Although the study of legislation is an inherently interdisciplinary endeavor involving many academic fields, we jurists seem best positioned to take the lead in it. After all, laws are our daily bread as scholars or practitioners, and no other expert group in society deals with them as intensively and seriously as we do. One would therefore expect legislation viz. the making of law(s) to be a core theme in the province of jurisprudence. For the past two centuries, however, our province has been confined to the tasks of describing, interpreting, systematizing and applying laws, whereas their elaboration remains, say, a blind spot.
For one thing, mainstream jurisprudence still preserves an artificial divide between the study of law and the study of its making, and – significant exceptions notwithstanding – leaves the latter largely unattended. For another, legislative thinking and skills have only very limitedly been incorporated into standard legal curricula: commonly, law students learn to treat legislation “as a given”, and are even led to believe that before its enactment there is only sheer politics – as if the production of law would mysteriously fall beyond the domain of law.
As implied by the workshop title, this scholarly neglect paves the way for misconceived, distorted and fragmentary ideas about both the theory and the practice of legislation. Restoring or opening up dedicated spaces for legisprudential debate in law faculties is hence needed to extend and improve our understanding of what making law(s) really entails. That is precisely what this workshop pursues by bringing together Spanish and international lawyers to discuss different conceptions, models and ways of legislation. Unfortunately, in a two-day meeting only a small selection of perspectives and topics can be addressed. Still, we hope that this workshop may contribute at least a little bit to give legisprudence its due place in legal studies.
Paper abstracts just click on each title to open/close
Fri 23 Feb
09:00 h. Opening
Concern about the quality of laws did not appear in the Modern Age, nor was the Enlightenment the only period in which reflection on legislation flourished. As a matter of fact, the topic of legislative quality can be traced back long ago in the history of western (legal) culture and, most notably, in classic Athens. From 403 B.C. onwards, following the fall of the so-called Thirty Tyrants, a great codification work was carried out which resulted in the first legal system—as this notion is understood nowadays, i.e. the first legal system that included rules of recognition, change and adjudication, and consisted of written laws produced through a specific procedure known as nomothesia. The few pieces of legislation kept and a number of forensic speeches demonstrate that, under the nomothesia model, a comprehensive ideal of good laws (eunomia) was developed which would become the object of the science of legislation many centuries later. In this connection, it can be contended that this ideal already comprised the bulk of the enlightened conception of legislation, with a focus set on the prevalence of written over unwritten laws; on the generality of laws, as well as on their publication as a chief requirement of legislation; on the principle of normative hierarchy (upon the distinction between nomoi and psephismata); on the demand for clarity of legislative texts (Athenians were well aware of the problems derived from the vagueness of language); on the non-retroactivity of legislation; and on the institutionalization of dedicated mechanisms to prevent legislative inconsistencies or antinomies. All these features, along with a strong judicial review, were conceived in pursuance of one ultimate goal, namely to make the rule of law viz. the nomos basileos come true.
Although legislative quality is sought by most academic and professional experts in legislative drafting, there is little agreement on what constitutes legislative quality. Without agreement on what constitutes legislative quality, one cannot agree on the means by which the goal is achieved. Legislative quality can only be defined at a functional level: legislation is good when it contributes to the achievement of the desired regulatory results. In other words, legislative quality is synonymous to effectiveness of legislation. The tools to achieve effectiveness are clarity, precision, and unambiguity. These are achieved via plain language and gender neutral language. This paper will define legislative quality, will explore its tools, and will refer to the modern perceptions of good law, such as efficacy, effectiveness, easification, and methodology of drafting.
Legislation as a procedure of rational decision-making deserves to become a preferential research field in criminal justice policy and criminology. The evolution of criminal legislation over the last decades shows how strongly legislative decisions are influenced by opportunistic, populist and shortsighted public demands or political interests. Any attempt to build patterns of rational lawmaking in criminal justice policy, however, requires a deep knowledge of the sociological and legal process that leads to take legislative decisions, as well as of the social actors and institutions that are decisive along this process. Accordingly, the differentiation between three stages within the legislative process—a pre-legislative, a legislative, and an evaluative stage (each of them could be further split into various sub-stages)—has already proved its analytical capability. It is taking into account the dynamics of this legislative process that the implementation of a model of rational legislative decision making should take place. At first sight, a rational legislative decision on issues concerning social control is one that pays due attention to all the relevant facts of the social and legal reality on which such a decision intends to have an influence. A more precise analysis allows us to identify five levels of legislative rationality (along with a transversal dimension where the compatibility of the rationality demands arising from each level is assessed): the ethical, the teleological, the pragmatic, the systematic, and the linguistic level. Provided that this model of legislative rationality is accepted, an additional task is to check what role the contents of each level of rationality have to play in the already mentioned stages and phases of the legislative process.
11:30 h. Coffee break
In legislative theory, legislation is approached from roughly two different models: law as symbol vs. law as instrument. Each model offers its own specific perspective from which in concrete cases legislation can be described and evaluated. In the law as symbol (LAS) model legislation is seen as an ongoing communicative and interactive process in which various actors in society—the legislator, officials and citizens—work together on an equal level to create and implement legislation. In the law as instrument (LAI) model legislation is conceived, on the other hand, as a command that is issued by the legislature, from a position above or outside society, in order to achieve a specific policy goal. In my paper I will compare and assess these two models. How can these models be distinguished from each other? What are the normative implications of this distinction, in particular with respect to the authority of law? As I will argue, these models are not mutually exclusive but are co-dependent on each other. For law to function as a command (according to the LAI model), the legislature has to succeed in communicating its message to society. Conversely, to become a convincing symbol (within the LAS model), the law cannot remain a matter of discussion forever; the process of communication and interaction has to stop at some point and the law has to be applied unilaterally and enforced in case of non-compliance. Moreover, I intend to demonstrate that both models have difficulties in explaining law’s authority. How can a command or communication in itself generate legal duties? What is missing in both models, in my view, is a reflexion on the role ideology plays within the law. Before one can give commands to citizens (in the LAI model) or enter into meaningful conversations with them (in the LAS model), the existing order has to be accepted as a legitimate, legal order. In other words, law has to presuppose its own authority but cannot produce it—only ideology can.
I will argue that balancing is the core of rational lawmaking. Balancing has been intensively analysed as a form of judicial reasoning. Legislative balancing, however, has features that are distinct from judicial balancing. Three of them are especially remarkable: openness, purity and complexity. Legislative balancing is “open” because the legislator may, in general, pursue its political objectives without further legitimation and is not necessarily bound to consider only legal principles. It is “pure” insofar as the issue of control and its effects on the structure of balancing is not present in legislative balancing. And it is “complex” for it is not restricted to claims advanced in a judicial procedure. The aim of this contribution is to explore the distinctive features of legislative balancing as a method of rational decision-making. In particular, I will analyse complex problems of balancing and ask in which way the model of balancing that has been developed for the elementary case of two principles in conflict must be amended or modified in order to cope with more complex problems of balancing.
13:30 h. End of the morning session
Many legal theorists consider “proportionality” to be the core of legal reasoning. In other words, solving “hard cases”, which lack a straightforward legal answer, implies developing a balance among different colliding legal principles. Those principles underlie the several rules that apparently might be applied at the same time to a particular case. The “proportionality judgment” provides criteria to the courts to decide which principle, and therefore, which rule has to be preeminent in each particular case. The main aim of this paper is to take advantage of the current legal reasoning studies about proportionality to infer some guidelines to improve the law-making process. Before dealing with this, the paper will refer to two “misconceptions of legislation”. The first is to exclude the law-making theory from the field of legal theory. Indeed, some moral, institutional, theoretical and methodological reasons support its inclusion. The second misconception is to confine the study of legislation only to the state-nation context. After that, the paper will inquire to what extent the proportionality approach might provide standards for a legisprudential research. The first sort of problems to face is that the “principle balancing theory” raises some doubts related to its objectivity. The second kind of problems are related to the outstanding differences between legislative and applicative reasoning regarding the use of proportionality. For instance, while judges and courts should use the proportionality test to exercise a negative or veto control function of legislation, legislators use this method, among other things, to select from several political goals.
In a number of publications appeared more than a decade ago (e.g. «Practical Reason and Legislation», Ratio Juris 5 (1992): 269 ff., or «Legislation and Argumentation», in The Theory and Practice of Legislation, Ashgate, 2005: 297 ff.), I suggested a two-level model for the analysis of legislative argumentation (particularly, as this argumentation is practiced within parliaments). This model combines two major perspectives. On the one hand, it attempts to reconstruct the process of legislative argumentation: to this purpose I outlined a framework or scheme that accounts for the different stages of a legislative discussion; for the issues or questions raised at each stage; for the arguers’ attitudes towards these questions (basically, approval or refusal); and for the reasons advanced for and against these attitudes or positions. On the other hand, my original model entailed the selection, for empirical analysis, of a portion or fragment of the complex activity of arguing about legislation—in other words, the selection of the argumentation carried out by one of the participants with regard to one of the issues upon focus. Drawing on this previous work, my objective now is to further develop and to reformulate this model in the light of a specific example of legislative argumentation, i.e. a real “legislative case”, namely the deliberations over the proposal of an act on surrogate motherhood recently submitted to the Spanish parliament. This will in turn make it possible to perform, in a systematic manner, a comparative analysis of legislative and judicial argumentation. While such an analysis is likely to confirm significant, more or less apparent differences between both types of argumentation practices, these differences do not preclude, in my view, the possibility of a general, comprehensive theory of legal argumentation (a theory which reaches beyond judicial and dogmatic reasoning and covers, inter alia, the making of law). Quite the reverse: by delving into the study of legislative argumentation, we may well find strong support for a more complex and less “unifying” conception of legal or juridical reasoning than the one that usually underlies the so-called “standard” theories of legal argumentation.
The quality of the lawmaking process—a key legisprudential concern—is becoming an increasingly relevant factor in the judicial review of statutes. Yet, legislative deliberation in parliament, while being a central part of this process, plays a rather marginal role in such a “procedural turn”. Courts may eventually resort to parliamentary discussions as an interpretative aid, but are not expected to assess them; and it is only very exceptionally that the quality of parliamentary debates has been used as an argument to uphold or to void a statute. Indeed, there are strong institutional reasons not to have judges questioning the deliberative performance of elected legislators. In a culture of justification, however, judicial indifference to the quality of legislative deliberation has something puzzling, for it sends a discouraging message to both MPs and their constituencies—“it does not really matter whether or not, or how well or badly, bills are debated”. More significantly, it seems to imply the notion that parliamentary sittings are not a proper source of legislative justification or can have no bearing on the interpretation of basic rights. In constitutional democracies, this misconception might even weaken the legitimacy of judicial review—if laws that were duly considered in parliament are struck down or, conversely, if courts are too deferential to undebated decisions. Thus, a judicial focus on parliamentary debates could be, after all, less eccentric than it appears. In that connection, this chapter explores what room there should be—if any—for arguments based on the quality of legislative deliberation within the judicial review of statutes, and discusses the difficulties that the appraisal of this quality involves. Both issues prove critical to legisprudence as a theory which claims to take both (elected) lawmakers and constitutional rights seriously.
17:15 h. Coffee break
The importance of ‘knowledge’ (i.e. something more than mere information) within legislative processes seems almost self-evident but is, I believe, seriously underestimated. Legislation is a complicated and dynamic information process that relies heavily on knowledge (i.e. the understanding of how one can use information to intervene in or affect the real world). Legislation is most of the time the result of a complex decision making process in which various interests and aspects (legal, political, policy-related, financial, economic, etc.) are weighed and balanced. Combining these interests and aspects requires communication, information, and especially a great deal of knowledge that allows relevant information to be used, linked, considered and weighed. Even though legislative processes are very ‘knowledge-intensive’, legislative projects—in a lot of countries—deal with knowledge management in a relatively casual manner. Experiences gained in former or similar legislative projects are rarely assessed, re-used or systematically recorded.(1) Besides, there is hardly any true ‘legislative’ evaluation—i.e. academically sound research and analysis on the effects of legislation. When legislation is evaluated in the Netherlands (a country that prides itself for its legislative policy), for instance, it is mostly the success or failure of the policies enshrined in legislation that are being studied, not the effect of legislation (as opposed to other instruments of governance) itself. Evaluation results are as a rule used on a once-only basis for policy adjustments of the project evaluated itself. Re-use of evaluation results for other projects or syntheses of various evaluation studies hardly ever occurs. Systematic and long-term analysis of legislative processes is rare. This lack of attention for the ‘knowledge’ factor in legislation and the associated risks (‘brain of knowledge drain’) is characteristic for all stages of legislative processes in the Netherlands, ranging from the ministerial preparatory phase (including the Council of State consultation procedure) and the adoption stage and the subsequent enactment, implementation, and enforcement stages of a statutory regulation and the potential evaluation and feedback of the evaluation results. I believe a lot of other parliamentary systems face the same situation. In most of these parliamentary systems— in and outside Europe—legislation and legislative studies are still a very underdeveloped academic discipline as well. Whether or not this is the result of the benign neglect for academic ‘legislative’ research within the legislative process (in which legislation—as a legitimacy bringing decision-wrapping—is treated more or less as a black box) need not concern us here, but it is striking that most of the literature on legislation and legislative processes concerns itself with the (constitutional-legal) procedural rules, the practical skills of drafting, the dynamics of policy-cycles (agenda setting, inception, implementation, etc.), insights in enforcement (the academic insights predominantly coming from the quarters of criminology) and the deployment of political power (how it is amassed and used to intervene—intervention theory, regulatory governance etc.). Everybody will agree that legal skills and insights are important for legislation and legislative processes but academic curricula do not really dedicate much attention to legislation, let alone the insights yielded from ‘foreign’ disciplines like criminology, political science or public administration. Although more than 90% of all law nowadays in continental systems is enacted law, resulting from highly volatile legislative processes, less than 10% of legal education is dedicated to teaching and understanding legislation and legislative processes as the predominant source of law. Looking at the curricula of Law Schools throughout civil law systems in the world one would get the impression that the most important source of law is case law—because this is what is mostly thought in Law Schools. Where in reality more than 90% of law is enacted law (even in most common law systems nowadays) academic curricula devote at least three quarters of the available time on studying case law (directly or indirectly) as the primary source of law and the predominant indicator of legal development (which it is not). Some countries, like the Netherlands, have tried to reverse this situation, by offering electives or masterclasses on legislation in master programmes. The Netherlands can even boast a Legislative Academy. However, in these elective courses and the programme of the Legislative Academy (or other post-initial forms of legislative teaching) only very modest steps are taken on the way of a true understanding of the effects of legislation. The programmes are not to be blamed for that: there is simply too little academic research as of yet available at this moment. And we do need to remedy that if we want to understand the nature and the effects of present-day law.
(1) This also holds true for the re-use of policy experiences and evaluation results too. Only under the impetus of the call for “evidence based” decision making the focus in the evaluation community sharpened on the (re)utilization of evaluation results. See Ian Sanderson, «Evaluation in Complex Policy Systems», in: Evaluation 6(4): 433–454 and F. Leeuw, «Policy Theories, Knowledge Utilization and Evaluation», in R.C. Rist (ed.) Policy Evaluation: Linking Theory to Practice. Aldershot: Edward Elgar, 1995.
My article will discuss legislation (or legisprudence) as an area of legal education and legal research. The article will focus on the US, with some comparative references to legislation in legal education and research in Europe and Israel. It appears that while there have recently been a handful of articles that attempted to define the field of legisprudence in continental Europe, a comparable work that will discuss the state of the field in the US is still missing. This article will fill this gap. The article will make two main contributions to the scholarship about legislation as a field in legal research and education. The first is to explore the state of this relatively new field and to trace its development. I will first ask whether this is really a new field. My argument will be that this field in fact has deep and respectable historical roots, but that the field has been neglected for at least a century. I will also argue that the field reemerged at the end of the 20th century and that it is beginning to blossom during the 21st century. I will also explore some of the reasons for the long neglect of legislation in legal education and research, as well as the reasons for its recent rebirth. I will also argue that because the field is relatively new (or at least has been reborn relatively recently), this emerging field is still not clearly defined, particularly in the US. Hence, the second contribution will be to contribute to the development of this field by defining the field, discussing its main areas of research, and proposing avenues for future research.
19:00 h. End of the afternoon session
Sat 24 Feb
Nudging as an alternative to command-based regulation has become increasingly popular worldwide in the last few years. Thaler and Sunstein have defined “nudges” as economically-neutral behavioural interventions employed to improve individuals’ self-judged well-being, thus respecting their autonomy and fitting a form of “libertarian paternalism”; they influence choice architecture in order to circumvent the mistakes of intuitive and automatic thinking and to produce more rational choices. However, this definition overlooks the substantial differences between nudge tools and their respective impact on autonomy and fundamental rights. Moreover, it cannot be taken for granted that nudges are less intrusive policy instruments if compared to traditional regulatory means (i.e. legal duties and prohibitions). Lastly, nudging often serves purely paternalistic (non-libertarian) ends, as well as non-paternalistic ends, i.e. collective policies and aims. In this latter case, constitutional courts can even find the legitimacy of the aims less controversial than paternalistic purposes. Despite these theoretical issues, nudging is very popular in practice in several and multifaceted domains such as food, health, financial services, education, environmental protection, technology, energy exploitation, transports, and so forth. Nudging is represented as a smart and efficient soft law tool in the current mainstream. The European Commission-funded FP7 project called “Nudge-it” and the Global Insights Initiative (GINI) of the World Bank are two well-known and paradigmatic examples that show also its impact and the turnover and investments of institutions on nudging. In our analysis, some cases of its application to food and waste recycling will be investigated in order to discuss both their embedded models of agents and related assumptions, and the relationships of nudging with risk attitudes, information, and incentives.
Special interest legislation (SIL) is terra incognita to legisprudence. Although many scholars and experts agree that lobbyism exists and has certain impact on legislation, most of time it is not treated as a phenomenon that merits closer consideration. Possible reasons for this unfortunate hesitation are highly politicised debates, the belief in the sovereignty of law, the reprobation of lobbyism, avoidance of undue exposure to an inherently sensitive issue, and the usual difficulty to deal with an interdisciplinary subject. The widespread disregard of the issue by academia, however, has the disadvantageous effect that, so far, it has been left largely to political pamphlets and the popular press, only with the principal exception of Public Choice Theory and US studies of law and economics. In my paper, I will argue in favour of an unbiased analysis of the input and output of legislation in terms of competing societal and economic interests and work towards establishing the legal foundations as well as the limitations to special interests in legislation. My focus will be on German Constitutional Law with glances towards EU and US Law. Contrary to popular opinion, critical attention for the issue of SIL does not necessarily stem from a populist bias. More on the converse, it is consistent with contemporary pluralism, precisely because this theory of modern society encompasses and accepts the conflict of interests. Thus, opponents of SIL do not originate exclusively from the circles of believers in the neutral power of the state, but also from the neoliberal critics of the welfare state who emphasise the inseparable relationship between state intervention and vested interests. Thus, sceptics of the minimal state must be aware of the “special interest effect” of regulation and search for a balance between public interest legislation and interest-driven policies. In the second part of my paper, I will suggest constitutional law arguments in defence of the articulation of interests on the one hand and constitutional law criteria setting limits to SIL on the other hand. Although there is no explicit ban on SIL, limitations arise from the restrictions on special, individualised legislation, the equal-protection principle and the prohibition of arbitrary action. Moreover, the principles of proportionality and coherence contribute to a rationality control of legislation, which can help to reveal some detrimental effects of special interest influence. Another focal point will be the relationship between state aid law and SIL. While substantive criteria are a way of combating excess, supplementary procedural provisions are in place to prevent legislative capture. While the German law turns a blind eye on the issue, European politics is defining down legislative capture to a dialogue with the stakeholders. Considering ongoing developments indicative of what is often termed as post-democracy, the prevailing indifference towards SIL and legislative capture weakens the legitimacy of legislation, leaving legisprudence in the role of absent-minded observer.
10:45 h. Coffee break
Regulatory law—and lawmaking—has always proved to be a baffling phenomenon for jurists. The proliferation of materialized and, at the same time, particularized rules does not square well with dominant legal ideology, and is often described in terms of unceasing “regulatory tides” that, for some scholars, have placed the law in front of “an announced death”. However, despite attacks and criticisms, regulatory law is still there—perhaps because the risks that it attempts to cope with are more real than legal ideologies. This paper addresses this controversial mode of lawmaking from the perspective of economic regulation. As the financial and economic crisis originated in the past decade has shown, regulatory law seems to have the capacity to adapt to instable circumstances—by taking different forms, and even by opening up novel spaces for regulatory intervention. And that is what makes it necessary to explore the “new paths” of regulatory law. After briefly discussing the difficult position and the prospects of economic regulatory law, I set out to analyze some emergent forms of lawmaking in this area, and to explore how regulatory techniques have developed at the various levels of (economic) governance. Particularly, I shall argue, these techniques have evolved into a new paradox: the boom of privatization of regulatory “law”—at the state level, but especially at the international level.
This paper discusses the relationship between legislation and citizenry, on the basis of a concept of citizenry inspired by Niklas Luhmann’s theory of functional differentiation and of the relationship between communication and perception. It gratefully takes up the distinction between sociological, socio-legal, and social domains of debate. On a sociological level, the issue is the function of legislation in modern society. This has to be tackled in consideration of the discussion of the communicative conception of legislation (topic of B. van Klink’s contribution). Beyond the common places on the poor social knowledge about legislation and on its un-effectiveness, its role in the production of discourses about our complex modern social reality, and in the constitution of individuals positioning themselves in that reality should be theoretically more precisely identified and empirically studied. On a socio-legal level—in those arenas where sociologically interested jurists meet sociologists specialized in socio-legal research—several factors may explain how marginal the issue of legislation remains. Preference is given to law in action as opposed to law in the books, and to legal pluralism, as opposed to state law. Legislation may be perceived as located in the political domain, where jurists do not play a central role. This issue, however, deserves more attention, if one wants to give an appropriate account of the work of jurists in modern society, challenged to participate in procedures of very different nature, where they have to play with texts of very different types, and to cooperate with many different professions. On a social level, where measures aiming at dealing with inequalities are at stake, one crucial question is the one of the access to the legislation as part of the broader topic of access to law and justice. Here it could be worth defending, beyond plain text information of non-specialists, to revisit the relationship between specialists and non-specialists. At a time when populist trends feed hostility towards expert knowledge, it is urgent to explore ways of facilitating direct access to legislation also to non-specialists, and of empowering them in their relationship to jurists, even if the role of them remains, admittedly, crucial in a complex society.
12:30 h. Closing words
The workshop is open to interested scholars and practitioners. Yet, for organizational reasons, attendance has been limited to 20 registered participants. The registration fee is 70 € until January 7th 2018 (100 € afterwards), and must be paid via bank transfer to the following account:
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Revised, peer-reviewed papers will be published as a contributed volume in the Springer’s Legisprudence Library. A Spanish version of the book will subsequently appear at Tirant lo Blanch.
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This workshop is organized by the University of Zaragoza’s Legal Sociology Lab (Department of Criminal Law, Legal Philosophy and Legal History) with the kind support of the University of Zaragoza, the Faculty of Law of the University of Zaragoza, the Manuel Giménez Abad Foundation (Parliament of Aragon), and the publishing houses Springer and Tirant lo Blanch.