Jusletter IT

With regard to the publication of laws, the Austrian Constitutional Court states in its classical decision, collection no. 3130/1956:

«The provisions of art. 49 and 97 of the Federal Constitution on the publication of the laws are based on the rule-of-law principle of the publicity of legal content. From this ensues the obligation of the legislature to clearly and exhaustively make known to the public the content of its legal enactments.»

From this decision, which has become standing judicature (cf., e.g., collection no. 13.740), several different conclusions may be derived:

• First of all, the publication of laws is to be interpreted as an emanation and necessary implication of the rule of law, which, as a basic principle of the modern European state model, which in the past century has spread out all over the world, is being observed in a wide variety of different legal systems, and may be seen as their common denominator.
• Above that, the publication requirement would not be restricted to the laws being put in force but also include the legal enactments made by the legislatures. Thus, whereas publication of laws in most normative systems falls within the competence and responsibility of executive bodies, there is already a liability of the legislative bodies to make accessible to the public their enactments, in advance of the formal promulgation of the laws.
• Finally, and this is to be mentioned with exclusive regard to the Austrian constitutional system, by referring the publication of laws to the rule-of-law principle of the Austrian Federal Constitution, the Constitutional Court declares it part of the most sublime layer of Austrian positive law, namely of the constitutional principles that may not be amended by the ordinary procedure that amendments of the Federal Constitution have to undergo but by referendum only.

The Austrian Federal Constitution refers to the publication of laws with two specific regards, namely with regard to the publication of federal laws and that of provincial laws, thus taking into account that the Republic of Austria is a federal state¹.

Art. 49 para. 1 of the Federal Constitution states: «Federal laws [...] shall be published by the Federal Chancellor in the Federal Law Gazette. Unless explicitly provided otherwise, they enter into force with expiry of the day of their publication, and apply to the entire federal territory [...]» Thus, the entry into force of federal laws is construed as being a direct consequence of their publication. The other way round, in accordance with the judicature of the Constitutional Court, incomplete publication of a federal law would make it contradictory to the Constitution and would have the consequence of the respective law being rescinded by the Constitutional Court.

Para. 3 of the above-mentioned article carries on: «Publications in the Federal Law Gazette [...] must be accessible to the public and obtainable in the form of publication completely and permanently.» This provision, which in its present wording goes back to the Federal Law on the Reform of Promulgation (FLG I no. 100/2003), refers to the principle of accessibility as the very concept of publication, and it implicitly refers to the new means of electronic publication by defining the quality criteria to be met by publication using these media.

Art. 97 para. 1 of the Federal Constitution, likewise, provides for publication of the provincial laws by the Provincial Governor in the Provincial Law Gazette. Though the Federal Constitution leaves regulating the details as to publication of provincial laws to the provincial constitutions, the basic principle of publication thereby is also to be applied on provincial legislation, as the Constitutional Court has confirmed, as well (e.g., collection no. 5320, 6460, 15.579).

In a historical perspective, official publication of laws as a necessary condition for them entering into force rests on a tradition going back to antiquity, but in its present form of the «law gazette» is a relatively young achievement, as a theoretical concept and demand going back to the age of enlightenment, in practice mostly going back to the 19^th century. Enlightened legal philosophers, but even legal practitioners, throughout the 18^th century argued that the unsystematic ways of making laws known to the public, e.g. by having them read from the pulpit, were at least inefficient, if not principally preventing laws from being effective. But it was only the French Revolution that introduced the «Bulletin des lois» as the official and uniform publication media for laws, and it yet took several decades until other Europeans countries took over the concept².

In Austria, it was also a revolution that had to take place before an official publication organ for the laws was created. Though already since 1780 there had been the Judicial Law Collection, and since 1790 the Political Law Collection, both being official collections of the laws in force but not media for promulgating laws with binding effect, only in 1849, after and as a consequence of the revolution of 1848, the Imperial Law Gazette and the Provincial Law Gazettes were introduced as the official and exclusive publication media for laws. From that day, in Austria, too, the publication of laws was constitutive for them entering into force³.

Needless to point out again that the principle of publication of laws was taken over into the constitutional order of the Republic of Austria in 1918 and into the Federal Constitution adopted in 1920. However, it was only then that the vacatio legis, i.e. the deferment of the entry into force of a law, was reduced: Whereas so far in principle a law came into force on the 45^th day after its publication only, now it did so on the day after its publication already. Thus, the improvement and acceleration of postal delivery was taken into account, as was the territorial reduction of Austria from the second largest country in Europe (in which it could take some time until a new edition of the Imperial Law Gazette was to arrive in the remote border regions) to a small state.

The enlightened principle of publication of laws in print instead of reading them out unsystematically, in combination with the increasing alphabetisation of the people, had an important consequence, so to say the contrarius actus of publication, namely the possibility to legally establish the fiction of the laws being known by the public. Thus, section 2 of the Austrian Civil Code of 1811 (which is still in force) states: «Once a law has been appropriately promulgated, nobody may plead it has not become known to him.» Likewise, section 9 para. 2 of the Penal Code of 1974 lays down that «someone who has missed to make oneself acquaint with the respective provisions [...] is to be blamed for a legal error».

This, of course, is and will remain a legal fiction. Thus, e.g., the Administrative Court has ruled that the validity of a regulation is not dependent on whether the subject of the regulation has in reality taken note of it (collection no. 8181 A). It is only this fiction that would allow efficient law enforcement.

On the other hand, it will always remain an issue to be seriously reflected upon what the classical rule according to which «leges [...] intellegi ab omnibus debent» (Cod. Just. 1, 14, 9), would really mean. Three possible meanings have been identified:

• The laws are to be understood by the people subject to them, which would imply they are known.
• The laws are to be understandable to the people subject to them.
• The laws are to be appropriate to be substantially accepted by the people subject to them.

The first of these possible meanings would directly refer to the principle of the publication of laws. The second one would establish an elementary demand on legislative drafting, in particular on the quality of legal language. The third meaning, at last, would establish a connection to the basic issue of the legitimacy of the legal system, and thereby to the legitimatization of legislation.

Since 1849, as mentioned above, authentic publication of laws in Austria has been in a print Law Gazette, though, of course, on the ground of legal provisions undergoing some changes. The last major change was issued in the Federal Law on the Federal Law Gazette of 1996 (FLG no. 660/1996), by which the Federal Law Gazette was given a new structure consisting of three series for (roughly spoken) laws, ordinances, and state treaties, resp.

The Federal Law Gazette was obtainable from the State Printing Office, on a subscription basis as well as by purchase of single pieces. Altogether, about 6'000 copies of the Federal Law Gazette were printed, a number that had been decreasing over the years. It was available in the larger public libraries, as well as at the municipal offices of the about 2'350 Austrian municipalities, where people had the opportunity to consult it for free, during opening hours. There were, of course, some individuals, mostly lawyers, subscribing for the Federal Law Gazette on their own (and at their own expense), but most people were restricted in their access to the Federal Law Gazette by being bound to public libraries and municipal offices.

This situation has fundamentally changed. It is true, the primary motivation for introducing authentic electronic promulgation of federal laws was finding a way to save money, namely the considerable printing costs for the Federal Law Gazette. That was why in 2001 the «E-Law» project was initiated, in the course of which, by joint effort of the Federal Chancellery and the Parliamentary Administration, the electronic workflow system was established that was the prerequisite for having the Federal Law Gazette authentically published in electronic form⁴.

The Federal Law on the Reform of Promulgation (FLG I no. 100/2003) provided for authentic electronic promulgation of the federal laws from 1 January 2004 on⁵. In accordance with section 6 of the new Federal Law on the Federal Law Gazette 2004 (art. 4 of the above-mentioned act), this is to be done within the framework of the Legal Information System of the Federal Chancellery. Section 7 precisely defines the URL at which the Federal Law Gazette is to be published (www.ris.bka.gv.at), and section 8 defines the criteria to be met in order to safeguard the authenticity and integrity of the documents published in the electronic Federal Law Gazette: In accordance with these criteria, and the state of the art, the file format chosen is XML, and the files are electronically signed. The XML schema was customized for the specific purpose, because at the time there was not yet available any standard legal and legislative XML file format, like Akoma Ntoso. It may be mentioned that in the twelve years past no violation of the integrity of a federal law electronically published has been noticed.

Section 9, at last, entitles anyone to freely and without prove of identity access the Federal Law Gazette, and make printouts free of charge. Besides, non-authentic printouts may still be purchased, which, of course, is a service meanwhile rarely demanded. Besides the authentic XHTML representation bearing the electronic signature, three additional non-authentic electronic versions of the Federal Law Gazette are offered on the same site, to make possible different ways of re-use and further processing, namely a PDF, an HTML and an RTF version.

Having in mind that, according to recent polls, about 84% of the Austrian population older than 14 years are using the Internet⁶, and that about 82% of the Austrian households have Internet access⁷, the shift not only in quantity but even in quality of free access to legal information achieved through authentic electronic promulgation becomes evident: In the former paper environment, there was, on an average, one copy of the Federal Law Gazette for more than 1'300 people. Free access was possible but coupled with some trouble and investment of time, as well as restrictions in availability. Today, an Internet connection would do.

However, we have to be aware that even before this wide-scale free access to the authentic federal laws was created, people were enjoying free access to non-authentic kinds of electronic legal information, and that they used these kinds of information much more intensively than the authentic Federal Law Gazette, simply based on trust instead of a warranty of authenticity. Above that, it is due to the very nature of the legal system and its dynamics – indeed, in case of nearly all legal systems – that the authentic publication of laws in the respective law gazette would attract less attention than non-authentic (or, in a very few legal systems, authentic) consolidated versions of the law in force, at a given time.

For the practical use of law enforcement through courts and administrative agencies, for lawyers and laypersons involved in legal proceedings or just interested in a particular normative issue, such consolidated versions would be essential: They spare the users the requirement to reconstruct the will of the legislature, as composed of different layers in time, following the derogation principle, in each single case of a law to be applied. Theoretically, each act of application of law requires such an act of reconstruction – practically, it can be done once and for all (until the next amendment of a given law).

Whereas in some legal systems it has for a long time been the responsibility of the public authorities to regularly provide consolidated versions of the legal regulations, such as the Systematic Law Collection in Switzerland, in others this was traditionally seen as a market for private businesses, which produced, e.g., loose-leaf editions of the laws in force within a certain, e.g. national, jurisdiction. This was the case in Austria, too, until the 1970s.

Only in 1975 a draft bill by the Federal Chancellery proposed to establish an authentic Federal Law Collection, in the form of a loose-leaf edition, for the publication of certain types of regulations, in particular federal laws. This collection was thought to present the laws in force in a systematic order, thus improving clarity of the legal system and enhancing its clearing up by the legislature. Comments given in the course of the consultation process were mainly sceptical, so that another draft bill put to consultation in 1978 changed the concept, now rather following the Swiss example and proposing to set a systematic Federal Law Collection besides the Federal Law Gazette. However, even in this case the comments were predominantly in the negative: Even though databases at that time were not yet ready to replace loose-leaf editions (as a first trial project in the Federal Chancellery dealing with constitutional law had shown in the early 1970s), it had already become evident that time was on the former’s side, and the era of the latter was coming to its end.

Nevertheless, it was only in the 1980s when legal information in Austria finally was put on an IT basis⁸. Notably, private enterprises and public authorities simultaneously, and partly co-operating with each other, developed legal information databases: The first commercial databases of that kind went on-line in the mid-1980s⁹, and at the same time the Legal Information System of the Federal Chancellery became operational, then addressing a restricted audience only, namely public administration and the courts¹⁰.

From the very beginning, the Legal Information System, as far as federal law was concerned, aimed at representing the legal regulations of federal law, including laws, ordinances, state treaties, etc., as well as court decisions; whereas the legal regulations were processed by the Federal Chancellery’s own staff, the court decisions» databases were only to be built up by the staff of the respective courts. Thus, though in the end providing access to all kinds of legal sources, the documentalistic criteria followed within the Legal Information System were not fully coherent, because determined by the different needs and traditions of the actors involved. That is why search algorithms and interfaces had to be defined separately, as well. This was also true for the legal regulations of the nine federal provinces that subsequently were integrated into the Legal Information System, too, fed from the provinces» own legal information systems.

Although, starting with 1983, the (non-authentic) full texts of the Federal Law Gazette were also made available within the Legal Information System, the main user interest was in the consolidated versions of federal laws, the full texts of which were collected after a systematic index to the federal regulations in force was compiled first¹¹. One may be amused by the fact that systematically collecting «law in time», i.e. the stock of federal regulations in their different time layers, was started with civil service law (from the interest perspective of a civil servant, quite a reasonable decision, anyway), but within some years the huge work of covering all legal fields was completed. One baseline decision made at that time, which is still determining the system structure, was the decision about granularity: indeed, the granularity level was fixed rather high, namely at section level, the sections of federal laws usually being the highest level elements containing text. Thus, the time layers were also to be given for whole sections only, instead of their sub-elements, such as paragraphs, sub-paragraphs, etc. A new element introduced for documentalistic purposes only was a fictitious «section 0» that was created for every federal law, to collect metadata pertaining to the law as a whole, such as a list of amendments. Thus, the law became something like a bibliographic entity, with its «section 0» as something like an imprint, and with its sections as its linear structure. Fine structures of single laws, but also individual structural units of the federal law as a whole that were not subsumable under one of these bibliographic entities, therefore, became more likely to escape the attention of the user.

Nevertheless, establishing the Legal Information System meant a revolution in the field of legal information. For the first time, a complete collection of «law in time», though going back not equally far (but in all instances to 1983), had been created, which made it possible to precisely identify the federal law in force at a given point in time, by a simple online search, and retrieve the respective normative texts. For the first time, unlike before in the era of loose-leaf editions, it was feasible to get access to consolidated versions of the laws in force with a short delay in time only, i.e. a few weeks. Though these texts, of course, were non-authentic only, the simple circumstance that they were provided by the Federal Chancellery was to inspire confidence.

Thus, it may not be surprising that after some time there was an increasing public demand for the content of the Legal Information System being made directly and freely accessible to the public (instead of being indirectly available through a commercial legal database, the provider of which was co-operating with the Federal Chancellery, against payment). Finally, it was the Internet revolution that made the step towards providing free access to the Legal Information System inevitable: When in the mid-1990s the Internet, in the appearance of the World Wide Web, had its take-off, the public authorities in Austria, too, felt urged to make their information resources, which until then had primarily served the purposes of internal use, available to the public; at the same time, the breakdown of the mainframe world made a system change in case of the Legal Information System, and a change in the way of providing access, necessary anyway. Only a few months after the Austrian Parliament made most of its legislative information services available on its website, the Federal Chancellery, in June 1997, opened up a web interface to accede its Legal Information System.

From that time on, the public was given free access to the diverse databases combined in the Legal Information System, through the new web interface providing improved search facilities. As far as federal law was concerned, the Legal Information System the year before had been put on new legal grounds, when section 7 para. 2 of the new Federal Law on the Federal Law Gazette 1996 ordered: «The data produced for the Federal Law Gazette are [...] to be made available to the Legal Information System of the Federal Chancellery, which does not contain authentic data.» This was nothing else but legalizing the practice; a legal provision for public access to the data contained in the Legal Information System was not yet made in 1996 – once again, practice led the way, and law was to follow.

The decision to provide the public with access to the Legal Information System free of charge arose some critics from the side of the commercial information service providers busy in the field of legal information. At that time, in the late 1990s, the discussion about what kind of legal information services were to be rated «added value services» was in full swing, and some commercial information service providers argued providing consolidated texts was already an «added value service» to be left to them. Indeed, when early in 2001 a draft amendment of the Federal Law on the Federal Law Gazette 1996 was sent out for public consultation by the Federal Chancellery, it proposed to entitle the Federal Chancellery to charge a fee on public use of the services of the Legal Information System. Thereby, on the one hand revenue would have been raised (the Federal Government at that time was aiming at a «zero budget deficit»), on the other hand, the commercial information service providers would not have got rid of their public «competitor» but would have been given a better chance to regain market shares, against a service no longer being available for free.

However, the public consultation process furnished clear evidence that the public had got used to the free service, and were not willing to do without it anymore – the comments given on the draft bill within this specific consultation process may be read as a collection of all possible arguments in favour of free access to legal information. As a result, the proposal was dropped, and the remaining part of the amendment, as it was adopted by the National Council in March 2001, ordered: «The data of the Legal Information System produced by the Federation and the content of the Federal Law Gazette are to be made available via the Internet.» (section 7 para. 2, 2^nd sentence) Thus, practice, once again, was turned into law, and the assault on free access to legal information was repulsed¹².

Nevertheless, the fight was not yet over: When in April 2002 the draft Federal Law on the Reform of Promulgation was sent out for public consultation by the Federal Chancellery – this act was to lay the legal grounds for authentic electronic promulgation of the federal laws –, it omitted (in its proposal for a new Federal Law on the Federal Law Gazette) the provisions of section 7 of the Federal Law on the Federal Law Gazette 1996 as amended in 2001. Once again, the Legal Information System received wide public support in the course of the consultation procedure, and the result was that the new Federal Law on the Federal Law Gazette 2004, as adopted by the National Council in October 2003, referred to the Legal Information System in its section 13.

As a matter of fact, section 13 of said law replaced the legal assignment by an entitlement saying non-authentic legal information may also be made available by the Federal Chancellery via the Internet, at the same URL where the authentic Federal Law Gazette is located. However, this need not be seen as weakening the free access policy, because the scope of this entitlement was extended to provincial and municipal regulations (following the practice, once again), and this extension, of course, would allow only an entitlement instead of an obligation, due to the federalist structure of the Republic of Austria.

Since the beginning of the era of authentic electronic publication of federal law in Austria, i.e. since 2004, free access to the non-authentic consolidated versions of federal laws, as well as the other kinds of legal information contained in the Legal Information System, has never been seriously questioned again. Maybe this was due to an argumentum a maiore ad minus: if now even the authentic Federal Law Gazette was available free of charge, why charge the non-authentic legal texts, regardless in what kind of systematic arrangement they were presented? Anyway, the above-mentioned public consultation processes in the years 2001 and 2002 clearly proved that the Austrian public deemed it to be the responsibility of the public authorities to provide the public with legal information, in particular with the consolidated versions of legal regulations, and to do so free of charge.

The Legal Information System of the Federal Chancellery, therefore, will remain the central hub of legal information in Austria. Technically, about ten years ago all the documents, the number of which amounts to more than 1 million, were converted from ASCII text to XML, which was the precondition to offer additional structural functionalities¹³. The access statistics would indicate the frequency of use, and the extent to which the Legal Information System has become an essential feature of the daily life of Austria lawyers, and even citizens in general: In 2015, no less than 2,11 billion accesses to documents were counted, the vast majority, i.e. 1,74 billion accesses, to the consolidated versions of federal norms. In more than 15 million cases, the authentic Federal Law Gazette was accessed.

The digitisation of the law-making process, and the digital availability of the laws, in their authentic version as well as in non-authentic consolidated versions, have fundamentally changed the access to the law, and, for the first time, ensured that free and equal access is no longer a fiction. Legal and legislative information systems, however, are still expert systems, requiring the user to have at least some knowledge of the legal system as well as legal terminology.

That is why other and additional approaches to enable the citizens to deal with legal issues are to be developed: A fine example is given by the Austrian www.help.gv.at system¹⁴, which chooses a «life situation» approach, providing legal information not in accordance with the formal structure of the legal system but with a selection of «life situations» regularly occurring, like birth and decease, marriage and divorce, tax declaration, passport application, military service, habitation issues, etc. Instead of providing the texts of the relevant legal regulations, the system, which is, of course, freely available, as well, would give meta-information on the content of the provisions and on the procedures to be applied in the respective «life situations», and it does so in plain language; needless to mention that writing these texts, which, of course, have to be reviewed by legal specialists before being published, requires considerable editorial effort.

However, the system, as useful as it is, currently remains an island in the stream of legal information. Even though the entries meanwhile are connected to the legal texts as provided in the Legal Information System, there are no references to the explanatory material as provided, within the framework of parliamentary business, in the parliamentary information system. The same goes for court decisions, administrative decisions, legal doctrine, and all other kinds of sources that may be of use when it comes to dealing with legal issues, from different points of view, and from different levels of legal knowledge. This scope is what might be called the «legiverse’¹⁵ – the whole universe of legal and legislative information of all different kinds, substantially inter-related but kept within different information environments and therefore, in the best possible case, synoptically accessible to the legal expert only, even the expert’s capacity being more and more restricted by specialization.

That is why what might be called legal knowledge management, instead of legal information management, will be the requirement of the future. Legal knowledge management will not aim at building larger and more comprehensive databases but at making all the information already available in the existing databases, in practice regularly via the Internet, better synoptically accessible in a context-sensitive as well as user-sensitive way. Only then it will be possible for users with different personal knowledge backgrounds to find their own specific paths through the «legiverse», and to arrive at where they want to go, at a level of case-specific legal knowledge making the relevant legal regulations not only known but even intelligible to them.

Intelligibility of law, however, remains a challenge to law-making, and to legislative drafting, beyond the scope of legal information. In its famous «brain teaser decision», the Austrian Constitutional Court has clearly stated that the rule-of-law principle of the Austrian Federal Constitution requires normative regulations to be basically intelligible; this minimum intelligibility required cannot be attributed to a regulation «which is only to be understood on the ground of subtle expertise, extraordinary methodological capacity and some interest in solving brain teasers» (collection no. 12.420/1990).

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Dr. Günther Schefbeck, Head of the department «Parliamentary Documentation, Archives, and Statistics» of the Austrian Parliamentary Administration.