apparent freedom affecting the legal forms, among them t h e forms of introduction, does not produce in practice an optional, vast a n d chaotic wealth, and in this manner permits t h e classification of the principal

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types of preambles shaped in the course of legal evolution and the develop-ment of legislative technique, and a scientific analysis of the fundadevelop-mental content elements and functions of the preambles on the plane of the general.

An earlier classification, in connection with the analysis of the typical preamble contents drew lines among the historical parts, t h e dogmatic p a r t s , and the analytical parts studying the effects of the regulation in relation t o its objective.15 A classification known in t h e Hungarian legal literature s t a r t s from other considerations. Accordingly, a preamble may include valuations relating t o t h e objective, functional or historical significance of the legal rule, general principles expressly guiding the interpretation of t h e legal rule, a n d rules of conduct providing a settlement.¹⁸ Logically, and viewed from a pre-determined point of view, these classifications appropriately and justifiably group t h e preamble contents of the most frequent occurrence. However, t h e picture displayed by them is extremely schematic, slipshod, so t h a t it does not reflect t h e diversity of t h e forms of preamble differentiated in an adequate degree. T h e a t t e m p t at classification seen in t h e course of a n analysis of t h e present d a y Hungarian legislative practice was aimed at describing the principal types of introduction in a complex manner, by applying composite criteria, however, a t t h e same time failed to provide a coherent basis of classification.¹⁷ However, I think that the nature of the material brought under classification does not even allow of this attempt. As a m a t t e r of fact t h e recognition was taken as a starting-point t h a t (A) the usually short so-called simple, preambles by indicating (a) the subject, (b) the purpose and/or (c) t h e reason are vehicles of a homogeneous content, and accordingly their proper, only real, although by far not always completed function is mostly by a narrowed-down display of the motivation, often concentrating on, or restricted to, certain partial motives or elements, t o inform the persons concerned of a few considerations observed by the legislator. On the other hand (B), t h e usually longer, so-called composite preambles a r e carriers of a heterogeneous content, and in t h e majority of cases the topical character of t h e content of these preambles a n d the tendency of the information they carry will cease to b e of primordial importance. W h a t is of importance on this point is the practical end, the immediate effect the legis-lator had in mind to bring about transmitted by the basic function of inform-ation, i.e. t h e concrete function assisted by t h e medium of information the com-posite introduction built u p of a variety of content elements was destined t o perform. As regards such concrete functions going beyond t h e fact of infor-mation a n d transmitted by it, the preambles may be distinguished according as they afford (a) a general policy-making motivation, (b) a mobilising or pro-paganda content, (c) a solemn declaration, or (d) a normative settlement. I n

16 See ROTJSSET, G.: Science nouvelle des lois. Quoted by ROUTTIENS: op. cit., p . 11.

1 8 K O V Á C S : o p . c i t . , p . 1 6 2 .

17 S e e VARGA: o p . c i t . , p p . 2 5 9 — 2 6 1 .

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the m a j o r i t y of instances the relations among the concrete functions character-istic of t h e composite preambles are not contradictory or mutually exclusive, but not of an hierarchical order in a clear-cut form, b u t often o f a competing nature, which as to the particular concrete solutions is mostly manifest in a relative, more or less strong gradation of t h e non-primordial functions. How-ever, t h e relation among the concrete functions will for t h e introductions t o constitutions often appear in a different manner. As a matter of fact, for practical purposes the preambles to constitutions come under the heading of solemn introductions, and their occasional motivating, propaganda and/or directly normative content is often discernible in an emphatic and pointed form so t h a t compared to these functions solemnity will find an expression as a primus inter pares.

Hence the functions characteristic of the preambles are often overlap-ping, and an accurate assessment of t h e relations among them will occas-ionally appear even as artificial. However, in each case their common t r a i t is information, which may be termed even as their basic function. This means, t h a t , as a rule, information compared t o t h e principal functions plays a role of an instrumental character, i.e. it appears as an instrumentel function, except the case of preambles of simple content where information appears as a basic and also as a principal function. Nevertheless it is obvious too t h a t a basic function of information is not only a f e a t u r e of introductions to legal rules, inasmuch as information is necessarily a n d exclusively t h e vehicle of t h e normative function of legal rules, i.e. legal t e x t s of norm content.

However, owing t o their character, legal texts of norm content comprise rules of conduct, direct directives of conduct only, a n d consequently in a generalization of principles the tenet will prove true according to which "le Droit n'est que la superstructure composée des voies et moyens d'exécution des b u t s inexprimés".^{1 8} On the other h a n d it may be s t a t e d of the preambles more or less t h a t in their majority a n d on considering their frequent a n d typical instances of occurrence they contain value judgements delimiting a notion expressing an objective. This again pointB a t t h e two in their character divergent trends of t h e basic function of information described earlier as common of all functions.1 8 In point of fact the function of t h e operative sections o f a legislative act is t o define obligatory, permissive, or prohibited conduct when the respec-tive specified conditions prevail, as well as t o hold out t h e relevant sanctions.

However, in general the operative sections of a legislative act do not provide DAVID, A.: L/i njltcrncliquc. et le droit. Annalos do la Faculté do Droit ot do Sciences Economiques de Toulouse, tome XV. 1/19(37. p. ICO.

19 Socially t h e value judgement and t h e norm-carrying t e n e t are in a genetic rela-tionship t o each other. However, at tho same t i m e in point of principle they c o n s t i t u t e separate categories. For their differences and independence see KALINOWSKI, G.: Introduc-tion à la logique juridique. Paris, Librairie générale de Droit et de Jurisprudence, 1965. p p .

5 9 — 6 0 and M A X A I , M . : Az erkölcsi tudat dialektikájáról (On t h e dialectics o f m o r a l con-sciousness). Budapest, Kossuth, 1966. Chapter II, section 2.

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direct or explicit information as regards t h e reason a n d / o r purpose of t h e regulation.20 Although an analysis of the normative provisions mostly permit a practical conclusion as t o the value judgements in t h e i r background, or underlying them and defining their raison d'être, nonetheless this conclusion is in part logically by no means unequivocal, in part the normative utterance itself will defy any attempt a t proving it, there being no uni-directional direct and exclusive correspondence between the value judgements and the norms. T h e ends and means are by themselves never in a mutually equivalent manner defining and interchangeable relation to one another.^{2 1} Therefore in cases which are practically exceptional when an investigation of tho norm content will fail to provide a ground for a conjectural establishment of the finality of regulation within the limits of probability even when for political consider-ations or such of the policy of law, or even simply for guaranteeing the success of enforcement this would be required, it would be essential t h a t the legislator simultaneously with the regulation formulates its finality a n d by this p a r t l y justifies his own decision for society, p a r t l y furthers its conscious and ex-pedient enforcement.²² A norm content shaped in an appropriate manner will carry itself, a n d provide a n adequate legal foundation for enforcement. How-ever, the legislator, in order t o provide an effective regulation, possibly has in mind a conscious, voluntary submission t o t h e norm. Therefore, to promote this, he o f t e n informs the persons concerned of the considerations by which he is led, t h e reasons of his activity and its direction to a definite end.

So t h e legislative appraisal of the social facts appearing in the context o f a s t a t u t o r y regulation will with the exception of the p u r e types of instrumental activity expressed by a norm shaped in the proper manner will show an ambiva-lent aspect compared to the target, and so tho dosirod trond of its application cannot bo guar-anteed, unless b y taking into consideration extra-norm factors and t h e determination of the trend of interpretation of t h e norm following f r o m a given policy.

12 R u n n i n g counter to t h e provision of t h e Hungarian Constitution of 1949, a Law-Decree No. 8 of 1966 authorized t h e government t o issue a regulation affecting local councils, and as laid down in the preamble it was done w i t h a view t h a t t h e practicability of t h e ideas serving continued development might become évaluable a l r e a d y before a s t a t u t o r y regulation.

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tions to legislative acts containing the naming of the object only (A/a), or such carrying a norm content only (B/d), constitute the most general and at t h e same time most frequent content of t h e preambles, and also determine t h e character a n d trend of the informative basic function which is a feature of t h e preambles. This fact means t h a t the specifically characteristic principal functions of the introductions to statutory regulations appear as surplus functions, equally through the media of the basic function of evaluation-information, a s v a r i a n t s of this basic function serving a variety of pragmatic ends, based on, and assisted by it.