Normativity of the Preamble Content

The foregoing discussion was based on a logical separation of the value judgements and norms presented by the evaluating and normative utterances.

However, t h e value judgements which underlie the norms expressed in a legal form and define their finality do not by far constitute the general content only of the preambles to be considered typical. And owing to t h e functional role of the preambles direct evaluation may be discovered among others in the moti-vations of legislative acts and other preparatory material of legislation. Al-though these texts, at least in part, often have a uniform or similar content, notwithstanding the apparent complete identity of their basic functions, are widely different as to their role and their consequential i m p o r t . As a matter of fact, the motivations of legislative acts and other preparatory materials are of no normative character, consequently their value is in m a n y respects close t o what an author in connection with the definition of t h e value exceeding t h e concrete case, of a legal conclusion implied by a judicial decision in legal systems not recognizing t h e principle of stare decisis, called as compared t o the normative value of t h e legal norms an interpretative value,^{2 3} inasmuch as tho operation and application of these materials are in t h e f i r s t place enhanced only by their intrinsic value and the persuasive power t h e y carry. On t h e o t h e r h a n d , the evaluating statements implied by the introductions to legal rules appear in a legal form, as parts of legislative acts, h e n c e a s a n e v a l u a t i o n e x -pressed in a normative manner, i.e. as normative evaluation-information.

I n literature dealing with the problem of preambles o f t e n the formulation of requirement of legislative technicality is encountered t h a t introductions t o legislative acts should contain no norms, moreover in conformity with Anglo-Saxon legal doctrine and according to a large number of judicial opinions t h o introduction can never constitute the "operative" part of a statutory

regula-" COLES ANTI : Giurisprudenza. In: Novissimo digesto itali ano. Vol. VII. 1 9 6 1 . pp.

1 1 0 1 — 1 1 0 4 . Q u o t e d b y CAPPELLETTI, M . — M E R R Y M A N , J . H . — P E R I L L O , J . M . : The

Italian legal system. Stanford, University Press, 1 9 6 7 . pp. 2 7 2 — 2 7 3 .

LAW AS TECHNIQUE 151

The Preamble: A Question of Jurisprudence 111

tion.24 But if t h e preamble nevertheless carries a norm content, t h e "operative"

character of t h i s content will practically be recognized almost unanimously.

Thus only a single author is known who f r o m the very o u t s e t rejects the normativity of a n introduction irrespective of its content components on the ground t h a t t h i s content appears in the legal f o r m of a preamble. According to this opinion " i n t h e practice of constitution-making two types of preambles may be distinguished, viz. simple and qualified preambles. T h e constitution lays no special stress on the legal value of t h e simple preamble. T h u s it may be argued whether such a preamble has a legal significance at all. A preamble of this type is t h a t of the constitutions of F r a n c e of 1946 and 1958. There are constitutions which qualify t h e preamble. I t is explicitly laid down in the particular detailed provisions of such constitutions that the preamble belongs t o the text of t h e constitution, t h a t it constitutes p a r t of it. W h e n such practice is pursued, preambles also become sources of law. Accordingly, t h e preamble on t h e one part will have the effect of a norm in questions not specially brought u ndcr regulation in the constitution, and on t h e other it will have t o be considered in interpreting t h e legal sources ranking lower t h a n the constitution. As for the non-qualified preamble, since it is outside t h e norm-system of t h e constitution, even the restrictions connected with the interpretation are arguable."^{2 5} Hence, as regards t h e normativity of t h e introduction t o a legislative act, t h e conclusion here quoted m a k e s a distinction not by its content, but according to another, with respect t o it external norm of undoubted legal character qualifies the content of t h e introduction as legal, or not. I n the last resort in this con-ception a view is reflected according to which t h e "qualification" of the system of legal norms, its special provision is required in order that t h e content system of the preamble, as a system considered outside the system of positive law, might become p a r t , or an element of positive law, and so assume the norma-tivity characteristics of this law. This of course amounts to a serious diminishing of the legal character of the preamble, since in principle an a d e q u a t e provision may turn any t e x t , political or other, into an organic part of a legal system. I think, however, t h a t this approach of the issue would be justified only and exclusively when a norm higher in hierarchical order precluded t h e normativity of the preamble, directly or b y prohibiting t h e use of a n introduction to legal rules. As a matter of fact, in general when the legislative act otherwise con-forms with the conditions formulated by positive law, from the day of its entry into force the whole wording of the act will gain normativity and potentially the pre-amble will also become of normative significance to the extent the other parts of the act have become such. In this connection tho s t a t u t o r y provision on tho

norma-u For a s u m m a r y of the Anglo-Saxon doctrinal and judicial s t a n d p o i n t s and some of the features of actual practice, see VARGA: op. cit., p p . 268—269.

15 TOLDI, F . : Alapvető állampolgári kötelességek és szabályozásuk rendszere (Funda-mental civic d u t i e s and the system of their regulation). Állam és Igazgatás, 3/1963. p. 187.

112 Cs. Varga

t i v i t y of the introduction content²⁸ will in principle always be tautological, although the requirement of security a n d unfavourable field experiences may in certain cases justify this. As a matter of fact provisions of this type theoretically have no greater value, or more to i m p a r t , than a norm which lays d o w n the obligation of an observance of, or respect for, some given norms contained in t h a t or any other legal rule, i.e. the normativity of an otherwise valid norm.²⁷ Hence the summary statement according to which " a statute m u s t be read as a whole and a Preamble is as much part of the s t a t u t e as its enacting p a r t "^{2 8} will lead to the conclusion t h a t the value judgement content of an

intro-duction to a statute will find an expression as a normative evaluation-information, and c o n s e q u e n t l y its possible norm content as normative norm-informationP T h u s both within the sphere of legislative acts and beyond this sphere a dis-t i n c dis-t i o n may be made among differendis-t values and dis-t y p e s of informadis-tion or utterances. For a notional delimitation the principal t r a i t s of this distinction are illustrated in a table. However, t h e effect of the normativity of t h e infor-mation included in the preamble30 and its practical realization depend on pre-conditions of content, on the constituents of the introduction content, o n the character and nature of these constituents. As a matter of fact the normativity

" A s a rule such apparently "qualifying" provisions occur only in constitutions; see e.g. § 171 of the Czechoslovak Constitution of 1948, or § 156 of t h e Turkish Constitution of 1961. I t should be noted t h a t also cases occur when the " q u a l i f i c a t i o n " is included in t h e p r e a m b l e itself (Syria, 1950, and Yugoslavia, 1963). However, in such cases t h e pro-blem-stating and the total of differentiation b y "qualification" will become even more meaningless.

17 According to B . GBOSSCHMID ( M a g á n j o g i előadások: Jogszabálytan (Lectures on p r i v a t e law: Theory of legal rules). B u d a p e s t , Athenaeum, 1905. p. 84.) the n o r m a t i v e

rovisions establishing t h e normativity of normative provisions are meaningless also ecause on the ground of t h e question quia custodiet custodes these m a y logically b e carried ad infinitum. On the other h a n d the explicit repealing of the p r e a m b l e may in s o m e cases become justified. After t h e fall of fascism t h e t e x t of the Carta del lavoro ( 1 9 2 7 ) inserted b e f o r e t h e Codice civile ( 1 9 4 2 ) as an introduction was repealed explicitly. In G e r m a n y t h e Militärregierungsgesetz No. 1 prohibited t h e recourse, in the course of the application of law, t o normative utterances containing interpretations or objectives and included in the p r e a m b l e or other parts of a n y statute enacted after J a n u a r y 30, 1933 and r e m a i n i n g in force. (See MAUNZ, T H . : Deutsches Staatsrecht. 1 0 . Ausgabe. München—Berlin, Beck,

1 9 6 1 . p . 4 1 . ) .

" B A S U : o p . c i t . , p . 5 4 .

18 On the pattern of t h e category pairs normative evaluationinformation a n d n o r m -i n f o r m a t -i o n a l-ine may be drawn between non-normat-ive evaluat-ion--informat-ion and norm-information, when evaluations found, e.g. in p r e p a r a t o r y materials t o statutory regulation, in d e p a r t m e n t a l motivations or in other sources will be included in the former category, a n d analyses or comments on statutory provisions in literature or in the press will come u n d e r t h e latter category.

a o I t should be noted t h a t according t o some opinions (e.g. A M S E L E K , P . : Méthode phénoménologique et théorie du droit. Paris, Librairie générale de D r o i t et de J u r i s p r u d e n c e ,

1964. p p . 75—76) it is n o t t h e utterance couched in words t h a t is normative, b u t i t s pur-p o r t , or more accurately, its modelling, model-shapur-ping meaning. However, t h e establishm e n t of this establishmeaning presupposes a creative activity, it takes p l a c e as the result of n o r establishm -interpretation, as in fact a socially " t r u e " meaning will always depend on a n u m b e r of concrete factors. Hence t h e normativity of t h e meaning conceived in this way will necessarily b e of a derived character, and is potentially subject to t e m p o r a l changes, in j u x t a -position t o the normativity of the utterance couched in words as information carrier, which is of a primary nature, and as such during t h e validity of the n o r m a t i v i t y does n o t display

LAW AS TECHNIQUE 153

preamble

content of

the a c t

"operative" part

Fig. 1. Relation o f the normative a n d non-normative norm- and evaluation-information a n d their a p p e a r a n c e in the c o n t e n t of legislative a c t s

temporal changes dependent o n t h e determinants o f the social moaning. In conformity with our opinion, a t least from a doctrinal position, nomuUivily is carried by the worded utterance as information carrier, i.e. the text of t h e a c t or its legal form, arid this transmits normativity of the content or the m e a n i n g of the worded utterance. I n t h i s manner the s e n s e of this doctrinal normativity f i n d s expression in a hypothetical declaration of tho legislator of the t y p e "I decree in a manner binding those concerned that . . .". A s a matter of f a c t t h e notion of n o r m a t i v i t y is a t t a c h e d t o that of t h e binding character, and this notion will obtain a significance only in c o n n e c t i o n with t h e definition of n o r m s . This is w h y t h e normative evaluation-information will appear in t h e guise of a s p e c i f i c formation in which t h e binding nature will refer t o certain legislative evaluations. I n t h e guise of t h i s formation also t h e even more s p e c i f i c , logically d e f o r m e d so-called government recommen-dations will appear as formations a l m o s t skirting t h e boundary of a contradictio in adiecto.

These recommendations contain a binding utterance t h a t their m a k e r considers certain conducts neither binding, nor e x p l i c i t l y permitted, but simply advisable, expedient, reasonable, desirable, etc. For t h e doctrinal and sociological aspects o f normativity s e e VABQA, CS.: A jogtudományi fogalomképzés néhány módszertani kérdése (Some m e t h o d

-ological problems of the formation o f notions in jurisprudence). Állam- és J o g t u d o m á n v , 3/1970. Section 4.3.

The Peamble: A Question of Jurisprudence

114 Cs. Varga

of the preamble content will become significant and practical insofar as and to the extent permitted in fact by the content of the introduction.³¹

As is known a regulation provided by a legal norm will be put into reality by obligatory, permissive, or prohibitive utterances, i.e. in a way according to which the legislator under certain conditions qualifies a given conduct as obligatory or prohibited, guarantees a right to adopt or not to adopt this conduct, or provides equal facilities for adopting and not adopting such conduct. Practically but an extremely insignificant part of the intro-ductions to legislative acts carry such a content.³² The legal force of these introductions is beyond doubt, they may become the direct bases and sources of rights and duties, and accordingly they may be enforced directly, provided that they have been shaped in an appropriate manner and t h a t their implementation does not presuppose further legislation of an executive character. However, often the practical significance of these preambles of a direct norm content is relatively small. This is the case partly because even when the conditions earlier referred to have been satisfied, the provisions of these preambles usually appear as leges generates, the actual enforcement of which is often wholly pre-cluded by the subsequent parts of the act introduced by the given preamble as leges specialespartly because the introductions to statutes, carrying a norm content, in their majority contain a n incomplete regulation which does not permit of a direct enforcement.34 However, it is not the function of the majority of introductions to legislative acts, qualifiable as such of norm content

31 In the French discussion on the normativity of the preamble to constitutions a similar position was taken b y WALINE, M.: N o t e sous l'arrêt Dehaene (Conseil d'Etat, 7th July, I960) and BURDEAU, G.: Les libertés publiques. Paris, Librairie générale de Droit et de Jurisprudence, 1961, p. 60. In literature in international law "hat nach herrschender Ansicht die Präambel innerhalb der Grenzen ihrer Funktion den gleichen Wert wie die übrigen Teile des Vertrages". DISCHLER, L.: Präambel. In: Wörterbuch des Völkerrechts.

Vol. II. Berlin, De Gruyter, 1961. p. 791. Similarly GOODRICH, L. M.—HAMBBO, E.:

Charter of the United Nations. 2nd ed. London, Stevens, 1949, p. 89.

33 However, the lack of a norm content is by far not characteristic only and exclusively of the introductory part of the statutes. A. S. PIQOLKXK specially drawe attention 'to cases when an article or any other part of a normative act is void of a legal norm", as a matter of fact "only the articles of a normative act contain a legal norm or a certain part of it where a declaration of will providing for an action to be performed in a certain manner, in the form of obligation, prohibition or permission finds an expression, or conditions in the case of fulfilment of which this declaration of will has to materialize, or just the consequences of a non-observance of these declarations find ein expression".

Нормы советского социалистического права и их структура. In: Вопросы общей теории советского права (Norms of the Soviet socialist law and their structure. In: Questions of the general theory of Soviet law). Moscow, Gosyurizdat, 1960. pp. 188 and 189.

33 See e.g. You: op. cit., pp. 16—17.

34 "A défaut d'une règle de conduite un acte est indifférent au point de vue de la loi.

A défaut d'une règle d'organisation un acte de caractère conventionnel est impossible."

ZIEMBINSKI, Z.: Les lacunes de la loi dans le système juridique polonais contemporain et les méthodes utilisées pour les combler. In: Le problème des lacunes en droit. Publié par Ch.

Perelman. Bruxelles, Bruylant, 1968. p. 133. ВXXB.DEAU: op. cit., p. 60 quotes a French example according to which in the face of the direct enforceability of the equal sacrifice theory of taxation the declaration of the right t o work will hardly prove sufficient by itself for the realization of this right.

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The Preamble: A Question of Jurisprudence 115

to afford a regulation b y themselves, b u t to contribute with elements of t h e re-gulation, or a partial motive of it, to t h e regulation contained in the legal act as a whole. Although according to a certain more general formulation e.g. " t h e recording of the achievements at tho s a m e time means a rule of conduct, an obligation to adopt certain conduct",3 5 by unfolding t h e symbolic element concealed in such and similar expressions and by anticipating the decisive elements of our subsequent conclusions it may be said t h a t the normativity of a valuation expressed in the wording of a statute, mostly in the preamble will in all cases and exclusively appear in a transmitted form, in respect of the interpretation of the norm connected with the valuation in question, however, in an effective manner. Or more precisely, the normativity of the evaluation-information may be translated into reality in a legally relevant manner, in conjunction with legal consequences only insofar as the legal system contains a norm to which the evalua-tion-information may be related objectively. Beyond this t h e practical signific-ance of t h e normativity of the evaluation contained in t h e preamble, i.e. the normative significance of the preamble is obviously proportionate to its content value, to the extent to which the evaluation is adequate to the guidance of the interpretation of the relevant legislative act, or the actual formation of the processes taking place in the minds of the persons affected by it. O f t e n the evaluation given by t h e legislator in a normative form becomes the clue t o a n understanding of the s t a t u t e , and thus t o its interpretation and application. In other non-ex-ceptional cases, when t h e preamble is extremely laconic, or on the contrary carries a content appearing as tautological in tho context of the legal system or occasionally tho concrete statute, t h e evaluation may bo considered one of little significance.

A m o n g the introductions to legislative acts the preambles of constitutions occupy usually a particular place. In respect of these preambles too t h e reali-zation a n d enforcement of the normativity of tho evaluation content within a legal framework will be possible only t h r o u g h the agency of other p a r t s of the system a n d tho shaping of tho interpretation of t h e norms by means of this c o n t e n t . Therefore, when the political íirul moral significance of t h e

pre-34 SZABÓ, I.: A szocialista alkotmány helye a jogrendszerben (Place of tho socialist c o n s t i t u t i o n in the legal s y s t e m ) . In: A szocialista alkotmányok fcjUklése (Evolution o f the socialist constitutions). B u d a p e s t , Közgazdasági és Jogi K ö n y v k i a d ó , 1966. p. 26. The functional identity of t h e value judgement a n d the norm is emphasized e v e n m o r e in connection with the p r e a m b l e t o the Y u g o s l a v Constitution of 1963 by DJORDJEVIC, J.:

La fédération socialiste et les républiques. L e N o u v e a u Droit Y o u g o s l a v e , 1—3/1963. p. 9.

and in c o n n e c t i o n with a phrase of the i n t r o d u c t i o n to the Czechoslovak Constitution of 1948 in a particularly exaggerated form b y KNAPP, V.: A tulajdon a népi demokráciában (Property in the people's democracy). B u d a p e s t , Jogi Kiadó, 1954. pp. 132—133. Finally it should b e noted that t h e r e are writers w h o formulate this a p p a r e n t identity in a categor-ical f o r m , a s a theoretcategor-ical t e n e t not permitting exceptions b y s t a t i n g that a n y s t a t e m e n t forming t h e subject of t h e declaration of t h e sovereign will in t h e last resort c o n s t i t u t e s a

legal norm. See e.g. Петров, H.: К вопросу о нормативности правовых актов (То the

question o f the n o r m a t i v i t y of legal acts). Sovetskoe gosudarstvo i pravo, 9 / 1 9 6 3 . pp.

125—126.

1 1 6 C s . Vary a

ambles to constitutions is emphasized, it should also be pointed out t h a t although these contents reflect a normative evaluation by t h e constitution-maker, by themselves they cannot appear as t h e source of rights and duties, a n d in the formal sense their violation appears to be logically impossible. C o n -sequently the recording of achievements, exposition of given social principles or political targets of an evaluating character do not imply a n d entail a formal obligation directed to uphold, implement or augment these in a direct way.

This is the case because evaluation is not a norm category, t h e value judgement and the norm are not fungible in respect of each other in a logically equivalent manner, consequently the transformation of evaluation into a norm will in all events presuppose a creative activity in t h e strict sense, b u t o f t e n the norma-tive evaluation may have a significance equally bearing on t h e creation and application of law and directly influencing t h e norm.

Even if t h e value judgement (and t h e notion of the objective finding an expression in it as the ideal anticipation of t h e material result of the activity) and the norm (the instrumental activity shaped in it into a self-contained objective) are not, as has already been made clear, in a direct relationship of correspondence with respect t o one another, t h e value judgement obviously presents genetio relations t o t h e norm, and by inserting a composite process of cognition of a creative nature this permits of a dialectic transition from the value judgement to the norm.³® As a matter of fact, as is known, evaluation genetically, epistemologically a n d logically leads through a conditional causal judgement to t h e norm through a judgement concentrating social experiences and presupposing a cognitive-evaluating a c t i v i t y which points a t the causal interrelation of t h e material result reflected b y t h e target concept of the value judgement a n d t h e instrumental activity shaping the material result and appearing as a distinct target in t h e norm, i.e. which proves t h e aptitude of t h e instrumental activity for t h e translation of t h e target into reality. Hence it is by no means t h e only principal function of law-making as well as of any other truly organizing activity t o define the values t o be safeguarded, to anticipate mentally t h e results to be achieved, i.e. t o f o r m u l a t e targets, b u t also to select the conducts which for t h e realization of t h e s e targets may come into con-sideration, t o classify them according to their aptitude, and on t h e ground o f a conditional causal judgement expressing t h e result of this classification t o bring in relief t h e conduct m o s t appropriate in its decision, which it t h e n formulates as a n instrumental activity transformed into a t a r g e t in a norm shaped in a certain form and w i t h a certain technique. Accordingly, the funda-mental and for the most part creative stages of law-making are those necessarily preceding law-making proper in the course of which from the mass of possible

*• A Marxist analysis of t h e process is given b y M A T C A I : op. cit. C h a p t e r II, sections 1—2, pp. 76—162.

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