decree

decree

[dih-kree]
decree, in law, decision of a suit in a court of equity. It is the counterpart in equity of the judgment in a court of law, although in those jurisdictions where law and equity have merged, judgment is sometimes used to include both. The difference between the two, however, is fundamental. A judgment must be unconditionally for one party or another, but a decree is adaptable to the peculiar necessities of each case and may include rights and duties of both parties. A decree may impose conditions on its enforcement upon either party. The decree may act against the person of the defendant; it is not restricted to the award of money damages. It may contain an injunction against the performance of certain acts. One of the most familiar of the decrees given by courts of equity is the decree of divorce, adjudicating the dissolution of a marriage and awarding alimony. Decrees are enforced by proceedings for contempt of court.
A decree is an order made by a head of state or government and having the force of law. The particular term used for this concept may vary from country to country — the executive orders made by the president of the United States, for example, are decrees. In non-legal English usage, however, the term rule by decree refers to any authoritarian decision and in this sense is often derogatory.

France

See Government of France.
The word decree (décret) is used as a legal term to describe the most important executive decisions from the President or Prime Minister of France. Those decisions must conform to the Constitution and statutes of France, and it is possible to sue for their cancellation in the Conseil d'État. They require ratification by the Parliament to be changed into laws. Decree-laws, usually considered an illegal practice under the 3rd and 4th Republic, were finally replaced by the ordinance procedure since the 1958 constitution.

Outside of the exceptional reserve powers of the President (as stated in Art 16 of the 1958 constitution, exercised only once so far), the executive can issue decrees in areas that the Constitution grants to the responsibility of Parliament only if the a law authorizes it to do so. In other cases, the decrees are illegal and will be cancelled by the Conseil d'État, should somebody sue. There exists a procedure for the Prime Minister to issue ordinances in such areas, but this procedure requires the expressed consent of Parliament (see Art 38 of the 1958 constitution).

Decrees of the Prime Minister are of the two following kinds:

  • simple decrees (décrets simples);
  • decrees in the Council of State (décrets en Conseil d'État), when a statute mandates the advisory consultation of the Conseil d'État.

Sometimes, people refer to décrets en Conseil d'État improperly as décrets du Conseil d'État. This would imply that it is the Conseil d'État that takes the decree, whereas the power of decreeing is restricted to the President or Prime Minister; the role of the administrative sections of the Conseil is purely advisory.

Decrees may be classified into:

Only the prime minister may issue regulatory or application decrees. Presidential decrees are generally nominations, or exceptional measures where law mandates a presidential decree, such as the dissolution of the French National Assembly and the calling of new legislative elections.

Decrees are published in the Journal Officiel de la République Française.

Russia

After the Russian Revolution, a government proclamation of wide meaning was called a "decree" (Russian: декрет, dekret); more specific proclamations were called ukaz. Both terms are usually translated as 'decree'.

According to the Russian Federation's 1993 constitution, an ukaz is a Presidential decree. Such ukazes have the power of laws, but may not alter the Russian constitution or the regulations of existing laws, and may be superseded by laws passed by the Federal Assembly. The Government of Russia can also issue decrees which will not contradict the constitution/laws or presidential decrees.

Catholic Church

The Roman Catholic Church uses decrees from the Pope such as a papal Bull, Papal Brief or Motu Proprio as legislative acts.

Other uses of the term

In some jurisdictions, certain types of court orders by judges are referred to as decrees.

External links

All external sites in French unless otherwise noted.

References

See also

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